People v. Warren ( 1983 )

Thompson, J.

dissents, and votes to affirm the judgment appealed from, with a memorandum, in which Weinstein, J., concurs. Following the denial of defendant’s motion to suppress oral statements, he entered a guilty plea to petit larceny. Defendant’s prior criminal record consists of at least 12 arrests and 6 convictions, including convictions for attempted grand larceny in the second degree, grand larceny in the first degree, and two convictions for criminal possession of stolen property in the third degree. The majority concludes that the statements at issue should have been suppressed because they resulted from custodial interrogation after defendant invoked his right to remain silent upon receipt of the Miranda warnings. I do not agree for two reasons. The statements at issue were not obtained by a public servant engaged in law enforcement activity or by a person then acting under the direction of or in co-operation with a public servant (CPL 60.45, subd 2, par [b], cl [ii]), and the Miranda warnings are therefore not a factor to be considered in this case. In addition, even accepting the erroneous conclusion that police conduct was sufficiently involved herein to bring defendant’s constitutional rights into the consideration of this matter, it is patently obvious that his conduct constituted a knowing and voluntary relinquishment of his Miranda rights. Only two witnesses testified at the Huntley hearing. Detective Sabatino Fusco stated that on October 28,1980 at 3:45 p.m. he arrived at a branch of the National Bank of North America and was advised that defendant was attempting to withdraw $100 from a nonexistent account. Defendant was arrested and immediately given his Miranda rights. Although he acknowledged that he understood his right to remain silent, and that anything he said could be used against him, he failed to respond when he was asked if he was willing to answer questions without an attorney being present. Fusco assumed defendant did not want to be questioned, and he simply took him across the street to the precinct to process him. While defendant was being processed, Kernal Holland, a security officer for the bank whom Fusco did not know, came in and introduced himself to Fusco. Holland noted that defendant was wanted on a separate fraud charge. Fusco did not ask Holland to interview or question defendant, and Holland did not request permission to speak to defendant. The other charge against defendant was one involving approximately $5,000 taken from another branch of the bank under similar circumstances. Holland did not have an opportunity to talk to defendant in Fusco’s presence. When defendant was processed, the final charges against him covered the instant petit larceny and a charge of grand larceny for his prior wrongdoing. Kernal Holland, who was retired from the New York City Police Department, was the only other witness. He testified that upon receiving notification from the bank as to what had transpired, he went to the detective squad room in the precinct. There were six or seven people in the room in plain clothes, and he recognized some of those present as detectives. He introduced himself to Fusco. Defendant overheard his conversation with Fusco and asked “you from the bank? * * * Will you tell these guys I have not did [sic! anything wrong”. Holland asked defendant if he was Nelson Warren and upon receipt of a positive response, the following ensued: “I said ‘did you open an account in Baisley Park branch?’ He said ‘yes.’ I said ‘you opened it with fifty dollar check.’ He said ‘yes, that’s right.’ I said ‘check is no good.’ He said T didn’t know it was no good.’ I said ‘the checking account that check was drawn on was closed for six months prior to that.’ * * * 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 did not know if Fusco heard the conversation. He was unaware of Fusco’s whereabouts while the conversation was going on. Defendant had been within earshot of Holland’s initial conversation with Fusco. The others in the room were not involved in Holland’s discussion with defendant. Nobody stopped Holland from talking with defendant, although nobody had requested that he ask defendant questions. After the conversation, Holland stayed 15 to 20 minutes to talk to people he knew in the squad room. Holland characterized what transpired as defendant wanting him to intercede with the police on defendant’s behalf. As a result, defendant “opened the door and I talked to him”. Under these circumstances, Criminal Term concluded: “From the credible evidence adduced at the hearing, the Court finds that Holland, the security investigator for the bank, was not acting in cooperation with the Police Department when he discussed with the defendant the various transactions the defendant had with the Bank of North America. It is clear that Holland was acting in the interest of the bank. (People v Adler, [50 NY2d 7301). Although he was in custody, the defendant appeared to feel free to address Holland when he heard he represented the bank. The fact that there were several other detectives present did not create a coercive atmosphere since they were all in civilian clothes and were not involved in this defendant’s arrest. It was not incumbent on Detective Fusco to prevent Holland from