People v Zacher

[*1] People v Zacher 2005 NY Slip Op 51714(U) [9 Misc 3d 1121(A)] Decided on October 21, 2005 Supreme Court, Monroe County Valentino, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 21, 2005
Supreme Court, Monroe County

The People of the State of New York,

against

David M. Zacher, Defendant.



2005-0303



For the People:Michael C. Green

Monroe County District Attorney

Douglas Randall, A.D.A.

47 South Fitzhugh Street, Suite 832

Rochester, New York 14614

For the Defendant:John R. Parrinello, Esq.

36 West Main Street, Suite 400

Rochester, New York 14614

Joseph D. Valentino, J.

Defendant stands accused of two counts of murder in the first degree (Penal Law § 125.27 [1] [a] [viii] and [b]) and one count of assault in the first degree (Penal Law § 120.10 [1]). Defendant moved for various relief and the Court granted him a Huntley hearing (see, People v Huntley, 15 NY2d 72). The hearing was conducted on August 8, 10, 11, 15, 17, 18, and 19, 2005.

FINDINGS OF FACT

At the pre-trial hearing, the prosecution presented the testimony of Monroe County Child Protective Services Caseworker Katherine Colgan and Town of Greece Police Lieutenant Stephen Wise, Officer Michael Haugh and Sergeants Samuel Cubiotti and Theodore Bielowicz. The Court also received several exhibits into evidence, including a Miranda rights card [People's Exhibit No. 1], Consent to Release Information [People's Exhibit No. 2], Temporary Removal with Consent [People's Exhibit No. 3], Greece Police Interview Log [Defendant's Exhibit A-1], Holding Facility Supervisory Log [Defendant's Exhibit B-1], hand-drawn diagrams [Defendant's Exhibit C, D, J, K, and N], and a newspaper article from the Democrat and Chronicle [Defendant's Exhibit G]. Defendant also testified.

Cubiotti testified that on April 8, 2005, at approximately 7:15 p.m., he responded to a 911 [*2]dispatch that a caller named "David" had stated to the 911 operator that he had hurt his family and they were stabbed. Cubiotti responded to 250 Cameron Hill Drive where he met Sergeant Schamerhorn in the driveway. Cubiotti learned that 911 had an open line with the caller and could just hear crying in the background. Cubiotti also learned from 911 that the caller's name was "David." Before entering the house through a door in the open garage, Cubiotti yelled "come out" but there was no response. Cubiotti yelled "David, this is the Greece Police Department, we are here to help you" and the sergeants entered the house with their guns drawn.

Cubiotti observed blood splattered in the hallway leading into the kitchen. The sergeants found defendant in the kitchen seated on the floor in his underwear and socks. Cubiotti testified that defendant was crying when Cubiotti first entered the house. Cubiotti also observed a child laying on the floor who appeared to be deceased. As Cubiotti approached defendant he saw defendant holding a female child. Schamerhorn twice ordered defendant to put the child down. After defendant put the child down, Schamerhorn ordered defendant to put his hands behind his back and handcuffed defendant. Cubiotti testified that defendant was handcuffed for officer safety reasons based on what he learned from 911 and the crime scene he observed.

The sergeants, with their guns holstered, walked defendant out of the house to Officer Haugh. Cubiotti and Haugh observed dried blood on defendant and on his socks. Once outside, emergency medical personnel ran by Cubiotti into the house. Defendant sat on the ground for about a minute or two at Haugh's instruction. Haugh testified defendant was crying. Cubiotti and Schamerhorn returned to the house.

Inside the house, Cubiotti observed a dead woman in a hallway off the kitchen in a pool of blood with a broken-off knife stuck in her chest area and a female child on the floor who appeared dead. Cubiotti also observed a stab wound in the chest of the female child defendant was found holding and emergency medical personnel were attending to her. No one else was found in the house.

Shortly thereafter, Cubiotti exited the house and told Haugh to take defendant to police headquarters. Cubiotti and Haugh escorted defendant to Haugh's patrol car. While defendant had been outside for a few minutes a crowd began gathering in the street. Haugh took defendant, who was handcuffed, to police headquarters, approximately one mile away. Defendant was placed in the back seat of Haugh's patrol car. At approximately 7:27 p.m., Haugh left the scene and brought defendant to the processing area of police headquarters. Haugh testified that defendant was bleeding and the processing area was the best place to clean him up. Haugh told defendant to have a seat on a bench in a holding cell, which remained open. Haugh testified that defendant was not free to leave at this point. Haugh did not know the name of defendant or whether defendant was a victim, witness, or suspect. Defendant made no statements to police during this time and no questions were asked of defendant up to this time.

