Matter of Abraham R.

[*1] Matter of Abraham R. 2009 NY Slip Op 50490(U) [22 Misc 3d 1138(A)] Decided on March 20, 2009 Family Court, Queens County Hunt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through March 31, 2009; it will not be published in the printed Official Reports.

Decided on March 20, 2009
Family Court, Queens County

In the Matter of Abraham R., A Person Alleged to be a Juvenile Delinquent, Respondent.



D-19746/08



Michael A. Cardozo, Corporation Counsel (Vanessa M. Facio-Lince of counsel), New York City, for Presentment Agency. Joel E. Hashinsky, South Richmond Hill, for respondent.

John M. Hunt, J.

I

By petition filed on August 13, 2008 respondent is alleged to have committed acts which, were he an adult, would constitute the crimes of Burglary in the Second Degree, Criminal Possession of Stolen Property in the Fourth Degree, Petit Larceny and Criminal Trespass in the Third Degree.

Respondent has moved for an order suppressing the introduction of a statement he made to law enforcement officials at the fact-finding hearing upon the ground that such statement was involuntarily made or obtained in violation of Family Court Act §305.2.

Upon a motion to suppress a statement as involuntarily made (Fam. Ct. Act §344.2 [2]; Criminal Procedure Law §60.45 [2]), or as obtained in violation of Family Court Act §305.2 [*2](Fam. Ct. Act §344.2 [2] [b] [iii]), the Presentment Agency has the burden of proving beyond a reasonable doubt that the statement was voluntarily made and lawfully obtained (People v. Rosa, 65 NY2d 380, 386 [1985]; People v. Witherspoon, 66 NY2d 973, 974 [1985]; People v. Comfort, 6 AD3d 871, 872 [2004]).

A In order to determine whether respondent's statement was voluntarily made and lawfully obtained, the Court conducted a hearing on March 5, 2009. Detective Kevin Hogan of the New York City Police Department was called as a witness by the Presentment Agency. Respondent called his mother, Francine Fogarty, as well as Calvin Muhammed to testify on his behalf.

Based upon the evidence adduced at the suppression hearing, the Court makes the following findings of fact and conclusions of law.

Detective Kevin Hogan has been a member of the New York City Police Department for 24½ years and he has held the rank of Detective for the past 6 years. Detective Hogan is presently assigned to the Detective Squad at the 107th Precinct which is located in Queens County. As an experienced police officer, Detective Hogan has participated in 400 to 500 arrests during his career and he has had the opportunity to take "dozens" of statements from alleged juvenile delinquents who have been placed in custody by police officers.

Detective Hogan was on duty at the 107th Precinct Detective Squad on March 15, 2008 and was investigating a report of a residential burglary which had occurred on March 1, 2008 at the apartment of a "Mr. Watson". Detective Hogan received a telephone call from someone who identified himself as "Michael R." in the late morning of March 8, 2008 and who informed Detective Hogan that he is the father of Abraham R., an individual who was suspected of [*3]involvement in the March 1st burglary of Mr. Watson's apartment. According to Detective Hogan, Mr. R. inquired whether he could bring Abraham to the precinct to speak with the Detective that afternoon about the burglary and they agreed that they would meet early that afternoon.

Detective Hogan explained that the March 15, 2008 telephone call from Michael R. was not unexpected given that detectives from the 107th Precinct had been attempting to contact the persons suspected of being involved in the March 1, 2008 burglary, including Abraham, in order to obtain information. Hogan, who was the lead detective on the Watson burglary investigation, testified that on March 3, 2008 which was two days after the incident, one of his colleagues, Detective James Woods, visited an apartment in Queens County where it was thought that Abraham R. might reside with his family based upon information provided by the arresting officer and another officer, Detective Thomas. According to Hogan, Detective Woods was unsuccessful in locating Abraham at that Queens apartment on March 3rd.

On March 13, 2008 Detective Hogan visited the same apartment in Queens where he met and had a "brief encounter" with an individual he described as "a Black female approximately 30 years of age". Although Detective Thomas had informed Hogan that Abraham R. "had a known father", Hogan did not observe any male adults at the apartment and the woman he met in the apartment never identified herself nor did she indicate that she had any relationship to Abraham. While respondent's mother fits the general description of the person Hogan states that he met at the apartment on March 13, 2008 and she was present in the courtroom throughout Hogan's testimony, he did not to identify respondent's mother as the individual he met with at the [*4]apartment.[FN1] Prior to leaving the apartment building, Detective Hogan left his Police Department business card with the apartment building doorman and with someone he thought was a security guard for the building.

Michael R. and his son Abraham came to the 107th Precinct shortly before 1:00 P.M. on March 15, 2008 pursuant to the arrangement between Mr. R. and Detective Hogan. At approximately 12:55 P.M. Detective Hogan brought Mr. R. and Abraham into the offices of the Detective Squad so that Hogan could speak to Abraham and his father about his suspected involvement in the March 1, 2008 burglary of Watson's apartment. Hogan recalled that the office he used to meet with Abraham and his father was an interview room which he described as a "plain office" containing a desk and some chairs. The room contains no detention cells and it is not located in an area in which the general public or police officers escorting or processing adult prisoners would have regular access. Hogan testified that the interview room had windows to let in natural light and that the room was also well lit by artificial light.