talking to the defendant. There was no evidence presented that the defendant was subjected to any physical or mental pressure or psychologically coerced in any manner, by Holland, the security investigator. He was willing to discuss, even anxious, to explain to Holland that the failure of the checks to c ’ 3ar the bank was not due to bad faith on his part. Accordingly, the Court finds that Kernal Holland was at the police precinct in his private capacity as a security investigator for the Bank of North America; that he was not an agent of the Police Department and was not acting in cooperation with the Police Department when he interrogated the defendant regarding certain checks which did not clear the banks on which they were drawn. The Court further finds that under the circumstances, Kernal Holland was not required to administer Miranda warnings to the defendant, prior to engaging in conversation with him. (CPL 60.45 (2) (a)). Defendant’s motion to suppress statements made to Kernal Holland, security investigator, for the Bank of North America, is denied.” I believe the motion to suppress was properly denied. Generally, in the absence of a finding that Holland was acting under the direction of or in cooperation with the police, the statements at issue would be considered the product of a conversation between private individuals, and the principles enumerated in the Miranda decision (Miranda v Arizona, 384 US 436) would not be a factor involved in evaluating the motion to suppress (CPL 60.45; People v Lee, 33 AD2d 397; see People v Adler, 50 NY2d 730). The record simply does not support a conclusion that Holland was acting under the direction of or in co-operation with the police. He was acting solely for his employer, the bank. Accordingly, Holland was not obligated to concern himself with whether defendant had invoked his Miranda rights. The defendant’s reliance on People v Jones (47 NY2d 528) is misplaced. In Jones (supra) the police acted in concert with store detectives in arresting defendant, after which the police waited nearby while the store detectives obtained a confession without first affording the defendant his Miranda rights. The Court of Appeals noted that although the store detectives may not have acted as police agents, their participation was sufficient to create the type of custodial interrogation atmosphere which Miranda was intended to alleviate. In essence the court held that the police participation was sufficient to trigger Miranda, and the police could not cross back over the line to a pre-Miranda situation by letting the store detectives obtain a confession without affording Miranda warnings. The detectives may not have technically been considered agents of the police, but they certainly did the job the police would have otherwise done while the police waited passively for the outcome. In our case, defendant was advised of his Miranda rights and although he never affirmatively stated that he did not want to speak with the police in the absence of counsel, the police scrupulously honored his right to remain silent by not questioning him. There is no indication here that Holland was used to circumvent defendant’s choice to remain silent. The record indicates Fusco never even bothered to listen to the conversation between Holland and defendant. It was defendant who spontaneously initiated the conversation in an attempt to give Holland an exculpatory version of the facts, with the hope that Holland could-help him. The conversation between Holland and defendant should not be deemed the equivalent of custodial interrogation, particularly where there is no evidence the police were even privy to the conversation and in a position to prevent it. There was simply no police interrogation here. In People v Bracy (98 Misc 2d 346, affd sub nom. People v De Pasquale, 75 AD2d 751, affd 54 NY2d 693) defendants invoked their right to remain silent. The brother-in-law of one of the defendants, a policeman, was permitted to talk to defendants after being told the police had a good case against them. The brother-in-law convinced defendants to confess. Despite the police involvement in allowing the brother-in-law to speak to defendants after telling the brother-in-law they had a good case against defendants, the courts concluded that the defendants’ right to remain silent had been scrupulously honored by the police. The police role here in the Holland-defendant conversation was less than that present in the brother-in-law-defendant conversation in Bracy (supra), and so it must be concluded that the police scrupulously honored defendant’s right to remain silent in the present situation. Even if it is concluded that a custodial interrogation took place herein, a view of a totality of the circumstances indicates that when defendant, a man with a lengthy criminal record, spontaneously sought to enlist Holland’s aid by offering exculpatory explanations for his prior criminal deeds, he implicitly, knowingly and voluntarily waived his Miranda rights (see North Carolina v Butler, 441 US 369; People v Davis, 55 NY2d 731; People v Rooney, 82 AD2d 840; People v Harris, 79 AD2d 615; People v Baez, 79 AD2d 608). Defendant’s other claim of error is without merit. Accordingly, I respectfully dissent and vote to affirm the judgment of conviction.