As Haugh arrived at police headquarters with defendant, Lieutenant Wise, a supervisor, also arrived. Wise spoke to defendant who was in the holding cell for approximately 30 to 45 seconds before ambulance staff came into the holding cell. Wise did not advise defendant of his Miranda rights and testified that his questioning was short and he was investigating to determine whether defendant was a victim, suspect or witness. Wise asked defendant questions about his name, age, address, whether he had been at the house, if anyone else was at the house, and if he hurt anyone. Defendant told Wise his name, address, age, that he and his family were at his house and no one else, [*3]and he did not know if he hurt anyone. Defendant asked several times if his family was okay and Wise replied that he did not know. Wise observed bleeding from around defendant's hands and inquired whether defendant was hurt. Defendant said he did not know. Defendant knew the day, the approximate time, and his location. Wise directed that defendant be given some clothes and medical attention and that he be taken to an interview room so an investigator could talk to him. Wise observed that defendant was crying and upset, but he understood defendant's answers.

Wise made no threats or promises to defendant and used no physical force. Wise did not scream at defendant or call him names. Defendant appeared to understand Wise's questions and defendant did not complain of any injury or illness, including the cuts on his hands. Defendant did not appear intoxicated or request to speak to an attorney.

In the mean time, police set up two roadblocks near the crime scene to look for witnesses and suspects.

Between 7:50 and 8:00 p.m., Sergeant Bielowicz entered the locked holding cell and met with defendant. Bielowicz testified that defendant was now a suspect. He asked defendant if he was injured and defendant replied "yes" and showed his palms to Bielowicz. Bielowicz directed Officer Sundquist to photograph the lacerations to defendant's fingers. Greece Volunteer Ambulance staff were present and treated the lacerations to defendant's right hand and bandaged his hand and also treated a cut on his foot. Bielowicz exited the cell during this time, but two officers were outside the holding cell. Bielowicz returned briefly and left again, this time to get clothes for defendant. Bielowicz returned and gave defendant a t-shirt, socks and pants to wear. Defendant's underwear and socks were collected by police. Photographs were taken of defendant after he removed his clothing and before he put on the clothes from Bielowicz. Bielowicz told defendant that he needed to speak to him and defendant said "okay." Defendant went upstairs to an interview room escorted by Officers Haugh and Schirmer. On the way to the interview room, defendant was given water to drink but declined the offers of something to eat and to use the bathroom.

At 8:34 p.m. in the interview room, before any questioning, Bielowicz advised defendant of his Miranda rights from a card [People's Exhibit No. 1] by reading them verbatim. Defendant waived his rights and agreed to speak to Bielowicz. Haugh testified that he heard Bielowicz read defendant his Miranda rights and heard defendant waive his rights. Bielowicz testified that defendant was not free to leave at this time.

When asked what happened at defendant's home that night, defendant initially stated to Bielowicz that he did not want to talk about it. Bielowicz then asked questions about what defendant did that day from the time he attended a parent-teacher conference up until the police responded to his house. Defendant began to cry so Bielowicz left for 5 to 10 minutes to get tissues for defendant. When he returned defendant told Bielowicz, "I shouldn't have hurt them" and that he did not know how they were hurt. When asked who was hurt, defendant replied, "I didn't mean to hurt them." Bielowicz asked defendant who he hurt and defendant replied that he "shouldn't have hurt [his] daughters." Defendant testified that he did not make this statement to Bielowicz. Bielowicz testified that he asked defendant "how did you hurt them" and defendant replied "I think I should talk to a lawyer." Bielowicz ceased questioning when defendant said this and defendant was returned to the holding cell. Haugh's testimony was consistent with Bielowicz's testimony of the events and defendant's statements. Haugh also testified that he could not hear all of defendant's responses because defendant was emotional and hard to understand. [*4]

Defendant testified that at one point during Bielowicz's interview, he put his head in his hands, was crying, and asked for an attorney. Defendant testified that he did not recall every single word he said to Bielowicz and it was possible that he said things to Bielowicz that he could not recall.

Bielowicz made no threats or promises to defendant and did not use physical force to coerce any statement from defendant. Bielowicz spoke to defendant in a quiet to conversational tone. According to Bielowicz, defendant did not appear to be under the influence of alcohol or drugs and was cooperative during the 20 to 21-minute interview.

