People v Garcia

[*1] People v Garcia 2020 NY Slip Op 50101(U) Decided on January 22, 2020 Supreme Court, Kings County Cyrulnik, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 22, 2020
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Destiny Garcia, Defendant



130/2016



Eric Gonzalez, Esq., Kings County District Attorney, by Assistant District Attorney Ernest Chin, for the People of the State of New York.

Peter Guadagnino, Esq., Law Offices of Peter Guadagnino, PC, for Defendant, Destiny Garcia.
Miriam Cyrulnik, J.

This court presided over a combined Dunaway / Huntley hearing on August 5, September 20, September 27, and October 18, 2019. The People called as witnesses Detective Alfred McCoy, Detective Christopher Madison, Sergeant Francisco Delossantos, Detective Sammy Sosa, Detective Juliet Shields, Sergeant Farrell Goldman and Dr. Virginia Barber-Rioja. Defendant called as witnesses Mr. Roger Garcia and Dr. Leo Shea.

Having had the opportunity to hear the testimony of the witnesses, observe their demeanor and assess their veracity, the court finds the People's witnesses and defendant's expert credible, and makes the following findings of fact based upon the material, relevant evidence adduced:

Statement of Facts

At approximately 7:30 p.m. on January 3, 2016, Sergeant Francisco Delossantos was on duty at the 72nd Precinct when he received a 911 call regarding an assault in progress. The call was assigned to two responding police officers who encountered one Jason Valentin. Mr. Valentin identified himself as the 911 caller and told the officers that his cousin had confessed to killing her mother and stepfather at 2364 Batchelder Street in Kings County. Mr. Valentin also told them that his cousin was at her father's house, located at 333 57th Street in Kings County.

The assigned officers relayed the information to Sgt. Delossantos, who directed them to transport Mr. Valentin to the 72nd Precinct. Mr. Valentin followed the officers to the precinct in his own car. While waiting for Mr. Valentin to arrive, Sgt. Delossantos contacted the 61st Precinct, in which 2364 Batchelder Street is located, to verify the incident described by Mr. Valentin.

When Mr. Valentin arrived at the 72nd Precinct, he was interviewed by Sgt. Delossantos. He stated that his cousin had confessed to the killings over the telephone and that she was waiting for him at her father's house. Mr. Valentin gave his cousin's name as Destiny Garcia. After interviewing Mr. Valentin, Sgt. Delossantos intended to proceed to 333 57th Street. However, Mr. Valentin warned that his cousin might notice the police arriving and flee, [*2]suggesting instead that they go to the location in his car.

Sgt. Delossantos and Mr. Valentin drove to 333 57th Street in Mr. Valentin's car. While en route, Mr. Valentin called his cousin and spoke to her on the speaker.[FN1] Sgt. Delossantos overheard a female voice explain to Mr. Valentin that she had gotten into a struggle with her mother and shot her with a handgun. She further explained that her stepfather tackled her and they engaged in a struggle for the handgun. According to the female, a cousin named Jordan entered during the struggle, took the handgun from her and fired it into her stepfather until it was empty.

Upon arrival at 333 57th Street, Mr. Valentin observed his cousin in a window of the house and pointed her out to Sgt. Delossantos. As they got out of the car, Sgt. Delossantos observed her leaving the house, identified himself as a police officer, and immediately apprehended her.[FN2] Defendant was taken into custody between 7:45 p.m. and 7:50 p.m., after which Sgt. Delossantos arranged for Roger Garcia, her father, to accompany them to the 61st Precinct.

Sgt. Delossantos transported defendant to the 61st Precinct in a police vehicle, arriving there at approximately 8:20 p.m. Although neither the sergeant nor the other officers in the vehicle engaged defendant with questions or conversation, she made inculpatory statements during the short ride to the precinct. Sgt. Delossantos arrived at the 61st Precinct with defendant at the same time that Mr. Garcia arrived. Defendant and her father were escorted to the Detective Squad.

At approximately 7:10 p.m. on January 3, 2016, Detective Christopher Madison, who was on duty at the 61st Precinct, was notified of a homicide at 2364 Batchelder Street in Kings County. The notification came from an officer who was on a fixed post in the vicinity of Avenue X and Batchelder Street. Detective Madison met the officer at 2364 Batchelder Street at approximately 7:30 p.m. The officer stated that he had been flagged down by an individual who hadn't heard from family members residing at the location, and was requesting a wellness check of Apartment 5A. When the post officer arrived at the apartment, he received no answer to his knock. He found the door closed, but unlocked, and entered. Upon entry, he found two bodies inside the apartment.

After interviewing the post officer, Detective Madison inspected Apartment 5A himself. He confirmed the post officer's observations and made the necessary departmental notifications. At approximately 7:42 p.m., with the investigation commencing in the 61st Precinct, Detective Madison received a call from the 72nd Precinct Desk Sergeant (Sgt. Delossantos), informing him that a 911 caller had provided information naming the perpetrator of a double homicide at 2364 Batchelder Street. Detective Madison instructed the Desk Sergeant that the named perpetrator should be transported to the 61st Precinct upon apprehension.

When defendant arrived at the 61st Precinct at approximately 8:20 p.m., Detective [*3]Madison had her uncuffed and placed in the Detective Squad interview room.[FN3] Defendant was offered refreshment and use of the bathroom facilities. She was also asked if she was physically well; defendant advised that she was physically fine. She requested and received water.

Once defendant was settled in the interview room, Detective Madison met with Sgt. Delossantos, who told him that defendant's father was also present in the precinct. Detective Madison interviewed Mr. Garcia, in English, at approximately 9:00 p.m. Mr. Garcia provided his account of what had transpired earlier in the day and that evening. While speaking to Mr. Garcia, Detective Madison observed that he had a "very heavy Spanish interpretive [sic]" and concluded that English was not his first language.

