In the Matter of Daniel H., A Person Alleged to be a Juvenile Delinquent / Presentment Agency
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 158
In the Matter of Daniel H.,
A Person Alleged to be a Juvenile
Delinquent,
Appellant.
------------------Presentment Agency,
Respondent.
Raymond E. Rogers, for appellant.
Victoria Scalzo, for respondent.
MEMORANDUM:
The appeal should be dismissed, without costs, on the
ground that the two-justice dissent at the Appellate Division was
not on a question of law (see CPLR 5601 [a]).
Police arrested appellant Daniel H. at his school for
the theft of credit cards after he had made an inculpatory
statement without being advised of his Miranda rights.
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Appellant
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No. 158
was transported to a precinct, left alone in an adult holding
cell, and was again questioned by the same detectives in a
sergeant's office rather than a designated juvenile room.
A
written inculpatory statement was made by appellant after he and
his mother were advised of their Miranda rights.
Following a hearing conducted on October 31, 2007, the
Family Court precluded appellant's inculpatory oral statement and
denied the suppression of his subsequent, inculpatory written
statement.
The court determined that the written statement was
sufficiently attenuated from the earlier oral statement.*
Appellant was adjudicated a juvenile delinquent for committing
acts, which, if committed by an adult, would constitute the
crimes of burglary in the third degree, grand larceny in the
fourth degree, and identity theft in the third degree.
By a 3-2 decision, the Appellate Division affirmed the
Family Court order, finding that the written statement was
sufficiently attenuated from the earlier un-Mirandized statement
(67 AD3d 527 [1st Dept 2009]).
The two-justice dissent sought to
remit the action to Family Court for a new fact-finding hearing.
Appellant appeals to this Court pursuant to CPLR 5601 (a).
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The purpose of the doctrine of attenuation is to determine
whether there was a sufficiently "definite, pronounced break in
the interrogation that the defendant may be said to have
returned, in effect, to the status of one who is not under the
influence of questioning" and is no longer influenced by the
taint of the earlier Miranda violation (People v Chapple, 38 NY2d
112, 115 [1975]; see People v Paulman, 5 NY3d 122 [2005]).
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No. 158
Jurisdiction for an appeal to this Court predicated
upon CPLR 5601 (a) requires that, at the Appellate Division,
there be a "dissent by at least two justices on a question of law
in favor of the party taking appeal."
The issue of whether a
defendant's inculpatory statement is attenuated from his prior
un-Mirandized statement presents a mixed question of law and fact
(see People v Paulman, 5 NY3d 122 at 129; People v Ryan, 12 NY3d
28 [2009]; People v Conyers, 68 NY2d 982 [1986]).
As the two-
justice dissent was not on a question of law, this Court is
without jurisdiction to decide the appeal (see CPLR 5601 [a];
Merrill v Albany Med. Center Hosp., 71 NY2d 990 [1988]; Guaspari
v Gorsky, 29 NY2d 891 [1972]).
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Matter of Daniel H. (Anonymous)
No. 158
CIPARICK, J.(dissenting) :
Because I believe that the two justice dissent in the
Appellate Division was on a question of law, and therefore CPLR
5601 (a) permits our review as a matter of right, I would reach
the question presented on this appeal, conclude that an incorrect
legal standard was applied in this juvenile delinquency
proceeding, and remit to Family Court for further consideration.
Whether the courts below applied the correct standard
in determining that Daniel's statement was attenuated is a legal
question firmly within our jurisdiction (see People v Borges, 69
NY2d 1031, 1033 [1987] ["While questions of attenuation generally
present mixed questions of law and fact, where . . . the lower
courts have applied an incorrect legal standard, an issue of law
reviewable by this court is presented."] [internal citations
omitted]).
The Appellate Division dissent below explicitly took
issue with the legal standard applied by the majority, not the
application of that standard.
In affirming Family Court's
finding of attenuation, the Appellate Division majority held that
"the issue of attenuation is not appreciably different for
juveniles than for adults," and proceeded to conduct the
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No. 158
attenuation analysis just as it would for an adult defendant
(Matter of Daniel H., 67 AD3d 527, 529 [2009]).
The dissent
disagreed about whether Daniel's age should inform the analysis,
noting that although the facts here "may constitute a pronounced
break in the case of an adult accused[, they] have different
bearing on the determination with regard to a juvenile" (id. at
535 [Moskowitz, J., dissenting] [internal citations omitted]).
This is a straightforward disagreement regarding the legal
standard -- whether or not attenuation should be assessed
differently in cases where the suspect is a juvenile -- and so
presents a question of law we can, and should, address.
