People v LaFortune

[*1] People v LaFortune 2009 NY Slip Op 50469(U) [22 Misc 3d 1136(A)] Decided on February 25, 2009 Nassau Dist Ct Bruno, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 25, 2009
Nassau Dist Ct

The People of the State of New York, Plaintiff,

against

Woody LaFortune, Defendant.



2008NA029348



REPRESENTATION:

Kathleen M. Rice, District Attorney of Nassau County, 99 Main Street, Hempstead, NY 11550

Kent V. Moston, Attorney in Chief, Legal Aid Society of Nassau County, NY, One Helen Keller Way, Hempstead, NY 11550

Robert A. Bruno, J.

DECISION AFTER HEARING

The defendant is charged with one (1) count of violating §120.14(1) of the Penal Law as a class A misdemeanor, menacing in the second degree.

On January 29, 2009, upon stipulation of both parties, this Court conducted a Huntley hearing.

The People called one (1) witness to the hearing, Detective Celentano. The defendant did not call any witnesses. Based upon the testimony of Det. Celentano, the Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

This Court, as well as counsel for the defendant, finds the testimony of Det. Celentano to be credible. Det. Celentano is currently a twenty-two (22) year veteran with the Nassau County Police Department and prior to that time he served five (5) years with the New York City Police Department.

On November 4, 2008, Det. Celentano was working the 4:00 p.m. to 2:00 a.m. tour in Nassau County, New York, in the 5th Precinct. On November 4, 2008 the defendant called Det. Celentano to discuss a domestic incident that occurred two (2) days prior on November 2, 2008. This was the [*2]first time Det. Celentano ever spoke with the defendant. Det. Celentano testified that the defendant just wanted to know what was going on and Det. Celentano explained that the defendant's girlfriend filed a domestic incident report against him and Det. Celentano did not have a chance to speak with the defendant's girlfriend yet. Shortly thereafter the defendant voluntarily arrived at the 5th Precinct and requested to speak with Det. Celentano at approximately 4:30 p.m.

When the defendant arrived, Det. Celentano advised him that he didn't need to talk to him that day since he didn't have a chance to talk to the defendant's girlfriend and didn't know the circumstances behind what went on but if the defendant wanted to talk, he would listen.

Det. Celentano testified that the meeting with the defendant lasted about thirty (30) minutes and during that time, the defendant made a statement that was reduced to writing and executed by the defendant and witnessed by Det. Celentano, said statement was admitted into evidence as People's Exhibit 1.

Det. Celentano testified that the defendant was never in custody and was free to leave at any time. Det. Celentano further testified that he spoke to the defendant in a normal tone of voice, he was not restrained or threatened, no force was used, no promises were made and no weapons were drawn. At no point in time did Det. Celentano ever intend to place the defendant under arrest. After the defendant signed his statement, Det. Celentano shook his hand, thanked him for coming in and walked him downstairs. On cross examination, Det. Celentano admitted that the defendant read the statement, to himself silently and was never advised as to his Miranda rights.

CONCLUSIONS OF LAW

It is well settled that the burden of proof as to the voluntariness of defendant's statement is on the People. The Court must find voluntariness beyond a reasonable doubt before the statement can be submitted to the jury. See, People v. Huntley, 15 NY2d, 72 (1965).

In order to evaluate the voluntariness of defendant's statement, the Court must first determine whether defendant's presence at the 5th Precinct constitutes a custodial detention.

The test used to determine whether a defendant is in custody is based upon whether a reasonable person in the same situation as the defendant, innocent of any crime, considers himself in custody. In an analogous case, People v. Stricker, 172 AD2d, 635, 568, NYS2d 437 (2d Dept. 1991), leave to appeal dismissed, 79 NY2d 864 (1992) appeal denied, 80 NY2d 839 (1992), the defendant and his companions voluntarily consented to accompany the police to the police station to answer questions regarding a homicide. While at the police precinct, the defendant was identified as a result of an inadvertent encounter. The defendant moved to suppress the identification testimony of the witness and the Court denied same stating,

The uncontradicted testimony of the arresting officer demonstrated that the defendant and his companions voluntarily and without objection consented to accompany the police to the station house to answer questions, and that the defendant was not placed in custody until after the witness identified him. The mere fact that the defendant may have felt obliged to cooperate with the police [*3]in order to maintain an appearance of innocence does not call for a different conclusion (see, People v. Prahl, 124 AD2d 607, 507 NYS2d 750).