At approximately 9:39 p.m., Detective Madison entered the interview room with Detectives Joseph Perry and Juliet Shields and Mr. Garcia. Based on his earlier interaction with Mr. Garcia and considering the magnitude of the case, Detective Madison decided that he would make Spanish language interpretation available to Mr. Garcia to ensure that he would understand the proceedings about to take place. Detective Shields, who is fluent in Spanish, was present to provide that translation. Before entering the interview room, Detective Shields had a brief conversation with Mr. Garcia, in Spanish, in which she explained that if there was anything he didn't understand during the interview, she would translate for him.[FN4]

The interview of defendant commenced with the reading of Miranda warnings to defendant in Mr. Garcia's presence.[FN5] Detective Madison used a standard NYPD "Juvenile Miranda" form for this purpose.[FN6] After the first warning was read in English and defendant indicated her understanding, Mr. Garcia requested and received Spanish language translation from Detective Shields. Following the translation, he indicated that he understood. With respect to the remainder of the warnings, defendant and Mr. Garcia indicated their understanding of each after it was read in English. Mr. Garcia did not request a Spanish language translation of any of the remaining warnings. After Miranda warnings were administered, defendant indicated that she was willing to answer questions without representation. Mr. Garcia indicated his assent, without requesting Spanish language translation. Defendant answered the detective's questions and the interview was concluded at approximately 11:39 p.m. on January 3, 2016.

During the interview, defendant claimed to be the subject of physical abuse at the hands [*4]of at least one of the decedents. She consented to bodily inspection and photographs. The inspection was performed in private by Detective Shields immediately following the interview.[FN7] Photographs were taken immediately thereafter by the Crime Scene Unit. Detective Madison then escorted defendant to the precinct's court-designated Juvenile Room. A police officer was assigned to the Juvenile Room to monitor defendant. The officer was instructed not to question or speak to defendant, except to determine if she required refreshment or use of the bathroom facilities. Defendant was restrained by a single handcuff to a metal bar. Seating was provided. Detective Madison then drove Mr. Garcia home.

Sgt. Farrell Goldman was the 61st Precinct overnight Desk Sergeant from approximately 11:00 p.m. on January 3, 2016 through approximately 8:00 a.m. on January 4, 2016. Monitoring the Juvenile Room was among Sgt. Goldman's duties that night. Sgt. Goldman observed defendant in the Juvenile Room, which was approximately twenty feet from his desk. Sgt. Goldman's recollection, which was refreshed by the Command Log he maintained, was that he made his regular rounds and that defendant made no special requests while he was on duty. Although he did not have an independent recollection of whether defendant slept, he testified that, pursuant to his custom and practice, he would not have disturbed defendant if he found her asleep while monitoring her.

At approximately 9:00 a.m. on January 4, 2016, Detective Madison returned to the 61st Precinct to continue his investigation. He checked on defendant, who was sleeping in the Juvenile Room. He woke her, offered refreshment and provided orange juice at her request. He continued to check on her hourly while he processed paperwork.

At approximately 1:00 p.m., Detective Madison checked on defendant and found her to be visibly upset. Without any questioning from the detective, defendant stated that she had not been entirely truthful during the previous night's interview and related new details of the offenses, not previously disclosed. Detective Madison did not ask follow-up questions, but immediately escorted defendant to the interview room, where she remained uncuffed. He then arranged to bring Mr. Garcia back to the precinct.

At approximately 3:00 p.m. on January 4, 2016, Detectives Perry and Sosa, Assistant District Attorney Ernest Chin and Mr. Garcia entered the interview room.[FN8] Detective Madison observed the ensuing interview on a closed circuit monitor in a separate room.[FN9]

The interview on January 4, 2016 was conducted by ADA Chin. Mr. Chin addressed Mr. Garcia in English, telling him that although he was informed Mr. Garcia understood some English, Detective Sosa was present to provide Spanish language translation. Mr. Garcia agreed that he spoke some English and acknowledged his understanding of Mr. Chin's introduction.

ADA Chin then proceeded to administer Miranda warnings in English, followed by [*5]Spanish language translations of each warning by Detective Sosa.[FN10] Defendant indicated her understanding of each warning as it was provided in English. Mr. Garcia indicated his understanding of each warning, following its Spanish language translation.[FN11] Once the Miranda warnings were administered, defendant agreed to answer questions without representation. Mr. Garcia indicated his assent upon receiving Spanish language translation. Defendant answered questions and the interview was concluded at approximately 4:31 p.m.

Detective Madison testified that no promises or threats were made to defendant at any time while she was in his custody, nor did she request an attorney at any time.

Defendant called Roger Garcia as a witness. Mr. Garcia, who is originally from Honduras, is 59 years old. He left school after the sixth grade to go to work as a farmer. As a young man, he was a Honduran police officer for four years. According to Mr. Garcia, becoming a police officer did not require special training. While a police officer, Mr. Garcia often dealt with detainees. He had occasion to observe the Honduran equivalent of Miranda warnings administered to detainees, and from time to time had occasion to administer them himself.[FN12] Moreover, Mr. Garcia spent five years in the Honduran army, where he was also a police officer.

Mr. Garcia emigrated to the United States in 1987, settling in Houston, Texas for seven years. He was employed as a store cleaner. He has a former wife and three children who remain in Texas. Mr. Garcia moved to Brooklyn in 1993 or 1994. He identified defendant as his daughter, who was born in Brooklyn in 2001.[FN13]

Mr. Garcia has worked in the construction industry since moving to Brooklyn; he currently works as a roofer. He has never attended school in the United States. He testified that his English is very limited, enabling him to communicate with relation to only the simplest matters, such as buying a soda at a convenience store.

As a child in Honduras, Mr Garcia was a good student and was never placed in classes for children with learning or behavioral disabilities. Since coming to the United States, he has managed to function independently. He has maintained friendships and romantic relationships and fathered children. He has been steadily employed and manages his own finances. He doesn't drive, but is able to navigate the New York City subway system.

On January 3, 2016, Mr. Garcia received a telephone call from defendant's cousin, Jason Valentin. Mr. Valentin asked him if defendant was at his house and advised him not to let her [*6]leave. Mr. Valentin informed Mr. Garcia that the body of defendant's mother had been found at 2364 Batchelder Street and that Mr. Garcia could expect the police to arrive at his house. They did so approximately five minutes later.

Contrary to Sgt. Delossantos' testimony that defendant was apprehended as she exited 333 57th Street, Mr. Garcia testified that a large number of police entered his house and apprehended defendant inside.[FN14] Although he was not forced to accompany defendant, he was told that his presence would be required at the precinct to give permission for defendant to speak to the police.