Detective Hogan sat behind the desk and respondent and his father were seated next to each other across from Hogan. Respondent was not handcuffed or restrained in any fashion during the interview which was conducted in the English language. It appears that Detective Hogan briefly explained the allegations of the criminal complaint, the burglary of the apartment of Mr. Watson on March 1, 2008, and then Hogan proceeded to obtain "pedigree information" from Abraham R. and his father. Hogan had no reason to question Mr. R.'s statement that he is Abraham's father, nor did Hogan have any basis to conclude that Mr. R. somehow lacked [*5]authority to act on behalf of the child as Mr. R. had telephoned Hogan, he had brought Abraham to the precinct as agreed, and he and Abraham told Hogan that Abraham's address was the same as that of Mr. R., 230 West 79th Street in Manhattan. According to Hogan, the issue of whether Mr. R. is or was married to Abraham's mother did not come up, Hogan never inquired about or learned the identity or whereabouts of Abraham's mother, and the issue of any judicial decrees relating to Abraham's legal custody was never discussed.

After pedigree information was obtained, Detective Hogan advised both respondent and Michael R. of the respondent's Miranda warnings and he provided them with a printed sheet containing the warnings. After Hogan administered the warnings which took "2 to 3 minutes", both respondent and his father indicated that they had no questions concerning respondent's rights and both agreed that Abraham would speak with Detective Hogan about the burglary. At that point Michael R. and Detective Hogan affixed their signatures to the printed Miranda warnings sheet which acknowledged that the warnings had actually been administered by the Detective. The signed warnings sheet was admitted into evidence at the hearing and it indicates the date of the administration of the warnings, the time of day (1255 hours), the location of the interview, the subject's name, the name of the officer who issued the warnings, as well as his shield number and command.

Once respondent waived his Miranda rights in the presence of his father, he was questioned about the March 1, 2008 burglary by Detective Hogan. According to Hogan, the respondent admitted his involvement in the burglary of Mr. Watson's apartment on March 1, 2008. According to Hogan, the respondent stated that he entered Watson's apartment with an individual named "Allan", and that while in the apartment he noticed an I-Pod shuffle which he [*6]took and then walked out of the apartment into the hallway. At that point, respondent stated that "he realized that what he had done was wrong" and he proceeded to put the I-Pod shuffle on the ground in the hallway in front of the door to the apartment. After respondent concluded his verbal statement, Detective Hogan had Michael R. reduce Abraham's statement to writing and both Hogan and Mr. R. signed the written statement which was admitted into evidence at the hearing. According to Hogan, the entire interview process took "1 to 2 hours" and during the course of the interview, there had been no requests by respondent or his father for a break or to terminate the interview.

The written version of Abraham's statement to Detective Hogan, as written by Michael R. and signed by the father and Hogan, which is dated March 15, 2008, 1300 hours, reads as follows:

The date was Saturday, February 1st [sic].[FN2] Abraham went into the apartment with

Alan. Abraham saw a Shuffle I-Pod. He took it and walked out with it. When he

got to the staircase, he realize it was wrong and decided to put it on the floor by

the front door of the apartment. The[n] Abraham left and told them not to take

it but they, Chris and Alan, did anyway. The next day, Sunday, February 2nd [sic],

Abraham went downstairs in the game room and was watching the kids play NBA

Live 08. Chris & Alan came down [and] asked Abraham to come and look out

for anyone coming while they went back into the apartment to take the laptop

and the charger. But Abraham said "no, I don't want to go". They went there

without Abraham and took the laptop and charger.

At the conclusion of the interview process, Detective Hogan issued a Family Court appearance ticket to Michael R. (Fam. Ct. Act §307.1 [1]), which directed that the child and his parent appear at the offices of the Department of Probation at the Queens County Family Court on March 18, 2008, and Detective Hogan then told Mr. R. to take Abraham home (Fam. Ct. Act [*7]§305.2 [4] [a]).[FN3]

Francine Fogarty, the mother of the respondent, testified on his behalf. According to Ms. Fogarty she was formerly married to Michael R. and they have one child, Abraham R., who was born in November 1997. Respondent moved a copy of what was claimed to be a "divorce decree" into evidence without objection. Upon inspection, the document that was admitted is actually a certified copy of a stipulation of settlement entered into by Francine Fogarty and Michael R. on July 24, 2003 and recorded in the office of the Clerk of the County of Queens on November 20, 2003. The stipulation contains a reference to Supreme Court Index Number 4941/03 but there is no indication that the stipulation was presented to a Justice of the Supreme Court in the context of a matrimonial action. In any event, the document provides, inter alia, that "legal custody" of Abraham is granted to Ms. Fogarty and that Mr. R. is to have "liberal visitation" with Abraham, but that if the parties were unable to reach an agreement concerning visitation then Mr. R. would have visitation with the child every weekend.[FN4]

