People v. Perry , 77 A.D.2d 269 ( 1980 )

OPINION OF THE COURT

Kupferman, J. P.

At approximately 6 p.m. on March 7, 1977, two police officers observed defendant on the roof of a building on West 149th Street in Manhattan. The defendant was familiar to both officers from photographs of known burglars circulated in the precinct station house and from a previous arrest made by one of these officers. The officers arrested defendant for burglary some 10 minutes later on a nearby avenue. There had actually been a burglary at the building on West 149th Street.

Defendant had not properly raised the issue of the legality of his arrest in his motion papers in accordance with the requirements of CPL 710.60, but he made such a request at the outset of the Huntley hearing. At that suppression hearing the court determined, after reading the Grand Jury minutes, that there had been probable cause to stop and question defendant and, therefore, limited the hearing to the issues of whether defendant had been given his Miranda warnings, and whether defendant’s confession had been voluntarily made.

The record before this court is insufficient to determine if the People have met their burden of establishing probable cause to arrest defendant. There is no indication therein as to whether the arresting officers knew of the burglary at the building where defendant was observed on the roof, nor any indication of the source of any such knowledge. The. case is therefore remanded for a hearing properly to determine this issue.

At this time, however, the majority of this court does uphold the determination that, under the applicable constitutional and statutory standards, defendant’s confession was voluntarily given and properly admissible, if it is found there was probable cause for the arrest.

Immediately upon his arrest, defendant was advised of his Miranda rights. The arresting officers then told him they had seen him on the rooftop. Defendant denied being on the rooftop, but stated that he had been at the building to visit a “numbers” man, and he repeated his story when the officers took him back to that first building. After a preliminary investigation of the burglarized apartment revealed nothing to incriminate him, defendant was taken to the precinct station house at approximately 7:30 p.m. There he was again advised of his Miranda rights. Defendant acknowledged and validly waived these rights, and that waiver is not contested on appeal.

Defendant was interrogated by the arresting officers at the precinct for the next 45 minutes. Again defendant repeated his original story. After several repetitions of this story, the officers explained to defendant that, if he did not wish to co-operate, they would “try” to have the case sent to the Grand Jury, they would “explain the circumstances to the D. A. and see. what the prosecutor might say”, and they would “push this as far as we can”. They told defendant he was going to be charged with burglary in the second degree but that, if he confessed, they would speak to the District Attorney and “it might be burglary three, however it was strictly up to the D. A.”. When these exhortations did not seem to persuade defendant to change his story, the officers responded with “Okay, it is going to be (burglary) two”. Defendant asked what would happen “if I tell you what you want me to tell you?” An officer replied “I just want you to tell me the truth. If you tell me the truth, I’ll speak to the D. A., but it’s all up to him”. At this point, defendant gave a full confession, providing details of his entry and the location of the stolen property.

We agree with the determination at the conclusion of the suppression hearing that defendant’s confession was voluntarily made, and that defendant’s right to due process was not violated. The conduct here at issue is not constitutionally prohibited.

Defendant contends that his confession was not voluntary but was, in fact, illegally procured by the coercive tactics of his interrogators so as to violate the constitutional standards for an admissible confession as set forth in Bram v United States (168 US 532). In order for a confession to be deemed voluntary as a waiver of Fifth Amendment rights, it must not have been “extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence”. (Bram v United States, supra, at p 542-543.) Defendant maintains that the officers’ action in informing him that burglary in the second degree (a felony carrying a maximum sentence of 15 years imprisonment) would be charged, and then raising the possibility of a lesser charge of burglary in the third degree (also a felony, but with a maximum sentence of seven years imprisonment) if defendant confessed, constituted such an impermissible threat and implied promise.

Here we encounter a situation where there had initially been a question of the precise time of the criminal activity and of the precise time of sundown, which times were determinative to the degree of crime to be charged. Even if, as it appears, the defendant’s police interrogators had already decided on a charge in a lesser degree, this does not by itself invalidate the resulting confession. We do not have the long hours of questioning and other techniques which, when viewed as a whole, were characterized as an “emotional battering” that could overcome a particular defendant’s will. (People v Bay, 76 AD2d 592, 600, lv to app granted.).

Defendant was in custody for a total of less than three hours and had been interrogated for only 45 minutes when he confessed. Furthermore, we note that defendant has had extensive experience with the criminal justice system, including numerous arrests and convictions, some of these for burglary in both the second and third degrees. He was familiar with police procedure, and he made a valid waiver of his Miranda rights. He was fully capable of appreciating the consequences of confessing at the time he gave the confession.

Nor was there any impermissible promise extended, express or implied. The officers at all times said only that they would speak to the District Attorney and request a lower charge if defendant told the truth, and always with the caveat that the final decision rested with the District Attorney, as indeed it does. (People v Eboli, 34 NY2d 281; cf. Oyler v Boles, 368 US 448, 456.) There were no absolute assurances given that defendant’s co-operation would result in more favorable treatment.

The confession was also voluntary under CPL 60.45, the New York statute governing the admissibility of statements of criminal defendants. Under this statutory language, promises or statements of fact alone are insufficient to evoke the exclusionary rule, but must rise to the level of those promises or statements which create a substantial risk that a defendant might falsely incriminate himself. (People v Diaz, 77 AD2d 523, 526 [concurring opinion of Silverman, J.].) These statements, urging defendant to tell the truth and offering only the possibility, but not a promise, of what defendant was led to believe would be a lesser charge, are not the kind which involve a substantial risk of inducing a false confession, as was found in People v De Jesus (63 AD 2d 148, app dsmd 48 NY2d 734; see People v Tarsia, 50 NY2d 1, 12-13).

Inasmuch as less than three hours elapsed between arrest and confession, and there was no intervening event, it is clear that the confession was obtained as the direct result of the arrest. If the arrest is determined to have been without probable cause, then the confession must be excluded. (Brown v Illinois, 422 US 590, 605.) The concluding statement of the majority opinion in Dunaway v New York (442 US 200, 219) would then be applicable to the facts in this case. “Satisfying the Fifth Amendment is only the ‘threshold’ condition of the Fourth Amendment analysis required by Brown. No intervening events broke the connection between petitioner’s illegal detention and his confession. To admit petitioner’s confession in such a case would allow ‘law enforcement officers to violate the Fourth Amendment with impunity, safe in the knowledge that they could wash their hands in the “procedural safeguards” of the Fifth.’ ” The judgment of the Supreme Court, New York County (Gorman, J.) rendered October 19, 1977, convicting defendant, upon his plea of guilty, of the crime of attempted burglary in the third degree, should be held in abeyance and the case remanded solely for a hearing to determine if there was probable cause for arrest.