Mr. Garcia was transported to the 61st Precinct. He testified that although two male detectives spoke to him in English when he arrived, he did not understand anything they said to him. Eventually, he was escorted to an interview room in which defendant and detectives were present. He recalled that one of the detectives began asking questions in English. He didn't understand the first question and asked for translation; a female detective provided Spanish language translation. Mr. Garcia testified that he did not understand it or anything else that transpired during the interview.

However, on cross-examination, Mr. Garcia conceded that he did, in fact, understand the translation provided by Detective Shields. Mr. Garcia also conceded that he did not request translation of the remainder of the Miranda warnings and that he indicated that he did understand them as they were read to defendant in English. Mr. Garcia's hearing testimony was that he answered "yes" when asked if he understood the warnings, without knowing what he was saying, claiming that he was in a state of shock and was simply answering "yes" to whatever was asked of him. Mr. Garcia denied that Detective Shields spoke to him outside the interview room before the interview commenced.[FN15]

Mr. Garcia recalled that he returned to the 61st Precinct for a second interview of defendant on January 4, 2016. With respect to the second interview, Mr. Garcia recalled that, this time, each Miranda warning was translated into Spanish by a detective. Although he admitted that he understood the warnings as they were translated, he heard the second warning to be that anything defendant said could be "used in court."[FN16] Mr. Garcia insisted that had he [*7]known that defendant's statements could be used against her in court, he would not have allowed her to answer any questions.

Experts [FN17]

Defendant called Dr. Leo Shea, who was qualified as an expert in Clinical and Neuropsychology. Although Dr. Shea was questioned extensively by both sides, defendant makes no reference to Dr. Shea or his expert opinion in his written arguments.[FN18] Since defendant's argument does not rely upon it, the court will limit its discussion of the expert opinion of Dr. Shea to a brief summary.

Dr. Shea's sole purpose in performing a neuropsychological evaluation of Mr. Garcia was to determine his level of cognitive capacity. Dr. Shea did not discuss Miranda warnings with Mr. Garcia and he did not specifically evaluate him with respect to his understanding of that subject. He did not review the videotape recordings of the interviews of defendant. After extensive testing, Dr. Shea concluded that Mr. Garcia falls within "the borderline range of intellectual functioning," with cognitive deficits.

Dr. Shea offered no opinion as to whether or not Mr. Garcia understood the Miranda warnings that were read to him and his daughter on the 3rd and 4th of January, 2016. Ultimately, Dr. Shea's opinion was that based upon Mr. Garcia's neuropsychological profile, a process known as verification might have been helpful in administering Miranda warnings to him. Verification is a process by which a person's understanding of a concept presented to them is examined by having them explain it, thereby exposing errors in, or lack of, understanding of the concept. If either exists, education as to the concept can be provided. Finally, after any necessary education has taken place, the person is asked to explain the concept again to verify that they actually grasp it.[FN19]

The People called Dr. Virginia Barber-Rioja as an expert in Clinical and Forensic Psychology. Dr. Barber-Rioja was engaged specifically to evaluate Mr. Garcia's capacity to waive Miranda rights on behalf of defendant. Dr. Barber-Rioja reviewed the videotape recordings of the two interviews of defendant and thoroughly discussed his understanding of Miranda with Mr. Garcia.

Dr. Barber-Rioja began her evaluation of Mr. Garcia with a review of his background and personal history. He described his childhood in Honduras; his limited schooling; his time as a [*8]police officer and soldier; and his emigration to the United States. She focused on his time as a police officer to better understand what he knew about Miranda and when he learned it. Dr. Barber-Rioja then made an open-ended request for him to explain his understanding of Miranda. Mr. Garcia was able to explain the basic concept. She discussed the individual warnings, including the fact that what a defendant says can be used against them in court, of which he was aware. Mr. Garcia also acknowledged having been exposed to Miranda through television programs and movies.

After probing Mr. Garcia's independent knowledge of Miranda warnings, Dr. Barber-Rioja went on to translate New York State's version into Spanish, just as they were on January 4, 2016. She then asked him to repeat them back to her, which he was able to do reasonably well.

When asked if he understood the Miranda warnings that were translated into Spanish by Detective Sosa, Mr. Garcia indicated that he did. He was also able to explain that he was asked to be present because defendant was a minor and needed a guardian present during questioning.

Significantly, Dr. Barber-Rioja made efforts to determine when Mr. Garcia formed his understanding of Miranda. Although she could not definitively establish the exact point at which he did so, she was confident, based upon the personal history he provided, that it pre-dated defendant's arrest.

Dr. Barber-Rioja largely agreed with the results of Dr. Shea's evaluation of Mr. Garcia's cognitive capacity. Indeed, she did not repeat the battery of tests administered by Dr. Shea because she found them to be reliable. However, Dr. Barber-Rioja pointed out that Mr. Garcia's range of intellectual functioning and cognitive deficits did not prevent him from understanding the immediate import of the Miranda warnings he heard on the 3rd and 4th of January, 2016.

Probable Cause

The applicable legal principles are well established and beyond dispute:

In order to sustain a finding that the police had probable cause to arrest, the evidence must show that they were possessed of information which would lead a reasonable person to conclude that it is 'more probable than not' that a crime has been committed and that the person being arrested is the person who committed it [citation omitted]. A lawful arrest 'does not require proof to a mathematical certainty, or beyond a reasonable doubt' [citation omitted].

(see People v Radonic, 239 AD2d 176, 179 [1st Dept 1997], lv denied 90 NY2d 897 [1997]; see also People v Harmon, 293 AD2d 303, 304 [1st Dept 2002], lv denied 98 NY2d 676 [2002]; People v Guo Fa Liu, 271 AD2d 695, 696 [2d Dept 2000], lv denied 95 NY2d 866 [2000]; Matter of Darnel B., 248 AD2d 464 [2d Dept 1998]; People v Ortiz, 229 AD2d 451 [2d Dept 1996], appeal dismissed 88 NY2d 1023 [1996], lv denied 89 NY2d 866 [1996]).