Similarly, in People v. Yukl, 25 NY2d 585, 307 NYS2d 857 (1969), the defendant notified the police that he found a dead body. After the police arrived at the scene, they suggested that the defendant and his wife accompany them to the police station because there would be less disturbances there. The defendant was questioned at the police station, in the squad room, by various detectives for over three and a half (3 ½) hours. Thereafter, the defendant was advised of his constitutional rights which he subsequently waived and confessed to the murder.

In deciding whether a defendant was in custody prior to receiving his warnings, the subjective beliefs of the defendant are not to be the determinative factor. The test is not what the defendant thought, but rather what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position. (1. Hicks v. United States, 127 US App. DC 209, 382 F.2d 158; see, also, People v. Rodney P. (Anonymous), 21 NY2d 1, 286 NYS2d 225, 233 NE2d 255; Williams v. United States, 9 Cir., 381 F.2d 20; Fuller v. United States, 132 US App. DC 264, 407 F.2d 1199; State v. Seefeldt, 51 N.J. 472, 242 A2d 322; Conyers v. United States, 237 A2d 838 (D.C. Ct. Of App.); State v. Bower, 93 Wash. 2d 634, 440 P.2d 167). Moreover, the fact that a defendant is being interviewed in the police station does not necessarily mean that he is to be considered in custody'. United States v. Bird, 293 F. Supp. 1265; Frije v. United States, 1 Cir., 408 F.2d 100; Hicks v. United States, supra .) This is merely one of the factors to be considered in reaching the ultimate conclusion. (People v. Yukl, supra , at page 589).

The Court of Appeals is People v. Yukl, supra , concluded by stating that prior to the defendant being advised of his rights during the three and a half (3 ½) hour interview at the police station, the defendant was not in custody.

In Hicks v. United States, supra , the defendant called the police to report that the man with whom she was living had been stabbed. When the police arrived they found the man dead from a stab wound in the chest. The defendant told police that the decedent said he had been stabbed by some jitterbugs' during a robbery. In response to a police request, the defendant consented to accompany the officers downtown' and give a statement. The interview, which was not preceded by Miranda warnings, consumed about two (2) hours and forty-five (45) minutes, including several interruptions. A statement was reduced to writing and the defendant signed it. Then, while awaiting a ride home, she blurted out a confession that she had stabbed her husband. The Circuit Court of Appeals for the District of Columbia, applying the test mentioned above, found the defendant not to have been in custody and held the confession admissible. (People v Yukl, supra ).

In State v. Bower, supra , ownership of the car believed driven by the perpetrator of an armed robbery was traced to the defendant. He answered a few questions of the police at his home and then consented to go downtown to continue the interview. On the way downtown he changed his story. Not until they had arrived at the police station did defendant receive any warnings, at which time he confessed. His confession was held not to be the product of custodial interrogation. (See, also, State v. Seefeldt, supra .) (People v Yukl, supra .)

In the instant action, it is uncontroverted that the defendant, unsolicited, voluntarily went to the police station and requested to speak with Det. Celentano, gave a statement and then left. The defendant was arrested the following week. Therefore, at the conclusion of Det. Celentano's [*4]testimony, it is clear that the defendant was not in custody when he made the statement (People's Exhibit 1)[FN1] and the statements were voluntary and not the result of a custodial detention or interrogation.

Accordingly, the defendant's motion to suppress his statement is denied.

SO ORDERED:

__________________________________

DISTRICT COURT JUDGE

Date: February 25, 2009

cc: Kathleen M. Rice, District Attorney Nassau County

Kent V. Moston, Legal Aid Society of Nassau County Footnotes

Footnote 1: This Court has also taken notice of the fact that the statement (People's Exhibit 1) the defendant signed begins with the following paragraph "I have been told by the Detective that I have the right to remain silent and that any statements I make may be used against me in court. I have been told that I have the right to talk with a lawyer before answering any questions or to have a lawyer present at the time. Further, I have been advised that if I cannot afford to hire a lawyer, one will be provided to me and I have the right to keep silent until I have had the chance to talk to a lawyer." Therefore, even though this Court finds that Miranda warnings were not required, it appears that the defendant was made aware of his Miranda rights, prior to executing his statement.