Turning to the merits, I agree with the dissent below
that Daniel's age should be a factor in considering whether his
Mirandized statement was sufficiently attenuated from his prior,
unwarned statement.
Miranda warnings "'must precede the
subjection of a [suspect] to questioning . . . unless there is
such a definite, pronounced break in the interrogation that the
[suspect] may be said to have returned, in effect, to the status
of one who is not under the influence of questioning'" (People v
White, 10 NY3d 286, 291 [2008], quoting People v Chapple, 38 NY2d
112, 115 [1975]).
In other words, we aim to ensure that the two
interrogations are not part of a "single continuous chain of
events" (Chapple, 38 NY2d at 114).
In People v Paulman (5 NY3d 122 [2005]), we enumerated
several considerations for determining whether an involuntary
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No. 158
statement tainted a subsequent, Mirandized statement:
"New York courts have considered a number of
factors, including the time differential
between the Miranda violation and the
subsequent admission; whether the same police
personnel were present and involved in
eliciting each statement; whether there was a
change in the location or nature of the
interrogation; the circumstances surrounding
the Miranda violation, such as the extent of
the improper questioning; and whether, prior
to the Miranda violation, defendant had
indicated a willingness to speak to police"
(id. at 130-131).
Although it is an objective inquiry, these factors are meant to
illuminate whether the suspect experienced the unwarned and later
warned questioning as part of a continuous interrogation (see id.
at 131; Chapple, 38 NY2d at 115).
Ultimately, the purpose of requiring a pronounced break
is to ensure that the Miranda warnings effectively communicate a
suspect's right to remain silent and refrain from selfincrimination (see Chapple, 38 NY2d at 115).
One under
"continuous and custodial interrogation may well be put in such a
state of mind that the warnings which would ordinarily suffice
will no longer be enough to protect his rights" (id.).
As a
plurality of the United States Supreme Court recently observed,
"[u]pon hearing warnings only in the aftermath of interrogation
and just after making a confession, a suspect would hardly think
he had a genuine right to remain silent, let alone persist in so
believing once the police began to lead him over the same ground
again" (Missouri v Seibert, 542 US 600, 613 [2004]).
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No. 158
The risk that Miranda warnings might be ineffective is
heightened where, as here, the suspect is a juvenile.
this case is illustrative.
Indeed,
The police interrogated Daniel at his
school in a custodial setting outside the presence of a parent or
advocate, elicited a confession, and then, after reading Miranda
warnings in the presence of his mother, repeated the
interrogation at the police precinct approximately one hour
later, in a space other than a designated juvenile room.
That
Daniel was 15 years old certainly impacts whether he "perceived a
distinction" between the two interrogations sufficient to render
his Miranda warnings effective (Paulman, 5 NY3d at 132).
Daniel's experience of these events is inseparable from
his juvenile status for several reasons.
Some of the Paulman
factors, such as the circumstances surrounding the initial
Miranda violation, require consideration of his youth.
For
example, although the unwarned interrogation at his school was
brief, the violation is more egregious because the suspect was an
isolated, unaccompanied juvenile.
Other factors, such as a
suspect's initial willingness to talk to the police, inevitably
mean something different when the suspect is a minor, and may be
entirely inapplicable.
Additionally, a child is less likely than
an adult to perceive any given period spent in constant police
custody as a "break," and is more likely to feel compelled to
continue answering questions posed by the same officers who
conducted the unwarned interrogation.
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Relatedly, a juvenile
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No. 158
suspect is less likely to comprehend the meaning of Miranda
warnings read shortly following a confession and understand that
he can remain silent.
It is also important to note that by not
holding and interrogating Daniel in a designated juvenile room,
as required by the Family Court Act, the police may have acted
improperly (Family Court Act § 305.2 [4] [b]; § 344.2 [2]).
In conclusion, Daniel's juvenile status exacerbated the
severity of the police misconduct during the unwarned
interrogation, decreased the likelihood that he understood his
subsequent Miranda warnings, and impacted the validity of his
Mirandized statement in a variety of other ways.
Whether, on
balance, there was a sufficient break in the interrogation is
indeed a factual question, but age is clearly a relevant factor
that should have been taken into account here.
Therefore, I would reverse and remit to Family Court
for consideration of whether, in light of Daniel's youth, his two
inculpatory statements were part of a "single continuous chain of
events" resulting in "inadequate assurance that the Miranda
warnings were effective" (Paulman, 5 NY3d at 130).
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Appeal dismissed, without costs, in a memorandum. Judges
Graffeo, Read, Smith, Pigott and Jones concur. Judge Ciparick
dissents and votes to reverse in an opinion in which Chief Judge
Lippman concurs.
Decided October 26, 2010
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