In this regard:

[T]he subjective beliefs of the arresting officers are not controlling on the issue of whether probable cause exists for an arrest [citation omitted]. Rather, it is for the court to make this determination upon a review of all relevant objective information known to the officer at the time of arrest (see People v Bandera, 204 AD2d 340, 341 [2d Dept 1994], lv denied 83 NY2d 1002 [1994]; see also People v Peters, 136 AD2d 750, 751 [2d Dept [*9]1988], lv denied 72 NY2d 864 [1988]). Judicial evaluation of police action must be based on objective criteria and not an officer's subjective view of his right to make an arrest with due consideration given to the expertise of [the officers] (People v Lynch, 178 AD2d 779, 781 [3d Dept 1991], lv denied 79 NY2d 949 [1992]).

Simply stated, "the 'determination of probable cause deals not with technicalities but with probabilities ... under the totality of the circumstances presented'[citation omitted]" (People v Davis, 192 AD2d 360, 361 [1st Dept 1993], lv denied 81 NY2d 1071[1993]). The information known to a police officer may include "what he ... has seen, learned and heard as a trained officer [citation and internal quotation marks omitted]" (People v Virola, 300 AD2d 822, 823 [3d Dept 2002], lv denied 99 NY2d 633 [2003]). Courts are instructed to consider all the facts and circumstances together; "[v]iewed singly, the[y] may not be persuasive, yet when viewed together the puzzle may fit and probable cause found [citation and internal quotation marks omitted]" People v Quarles, 187 AD2d 200, 203 [4th Dept 1993], lv denied 81 NY2d 1018 [1993]; see e.g. People v Letendre, 264 AD2d 943 [3d Dept 1999], aff'd 94 NY2d 939 [2000]; People v Curry, 294 AD2d 608, 611 [3d Dept 2002], lv denied 98 NY2d 674 [2002] [considered in the aggregate, the facts convincingly established probable cause for the defendant's warrantless arrest]).

The People need not present proof beyond a reasonable doubt, or even establish a prima facie case; "what must be shown is that it was 'more probable than not' that an offense has occurred and that defendant was the perpetrator" (People v Horsman, 152 AD2d 859, 860 [3d Dept 1989]).

Shortly after 7:30 p.m. on January 3, 2016, as a result of a 911 call, Sgt. Delossantos came to interview Jason Valentin. Mr. Valentin reported that his cousin, Destiny Garcia, had confessed to killing her mother and stepfather at 2364 Batchelder Street and that she was currently at her father's house, located at 333 57th Street.

On the way there, Sgt. Delossantos overheard a telephone conversation between Mr. Valentin and defendant in which she made inculpatory statements. Finally, at approximately 7:42 p.m., before the apprehension of defendant, Mr. Valentin's report was corroborated when, in answer to Sgt. Delossantos' alert to the 61st Precinct, Detective Madison verified that two bodies had been discovered at 2364 Batchelder Street and instructed Sgt Delossantos to apprehend the named perpetrator.

Given the evidence presented at the hearing, and taking into consideration the totality of the circumstances known to Sgt. Delossantos at the time defendant was apprehended, the court finds that probable cause existed to place defendant under arrest. Accordingly, defendant's motion to suppress evidence, based upon lack of probable cause to arrest, is denied.

Statements

As stated in People v Williams (62 NY2d 285, 288-289 [1984]):

To be valid, an accused's waiver of his or her rights must be knowingly and intelligently made... [and] [a] court must always ascertain whether the defendant understood how the Miranda rights affected the custodial interrogation.... An individual may validly waive Miranda rights so long as the immediate import of those warnings is comprehended, [*10]regardless of his or her ignorance of the mechanics by which the fruits of that waiver may be used later in the criminal process (citations omitted).

As the Court of Appeals further stated in People v Sirno (76 NY2d 967, 968 [1990]), when a defendant indicates that he understands his Miranda rights and "promptly after having been administered those rights willingly proceeds to make a statement or answer questions during interrogation, no other indication prior to commencement of interrogation is necessary to support a conclusion that the defendant waived those rights" (citing People v Davis, 55 NY2d 731 [1981]; North Carolina v Butler, 441 US 369 [1979]).

Defendant's written argument in support of her motion to suppress her statements asserts the following with respect to the interviews dated January 3, 2016 and January 4, 2016:

Because of her age at the time, her father, Roger Garcia, had to give consent for the police and District Attorney to speak to her. Mr. Garcia was the one who had to make a knowing, voluntary and intelligent waiver of Destiny Garcia's right to remain silent (see defendant's written argument at page 1).

Defendant has relied exclusively on this proposition in moving to suppress her videotaped statements. The People appear to have accepted it without question in opposing defendant's motion and have offered no evidence or argument to contradict it. The court, however, has found no support, in statute or case law, for the blanket assertion that the waiver of defendant's Miranda rights rested solely with Mr. Garcia.

The court has reviewed the relevant statutes [FN20] and case law pertaining to the custodial questioning of juveniles.

Criminal Procedure Law former §140.27(5) reads in pertinent part:

(5) [Eff. until October 1, 2018 or October 1, 2019, pursuant to L.2017, c. 59, pt. WWW, §106(b). See, also subd. 5 below.] Upon arresting a juvenile offender without a warrant, the peace officer shall immediately notify the parent or other person legally responsible for his care or the person with whom he is domiciled, that the juvenile offender has been arrested and the location of the facility where he is being detained.

Family Court Act former §724 reads, in pertinent part:

(a) If a peace officer or a police officer takes into custody or if a person is delivered to him under section seven hundred twenty three, the officer shall immediately notify the parent or other person legally responsible for his care, or the person with whom he is domiciled, that he has been taken into custody.(b) After making every reasonable effort to give notice under paragraph (a), the officer shall:(ii) forthwith and with all reasonable speed take the youth directly, and without first being taken to the police station house, to the designated lead agency located in the county in [*11]which the act occasioning the taking into custody allegedly was done, unless the officer determines that it is necessary to question the youth, in which case he or she may take the youth to a facility designated by the chief administrator of the courts as a suitable place for the questioning of youth or, upon consent of a parent or person legally responsible for the care of the youth, to the youth's residence and there question him or her for a reasonable period of time;(d) In determining what is a "reasonable period of time" for questioning a child, the child's age and the presence or absence of his parents or other person legally responsible for his care shall be included among the relevant considerations.

