People v. Palumbo , 411 N.Y.S.2d 270 ( 1978 )

OPINION OF THE COURT

Lupiano, J. P.

Defendant, who held the position of Director of Leasing for the New York City Real Estate Department, was charged with accepting a $3,000 gratuity from one Haller, a real estate broker. The gratuity was not solicited by defendant and was offered after defendant had properly participated in certain lease negotiations. Apparently the gratuity was given as a form of "thank you” aimed at the obtaining of a favorable relationship to facilitate future deals. The broker, Haller, arrested in another matter, agreed to co-operate with the authorities and reported the payment of the $3,000. Pursuant to instruction, the broker contacted defendant and attended appointments at which he was wired for sound.

The resultant tapes, which disclose "loose talk” and "gossip” about general corruption in the Real Estate Department together with unrelated and objectionable evidence concerning defendant’s so-called failure to co-operate with the authorities, were admitted into evidence and utilized in such fashion as to deprive defendant of a fair trial on the issue of whether he accepted a $3,000 unsolicited "tip” for having discharged his responsibilities in a lawful manner. This improper utilization of the tapes served to inject evidence which the jury was sure to interpret as an unwillingness on the part of the defendant to co-operate with the authorities in the investigation of unspecified and unrelated charges of "corruption” within the city’s Real Estate Department, matters not only immaterial to the instant charge, but also matters of which defendant may have had no actual knowledge.

For example, on direct examination of Haller, the broker, and in cross-examination of the defendant, the prosecution directed inquiry to those parts of the taped conversations concerning other persons and other matters within the city Real Estate Department. Patently, the People may not support their case against defendant by indirect reference to corruption within the city Real Estate Department with the obvious implication that defendant was involved in other, uncharged misdeeds. The improper use of the tapes may not be facilely justified on the basis that this tended to establish the relationship between the broker and the defendant or that it was merely an attempt to impeach credibility. There was no valid proof of any other wrongdoing on defendant’s part, and the import of the cross-examination clearly tended to convey the impression that defendant was withholding information.

Furthermore, on its direct case, the People questioned Deputy Commissioner Lupkin in such a manner as to convey the impression that defendant was brought to Lupkin’s office on June 3, 1976, for the purpose of supplying information about "official corruption” and that defendant failed to co-operate in this investigation. The People’s attempt to justify this evidence on the ground that it was relevant to the issue of voluntariness of the June 3 confession is strained, as the reason why defendant was summoned to Lupkin’s office is relatively insignificant when compared to and contrasted with the manner and circumstances of defendant’s being delivered to the office and the mode of questioning employed thereat. By getting before the jury evidence that defendant failed to cooperate with an investigation into corruption within the city Real Estate Department, the People impermissibly connected defendant with uncharged "corruption” (see People v Mackell, 47 AD2d 209, affd 40 NY2d 59; People v Stanard, 32 NY2d 143). Parenthetically, it is noted that the instant trial is the second on the indictment, the first having resulted in a mistrial when the jury was unable to reach a verdict.

Regarding the issue of whether defendant’s statement of June 3, 1976 should be suppressed, the pertinent surrounding circumstances are as follows: Two detectives, one from the District Attorney’s squad and one from the New York City Department of Investigation, were instructed to proceed in the early morning of June 3, 1976 to defendant’s area of residence and to intercept him when he was alone, that is, not in the presence of family members or others. They were to ask defendant to accompany them to the Department of Investigation. If defendant refused, they were ordered not to arrest him. However, the detectives were instructed that one was to accompany defendant on the train and the other would return by car to the city and get in touch with the department for further instructions. The detectives drove up to defendant’s residence and observed his car in the driveway. They then drove to the railroad station and waited for defendant who commuted to work. After defendant was driven to the station by his wife, who thereafter left, and while waiting for his train, the detectives approached, identified themselves, and requested that he accompany them to the Department of Investigation for a routine matter. Defendant, by virtue of the fact that the detectives were intercepting him in the morning on his way to work, opined that the matter appeared to be more than "routine.” According to defendant, he was fearful that a disturbance would draw the attention of his neighbors, and he acquiesced in accompanying the detectives to their car. His inquiry as to whether he needed a lawyer was responded to in equivocal fashion, to the effect that his co-operation would avoid such necessity. Throughout this period, and for a substantial time prior thereto, defendant was suffering from conjunctivitis, which he maintained interfered with his sleeping habits. Indeed, despite the unusual circumstances of defendant’s being accosted by the detectives while on his way to work, he, according to their testimony, slept in the car on the ride back to New York.

Ushered into the office of Commissioner Lupkin, defendant, in the presence of the two detectives, was confronted by Commissioner Lupkin, an Assistant United States Attorney, an Assistant District Attorney and an attorney employed by the Department of Investigation. In the ensuing four-hour interview held in this modest office (approximately 20' by 25'), defendant was made aware of possible prosecutions against him for bribery, tax evasion and perjury if he lied under oath. Even when defendant during the course of the interview went to the rest room, he was accompanied by one of the detectives who did not make use of the facility. The presence of the detectives at the interview was justified on the basis that they were acting as witnesses to what transpired.

