People v Zalevsky
Annotate this CaseDecided on January 4, 2007
Supreme Court, Kings County
The People of the State of New York
against
Gregory Zalevsky, Defendant.
4320/04
Attorney for the People:
Charles J. Hynes
District Attorney, Kings County
350 Jay Street
Brooklyn, NY 11201
by ADA Jonathan Kaye
Attorney for the defendant:
Terence Sweeney, Esq.
225 Broadway, Suite 2500
New York, NY 10007
Matthew J. D'Emic, J.
Defendant is charged, under Indictment 4320/04 with the murder of his girlfriend Irina Ilyina, and under indictment 4408/04 with assault and gun possession in an unrelated case. A Huntley hearing was held before the court on October 16, 27 and November 6, 2006. Testifying credibly at the hearing were Detectives Anthony Petrocelli, John Kenny and Michael Hopkins, retired police officer Daniel Sullivan, and retired police lieutenant Anthony DiScala.
FINDINGS OF FACT
Sometime in the morning of July 6, 2004, relatives of
Irina Ilyina arrived at the 60th Precinct to report her missing.
At that time, the family advised Detective John Kenny that
Ms. Ilyina was from Marlboro, New Jersey and that she was in a relationship with the defendant Gregory Zalevsky, who was the last person known to be with her. After taking the information from the family, Detective Kenny left the precinct to go to Riker's Island on another case.
At about 3:30 that afternoon, Police Officer Daniel Sullivan was on routine patrol in the 60th Precinct when he received a radio run of an assault in progress. Arriving at the scene, he saw a large crowd and spoke to Dalton Samuels, a peace officer, who told Officer Sullivan that he was assaulted by a person later identified as the same Gregory Zalevsky mentioned by Ms. Ilyina's family. Officer Sullivan arrested Mr. Zalevsky for the assault and recovered a loaded gun from his shoulder bag. He was taken to the precinct, arriving at about 4:00 PM.
Mr. Zalevsky was brought to the detective squad office where Detective Anthony Petrocelli, along with Police Officer Murriell began to interview him at about 4:15 PM. Detective Kenny had not yet returned. Detective Petrocelli began the questioning by attempting to obtain pedigree information from the defendant but he was not forthcoming. The detective [*2]tried to obtain defendant's address, and defendant, after long pauses and periods of silence
gave his address as 501 Surf Avenue. Police Officer Murriell then left the police station to canvass that address in an attempt to find the missing person, Ms. Ilyina.
Sometime into the interview, Detective Kenny arrived back from Riker's Island. Having been apprised of the arrest of Mr. Zalevsky, he joined the questioning as the detective assigned to lead the hunt for Ms. Ilyina.
Detectives Petrocelli and Kenny asked the defendant if he knew where Ms. Ilyina was but received no answer. At no time did they question him about the assault or gun charges. All questions focused on finding Irina Ilyina. At some point, defendant's father was brought to the precinct to see if he would help gain defendant's cooperation - to no avail.
Meanwhile, Police Officer Murriell called to advise the detectives that the defendant had not given his true address. Confronted with this, the defendant gave his address as 2780 West Fifth Street and told the detectives that Ms. Ilyina was upstairs in the bed. Officer Murriell was directed there and she called a few minutes later to tell the detectives that Ms. Ilyina was found dead. The detectives told this to the defendant who then said he needed help because he had a fight with her resulting in her death.
Detectives Petrocelli and Kenny ended the interview at that point and went to the defendant's apartment.
Detective Kenny later returned to the precinct. At about 9:43 PM, he, assisted by Brooklyn South Homicide Detective Michael Hopkins again interviewed the defendant. At this time, the detectives read the defendant his Miranda rights from a sheet of paper and the defendant indicated he understood each right, writing "yes" next to each formal question. He then made a statement detailing his relationship with the deceased and the events surrounding her death. He did not sign a written statement, but at about 2:30 the next morning he was again advised of his Miranda rights by Assistant District Attorney Jonathan Kaye and made a videotaped statement substantially the same as the one given to Detectives Kenny and Hopkins.
CONCLUSIONS OF LAW
Generally, statements made during questioning while a defendant is in custody are not admissible as evidence unless he is advised of and intelligently waives his right against self-incrimination (Miranda v Arizona, 384 US 436). There are limited exceptions to this rule, however, which is not a constitutional right, but, rather a measure to protect accused persons from police overreaching (Michigan v Tucker, 417 US 433).
In this case, there is no question that the defendant was in custody. In fact, he had been arrested for assault and gun possession. Those charges, however, were not the focus of the interview and the questioning involved only defendant's pedigree and his knowledge of the whereabouts of a missing person, Irina Ilyina. The detectives were not concerned with incriminating the defendant on the arrest charges; their concern lie with the safe return of the missing woman to her family.
Such a situation falls within the public safety exception to the Miranda rule set forth in New York v Quarles, 467 US 649, where the court held "that the need for answers to questions in a situation posing a threat to public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination". While this exception is directed to the safety of the public generally, it also applies to the safety of individuals in danger, and questions prompted by a concern for the safety of a victim whose life may be in danger fall [*3]within the public safety exception to Miranda (see: People v Krom, 61 NY2d 187; People v Cowell, 11 AD3d 292; People v Swoboda, 190 Misc 2d 214; People v Manzella, 150 Misc 2d 956). The reasoning is that the victim's safety overrides the accused's silence.
Some courts refer to these instances of concern for an individual as opposed to the public as the "rescue doctrine" in which "exigent circumstances may excuse compliance with the Miranda rules in instances of overriding need to save human life or to rescue persons whose lives are in danger." People v Riddle, 83 Cal. App. 3d 563.Courts have upheld this "rescue doctrine" where
there is an urgent need to preserve human life and the police are motivated by rescue not an attempt to incriminate. (See: State of Main v Lockhart, 830 A.2d 433; Smith v State of Alabama, 646 So. 2d 704; State of Kansas v Drennan, 101 P.3d 1218; State of Minnesota v Provost, 490 NW2d 93).
In this case, the police received the report that Ms. Ilyina was missing the morning of defendant's arrest. They were told he was the last person seen with her and that her car was parked on the same block as his arrest. Thus there was urgency to their actions in that a person's safety was in jeopardy, which was the sole motivation for their questioning. As was stated in State of Arizona v Londo, ____ P.3d ____ " while life hangs in the balance, there is no room for admonitions concerning the right to counsel and to remain silent."
For these reasons, defendant's statements will not be suppressed. In any event, defendant was given his Miranda warnings by the detectives at 9:43 PM, about four hours after his initial interview and again at 2:30 AM by the assistant district attorney some nine hours later, after which he made statements orally and on videotape. The statements were made after defendant was advised of his rights and are sufficiently attenuated from statements made during the initial interview to be admissible (People v Cowell, 11 AD3d 292; People v Duncan, 295 AD2d 433). Defendant's claim that his father's presence in the precinct vitiated his will is without merit.
This constitutes the Decision and Order of the court.
____________________________
Matthew J. D'Emic
J.S.C.
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