Family Court Act former §305.2 reads, in pertinent part :

(2) [Eff. until Oct. 1, 2018 or Oct. 1, 2019, pursuant to L.2017, c. 59, pt. WWW, §106(b). See, also, subd. 2 below.] An officer may take a child under the age of sixteen into custody without a warrant in cases in which he may arrest a person for a crime under article one hundred forty of the criminal procedure law.(3) If an officer takes such child into custody or if a child is delivered to him under section 305.1, he shall immediately notify the parent or other person legally responsible for the child's care, or if such legally responsible person is unavailable the person with whom the child resides, that the child has been taken into custody.(4) After making every reasonable effort to give notice under subdivision three, the officer shall:(b) [Eff. until Oct. 1, 2018 or Oct. 1, 2019,pursuant to L.2017, c. 59, pt. WWW, §106(b). See, also, par. (b) below.] forthwith and with all reasonable speed take the child directly, and without his first being taken to the police station house, to the family court located in the county in which the act occasioning the taking into custody allegedly was committed, unless the officer determines that it is necessary to question the child, in which case he may take the child to a facility designated by the chief administrator of the courts as a suitable place for questioning of children or, if upon consent of a parent or other person legally responsible for the care of the child, to the child's residence and question him for a reasonable period of time;(7) A child shall not be questioned pursuant to this section unless he and a person required to be notified pursuant to subdivision three if present, have been advised:(a) of the child's right to remain silent;(b) that the statements made by the child may be used in a court of law;(c) of the child's right to have an attorney present at such questioning; and(d) of the child's right to have an attorney provided for him without charge if he is indigent.(8) In determining the suitability of questioning and determining the reasonable period of time for questioning such child, the child's age, the presence or absence of his parents or other persons legally responsible for his care and notification pursuant to subdivision three shall be included among relevant considerations.

In People v Ward, 95 AD2d 351, 354 (2d Dept 1983), the Second Department recognized [*12]the overlap between the relevant sections of the Criminal Procedure Law (CPL) and the Family Court Act in determining whether, in a criminal matter, a juvenile defendant's waiver of Miranda was valid. The court stated "[i]n our view, since the two statutes cover situations of a similar nature, the protections judicially engrafted upon the Family Court Act should also apply to similar cases brought in criminal courts" (internal citations omitted). Accordingly, this court will rely upon the Family Court Act where relevant in this criminal matter.

In 2016, CPL former §140.27(5) simply required the police to notify the parent or person legally responsible for a juvenile offender that the juvenile offender had been arrested and the location of the facility where he was being detained. In the same year, Family Court Act former §§305.2 and 724 likewise required notification to a parent or person legally responsible for the juvenile offender; however, they are consistent in that this requirement calls for reasonable efforts to comply to be made. While the CPL was silent as to whether a guardian's presence must be secured, the Family Court Act clearly contemplated that a guardian may not be available while the juvenile is in custody.

In 2016, the Family Court Act also clearly contemplated the necessity of questioning juvenile offenders and provided therefor. Family Court Act former §§305.2 and 724 permit law enforcement to remove a juvenile offender to a designated facility for questioning and both limit that questioning to a "reasonable period of time." Family Court Act former §305.2(7) specifies the content of the warnings that must be provided to a juvenile offender and, if present, the parent or person legally responsible for the juvenile offender, before questioning may commence (emphasis added). Finally Family Court Act former §§305.2(8) and 724(d) , include "the presence or absence" of a parent or person legally responsible for the juvenile offender as one of the factors to be considered in determining whether a juvenile offender was questioned for a reasonable period of time (emphasis added).

The former sections of the CPL and Family Court Act quoted above clearly set forth the procedures law enforcement must follow in taking juvenile offenders into custody and questioning them. However, there is no language in these statutes to support the proposition that a waiver of Miranda rights must be provided by a parent or person legally responsible for the juvenile offender. Indeed, pursuant to the language of the statutes, it is possible for questioning to take place in the absence of a parent or person legally responsible for the juvenile offender if they cannot be reached with reasonable effort (see People v Jimmy D., 15 NY3d 417, 422-423 [2010].)

For guidance on the role of a parent or person legally responsible for a juvenile offender who is present, pursuant to law enforcement's compliance with statutory requirements, the court relies upon relevant case law.

In People v Stephen J.B., 23, NY2d 611, 616-617 (1969), the Court of Appeals considered whether a minor can waive constitutional rights without the consent of his parent or guardian. The court stated:

We cannot accept the suggestion that every minor is as a matter of law incompetent to waive his constitutional rights to remain silent and to an attorney unless the waiver is consented to by a parent or guardian who has himself been advised of the minor's rights. Of course, such adult consent is to be desired. However, whether a minor knowingly and intelligently waived these rights is a question of fact and a mere failure of the police to [*13]seek the additional consent of an adult will not outweigh, in any given instance, an evidentially supported finding that such a waiver was actually made.

In People v Jimmy D., 15 NY3d 417, 421-422 (2010), supra, in addition to recognizing that questioning may take place in the absence of a parent or person legally responsible for a juvenile offender, the Court of Appeals addressed compliance with the Family Court Act in deciding whether a juvenile offender provided a knowing and voluntary waiver of Miranda:

When a police officer takes a child under the age of 16 into custody for juvenile delinquency, the officer must 'immediately notify the parent or other person legally responsible for the child's care, or if such legally responsible person is unavailable the person with whom the child resides, that the child has been taken into custody (Family Ct. Act§305.2[3]). The child must be advised of his Miranda rights and, if the parent or other person in loco parentis who was notified of the arrest (henceforth 'parent')is present, that person must be similarly apprised (Family Ct. Act §305.2[7]).

The court went on to describe the role of the parent or person legally responsible for the juvenile offender:

The advantages of having a parent present during custodial interrogations are many. A parent may help a child understand the Miranda warnings, so that the child can consciously and voluntarily choose whether to waive or to exercise his constitutional rights to remain silent, to have an attorney present as his questioning, and to have an attorney provided for him without charge if he is indigent. As we have noted, juveniles charged with delinquency may not fully 'understand the scope of their rights and how to protect their own interests. They may not appreciate the ramifications of their decisions or realize the implications of the importance of counsel.' If the child chooses to waive his rights under [Miranda], the parent who is present at questioning is able to monitor the interrogation lest the police engage in coercive tactics. In short, '[t]he emotional and intellectual immaturity of a juvenile creates an obvious need for the advice of a guardian...at an interrogation from which charges of juvenile delinquency may ensue' (internal citations omitted).