The informal aspect of the interview ended about 1:20 p.m. and a formal statement commenced. A stenographer entered the room and defendant was then for the first time advised of his constitutional rights. Prior to the formal statement and during the course of the "informal” phase of the interview, defendant stated that he had accepted the $3,000 gratuity.

Defendant asserts that his requests for assistance of counsel, uttered from time to time during the course of the interview, were ignored. Witnesses for the People declare that defendant did not make such requests. In light of the resolution of the issue of credibility in favor of the People’s witnesses by the court on the suppression motion, we accept the People’s narration on this point. However, this is not dispositive of the issue as to whether there was custodial interrogation prior to the warnings being administered.

"In deciding whether a defendant was in custody prior to receiving his warnings, the subjective beliefs of the defendant are not to be the determinative factor. The test is not what the defendant thought, but rather 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). Patently, there are several factors to be considered, among which are the place and duration of the interview. Additional factors are the degree to which the law enforcement officials dominate the atmosphere of the interview, the existence of threat or inducement, the age, physical and mental state of the detainee. On this record, viewing the totality of the surrounding circumstances, we hold that as a matter of law an innocent individual in defendant’s position would have reasonably considered himself to be in custody prior to the warnings given at the formal phase, that is, at the end of the lengthy interview. Defendant was clearly the object of an investigation which had focused upon him and the interview was held pursuant to an agreed upon plan to pick defendant up without apprising him of his rights or telling him the purpose for which he was picked up.

The coercive nature of the interview, gleaned from the totality of the surrounding circumstances, mandated the giving of the Miranda warnings. In the absence of these warnings prior to the oral admission of defendant, it is clear that such statement is inadmissible and should have been suppressed. In light of the suppression of defendant’s June 3, 1976 statement, it follows that the indictment must be dismissed as there is no corroboration of the testimony of Haller, the broker.

In any event, if we were not reversing and dismissing the indictment, we would reverse and direct a new trial in view of the deprivation of a fair trial.

Implied, if not explicit, in the rationale of the dissent, is the apprehension that custody in the formal sense of that term and coercion are equivalents. In this reasoning, the absence of such custody is equated with a similar absence of coercion, and the conclusion may thus be reached that defendant, not being in custody, is not entitled to the Miranda warnings. The issue here is not whether defendant was in custody in the general sense, but whether the surrounding circumstances of defendant’s interrogation, viewed as a whole, mandate the conclusion that such interrogation amounted to "custodial interrogation.”

Of course, Miranda requires that a person who is taken into custody or deprived of his freedom in any significant way is entitled to be advised of his constitutional rights before the interrogation proceeds. Formal arrest and physical detention clearly warrant Miranda warnings. The problem arises when a person is not formally arrested and taken into custody (see People v Rodney P. [Anonymous], 21 NY2d 1). Indeed, the Court of Appeals adopted the view that under Miranda a suspect is subjected to "custodial interrogation,” not only if he is questioned when in custody or when deprived of his freedom of action in any significant way, but also if he is questioned when he reasonably believes that he is so deprived (People v Rodney P. [Anonymous], supra).

In Miranda v Arizona (384 US 436, 449) the United States Supreme Court on the issue of psychological coercion quoted from a police manual describing desirable interrogation tactics: " 'If at all practicable, the interrogation should take place in the investigator’s office or at least in a room of his own choice. The subject should be deprived of every psychological advantage. In his own home he may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and more reluctant to tell of his indiscretions or criminal behavior within the walls of his home. Moreover his family and other friends are nearby, their presence lending moral support. In his own office, the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law.’ ”

The factors of where the interrogation is held and who conducts same are of prime relevance among the totality of circumstances in determining whether "custodial interrogation” has occurred. Additional factors are the nature of the suspect, the time and nature of the interrogation and the progress of the investigation at the time of the interrogation (see Custodial Interrogation, Ann. 31 ALR3d 565). Parenthetically, it is beyond cavil that the investigatory process had focused upon defendant as is aptly pointed out in the dissent’s narration of the facts. Although giving credence to the conclusory assertion by the People that the manner of defendant’s being brought to Commissioner Lupkin’s office was not motivated by a desire to intimidate, but to prevent defendant’s alerting others about whom he had made insinuation of corruption, the dissent is silent about the relevance of another fact which is set forth in the dissent, to wit, that defendant had one month before been questioned at the offices of the Department of Investigation.

To reiterate, the coercive nature of the interview under the totality of the surrounding circumstances clearly demonstrates that there occurred "custodial interrogation” warranting the giving of Miranda warnings, which warnings were not given.

Accordingly, the judgment, Supreme Court, New York County (Gorman, J., at trial; Goldman, J., at motion to suppress), rendered July 6, 1977, convicting defendant, after a jury trial, of receiving unlawful gratuities, should be reversed, on the law, defendant’s motion to suppress his statement given to the Department of Investigation on June 3, 1976 granted, and the indictment dismissed.