People v. Warren , 97 A.D.2d 486 ( 1983 )

Appeal by defendant from a judgment of the Supreme Court, Queens County (Groh, J.), rendered November 19, 1981, convicting him of petit larceny, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of defendant’s pretrial motion which sought suppression of oral statements. Judgment reversed, on the law, plea vacated, that branch of defendant’s motion which sought suppression of oral statements granted, those statements are suppressed and the matter is remitted to Criminal Term for further proceedings. The testimony at the suppression hearing revealed that on October 28, 1980, defendant entered the Jamaica, Queens, branch of the National Bank of North America and attempted to withdraw funds from a nonexistent account. The police were summoned and defendant was placed under arrest. While still in the bank, arresting officer Detective Sabatino Fusco advised defendant of his Miranda rights, including the right to remain silent and the right to consult with an attorney. Defendant acknowledged that he understood his rights, but remained silent when asked if he was willing to answer questions without an attorney being present. Detective Fusco testified that from this he assumed that defendant did not wish to be questioned. Thereupon, Detective Fusco brought defendant to the precinct, which was across the street from the bank. Once at the precinct, Detective Fusco took defendant to a squad room to begin processing the arrest. Several minutes later, one Kernal Holland, a former New York City police officer and now chief of security for the National Bank of North America, entered the room. After identifying himself, Holland informed Detective Fusco that defendant was wanted in connection with a similar incident at another branch of the bank. According to Detective Fusco, Holland did not speak with the defendant in Fusco’s presence. While the detective may have left Holland and the defendant in the room for a time, there were other police officers present. Holland also testified at the hearing. According to his version of the events, he identified himself and spoke briefly with Detective Fusco regarding the other charge. The defendant, who apparently had overheard the conversation then interjected, “you from the bank? * * * Will you tell these guys I have not did [sic] anything wrong?” At that point, Holland began to question the defendant. Although, according to Holland, Detective Fusco was in fact present during the questioning, Holland was uncertain as to whether Fusco overheard the questioning. Holland first asked defendant if he was Nelson Warren. Defendant replied that he was. According to Holland, the following exchange ensued: “I said ‘did you open an account at Baisley Park branch?’ He [defendant] said ‘yes’ * * * I asked him ‘did you open it with a fifty dollar check?’ and he acknowledged that he did * * * I then told him, I said ‘the check was no good.’ He said T didn’t know it wasn’t any good.’ This is the fifty dollar check on the opening of the account. He said he didn’t know it was no good. And I told him, I said ‘the account has been closed for six months prior to the time this account was opened, that the savings account was opened.’ In other words, the account that the check was drawn on had been closed six months prior to the time he deposited this check in savings account. Then I asked him about the fifty seven hundred dollar check that was deposited in the Rosedale branch and I said ‘you know, where’d you get this check?’ and he told me that this was in payment for a Mercedes — a female had given him this check in payment of a Mercedes, right, and he deposited this in the Rosedale branch, and then I said ‘well, what about the second one that you deposited in the Rosedale branch?’ and then he tells me that ‘well, the first check was no good and she gave me another check’ and so after that I can’t recall saying anything else to him because I figured he was just snowing me.” Holland asserted that he made no promises or threats to the defendant. He also asserted that he did not ask the police officers to question defendant for him, nor did they prompt him to question defendant. He did, however, acknowledge that defendant may have been handcuffed to a chair at the time. After speaking with defendant, Holland stayed in the squad room another 15 or 20 minutes conversing with some of the detectives with whom he was acquainted. Following a hearing, Criminal Term denied the motion to suppress the conversation on the ground that Holland was acting in the interest of the bank, that he was not acting in co-operation with the police, and that there was no duty incumbent upon the police to prevent Holland from talking with the defendant. Thereafter, defendant entered a plea of guilty. We reverse. It is axiomatic that the constitutional protections against self incrimination do not apply to confessions elicited by private individuals (see People v Horman, 22 NY2d 378). The actions of private