It is clear, from the court's explanation, that the role of the parent or person legally responsible for the juvenile offender, who is present pursuant to law enforcement's compliance with applicable statutes, is not to substitute their judgment for that of the juvenile offender, but to provide advice and support. The court specifically recognized that the decision regarding waiver of Miranda lies with the juvenile offender and not the parent or person legally responsible for him or her. While the court acknowledges that a guardian may play an important role in the questioning of a juvenile offender, it does not change the fact that the ultimate choice regarding Miranda remains with the juvenile offender.

When a parent or person legally responsible is present for the questioning of a juvenile offender, the issue for the court is whether the juvenile offender made a knowing, intelligent and voluntary waiver of Miranda. Where, in the presence of their parent or person legally responsible, a juvenile offender demonstrates a clear and unequivocal understanding of each [*14]Miranda right, the court may find a valid waiver (see People v Steven F., 127 AD3d 536 [1st Dept. 2015], lv denied 26 NY3d 906 [2015]; People v Johnny H., 111 AD3d 576 [1st Dept. 2013]; In re Lyndell C., 23 AD3d 306 [1st Dept. 2005]).

In the case at bar, the police complied with the relevant statutes when they took the fifteen year old defendant into custody. Defendant's father was transported to the 61st Precinct simultaneously with her and was present for the entirety of the interviews that took place on both the 3rd and 4th of January, 2016. Defendant was held in the precinct's court-designated Juvenile Room and monitored hourly. She was regularly offered food and access to the bathroom facilities and allowed to sleep.

On January 3, 2016, defendant was escorted to an interview room equipped with video capability. Her father was seated next to her during the administration of Miranda warnings and throughout the interview.[FN21] Detective Madison administered Miranda warnings, using an NYPD form drafted specifically for juveniles. Each warning he read was followed by a simple, plain language explanation designed to be comprehensible to a juvenile. Defendant appeared alert and attentive while listening to the Miranda warnings and gave immediate, straightforward verbal responses when indicating her understanding of each one. Nothing in the evidence before the court indicates that defendant was coerced in any fashion before or during the January 3, 2016 interview. Based upon defendant's age and the presence of her father, the court finds the approximate two hour duration of the interview to be a reasonable period of time.

On January 4, 2016, defendant was again escorted to an interview room equipped with video capability. Once again, her father was seated next to her during the administration of Miranda warnings and throughout the interview. On this date, ADA Chin conducted the interview. He administered standard Miranda warnings. Once again, defendant appeared alert and attentive while listening to the Miranda warnings and gave immediate, straightforward verbal responses when indicating her understanding of each one. Nothing in the evidence before the court indicates that defendant was coerced in any fashion before or during the January 4, 2016 interview. Based upon defendant's age and the presence of her father, the court finds the approximate ninety minute duration of the interview to be a reasonable period of time.

Roger Garcia

Defendant has placed Roger Garcia's understanding of the Miranda warnings administered in advance of the two interviews in issue. Indeed, she has made it the sole issue of her motion to suppress. As the court has established that neither statute nor case law supports defendant's assertion that Mr. Garcia's consent was required for a valid waiver of Miranda, it need only address Mr. Garcia's understanding of the warnings in the context of law enforcement's compliance with the applicable CPL and Family Court Act sections and relevant case law.

The court will first address Mr. Garcia's claim that his competence in English is minimal and that he did not understand any of the detectives who spoke to him in English before or during the interviews of defendant on the 3rd and 4th of January, 2016. Having had the opportunity to observe Mr. Garcia on the witness stand and to review the videotape recordings of the interviews of defendant, the court finds that Mr. Garcia's testimony on this subject was not credible.

According to the evidence, Detective Madison's initial interview of Mr. Garcia, on [*15]January 3, 2016, took place in English. Mr. Garcia provided his account of the events that led to defendant's apprehension at his residence directly to the detective, who does not speak Spanish. There is no evidence on the record of this hearing that Detective Madison acquired Mr. Garcia's statement from any source other than him.

After interviewing Mr. Garcia, Detective Madison noted that English is not his first language and determined that it would be prudent to make a Spanish language interpreter available during the interview of defendant and explained this to Mr. Garcia in English. Mr. Garcia denied speaking to Detective Shields before the January 3, 2016 interview; however, his testimony was that he was told that a Spanish language interpreter would be available to him during the interview. These examples cast doubt upon Mr. Garcia's claim that he does not understand or communicate in English, considering that, by his own testimony, the only way he could have learned that an interpreter was available to him was through English speaking Detective Madison.

Turning to the videotape recordings of the interviews, the court's review finds that they fail to support Mr. Garcia's claim that he did not understand the Miranda warnings read to defendant.

At the beginning of the January 3, 2016 interview, it is apparent that Mr. Garcia responds to English language instructions from a detective who was making the seating arrangements.[FN22] It is also clear that Mr. Garcia understood that Detective Shields was present to provide Spanish language translation given that, following the reading of the first Miranda warning in English, he requested and received such translation from her before indicating his understanding. The remainder of the warnings were read in English without interruption from Mr. Garcia. When asked, in English, if he understood each warning, Mr. Garcia clearly indicated that he did, even answering in English. Mr. Garcia's testimony that he was in shock and simply answering "yes" to anything the detectives asked him is belied by his responsiveness to the English spoken to him and by his demeanor, which the videotape recording reveals was calm and collected.

The evidence established that, through personal experience, Mr. Garcia was familiar with the meaning and purpose of Miranda warnings on January 3, 2016. The fact that he requested and received Spanish language translation of the first warning reveals that he was aware the Detective Shields was present for that purpose and at his disposal. At that point he knew Miranda warnings were being administered. The fact that he declined further translation and clearly indicated his understanding of the remainder of the Miranda warnings read to defendant in English demonstrates that he understood them.[FN23] When considered in light of the multiple indications that he understands more English than he was willing to admit in his testimony, it is reasonable for the court to conclude that Mr. Garcia comprehended the Miranda warnings on [*16]January 3, 2016.