At approximately 11:04 p.m,. Cubiotti asked defendant, who had been asleep in the holding cell, if his injured daughter had any pre-existing medical condition. Defendant responded "no." Cubiotti asked no other questions of defendant.

At approximately 12:16 a.m., defendant was arraigned before Greece Town Justice Schiano and returned to a processing area at the Greece Police Department.

Child Protective Services was notified of the case and Katherine Colgan, a caseworker, began a child abuse/neglect investigation. Colgan met and interviewed defendant's seven year old son at the Bivona Child Advocacy Center on Lake Avenue. After 1:30 a.m., on April 9, 2005, Colgan, upon consulting with her Child Protective Services supervisor, went to the Greece Police Department. Colgan testified that as part of her Child Protective Services investigation, she had to speak to defendant for his input on placement of the surviving children and to determine what happened. Colgan had been in contact with the police and was told that defendant was at the Greece Police Department. No law enforcement officer instructed her to interview defendant.

Sergeant Bittner advised Colgan that defendant was a suspect in the attacks on defendant's wife and his two daughters. Colgan also knew that defendant had requested an attorney. Colgan spoke to defendant in an interview room outside of his holding cell. Also present in the room were Sergeant Bielowicz and Officers Robbins and Schirmer. Defendant was not in handcuffs. Colgan introduced herself to defendant and explained her role as a Child Protective investigator. She did not tell defendant that he did not have to talk to her. Colgan did not advise defendant of his Miranda rights.

Defendant gave background information to Colgan regarding defendant's family, including names, ages, addresses, and information about his work. When asked what happened that evening, defendant first responded that he did not remember. When asked to recount the day's events, defendant replied that he went to work that day, left early for a parent/teacher conference at school, had fish fries for dinner and wanted to take his son to the driving range. Defendant said that his wife became very upset with him. Defendant said that he thought his wife hit him in the head with something, he did not remember what happened next. However, the next thing he did remember was that he had blood all over him and his clothes. He told Colgan that he was "covered in blood." He went upstairs to change and gathered valuables in a bag because someone might take them. Defendant did not remember what he did with the bag. Defendant told Colgan that when he went downstairs, he saw his wife and his two daughters in blood and was not sure how they were hurt. Defendant stated that no one else was at home when this happened. When Colgan asked, "Who do you think did this?" defendant replied "I thought it must have been me" because nobody else was in the house.

Defendant told Colgan that he had contact with his young son and told him to go to [*5]defendant's brother's house. Defendant told Colgan that he did not think his son had seen anything. Defendant told Colgan that he "never wanted them to be hurt."

Colgan told defendant that she had interviewed the son who reported seeing his mother and sisters with red stuff all over them. Colgan advised defendant that the daughter in the hospital was in grave condition.

Defendant told Colgan that he was taking Paxil for social anxiety for the past couple of months. Defendant signed a release of information for Colgan to contact defendant's doctor and the children's doctor [People's Exhibit No. 2]. Colgan testified that defendant told her that there were no issues regarding alcohol abuse, that he did not use drugs and that he was not into pornography. Defendant said that there was no physical abuse in his relationship with his wife and they argued "a lot."

After explaining the Family Court process and need for placement of the children, defendant gave his written consent for the Department of Social Services' temporary removal of the surviving son and daughter [People's Exhibit No. 3].

Although police were in the interview room for Colgan's protection, only Colgan conversed with defendant. The interview lasted approximately 35 minutes. During Colgan's interview of defendant, Bielowicz stepped out of the room to take phone calls and was absent for approximately 10 minutes. At no time were any threats or promises made to defendant. Defendant did not appear to be intoxicated or under the influence of alcohol. Colgan understood defendant's responses to her questions and defendant appeared to understand Colgan's questions. Defendant did not refuse to answer Colgan's questions and did not request to speak to an attorney or for the questioning to stop.

The above constituted the relevant testimony and evidence presented during the hearing.

CONCLUSIONS OF LAW

Upon a thorough review of the evidence, the Court finds the testimony presented by the prosecution to be credible. The Court examined the testimony of defendant, and in conjunction with the exhibits and credible testimony presented by the prosecution, the Court finds not credible those portions of defendant's testimony which contradict the credible police testimony. The inconsistencies in the police testimony asserted by defense counsel were minor in nature and the type of inconsistencies the Court would expect to find in witnesses who testified for hours concerning a multitude of details. The Court finds police account of the events in question to be clear, credible, and consistent.

