People v. Tankleff , 606 N.Y.S.2d 707 ( 1993 )

Appeals by the defendant from two judgments of the County Court, Suffolk County (Tisch, J.), both rendered October 23, 1990, convicting him of murder in the second degree (two counts; one count as to each indictment), upon jury verdicts, and imposing sentences. The appeals bring up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress his statements to the police.

Ordered that the judgments are affirmed.

At approximately 6:17 a.m. on the morning of September 17, 1988, two police officers responded to a home in Belle Terre, New York, where they discovered the body of Arlene Tankleff, who had been beaten and stabbed to death, and Seymour Tankleff, who had been severely beaten and stabbed, but who was still breathing. Seymour Tankleff was taken to the hospital, where he later died.

At 9:20 a.m., the defendant arrived at police headquarters. At 9:40 a.m., two detectives started to question the defendant. The defendant initially provided an exculpatory version of events of that morning and had, in fact, accused another person of the crimes in question. However, at approximately 11:45 a.m., one of these two detectives, James McCready, devised a stratagem in order to test the defendant’s veracity. This stratagem took advantage of the fact that the defendant’s father Seymour Tankleff had initially survived and had been taken to the hospital.

At 11:45 a.m., Detective McCready staged a telephone call to the hospital and pretended to be party to a nonexistent telephone conversation, during the course of which he said, in a voice loud enough to be overheard, "Yeah, John, yeah. You’re kidding? No kidding, he came out. Okay. Thanks a lot.” McCready then advised the defendant that Seymour Tankleff had come out of a coma and had accused the defendant of being the assailant. McCready testified, "I told him that his father told Detective Pfalzgraf [stationed at the hospital] that he, Marty, was the one who did this to his father; that he beat and stabbed his father”. No Miranda warnings had been given at this point.

The defendant’s first response was to attempt to reconcile his prior exculpatory version with his father’s putative accusation. He said, "If my father said that, that’s because I’m the last person he saw”. The second detective, Norman Rein, then stated, "Marty, maybe your father was conscious when you came in and stabbed him”. At this point, the defendant volunteered to take a lie detector test, but his request was refused. Detective Rein continued the questioning by asking, "What do you think we should do to the person who did this to your mother and father?” At this point, the defendant responded, "Whoever did this needs psychological help”. After this statement, the defendant continued speaking. He asked, "Could I have blacked out and done it?” Detective Rein then asked whether the defendant thought he had blacked out. The defendant responded by stating, "that it wasn’t him, but it was like another Marty Tankleff that killed them.” Then the defendant asked, "Could I be possessed?” and Detective Rein responded "Marty, I think that’s what happened to you”. Finally, at approximately 11:54 A.M., the defendant said, "It’s coming to me”. At this point, Detective McCready intervened and administered the Miranda warnings. At approximately 11:56 a.m., the defendant made a full confession.

On appeal, the defendant’s first argument is that his confession was extracted from him in violation of his privilege against self-incrimination under the Federal and State Constitutions (US Const 5th, 14th Amends; NY Const, art I, §6). Specifically, he argues that the police subjected him to a custodial interrogation in violation of the rule announced in Miranda v Arizona (384 US 436). We disagree.

A suspect is not entitled to receive a recitation of his Miranda rights unless he is in police custody. In New York, the question whether a suspect is in police custody is to be determined with reference to the question whether an ordinary person, innocent of any crime, would, in the defendant’s position, think that he was free to leave (see, e.g., People v Yukl, 25 NY2d 585; see also, People v Centano, 76 NY2d 837; People v Hicks, 68 NY2d 234; Matter of Kwok T., 43 NY2d 213; People v Rodney P., 21 NY2d 1). Applying this standard, the County Court found that the defendant was not in custody until after he had made the ambiguous statements noted above and until after he had been advised of his Miranda rights. We agree with this finding.

The defendant was clearly not in custody when he arrived at police headquarters at 9:20 a.m. Even assuming that the police suspected the defendant at this point, neither the defendant himself nor a reasonable person, innocent of any crime, would have known of these suspicions. The defendant accused a third party of committing the murders, and he most likely would have believed that his presence at the police station was required, not because he was a suspect, but because he was a crucial witness. That Detective McCready later used a ruse to cause the defendant to believe that there was inculpatory evidence against him (his father’s purported hospital bed statement) "ha[d] nothing to do with whether the [defendant] was in custody for the purposes of the Miranda rule” (Oregon v Mathiason, 429 US 492, 496 [custody status unaffected by police officer’s deceptively telling defendant of inculpatory evidence]; see also, Illinois v Perkins, 496 US 292). Therefore, we find that the defendant’s having made the cryptic statements noted above without having had the benefit of Miranda admonitions does not require suppression of the subsequent confession.

The defendant also contends that his confession should have been suppressed because it was the product of a police-orchestrated ruse. We agree that the weight of the evidence establishes that it was Detective McCready’s spurious telephone call to the hospital, followed by his deceptive report to the defendant as to the supposed content of the bogus telephone call, which in fact prompted the defendant to confess. However, it is also clear to us that the type of trickery employed by Detective McCready in this case was not likely to provoke an unreliable confession; on the contrary, we find that the factual reliability of the defendant’s confession was, if anything, enhanced by the nature of the particular ploy which was used to elicit it. Needless to say, we give no credence to the defendant’s claim that he confessed because he was "brainwashed”. The stratagem employed by the police in this case was, in short, not so fundamentally unfair as to have deprived the defendant of his due process rights (see, People v Tarsia, 50 NY2d 1; People v Brewley, 192 AD2d 540; People v Hassell, 180 AD2d 819; People v Collins, 156 AD2d 703; People v Sohn, 148 AD2d 553).

The defendant also argues that there was insufficient evidence to support the jury’s verdict finding him guilty of "depraved mind” murder with respect to the death of his mother Arlene Tankleff, and that this verdict is inconsistent with the one finding him guilty of intentional murder with respect to the death of his father Seymour Tankleff. These related arguments are meritless.

While it is true that a person cannot commit a single homicidal act while entertaining two inconsistent mental states (see, People v Gallagher, 69 NY2d 525 [defendant cannot simultaneously both have the conscious intent to kill and lack the conscious intent to kill]) the obvious fact in the present case is that the defendant engaged in two separate acts and two separate courses of conduct, that is, the killing of bis mother and the killing of his father. Clearly, it was possible for him to have had two different mental states at these two different times.

We agree with the defendant to the extent that he argues that the evidence presented by the prosecution is far more consistent with the conclusion that he intended to kill his mother than with the jury’s conclusion that he killed her recklessly. However, we are not free to vacate a conviction based on a finding of recklessness merely because we ourselves consider that a finding of intent would have been more plausible in light of the evidence. The present case is certainly not the first one in which such a circumstance has arisen (see, e.g., People v Applegate, 176 AD2d 888; People v Abney, 173 AD2d 545; People v Santana, 163 AD2d 495, affd 78 NY2d 1027; People v Curry, 158 AD2d 466 [cases where evidence would have supported finding of intent yet jury opted for finding of recklessness]). The jury’s conclusion that the defendant lacked a conscious objective to kill while he was beating his mother to death is not irrational, and should be upheld (cf., People v Gonzalez, 160 AD2d 502).

We have examined the defendant’s remaining contentions and find them to be without merit. Bracken, J. P., Sullivan and Pizzuto, JJ., concur.