Having reached a conclusion regarding Mr. Garcia's understanding of English, it must be noted that the analysis is more relevant to the determination of his credibility than the validity of defendant's waiver of Miranda.

On January 3, 2016, law enforcement complied with Family Court Act former §305.2 by notifying Mr. Garcia that defendant had been taken into custody and making arrangements for him to be present for all questioning. Pursuant to Family Court Act §305.2(7), he was present during the administration of Miranda warnings, for which a Spanish language interpreter was made available to him. As a result, the court finds that Mr. Garcia's understanding of English, regardless of its level, did not prevent him from fulfilling his role as parent (People v Jimmy D., 15 NY3d 417, 421-422 [2010], supra).

Mr. Garcia was available to defendant for support and advice for the entirety of the January 3, 2016 interview. The videotape recording reveals that defendant did not seek guidance from Mr. Garcia during the administration of Miranda in English. Mr. Garcia's failure to request translation of all but one of the warnings was his choice and did not prevent defendant from seeking his advice or support about them. Accordingly, Mr. Garcia's understanding of English is largely irrelevant for Family Court Act former §305.2 purposes and cannot form the basis for rejection of defendant's waiver of Miranda.

Mr. Garcia next claims that he would not have allowed defendant to be interviewed if he had known that her statements could be "used against her," as opposed to simply "used in court," as was explained in Detective Sosa's Spanish language translation of the Miranda warnings on January 4, 2016. Mr. Garcia concedes that he understood the Spanish language translation of the Miranda warnings provided by Detective Sosa, leaving no issue with respect to a language barrier during that interview. Mr. Garcia's claim is that Detective Sosa's failure to provide a literal translation of the second warning prevented him from understanding the ramifications of defendant's waiver.

It is undisputed that Detective Sosa's Spanish language translation of the second warning advised that defendant's statements could be "used in court," as opposed to "used against her in court." However, the court finds Mr. Garcia's claim to be disingenuous, given his long personal history as a civilian and military policeman in Honduras which exposed him to the Honduran equivalent of Miranda warnings. Mr. Garcia's testimony clearly established that he understands the concept of the 5th Amendment protections afforded to those accused of crimes. On cross-examination, he was able to articulate the basic Miranda rights, including that statements made may be used against a defendant in a court of law.

In People v Williams, 62 NY2d 285, 289 (1884), the Court of Appeals held that "[a]n individual may validly waive Miranda so long as the immediate import of those warnings is comprehended, regardless of his or her ignorance of the mechanics by which the fruits of that waiver may be used later in the criminal process."

Dr. Barber-Rioja testified that Mr. Garcia demonstrated his general, independent understanding of Miranda before she delved into his understanding of the warnings administered to defendant on the 3rd and 4th of January 2016. Based upon her evaluation of Mr. Garcia, it was her opinion that the immediate import of the warnings was understood by him at the time they were administered to defendant.

Finally, the court notes that the omission in Detective Sosa's translation would not act to nullify defendant's waiver of Miranda, even if it was Mr. Garcia's to invoke. In People v Smith, 217 AD2d 221, 233 (4th Dept 1995), appeal denied 87 NY2d 977 (1996), the juvenile defendant argued that the deletion of a portion of the same Miranda warning by the administering officer rendered his waiver ineffective. Specifically, the words "and will" were not included in the warning that normally includes the phrase "anything said can and will be used against you in a court of law." The Fourth Department rejected this argument, first pointing out that it is well-settled that no prescribed form for Miranda warnings must be administered, then noting that the New York State Legislature had omitted the language in question from Family Court Act §305.2(7)(b).

Like the defendant in Smith, defendant here argues that an omission from the Miranda warnings, as translated for Mr. Garcia, renders the waiver invalid. She claims the words "against you" were not included in the warning that normally includes the phrase "anything said can and will be used against you in a court of law." However, as in Smith, the warning at issue is codified by Family Court Act former §305.2(7)(b).

Family Court Act former §305.2(7) reads:

(7) A child shall not be questioned pursuant to this section unless he and a person required to be notified pursuant to subdivision three if present, have been advised:(a) of the child's right to remain silent;(b) that the statements made by the child may be used in a court of law;(c) of the child's right to have an attorney present at such questioning; and(d) of the child's right to have an attorney provided for him without charge if he is indigent. (emphasis added)

Like that in Smith, the language in question here was omitted from Family Court Act former §305.2(7)(b) by the New York State Legislature. This section does not include the words "against you," but simply warns that statements "may be used in court." Therefore, Detective Sosa's translation, while not literal to ADA Chin's reading of the warning in English, was in accordance with the warning prescribed by the Family Court Act. Consequently, this argument would fail, even if Mr. Garcia's consent was required for the defendant to waive her Miranda rights.

Defendant made a number of statements to law enforcement that are now the subject of this suppression motion. The court will first address the verbal statements heard by Sgt. Delossantos and Detective Madison and then address the videotape recordings.

On January 3, 2016, Sgt. Delossantos overheard a female identified to him as defendant speaking to Jason Valentin via cellular telephone. The uncontradicted evidence is that Sgt. Delossantos did not request or instruct Jason Valentin to contact defendant in his presence. There is no evidence that Sgt. Valentin asked defendant any questions or influenced the conversation between defendant and Mr. Valentin in any way. Additionally, defendant was not in police custody while speaking to Mr. Valentin. While Mr. Valentin reported defendant's confession and pointed her out to Sgt. Delossantos, there is no evidence that he acted as an agent of law enforcement. Accordingly, the statements made by defendant while speaking to Mr. Valentin were not the result of custodial interrogation and defendant's motion to suppress them is [*17]denied.[FN24]

After being placed under arrest, defendant was transported to the 61st Precinct in a police vehicle. While traveling to the precinct, defendant made statements to the officers who accompanied her. The uncontradicted evidence is that none of the officers who transported defendant to the 61st Precinct asked her any questions or had any conversation with her. Defendant's statements were spontaneous and not the result of police questioning or its equivalent. Accordingly, defendant's motion to suppress the statements she made while being transported to the 61st Precinct is denied.