I.Defendant's Statements

Defendant asserts that his statements to police and Colgan were obtained in violation of his State and Federal constitutional rights, CPL 60.45 and State common law, and, accordingly, they should be suppressed.

In New York, a confession or admission is admissible at trial only if its voluntariness is established by the People beyond a reasonable doubt (see, People v Valerius, 31 NY2d 51). The issue presented is whether, under the totality of the circumstances, defendant's statements were obtained in violation of his constitutional right against self-incrimination and/or his constitutional right to counsel. The prosecution has the burden to negate the issue and to establish voluntariness beyond a reasonable doubt.

Miranda warnings are required whenever a person is subjected to custodial interrogation, that is, when a person's freedom of movement is restrained in a manner associated with a formal arrest [*6]and the questioning is intended to elicit incriminating evidence (see, Miranda v Arizona, 384 US 436; People v Berg, 92 NY2d 701). Whether a suspect is in custody is generally a question of fact (People v Centano, 76 NY2d 837), and the standard to be applied is whether a reasonable person, innocent of any crime, would have believed that he was in police custody (see, People v Yukl, 25 NY2d 585, 589, cert. denied 400 US 851). The factors to be considered include the amount of time the individual spent with the police, whether his freedom of action was significantly restricted, the location of the questioning and atmosphere under which he was questioned, his degree of cooperation, whether he was apprised of his constitutional rights, and whether the questioning was investigatory or accusatory in nature (see, People v Macklin, 202 AD2d 445, lv denied 83 NY2d 912; People v Bailey, 140 AD2d 356, 358).

Questions of an investigatory nature such as "What happened?" do not require pre-interrogation warnings because the question is designed to clarify the nature of the situation rather than obtain a confession (see, People v Johnson, 59 NY2d 1014; People v Armstrong, 210 AD2d 182, lv denied 85 NY2d 935; People v Mallory, 175 AD2d 623, lv denied 78 NY2d 1013).

A.Seizure of Defendant

At the hearing, defense counsel asserted that defendant was unlawfully seized at his home and as a result of this unlawful seizure, his statements to police should be suppressed.

1.Warrantless Entry

Preliminarily, the presence of exigent circumstances permit the police to enter a residence without a warrant (see, People v Molnar, 98 NY2d 328, 331-332; People v Hodge, 44 NY2d 553). "Indeed, '[p]eople could well die in emergencies if police tried to act with the calm deliberation associated with the judicial process.' Accordingly, 'what would be otherwise illegal absent an . . . emergency' becomes justified by the 'need to protect or preserve life or avoid serious injury' (id. quoting Wayne v United States, 318 F2d 205, 212 [DC Cir 1963] [Burger, J., concurring]). Recently, in People v Evans, __ AD3d ___, 801 NYS2d 462, 463 [4th Dept Sept. 30, 2005], the court determined that the police were justified in entering the defendant's residence based on the emergency exception to the warrant requirement where there was no response from the residence but police heard movement in the house when they responded to a 911 telephone call originating from the residence made by a woman named Amy who cried "help me" before hanging up. The court determined that the police entered the residence to search for Amy, who was in obvious distress, not to search for contraband (id.). The perception by the police that an injured person might be in a residence justifies entry into that residence (People v Longboat, 278 AD2d 836, lv denied 96 NY2d 802).

Here, exigent circumstances were present, which permitted the police to enter defendant's residence without a warrant. Cubiotti testified that he was responding to a 911 call from a man named "David ," who indicated he had "hurt [his] family" and "they were stabbed," there was an open line on the 911 call in which crying could be heard, and there was no response when Cubiotti yelled "come out." The entry was motivated primarily by a reasonable belief that an emergency existed which required immediate action for the protection of life (see, People v Mitchell, 39 NY2d 173; People v Cruz, 89 AD2d 526, 526, affd 59 NY2d 984), given that the police had information that the family was hurt and had been stabbed.

2.Approach with Guns Drawn [*7]

Additionally, under these exigent circumstances, the police were justified in entering the home with their guns drawn (see, People v Chestnut, 51 NY2d 14, cert denied 449 US 1018; People v Harris, 160 AD2d 515, lv denied 76 NY2d 789). Based upon what the police knew from the 911 call, there was a significant possibility that the perpetrator was still in the house.

