People v. Grant ( 1981 )

Weinstein, J.,

dissents and votes to affirm the judgment, with the following memorandum, in which Thompson, J., concurs: In my view, defendant was not placed in custody during the night of February 15/16 until after he had confessed to the murder which had occurred in early August, 1977. Therefore, even though it is conceded that there was no probable cause to arrest before this confession, there was no taint attached to the confession such as to require its suppression (cf. Dunaway v New York, 442 US 200). The majority quite properly defers to the discretion of the hearing court in assessing credibility and rendering findings of fact; however it misinterprets those findings of fact so as to conclude that defendant was in custody as a matter of law before he confessed. I believe that such was not the case. The hearing court found that the defendant had, on two previous occasions, August 3 and 7, 1977, co-operated in noncustodial interrogations (during which he made statements later shown to be inconsistent with statements made in Feb., 1979), and that on this last occasion he gladly agreed to accompany the officers to the police precinct, quite willing to co-operate with them, as he had in the past. The court found that he voluntarily remained at the precinct from 9:30 p.m. on February 15 until 3:45 a.m. on February 16, at which time he made the confession. He was never handcuffed, and his liberty was not restrained. Defendant was not forbidden to call his lawyer or prevented from going to the bathroom. I do not believe that a reasonable person, innocent of any crime, would have thought himself in custody under these circumstances (cf. Matter of Kwok T., 43 NY2d 213; People v Yukl, 25 NY2d 585, cert den 400 US 851). Quite the contrary; the circumstances, viewed in their entirety, would have given the reasonable innocent person every indication that he was voluntarily rendering a service to the officers by co-operating, as he already had on two previous occasions, and that this co-operation could be terminated by defendant if and when he pleased, as was the case in the past. The Dunaway case (supra), upon which the majority relies, involved a single, custodial interrogation. It is easily distinguishable from this case, in which, from the prior course of conduct between the police and the defendant, the noncustodial nature of the final interrogation could easily be inferred. Accordingly, in my view, the hearing court properly denied the motion to suppress the confession and other statements.