individuals, however, do become subject to scrutiny for violations of constitutional limitations when those individuals act as agents of the government or when government officials participate in the act (see CPL 60.45, subd 2, par [b]; People v Esposito, 37 NY2d 156). Thus, in People v Jones (47 NY2d 528) the Court of Appeals affirmed the suppression of a confession and certain physical evidence obtained from a defendant accused of shoplifting where the evidence was obtained by department store security officers who had been aided by the police in taking the defendant into custody and where the defendant had not been advised of his Miranda rights (Miranda v Arizona, 384 US 436). In Jones (supra), the store security officers who had observed defendant place a number of leather coats into a plastic bag, apprehended him outside the store and seized the coats. The police arrived as one of the security officers was attempting to handcuff the defendant. When the defendant tried to move away, “one of the police officers placed his hand on the defendant’s shoulder, showed the defendant his badge, identified himself as a police officer and told the defendant to stand there or keep his hands on the wall” (47 NY2d 528, 531-532, supra). After being handcuffed, defendant was led back inside the store to the security office by both the police and the security officers. Once there, the police remained outside while the security officers questioned defendant. Inside the office, defendant, while handcuffed to a desk, signed a confession and photographs of the stolen goods. In finding that the police conduct was more than minimal or peripheral, the court noted (47 NY2d 528, 533-534, supra): “[T]he police were not merely anonymous observers. They actively participated in the arrest, one of them clearly identified himself to the defendant and both of them escorted the defendant to the place where he was interrogated while they awaited the outcome of the questioning. Although the store detectives who actually obtained the confession and other items may not have acted as police agents, the participation by the police was sufficient to create the type of custodial atmosphere which the Miranda rule was intended to alleviate”. The level of police involvement in defendant’s questioning in the case at bar was even greater than that in Jones (supra). Here not only had defendant been apprehended solely by the police, but the challenged questioning occurred while defendant was in the police precinct squad room, handcuffed to a chair and surrounded by detectives. Clearly the defendant’s statement was obtained by an individual acting under the arresting officer’s “direction or in cooperation with him” (CPL 60.45, subd 2, par [b]; People v Jones, supra). Our dissenting colleagues rely on People v Bracy (98 Misc 2d 346, affd sub nom. People v De Pasquale, 75 AD2d 751, affd 54 NY2d 693), which is distinguishable upon its facts. Firstly, the private individual who was permitted to speak with the defendants in that case was a relative of one of the defendants. While he also happened to be a police officer, the paramount fact as found by Criminal Term was that the relative “was acting as a concerned brother-in-law attempting to help his wife’s brother (and his friend) by giving them, in what his opinion was, the best advice he could offer” (98 Misc 2d 346, 351, supra). Secondly, in Bracy (supra), the brother-in-law did not actually elicit a statement from the defendants. He merely advised them that it would be in their best interests to tell the truth. The defendants then confessed to a police officer, but not before first being readvised of their Miranda rights (98 Misc 2d 346, 349, supra). In the instant case, Holland was obviously a stranger to defendant and was not present to give counsel to him. Moreover, we do not consider that defendant’s plea to Holland to tell the police that he was innocent constituted an implicit waiver of defendant’s right to remain silent. While we recognize that an explicit statement of waiver is not invariably necessary to support a finding that a defendant has waived his right to remain silent (see North Carolina v Butler, 441 US 369, 373), the People, nonetheless, bear a heavy burden of showing that a defendant waived that right (see People v Jenkins, 85 AD2d 265) and the court is obligated to “ ‘indulge every reasonable presumption against waiver’ of fundamental constitutional rights” (see Johnson v Zerbst, 304 US 458, 464, quoting from Ohio Bell Tel. Co. v Commission, 301 US 292, 307). Under the circumstances at bar, the defendant’s conduct 'cannot be viewed as constituting an implicit waiver of his right to remain silent. This is not a case where a defendant, after having given no response upon being advised of his right to remain silent and to consult with an attorney, responds to a question which is put to him two to three minutes thereafter (see People v Davis, 55 NY2d 731). Titone, J. P., Lazer and Brown, JJ., concur.