Ms. Fogarty testified that a police detective came to her apartment looking for Abraham [*8]on March 1, 2008 and again on March 3, 2008. Ms. Fogarty described the Detective as a "6' 2" tall, bald, white male with a medium build, weighing about 180 pounds". On March 1st, Ms. Fogarty was in the hallway of her apartment building when she encountered the detective, whom she later learned was named "James Woods" or "James Woods Hogan". According to Fogarty, the Detective told her he "was looking for Abraham", and she refused to give him any infor- mation because he would not tell her why he was looking for her son. After what Ms. Fogarty claimed was "a heated exchange" with the Detective, she claims that she told him that she "wanted to speak to a lawyer" and the Detective then gave her his business card which indicated that he was Detective James Woods of the New York City Police Department and he departed. According to Ms. Fogarty, the word "Hogan"had been hand printed on the card, and for reasons not clearly explained, she thereafter apparently believed that the Detective was named "James Woods Hogan".[FN5]

After Detective Woods left her apartment Ms. Fogarty attempted to telephone Joel Hashinsky, an attorney she knew, but he was then on vacation and unavailable to speak with her. Ms. Fogarty explained that she tried to speak with Mr. Hashinsky "because police came to my house and did not tell me what it was about." Although Ms. Fogarty was unable to reach Mr. Hashinsky on March 1st, she subsequently made contact with him and retained his services for her son and Mr. Hashinsky has represented the respondent throughout this proceeding.

Two days later on March 3, 2008, Ms. Fogarty again encountered the same Detective at [*9]her apartment. Ms. Fogarty was having her apartment painted by "a contractor" and she was doing laundry elsewhere in the building, leaving her five-year-old daughter alone in the apartment with the painter. Apparently, the painter let Detective Woods into the apartment and when she returned to the apartment she observed Woods, the painter and her daughter "standing there". Ms. Fogarty testified that Woods (whom she interchangeably referred to as "Hogan") asked her " where is Abraham?'" and he told her " it is about a burglary'". According to Ms. Fogarty, she informed Detective Woods that Abraham was "with his father" and she claims that she also advised Woods that she has custody of the child and that he is not to speak to Abraham "until I speak to a lawyer". Ms. Fogarty further testified that Woods told her that she "was being uncooperative"and that if Abraham spoke with him "he would go easier on him". Ms. Fogarty then became enraged and she asked Woods "if it was legal for him to talk with her if she wanted to speak with a lawyer." Detective Woods informed Ms. Fogarty that there was nothing wrong with his speaking with her as she was not the subject a criminal investigation but was the mother of a suspect. According to Ms. Fogarty, Woods' actions made her "feel threatened" so she asked Woods leave the apartment and he complied with that request.

After Woods left her apartment, Ms. Fogarty telephoned her former husband, Michael R., who was having extended weekend visitation with Abraham at his apartment in Manhattan at the time. According to Fogarty, she and Mr. R. engaged in an "unpleasant conversation" concerning both the visits of Detective Woods to her apartment and the issue of "child support for Abraham". Ms. Fogarty recalled that six to seven minutes of the ten minute telephone call concerned the visits of Detective "Woods Hogan" and his search for Abraham at her apartment. According to Ms. Fogarty, she "did not" tell her former husband to call the Detective, but she [*10]provided Mr. R. with the location of the precinct, the name of the Detective ("Woods Hogan"), and also gave him a telephone number for the precinct which was printed on a business card given to Ms. Fogarty by Detective Woods.

Ms. Fogarty then testified that sometime between March 12 and March 15, 2008, she and Mr. R. had another telephone conversation during which she alleges that Mr. R. told her that he had spoken to a Detective at the 107th Precinct and that she told Mr. R. "not to take Abraham to the precinct". Thereafter, on or about March 15, 2008, Ms. Fogarty claims that she spoke to Mr. R. by telephone once again and he told her " too late, I took him to the precinct". The father's reference to "a Detective" in this alleged telephone conversation does not indicate the identity of the Detective he allegedly spoke to prior to March 15, 2008, and Ms. Fogarty's testimony that there was an intervening telephone conversation with Mr. R. prior to March 15, 2008 during which she alleges that she told him "not to take Abraham to the precinct" is not corroborated by any other evidence in the record.

The final witness was Calvin Muhammed. Mr. Muhammed testified that he is engaged in the construction business and he undertakes painting jobs as part of his business. Muhammed stated that he had met Ms. Fogarty prior to March of 2008 and that "around March 1st through March 7th" he was hired by her to paint her apartment, a project which was completed over the course of five days. On cross-examination, Mr. Muhammed conceded that he had more than a mere familiarity with Ms. Fogarty, and he stated that he actually has known Francine Fogarty "for three years" during which they have had "a business relationship". According to Mr. Muhammed, he and Ms. Fogarty are actually "business partners". He explained that Ms. Fogarty is "in real estate" and she refers construction business to him, an arrangement which has existed [*11]for "two years".