3.Detention and Apprehension of Defendant

A detention of a defendant may be the equivalent of an arrest requiring probable cause (see, People v Hicks, 68 NY2d 234, 239). Although, "not every seizure is an arrest" (id.). "No checklist has yet been assembled that would facilitate mechanical determination of when a given set of circumstances equals an arrest" (id.). In determining whether a de facto arrest has taken place the test is "what a reasonable man innocent of any crime, would have thought had he been in the defendant's position" (People v Yukl, 25 NY2d 585, 589).

The facts developed at the suppression hearing established that (1) police responded to a 911 call from "David" who reported that he hurt his family and they were stabbed, (2) police entered the residence with guns drawn, (3) upon entry police found blood splattered "everywhere," (4) police found defendant in his underwear sitting on the kitchen floor and crying, and (5) police found a female child laying dead near defendant. Additionally, the 911 operator had an open line with "David" and could only hear crying in the background as police entered the residence. Police also found defendant holding a small child, and after ordering defendant to put the child down, police removed defendant from the residence and detained him at the scene. When police returned inside the house, they found a woman dead with a knife sticking out of her chest, one child dead, and ambulance personnel treating a child, who defendant had been holding, for stab wounds. The police did not find anyone else in the home.

Based on these circumstances, a reasonable person innocent of any crime in defendant's position would have thought that he was under arrest when police placed defendant in handcuffs and removed him from the house (see, People v Yukl, supra ). Thus, the police were required to have probable cause for their actions. Probable cause exists if the facts and circumstances known to the arresting officer warrant a prudent man in believing that the offense has been committed" (People v Oden, 36 NY2d 382, 384) and that the person arrested is the perpetrator (see, People v Carrasquillo, 54 NY2d 248, 254). Given the facts developed at the suppression hearing, the police had probable cause to arrest defendant. As such, there was no Fourth Amendment violation, as defendant was seized and arrested based on probable cause.

B.Defendant's Statements to Lieutenant Wise

The facts developed at the hearing established that Wise asked Officer Haugh what was going on, and Haugh was not able to tell Wise who was in the holding cell. Haugh did not know the name of defendant or whether defendant was a victim, witness or suspect. Wise did not call any other police officers for information. Wise made no threats or promises to defendant or coerced him to make any statement. Wise spoke to defendant in a conversational tone for approximately 30 to 45 seconds within minutes of defendant's arrival at police headquarters, which was within approximately 5 minutes of crime scene. Wise's questions were limited and occurred within a 30 to 45 second time interval.

Both police custody and interrogation must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda (People v Huffman, 41 NY2d 29, 33). "Custodial admissions are not suppressible unless produced [*8]by a process of interrogation designed to elicit statements from the defendant" (id.). Defendant was in custody at the time Wise asked defendant questions given that a reasonable person innocent of any crime would have believed that he was in police custody (see, People v Yukl, supra ). The Court concludes that Wise's questions to defendant were not all purely investigatory in nature and not designed to clarify the nature of the developing situation. As such, Miranda warnings were required prior to asking defendant "if he hurt anyone" (see, People v O'Connor, 6 AD3d 738, lvs denied 3 NY3d 639, 645; People v Rifkin , 289 AD2d 262, lv denied 97 NY2d 759; People v Crowley, 98 AD2d 628; see also, People v Johnson, 59 NY2d 1014; People v Huffman, 41 NY2d 29; cf., People v Armstrong, 210 AD2d 182, lv denied 85 NY2d 935; People v Mallory, 175 AD2d 623, lv denied 78 NY2d 1013). This question was designed to elicit an inculpatory response or further an investigation, not to clarify the situation before the police could take further action (see, People v O'Connor, supra ; People v Bastian, 294 AD2d 882, 884, lv denied 98 NY2d 694; People v Crowley, supra ).

Consequently, suppression of defendant's statement to Wise after Wise asked defendant "if he hurt anyone" is mandated by the Miranda violation. The motion to suppress defendant's statements to Wise is granted due to Wise's failure to advise defendant of his Miranda rights prior to asking defendant a question designed to elicit an incriminating response. Wise's questions prior to the offending question were pedigree in nature and defendant's responses to the pedigree questions are not subject to suppression.

C.Defendant's Statements to Sergeant Bielowicz

Prior to Bielowicz questioning defendant in the interview room, defendant was treated by ambulance personnel, changed his clothes, was photographed, and moved to an interview room.

At 8:34 p.m, before Bielowicz interrogated defendant, he advised defendant of his Miranda rights and defendant said that he understood his rights and agreed to speak with Bielowicz. This post-Miranda questioning was sufficiently separated in time, location, and circumstance to remove any taint attributable to defendant's pre-warning statement (see, People v Bethea, 67 NY2d 364; People v Chappel, 38 NY2d 112).

