People v Zouppas

[*1] People v Zouppas 2012 NY Slip Op 50528(U) Decided on March 23, 2012 City Court Of New Rochelle Kettner, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 23, 2012
City Court of New Rochelle

The People of the State of New York, Plaintiff,

against

John Zouppas, Defendant.



11-0079



MICHELLE BERNSTEIN

Assistant District Attorney

475 North Avenue

New Rochelle, NY 10801

For the People

PATRICK J. REVILLE, ESQ.

Reville & Cullen

540 North Avenue

New Rochelle, NY 10801

Attorney(s) for Defendant

Susan I. Kettner, J.

Defendant's motion to suppress is granted in its entirely.

BACKGROUND

Defendant stands charged with the following offenses: Obstructing Governmental Administration-2nd degree, a violation of Penal Law *195.05 and Harassment 2nd Degree-Physical Contact, a violation of Penal Law *240.26(1). This Court held a Huntley Hearing on February 23, 2012 and reserved decision at the conclusion of the hearing. The following constitutes the Court's Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

Credible evidence adduced at the hearing established the following facts: On January 14, 2012, New Rochelle Police Detective, Claudio Carpano a fourteen-year veteran of the NRPD, initiated an investigation of allegations of physical threats made by defendant against a local city judge. [*2]The threats were allegedly communicated to a licensed social worker during the course of an anger management program to which the defendant was assigned by the targeted judge, in an unrelated case in another jurisdiction.

In furtherance of his investigation, the detective contacted the defendant and met him at his residence, whereupon he asked the defendant to accompany him to the New Rochelle Police Department. On two separate occasions, the detective recited the following Miranda warnings from memory verbatim:

I am Detective Carpano with the New Rochelle Police Department and you are being charged with the commission of this crime. You have the right to remain silent. Anything you say can and will be used in a court of law. You have the right to an attorney and have an attorney present during questioning. Should you not be able to afford an attorney, one will be appointed to you free of charge. You also have the right to make three phone calls. Do you understand these rights as I have explained them to you ?

The detective indicated that he mirandized the defendant from memory twice in exactly the same way as previously set forth here verbatim, once at the defendant's home and once shortly thereafter at police headquarters.On both occasions, defendant acknowledged that he understood his rights and communicated his willingness to talk and to make a statement, whereupon he proceeded to make the inculpatory statement which is the subject of this suppression hearing.

The detective further testified that at no time was the defendant threatened. No guns were drawn and he did not recall the defendant being in handcuffs. The defendant, although appearing agitated, was in no physical distress.

CONCLUSIONS OF LAW

As pointed out in People v. Huntley, 15 NY2d 72, 78 [1965]), the People bear the burden of proving the voluntariness of the defendant's statements beyond a reasonable doubt.The testimony clearly established that the defendant was issued the Miranda warning by Detective Carpano twice,without any indicia of coercion. Defendant made "incriminating" statements after acknowledging to the detective that he understood his rights and did not request an attorney or avail himself of the opportunity to make a phone call. The defense contends that the defendant was given inadequate Miranda warnings, in violation of his constitutional rights and therefore, defendant's statements must be suppressed. Specifically, defendant avers that the warnings were both insufficient, insofar as the defendant was never notified that any statement he made would be used against him.

The court has examined numerous cases analyzing the elements necessary to constitute adequate compliance with the constitutional mandates enunciated by the original Miranda court. While no verbatim or formulaic recitation is required, California v. Prysock, 453 U.S. 355, 101 S. Ct. 2806, given the gravity of the protected constitutional interest, this court must be absolutely certain that the defendant knowingly and intelligently waived his constitutional right to be free from self-incrimination.

In analyzing each of the elements necessary to constitute a knowing and intelligent waiver, the original Miranda court examined each prong of the required warning and established a roadmap [*3]for future courts: the right to remain silent; the admonishment that anything the person says can and will be used against him, in a court of law; the right to have counsel present during questioning; and if indigent, the right to have an attorney appointed to represent him free of charge. In the present proceeding, the court is called upon to specifically examine the adequacy only of that prong of the warning which states that, " anything you say can and will be used in a court of law", as opposed to, "anything you say can and will be used against you in a court of law". [Emphasis Added].

"The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequence of forgoing it." Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602. [Emphasis Added] The court further explained the importance of this prong of the warning because it serves to "make the individual more acutely aware that he is faced with a phase of the adversary system-that he is not in the presence of persons acting solely in his interest". Miranda, supra.

Courts that have upheld the voluntariness of statements made following a defective or incomplete Miranda warning are distinguishable from the case before this court, where the defendant was given more than one warning. As distinguished from the case at bar, those courts found that at least one full and complete Miranda warning was given to the defendant. People v. Gonzalez, 150 Misc 2d 187, 574 N.Y.S.2d 892; People v. Anderson, 146 AD2d 638, 536 NY S. 543; People v. Jordan, 110 AD2d 855, 488 N.Y.S.2d 89, People v. Roberts, 178 AD2d 622, 577 N.Y.S.2d 672. In the case at bar, the detective credibly testified that he recited the incomplete Miranda warnings twice, in exactly the same manner, leaving out the operative words that would place the defendant on notice that not only would his statement be used in a court of law, but specifically, that his statement would be used against him. The court finds the warning incomplete and defective by failing to place defendant on notice of the adversarial nature of the interrogation. As the defendant was not adequately warned that his statement would be usedagainst him in court,that statement must be suppressed, as being made without a knowing and intelligent waiver of defendant's constitutional rights to be free from self-incrimination.

The foregoing constitutes the Conclusions of Law and Decision and Order of the Court.

Dated: New Rochelle, New York

March 23, 2012

Susan I. KettnerCity Court Judge