At approximately 6:30 P.M. on Monday, March 3, 2008, Mr. Muhammed was painting in the apartment of Ms. Fogarty. Mr. Muhammed was present with Fogarty's five-year- old- daughter and Ms. Fogarty was "doing laundry" elsewhere in the building. Apparently there was a knock on the apartment door and Ms. Fogarty's five-year-old daughter opened the door and let a man into the apartment. Muhammed referred to this man as "a cop", although there is no indication that there was any interaction between Mr. Muhammed and the police officer. Soon after the "cop" was let into the apartment, Ms. Fogarty returned and Muhammed observed Ms. Fogarty and the officer engage in a "five to ten minute"conversation which he "overheard". According to Mr. Muhammed, the officer "asked to speak to Nicholas" and Ms. Fogarty told him that "you cannot speak to him until she speaks to his lawyer". Mr. Muhammed also testified that he overheard the officer ask Ms. Fogarty "if she had legal guardianship of Abraham". Mr. Muhammed recalled that neither the officer nor Ms. Fogarty raised their voices during their conversation and he saw the officer hand his business card to Fogarty and then saw him leave the apartment without incident.

II

Having had the opportunity to hear the testimony of the three witnesses and to observe their respective demeanor, the Court fully credits the testimony of New York City Police Detective Kevin Hogan. The testimony of the other witnesses was inconsistent and to the extent that it was consistent, it appeared to be tailored in order to achieve a specific outcome at this hearing.

The evidence establishes that the respondent, Abraham Peter R., was born to Francine [*12]Fogarty and Michael R. in November 1997.[FN6] Respondent's parents were divorced in 2003 and legal custody of the child was awarded to the mother by the Supreme Court. The parties' stipulation of settlement provides for "liberal visitation" or weekly visitation between respondent and his father, a right which appears was being fully exercised at all times relevant to this proceeding.

On March 8, 2008 Detective Kevin Hogan of the 107th Precinct was involved in an investigation of a burglary of residential premises belonging to a "Mr. Watson". While Detective Hogan was the lead or assigned detective assigned to the burglary investigation, preliminary work on the investigation had been undertaken by one other Detective who is also assigned to the Detective Squad at the 107th Precinct. That officer, Detective James Woods, visited the apartment of Francine Fogarty on March 1, 2008 and March 3, 2008, in an effort to locate the respondent so that he could be questioned about his possible involvement in the burglary of Mr. Watson's apartment. On both of the days when Detective Woods went to Ms. Fogarty's apartment, Abraham was not found as he was visiting with his father in Manhattan. There is no evidence which would support a determination that Detective James Woods acted inappropriately or unlawfully in any manner. The evidenceestablishes that Woods lawfully entered the mother's apartment on both March 1, 2008 and March 3, 2008, and that he stated that the purpose of his visits was to locate Abraham so that he could be questioned about his involvement in the March 1, 2008 burglary of Mr. Watson's apartment. Detective Woods gave his Police Department business card to Ms. Fogarty which indicated the precinct to which he was assigned, the [*13]telephone number for the precinct, along with the name "Hogan" handwritten on the card, which was clearly a reference to Kevin Hogan, the lead Detective assigned to the Watson investigation.

On March 13, 2008, Detective Kevin Hogan visited Ms. Fogarty's apartment in an attempt to locate Abraham. Prior to March 13, 2008 the arresting officer and a Detective Thomas informed Detective Hogan that Michael R. is the father of Abraham R., who was suspected of being a participant in the burglary. Hogan's reason for visiting Ms. Fogarty's apartment in Queens was based upon information that Abraham had a connection to this particular apartment. On that date, Hogan encountered an African-American female, whom he described as approximately 30 years of age, who may or may not have been Francine Fogarty. According to Detective Hogan, this individual did not identify herself nor did she state that she had any relationship to Abraham R.

Michael R. telephoned Detective Hogan on March 15, 2008 and he agreed to voluntarily bring Abraham to the 107th Precinct later that day to meet with Hogan. After Mr. R. and Abraham arrived at the precinct, they were met by Detective Hogan at approximately 12:55 P.M. Detective Hogan asked Mr. R. and Abraham to accompany him to an interview room located in the squad room of the precinct which is occupied by the Detective Squad. The evidence establishes that Detective Hogan's interaction with Abraham and his father occurred exclusively in that room. Hogan administered Miranda warnings to Abraham and Michael R., and Abraham and his father agreed that Abraham would agree to speak to Hogan about the March 1, 2008 burglary. Abraham then gave a verbal account of his involvement and Mr. R. prepared a written summary of Abraham's verbal statement which was signed by Detective Hogan and Mr. R.

A [*14]

Family Court Act §305.2 provides that an officer who takes a suspected juvenile delinquent into custody "may take the child to a facility designated by the chief [administrative judge] as a suitable place for the questioning of children" (Fam. Ct. Act §305.2 [4] [b]). In this case the evidence establishes that Detective Hogan brought the child and his father to an interview room which was located in the Detective Squad's office at the precinct and not a "juvenile room" duly designated as such in accordance with 22 NYCRR §205.20.

The purpose of the statutory directive that arrested children under the age of 16 be questioned in a facility designated as suitable for the questioning of children is to ensure that juveniles are not interrogated in an oppressive or detention-like atmosphere that could result in the making of an involuntary statement (Matter of Luis M., 112 AD2d 86, 87-88 [1985]; People v. Ellis, 5 AD3d 694, 695 [2004], lv. denied 3 NY3d 639 [2004]; Matter of Rafael S., 16 AD3d 246, 246-247 [2005]).