Defendant freely and voluntarily waived his Miranda rights. Defendant did not initially ask for an attorney. Defendant's response that he did not want to talk about what happened at home while answering other inquiries by Bielowicz was not sufficient to invoke his right to remain silent.

The right to remain silent is not asserted where a defendant merely refuses to answer specific questions or expresses a desire to avoid certain areas of inquiry (see, People v Baird, 167 AD2d 693, 694, lv denied 77 NY2d 903). "[I]n order to terminate questioning, the assertion by a defendant of his right to remain silent must be unequivocal and unqualified" (People v Morton, 231 AD2d 927, 928, lv denied 89 NY2d 944). "In the context of the entire interrogation, during which [the] defendant never said that he wanted to stop talking but instead freely responded to other inquiries, [the] defendant's statement was insufficient to notify the police of the need to halt the interview (id.). As such, the Court concludes that defendant did not invoke his right to remain silent.

When defendant stated "I think I should talk to an attorney," Bielowicz promptly ceased questioning defendant. Upon a defendant's request for counsel, interrogation must cease until an attorney is present (see, Miranda v Arizona, 384 US 436, 474). Defendant's statements up to the time he requested counsel were not the product of coercion, pressure, or any other improper form [*9]of inducement (see, People v Guthrie, 222 AD2d 1084, lv denied 87 NY2d 973; People v Williams, 222 AD2d 468, lv denied 88 NY2d 887, cf., People v Orso, 270 AD2d 947, lv denied 95 NY2d 856).

The evidence did not establish that defendant showed any signs of suffering from acute humiliation due to his lack of clothing, so as to prompt him to give an involuntary statement (see,

People v Cureton, 139 AD2d 756, 757, lv denied 72 NY2d 858).

Also, it should be noted that the defendant's hand injury does not render his statement involuntary. The evidence shows that defendant was coherent, cooperative, and voluntarily responded to Bielowicz's questions. Therefore, the Court determines that defendant's statements were voluntarily made despite any injury to defendant (see, People v Meissler, 305 AD2d 724, 726, lv denied 100 NY2d 644).

Accordingly, the Court determines that defendant's statements made to Bielowicz were obtained with due regard to his constitutional rights, and as such, these statements are duly admissible at trial. Defendant's motion to suppress his statements to Bielowicz is denied.

D.Defendant's Statements to Caseworker Colgan

Social workers are generally not agents of the police (see e.g., Matter of Luis M., 83 NY2d 226), however, "they may be considered agents under certain circumstances" (People v Whitmore, 12 AD3d 845, 845, lvs denied 4 NY3d 769, 892). Where the caseworker has no agency relationship with the police, the defendant's right to counsel is not implicated (see, People v Whitmore, 12 AD3d 845, 847, lv denied 3 NY3d 743). To transform private conduct into State action there must be "a clear connection between the police and the private investigation . . .; completion of the private act at the instigation of the police . . .; close supervision of the private conduct by the police . . . ; and a private act undertaken on behalf of the police to further a police objective . . ." (People v Ray, 65 NY2d 282, 286 [citations omitted]; see, People v Greene, 306 AD2d 639, lv denied 100 NY2d 594).

When defendant made his statement to Colgan, his right to counsel had attached. As such, defendant's statement to Colgan is subject to dismissal if it is determined that Colgan was an agent of the police (see, People v Whitmore, 12 AD3d 845, 847, lv denied 3 NY3d 743).

The indicia of an agency relationship between the police and Colgan is lacking to establish that Colgan was an agent of the police. Colgan contacted defendant on her own initiative and was not asked by the police to contact defendant. She interviewed defendant as part of the Child Protective Services investigation and placement of the surviving children. She was not supervised by the police. Colgan received no instructions from the police regarding her interview of defendant. There was no testimony that Colgan worked with the Greece Police on a joint venture. Although Colgan communicated with police prior to her interview of the defendant, Colgan interviewed defendant without police input. Accordingly, the Court concludes that Colgan was not an agent of the police when she interviewed defendant (see, People v Jackson, 4 AD3d 848, lv denied 2 NY3d 801; People v Whitmore, supra ). As such, defendant's motion to suppress his statements to Colgan is denied.

The above constitutes the Decision and Order of this Court.

Dated:Rochester, New York

October 21, 2005

____________________________________ [*10]

Hon. Joseph D. Valentino

Justice Supreme Court