At approximately 1:00 p.m. on January 4, 2016, Detective Madison found defendant to be visibly upset when he conducted his hourly check on her. The uncontradicted evidence is that defendant made statements regarding the substance of her previous statement and the circumstances of the offenses for which she was under arrest, without being asked any questions by Detective Madison. Following these statements, Detective Madison did not ask any follow-up questions, but immediately escorted her to the interview room, where she waited, unrestrained, until a second interview could be conducted, on videotape, in the presence of her father. The court finds that defendant's statements were spontaneous and not in answer to any police questioning or its equivalent. Accordingly, defendant's motion to suppress the statements she made at approximately 1:00 p.m. on January 4, 2016 is denied.

The court has had the opportunity to watch the videotaped recording of the January 3, 2016 interview of defendant. The detective administered Miranda warnings specifically drafted for juveniles. Each warning was explained in simple terms designed to be comprehensible to a juvenile. Defendant listened to each warning and its explanation and indicated her understanding of it. She then agreed to waive her rights and speak to the detectives without representation. The court finds that defendant knowingly and voluntarily waived her rights and agreed to speak to the detectives. The statutory requirements of the CPL and Family Court Act, as they existed in 2016, were satisfied by law enforcement in that defendant's father was notified and present for the administration of Miranda warnings and all custodial questioning. Accordingly, defendant's motion to suppress the videotape recording fo the January 3, 2016 interview is denied.

The court has had the opportunity to watch the videotaped recording of the January 4, 2016 interview of defendant . With respect to the administration of the Miranda warnings, the court finds that defendant knowingly and voluntarily waived each of her rights and agreed to speak to the detectives without representation. The statutory requirements of the CPL and Family Court Act, as they existed in 2016, were satisfied by law enforcement in that defendant's father was notified and present for the administration of Miranda warnings and all custodial questioning. Accordingly, defendant's motion to suppress the videotape recording fo the January 3, 2016 interview is denied.

This constitutes the Decision and Order of the Court.

Dated: January 22, 2020

J.S.C. Footnotes

Footnote 1:The uncontradicted evidence is that Sgt. Delossantos did not direct Mr. Valentin to call his cousin from the car.

Footnote 2:Sgt. Delossantos identified defendant as the female he arrested on January 3, 2016.

Footnote 3:Detective Madison identified defendant as the female who arrived at the 61st Precinct on January 3, 2016.

Footnote 4:Detective Madison testified that he also explained to Mr. Garcia, in English, that Detective Shields was present to provide Spanish language translation and that he could stop the interview to request translation as needed.

Footnote 5:The videotape recording of the January 3, 2016 interview was entered into evidence as People's Exhibit 1.

Footnote 6:The court notes that defendant's proficiency in English was not placed in issue during the course of the hearing. The Juvenile Miranda form provided supplemental, plain-language explanations of each warning as they were read to defendant.

Footnote 7:This concluded Detective Shields' involvement in this case.

Footnote 8:At some point during the interview Detective Perry left the room and Detective McCoy took his place. Detective McCoy did not ask any questions, but simply observed the interview.

Footnote 9:The videotape recording of the January 4, 2016 interview was entered into evidence as People's Exhibit 2.

Footnote 10:A certified Spanish language translation of the January 4, 2016 interview was entered into evidence as People's Exhibit 3.

Footnote 11:During this interview, Detective Sosa did not wait for Mr. Garcia to request translation. He provided translation of each Miranda warning after ADA Chin read it in English.

Footnote 12:Mr. Garcia was able to articulate the basic Miranda warnings when asked to do so on cross-examination by ADA Chin.

Footnote 13:Defendant's mother, one of the decedents in this case, was Mr. Garcia's former partner with whom he lived for six to seven years. Mr. Garcia identified defendant as the daughter he had with the decedent.

Footnote 14:Defendant did not move for a Payton hearing and has made no argument on the issue of the location of defendant's arrest. Although it is possible, indeed likely, that law enforcement's investigation included entry to Mr. Garcia's residence at some point on January 3, 2016, the court credits Sgt. Delossantos' testimony regarding the apprehension of defendant.

Footnote 15:Despite this denial, Mr. Garcia understood that he was promised an interpreter. The only other officer who testified that he informed Mr. Garcia of the availability of a Spanish language interpreter was Detective Madison, who did so in English. Interestingly, contrary to the videotape evidence, Mr. Garcia also claimed the he was not aware of an interpreter being present during the January 3, 2016 interview of defendant.

Footnote 16:The court notes that according to the certified Spanish language translation of the January 4, 2016 interview, Mr. Garcia is correct. Detective Sosa's translation was that anything defendant said could be "used in court." This differed from the English version read by ADA Chin, which stated that anything defendant said could be used "against her" in court. This omission was also confirmed by Dr. Barber-Rioja, who reviewed the videotape recording of the January 4, 2016 interview of defendant.

Footnote 17:The experts engaged by the parties are fluent in the Spanish language and conducted their testing of Mr. Garcia in his native tongue.

Footnote 18:Defendant's written arguments also fail to address the opinion of the People's expert, Dr. Barber-Rioja.

Footnote 19:There is no authority, in statute or case law, that requires law enforcement to engage in such a process when administering Miranda warnings.

Footnote 20:The court reviewed the statues as they existed in 2015 and 2016, the years in which the offenses occurred and defendant was arrested and questioned. These statutes have since been revised and now impose significantly greater requirements upon law enforcement when taking juveniles into custody.

Footnote 21:Mr. Garcia's understanding of the Miranda warnings will be addressed infra.

Footnote 22:The court also notes that, during his testimony at the hearing, Mr. Garcia demonstrated a level of understanding of English by responding to questions posed to him in English before receiving the Spanish language translation from the official court interpreter.

Footnote 23:In the January 4, 2016 interview, Mr. Garcia's understanding of English is apparent by his interaction with ADA Chin. Mr. Chin made introductory remarks to Mr. Garcia in English, to which he was responsive.

Footnote 24:This ruling is limited to the voluntariness of defendant's statement and should not be construed as a ruling as to the admissibility of the statement at trial.