There is no per se rule which requires the suppression of a statement obtained by a police officer in a place other than the designated juvenile room in a police precinct, and where a statement is obtained in a location other than a designated facility, the Court must determine whether that fact led to the making of an involuntary statement. In this case, the Court fully credits Detective Hogan's testimony that the room which was utilized was a nonthreatening office-like setting. There were no detention cells and no adult prisoners came into contact with the respondent during the interview process. Accordingly, the Court finds that there is no likelihood that the voluntariness of respondent's statement was affected because the interview room was not specifically designated as a suitable facility for the questioning of juveniles by police officers (Matter of Emilio M., 37 NY2d 173, 176 [1975]; Matter of Luis N. at 87-88; [*15]Matter of Jennifer M., 125 AD2d 830, 831 [1986]; Matter of Bree J., 183 AD2d 675 [1992]; People v. Ellis at 694-695; Matter of Rafael S. at 247; Matter of Donta J., 35 AD3d 740, 741-742 [2006]).

B

The evidence also establishes that the procedures utilized by Detective Hogan in his interview and questioning of the respondent on March 15, 2008 were in compliance with the requirements of Family Court Act §305.2. Michael R. voluntarily brought Abraham to the 107th Precinct to meet with Detective Hogan at Hogan's request on March 15, 2008 and Mr. R. remained at his son's side throughout the interview and questioning session. Thus there is no issue relating to the provision of notice to a parent or adult guardian prior to police questioning of an arrested child (Fam. Ct. Act §305.2 [3], [7]). After arriving at the interview room Hogan proceeded to obtain pedigree information from respondent and his father, which did not require the prior administration of Miranda warnings (People v. Rodney, 85 NY2d 289, 292-293 [1995]; People v. Velazquez, 33 AD3d 352, 353 [2006] , lv. denied 7 NY3d 929 [2006]; People v. Carrasquillo, 50 AD3d 1547, 1548 [2008], lv. denied,11 NY3d 735 [2008] ; People v. McCloud, 50 AD3d 379, 380 [2008]). Moreover, the pedigree information which was obtained reasonably led Detective Hogan to believe that Mr. R. was Abraham's father and that the father and son resided together at an address in Manhattan. Hogan asked no questions about Mr. R.'s marital status, whether Abraham was the child of a marriage or born out-of-wedlock, or the existence of any court orders concerning custody of the child, all of which would have been irrelevant to the matter under investigation. [*16]"The standard for assessing a suspect's custodial status is whether a reasonable person innocent of any wrongdoing would have believed that he or she was free to leave" (People v. Paulman, 5 NY3d 122, 129 [2005]; see, People v. Yukl, 25 NY2d 585, 596-597 [1969], cert. denied 400 US 851 [1970]; Matter of Kwok T., 43 NY2d 213, 219-220 [1977]; People v. Centano, 76 NY2d 837, 838 [1990]; Matter of Victor V., 30 AD3d 430, 431 [2006], lv. denied 7 NY3d 710 [2006]; People v. Pegues, 59 AD3d 570 [2009]; People v. Thompson, ___ AD3d ___, 2009 NY Slip Op 01023).

Theevidence in this case establishes that Abraham R. was not under arrest or otherwise detained prior to making his inculpatory statement to Detective Hogan (see, People v. Hatzfield, 240 AD2d 758 [1997], lv. denied 90 NY2d 940 [1997]; People v. Gonzalez, 246 AD2d 555 [1998], lv. denied 91 NY2d 1007 [1998]; Matter of Phillip J., 256 AD2d 654, 656 [1998]; People v. Valentin, 264 AD2d 788, 789 [1999], lv. denied 94 NY2d 953 [2000]; People v. Howard, 285 AD2d 560 [2001], lv. denied 96 NY2d 940 [2001]; People v. Tighe, 2 AD3d 1364, 1365 [2003], lv. denied 2 NY3d 747 [2004]; People v. Foy, 26 AD3d 344 [2006], lv. denied 7 NY3d 756 [2006]). Respondent came to the precinct voluntarily with his father who remained with the child throughout his interaction with Hogan. Respondent was not restrained in any manner, Detective Hogan was in plainclothes rather than a police uniform during the questioning and neither respondent nor his father were subjected to displays of official force or power. Neither respondent nor his father sought to leave the interview room at any time, neither requested any break, food or drink, and there was no request to terminate the interview process.

While respondent was clearly a target of Detective Hogan's investigation into the burglary of the Watson apartment (e.g., People v. Smedman, 184 AD2d 600, 604 [1992]; People [*17]v. Delfino, 234 AD2d 382, 383 [1996], lv. denied 89 NY2d 1034 [1997]), which necessitated the administration of Miranda warnings prior to police interrogation about the incident, the record makes clear that Hogan properly administered Miranda warnings to both Abraham and Mr. R. prior to any questioning about the burglary. The Court further finds that respondent and his father knowingly, intelligently and voluntarily waived those rights and agreed that Abraham would speak with Detective Hogan about his involvement in the incident.

As a matter of policy, the protection of the rights of juveniles who have been arrested for criminal conduct is afforded a high priority (People v. Mitchell, 2 NY3d 272, 275 [2004]; People v. Salaam, 83 NY2d 51, 55-57 [1993]; People v. Gotte, 150 AD2d 488 [1989], lv. denied 74 NY2d 896 [1989]; Matter of Robert P., 177 AD2d 857, 858 [1991]; People v. Smith, 217 AD2d 221, 232 [1995], lv. denied 87 NY2d 977 [1996]; People v. Morales, 228 AD2d 525 [1996], lv. denied 88 NY2d 1070 [1996]). In order to ensure that the rights of juveniles are protected, the Legislature has specifically incorporated the obligation to administer Miranda warnings prior to a custodial interrogation into the Family Court Act (Fam. Ct. Act §305.2 [7]; see, Matter of Dominique R., 29 AD3d 702, 703 [2006]; Matter of Marcus C., 46 AD3d 816, 817 [2007]).

While it is true that Abraham was only ten years of age on March 15, 2008, "[i]t is well settled that the possibility of a knowing, intelligent, and voluntary waiver of Miranda rights is not precluded merely because the suspect is a juvenile" (People v. Smith at 232 [13- year-old murder suspect]; see, Fare v. Michael C., 442 US 707, 725 [1979] [16½ -year-old charged with murder]; Matter of Stanley C., 116 AD2d 209, 214 [1986], app. dismissed 70 NY2d 667 [1987] [15-year-old charged with burglary and larceny]; Matter of Jennifer M. at 830-831 [*18][12-year-old shoplifting suspect]; Matter of Valerie J., 147 AD2d 699, 699-700 [1989] [15-year- old charged with infanticide]; Matter of Lyndell C., 23 AD3d 306 [2005] [juvenile charged with attempted grand larceny]; Matter of Arthur O., 55 AD3d 1019 [2008] [13-year-old alleged juvenile delinquent]; Matter of Richard UU., 56 AD3d 973, 975 [2008] [14-year-old charged with sex offenses against 4-year-old]; People v. Morales at 525 [16-year-old charged with sex offenses]). Of course, where the evidence casts doubt upon whether a juvenile's waiver of his or her rights was knowing, intelligent and voluntary, courts have not hesitated to suppress a juvenile's confession (see, Matter of Julian B.,125 AD2d 666, 669-671 [1986] (Kooper and Spatt, JJ., concurring) [seven-year-old murder suspect]; Matter of Chad L., 131 AD2d 760, 761 [1987] [ten-year-old with borderline mental retardation charged with sex offense and murder]; Matter of Robert P. at 859 [15-year-old charged with criminal mischief was awakened, taken to police station and questioned out of parent's presence and without Miranda warnings]; Matter of Ricardo S., 297 AD2d 255, 256 [2002] [15-year-old burglary suspect subjected to custodial interrogation without Miranda warnings]).

The cases above establish that there is no age at which it is presumed that an accused juvenile delinquent or a youthful criminal suspect may validly waive his or her rights.[FN7] Rather, in each case the determination of voluntariness turns upon a judicial assessment of the particular facts and the individual characteristics of the juvenile.

In making this assessment, courts consider the totality of the circumstances, with [*19]particular attention given to the age of the juvenile, whether or not the juvenile has had prior experiences with the criminal justice system, the presence or absence of a parent, guardian or other supportive adult, the location of the interrogation, the time of day at which the questioning occurred, and whether the police took care to fully and clearly explain the import of the Miranda warnings to the child. These factors are not exclusive and a court may consider any other relevant evidence bearing upon the question of voluntariness (Fare v. Michael C. 442 US at 725).[FN8] Here, this Court finds that the totality of the circumstances establishes a valid waiver of rights by Abraham and thus his inculpatory statement to Detective Hogan was voluntary beyond a reasonable doubt (Matter of Javier L., 272 AD2d 474 [2000]; Matter of Michael L., 285 AD2d 466 [2001]; Matter of Taariq B., 38 AD3d 395, 396 [2007]; Matter of Ashley G., 41 AD3d 597 [2007]).

In reaching this conclusion, the Court has considered the child's age, the fact that his father voluntarily brought him to the precinct and he remained at Abraham's side at all times, the Miranda warnings were completely and properly administered to both Abraham and Mr. R. (as stipulated by the respondent), that Abraham had the opportunity to consult with his father, that there was no coercion of any kind employed by Detective Hogan, and that the surroundings [*20]in which the process occurred were in no way oppressive. In addition, the Court has found that the child was never restrained in any fashion nor were he or his father compelled to remain in the interview room by the use of or threatened use of force.

C

In reaching the conclusion that Abraham's inculpatory statement to Detective Hogan was voluntarily made, this Court necessarily rejects two arguments advanced by the respondent: first, that his mother invoked the right to counsel on his behalf; second, that his father, Michael R., lacked the authority to advise him in the decision to waive his rights.

Because a child as young as seven can be the subject of juvenile delinquency proceedings (Fam. Ct. Act §301.2 [1]), it has been recognized that "the parent or other legal guardian of a juvenile delinquent, or juvenile offender, may invoke the right of counsel on his or her child's behalf" (People v. Mitchell at 276; see, Matter of Richard UU. at 975). However, "[i]n order for the right to attach, the invocation of counsel by an uncharged defendant- or by a parent standing in the defendant's shoes- must be unequivocal" (Mitchell at 276; see, People v. Hicks, 69 NY2d 969, 970 [1987]; People v. Glover, 87 NY2d 838, 839 [1995]; Matter of Taariq B. at 396).

The evidence clearly establishes that Michael R. and Abraham waived the child's right to consult with an attorney prior to speaking with Detective Hogan or to have an attorney present during questioning. While Ms. Fogarty claims that she advised Detective James Woods ("James Woods Hogan") that she was invoking the right to counsel on Abraham's behalf, the evidence does not support a finding that Ms. Fogarty unequivocally invoke her son's right to counsel. According to Ms. Fogarty, Detective Woods visited her apartment on two occasions in March [*21]2008. Ms. Fogarty testified that on the Detective's second visit on March 3, 2008, he informed her that he wanted to speak to Abraham "about a burglary". Abraham was visiting with his father on both occasions that Woods visited his mother's apartment, so he was not arrested or removed from her home in her presence. According to Ms. Fogarty, she told Detective Woods on March 1, 2008 that she "wanted to speak to a lawyer" and when Woods returned on March 3, 2008 she alleges that she told him that he should not speak to Abraham"until I speak to a lawyer". There is no evidence that Ms. Fogarty has ever met or spoken with Detective Hogan, who did not identify Ms. Fogarty as the women he encountered at the mother's apartment when he visited on March 13, 2008.

The mother's assertion that she unequivocally invoked Abraham's right to counsel is directly contradicted by her own testimony concerning her actions. Ms. Fogarty met with Detective Woods at her apartment on both March 1st and March 3rd, yet she testified that she and Mr. R. engaged in a ten minute telephone conversation "sometime between March 12 and March 15, 2008" during which she allegedly provided Michael R. with the name of the Detective, the precinct to which he was assigned, and a telephone number for the precinct, argued with Mr. R. about his payment of child support for Abraham, and then allegedly told him not to take Abraham to the precinct. This testimony is inherently incredible and wholly inconsistent with any claim that she intended to have counsel present on Abraham's behalf when he eventually spoke to the Detective who was looking for him. Thus, based upon this record, the Court rejects respondent's assertion that his mother unequivocally invoked the right to counsel on his behalf. The mother's mere indication that she wanted to speak to a lawyer, or that counsel for Abraham may be desired prior to his speaking with the Detective at some future time, or that [*22]she has a lawyer, is equivocal and subject to a variety of interpretations and it does not constitute an invocation of the child's right to counsel (People v. Mitchell at 276).

This Court also rejects respondent's claim that the award of his legal custody to his mother in his parents' 2003 divorce judgment rendered the advisement of rights in the presence of his father on March 15, 2008 legally ineffective. There appears to be no dispute that legal and physical custody of Abraham was granted to Francine Fogarty pursuant to the parents' judgment of divorce. Nevertheless, the award of legal and physical custody to Ms. Fogarty had no effect on Mr. R.'s legal status as Abraham's father. The parents of a child are deemed to be the natural guardians of that child (see, Domestic Relations Law §81; Bluntt v. O'Connor, 291 AD2d 106, 113 [2002], lv. denied 98 NY2d 605 [2002]), unless the parent-child relationship is terminated pursuant to law (see, Social Services Law §384-b [termination of parental rights]; Domestic Relations Law §117 [1] [a] [adoption]).

The Family Court Act provides for parental notification of a child's arrest (Fam. Ct. Act §305.2 [3]), it authorizes the release of an arrested child to his or her parents by the police or the person in charge of a juvenile detention facility (Fam. Ct. Act §305.2 [4] [a], 307.1 [3], 307.3 [1], [2]), and it provides for parental advisement of the child's Miranda rights prior to the questioning of the child by the police if the parent is present (Fam. Ct. Act §305.2 [7]). The statutory references to a child's "parent" is hardly surprising since it is parents "whom our society and this Court's jurisprudence have always presumed to be the preferred and primary custodians of their minor children" (Reno v. Flores, 507 US 292, 310 [1993]). In addition to biological parents, the statute recognizes that there may be other adults who stand in close relation to a child, such as "close blood relatives, whose protective relationship with children our [*23]society has also traditionally respected" (id.; see, In re Patrick W., 104 Cal. App. 3d 615, 617- 618, 163 Cal. Rptr. 848 [Ct. App. 1980] [child's grandparents]), as well as non-related adults whose functional relationship with the child is equally as close.

Thus, while Family Court Act §305.2 (7) provides for parental notification of the child's rights prior to police questioning, the notification of rights may be made to a close relative of a child or another adult who occupies a supportive position in relation to the child where the parent is not present or is unavailable (Matter of Anthony L., 262 AD2d 51, 52 [1989] [adult sister of the respondent]; Matter of Donta J. at 741 [respondent's adult brother]; Matter of Bree J. at 675 [step-father]; Matter of Arthur O. at 1020 [DSS caseworker where mother had executed surrender of parental rights]; Matter of Richard UU. at 975 [DSS caseworker where parental rights terminated]). Accordingly, the Court rejects respondent's argument that his mother was the only adult who could validly be advised of his Miranda rights prior to police questioning. There is nothing in the statute or cases which expresses a preference for advising one parent over the other, nor does the statute express a preference for a child's custodial parent where the parents do not reside together. Moreover, where neither parent is available, another adult relative or person legally responsible for the child can be advised both of the child's arrest and of the child's rights prior to questioning.

Of course, were evidence to establish that one parent unequivocally advised the police that the right to counsel was being invoked on the child's behalf and that the police then sought out the child's other parent in order to obtain a waiver of the child's rights, a Court might very well be disinclined to find that the resulting statement was voluntary. However, there is [*24]absolutely no evidence in the record to support a determination that the Detectives engaged in some kind of deliberate subterfuge in order to obtain a waiver of Abraham's rights. Detective Hogan acted properly based upon the information known to him. The record establishes that Detective Woods had been unsuccessful in his attempts to locate the respondent at an apartment in Queens County, and Hogan's own visit to that same apartment was unsuccessful. Two days after Hogan visited the apartment and left his business card with staff at the building, he received a call from a person who identified himself as Michael R., the father of Abraham. Hogan and Mr. R. made an appointment for Abraham to be brought to the precinct later that day and in fact, Mr. R. and Abraham appeared to meet with Hogan. There was no reason for Hogan to question Mr. R.'s asserted legal relationship to the child or to inquire about Mr. R.'s marital status or his custodial status as to Abraham.[FN9] Given that Michael R. is Abraham's legal father, the actions of Detective Hogan complied with the statute and Hogan had no obligation or reason to inquire about Abraham's mother or to attempt to contact her on March 15, 2008.

Accordingly, it is hereby

ORDERED, that the respondent's motion to suppress his out-of-court statement to Detective Hogan is denied for the reasons stated herein.

This constitutes the decision, opinion and order of the Court.

E N T E R: [*25]

_______________________________

John M. Hunt

Judge of the Family Court Dated: Jamaica, New York

March 20, 2009 Footnotes

Footnote 1:In that regard, the Court notes that Hogan testified that his encounter with the female individual was "very brief" and inconsequential. Additionally, the encounter occurred almost a year prior to Hogan's testimony.

Footnote 2:February 1, 2008 was a Friday. March 1, 2008 was a Saturday.

Footnote 3:A Family Court appearance ticket is a written notice issued by a police or peace officer directing that a child and his parent appear at a designated probation service on a designated date in connection with the incident for which the child has been taken into custody (Fam. Ct. Act §307.1 [1]; see, Fam. Ct. Act §305.2 [4] [a]). The appearance ticket in this case was admitted into evidence and it states that Abraham R. is the "child", that Michael R. is the parent/person legally responsible for child's care" and that they both live at 230 West xxth Street, apartment - -, in Manhattan. The appearance ticket specifies the date and nature of the incident for which the child was taken into custody and information concerning the issuance of the appearance ticket by Hogan. The signatures of Michael R. and Detective Kevin Hogan are affixed to the appearance ticket.

Footnote 4:The automated public records of the Unified Court System indicates that the parties were in fact divorced by judgment of the Supreme Court, Queens County (Huttner, J.), dated October 28, 2003.

Footnote 5:Ms. Fogarty may have had the opportunity to meet Detective Kevin Hogan on March 13, 2008 when he came to her apartment in search of Abraham. The Court notes that Kevin Hogan does not bear any resemblance to the Detective described as "James Woods" and "James Woods Hogan".

Footnote 6:For reasons not apparent in the record nor clearly explained, Ms. Fogarty testified that her son, Abraham Peter R., is sometimes called "Nicholas".

Footnote 7:In contrast, under New York law, a child more than nine-years-old is presumed competent to give sworn testimony in a criminal action or a juvenile delinquency proceeding (Criminal Procedure Law §60.20 [2]; Fam. Ct. Act §343.1 [2]; e.g., Matter of Noel O., 19 Misc 3d 418 [2008]).

Footnote 8:In Fare v. Michael C. the Supreme Court found that the totality of the circumstances test should be applied in order to determine whether a juvenile voluntarily waived his or her rights and consented to be questioned (442 US at 725-726). New York and other jurisdictions similarly apply the totality of the circumstances test in the case of juveniles (People v. Steven J.B., 23 NY2d 611, 617 [1969]; Matter of Julian B. at 671; People v. Smith, at 232; Matter of Richard UU. at 975; Matter of Lyndell C. at 313; In re Jerrell C.J., 283 Wis.2d 145, 157-158, 699 N.W.2d 110, 115-116 [Sup. Ct. 2004]; Ramirez v. Florida, 739 So. 2d 568, 575-576 [Sup. Ct. 1999], cert. denied 528 US 1131 [2000]; People v. Lara, 67 Cal. 2d 365, 384-385, 62 Cal. Rptr. 586, 600, 432 P.2d 202, 215 [Sup. Ct. 1967], cert. denied 392 US 945 [1968]; In re Shawn D., 20 Cal. App. 4th 200, 208-209, 24 Cal. Rptr. 2d 395, 400 [Ct. App. 1993]; In re Bonnie H., 56 Cal. App. 4th 563, 577, 65 Cal. Rptr. 513, 521-522 [Ct. App. 1997]).

Footnote 9:As indicated previously, Family Court Act §305.2 makes no reference to the custodial status of the child's parent. Requiring police officers to make inquiry into the existence, validity and terms of judicial custody orders in every case would be impracticable and delay the investi- gation of often serious delinquent behavior.