Opinion
05250C-2005.
Decided July 29, 2009.
Hon. Robert T. Johnson, District Attorney Bronx County, Bronx, NY, Gary Weil, Of Counsel, for the People.
Raymond J. Aab, Esq., New York, NY, for the Defendant.
Defendant is charged in an indictment with one count of Attempted Aggravated Assault upon a police officer (PL § 110/120.11) and other related crimes. He contends that the police did not have probable cause to place him under arrest and has moved to suppress certain oral, written and videotaped statements made by him on the grounds that they were involuntarily made in two respects. First, he argues that his confession was a consequence of police coercion. Second, defendant claims that the statements were not the product of a knowing and intelligent waiver of his Miranda rights because he is a person of limited intellectual capacity and therefore lacked the requisite cognitive abilities to understand and to waive his Miranda rights.
A combined pre-trial Dunaway/Huntley suppression hearing (granted by a court of coordinate jurisdiction) was conducted before this court over several sessions which, due to counsels' availability, took place over a ten-month period commencing February 2008 and ending December 2008. Post-hearing written submissions were not completed until April 2009. During the suppression hearing, the People presented the testimony of three witnesses: the two NYPD police officers, Detectives Joseph Dietrich and John Peters, who took the statements from defendant, and Dr. Cheryl Paradis, a forensic psychologist, called as a rebuttal witness. Defendant presented one witness, Dr. Marc Janoson, a forensic psychologist. Defendant did not testify at the hearing.
FINDINGS OF FACT.
The findings of fact set forth below are based on the transcript of the testimony received at the evidentiary hearing as well as the exhibits offered and admitted in evidence.
The court credits the testimony of the two police witnesses as to the chain of events leading to the challenged statements. On January 30, 2005, NYPD Detective John Peters and his partner Detective Joseph Dietrich, assigned to Bronx Night Watch, were both on duty and working the midnight tour. At approximately 2:45 A.M., Det. Peters received a telephone call from an unnamed detective assigned to the wheel dispatch. The wheel dispatcher, at the request of the Special Operations Captain, requested that the detectives respond to a McDonald's fast food restaurant located at Garrison Avenue and the Bruckner Expressway in Bronx County. The detectives were informed that an on-duty New York City Police Officer had eaten a hamburger containing glass that he had purchased at that McDonald's restaurant.
At the time of the hearing, Det. Peters was assigned to the New York County District Attorney's Office Detective Squad.
At the time of the hearing, Det. Dietrich was a 20-year veteran of the NYPD.
Ten minutes later, Dets. Peters and Dietrich entered the restaurant through the side entrance of the building, near the drive-through window. Present inside the restaurant were the manager, three employees and several New York City police officers, including Sergeant Delliocono and Captain Raday, both from the Special Operations Division. Upon entry, the detectives spoke with Captain Raday and Sergeant Delliocono, who informed them that a New York City Police Officer named John Florio, assigned to the Canine Unit, had been in a marked police car with a police dog in the rear when he stopped at that McDonald's restaurant drive-through window and ordered a Big Mac hamburger. While driving to some other location, he ate the hamburger, cracked his teeth, became aware that there was glass in the sandwich and then drove himself to hospital. As a result of this conversation, an investigation was initiated and, consistent with police policy and standard operating procedures, the employees were separated and interviewed individually.
In his reply to the People's post-hearing brief, defendant submitted a copy of the District Attorney's write up, and argued that there was no testimony at the hearing that Police Officer Florio "immediately drove himself to the hospital." As the evidentiary portion of the hearing has been concluded, the court cannot and has not considered this document in its decision.
In the course of their conversation with the Special Operations personnel, which lasted approximately fifteen minutes, the detectives noticed defendant was seated alone at a table; he looked agitated, very nervous and was trembling. On direct examination, Det. Peters testified that defendant's nervousness made him suspicious; however, on cross-examination, he admitted that at an earlier deposition he had testified that defendant's nervousness did not make him suspicious, as many people are nervous around police. Inside the restaurant, the counter is located to the left and the public seating to the right. The two female employees were seated together. After inquiring whether defendant was okay and being informed by the police personnel present that he was, the detectives requested that defendant be removed from that area so as not to be able to listen in on their conversation. As a result, defendant was subsequently removed to a ten-by-ten foot room located in the back of the restaurant by two other police officers. This room was used as an employee lounge or locker room; it had no windows and had lockers inside. Detective Dietrich testified that he did not specifically ask that defendant be removed to this room, only that he removed to an area where defendant could not overhear his conversation with police personnel. Defendant was in the room for two to three hours.
As part of their investigation, Det. Peters first interviewed the manager. He attempted to interview Kathleen Afeli, whose job, in conjunction with that of defendant, was to prepare food. Ms. Afeli, however, spoke limited English so that Det. Peters' interview with her was limited.
Detective Dietrich interviewed Jessica Burgos, the cashier, who worked at the drive-through window. Thereafter, Det. Dietrich looked around the premises to see from where the glass may have originated. Having found no glass, he went to the employee locker room and spoke with defendant. Detective Peters was present at the beginning of this interview. Defendant was not given his Miranda warnings at that time because he was not considered a suspect. When Det. Dietrich first interviewed defendant, he engaged him in a general conversation about the incident and how the restaurant operated. During the course of the conversation, Det. Dietrich asked defendant if he knew what was going on. Defendant told him that he knew that an officer was hurt after eating a hamburger containing glass. Defendant was asked how the glass got in the hamburger and responded that he did not know. He was asked if he had put the glass in the hamburger and again responded no. At that point, Det. Dietrich asked defendant to explain the workings of a McDonald's restaurant and the responsibilities of the employees. Defendant told Det. Dietrich that there were two people involved: one person would cook the burgers and the other would put the burger together and then pass it off to the cashier, who would then put the burger in a bag and give it to the customer at the window. It was also the cashier's responsibility to take the order from the customer.
Sometime thereafter, Det. Dietrich was informed by his supervisors that defendant was the individual who gave the hamburger to Officer Florio. Detective Dietrich again asked defendant whether the cashier was the sole individual authorized to give the burger to the customer. Defendant again told Det. Dietrich that that was so. Detective Dietrich then asked defendant that if that was the case, why would the officer, who was outside, say that it was defendant who gave him the burger. At that point, Det. Dietrich left the room, returned with a borrowed memo book from a uniformed officer containing a pre-printed set of Miranda warnings and told defendant that he was going to read him his " Mirandas," to which defendant asked Det. Dietrich what that was. Detective Dietrich explained that they were like the rights one hears on television, like the right to remain silent.
At approximately 4:45 A.M., Det. Dietrich read the following Miranda warnings to defendant: (1) you have the right to remain silent and refuse to answer any questions; (2) anything you do or say may be used against you in a court of law; (3) you have the right to consult an attorney before speaking to the police and have an attorney present during any question, now or in the future; (4) if you cannot afford an attorney, one will be provided for you without cost; (5) if you do not have an attorney available, you have the right to remain silent until you have an opportunity to consult with one; (6) now that I have advised you of your rights, are you willing to answer questions? After each of the above five rights were read, defendant orally responded in the affirmative that he understood each and every one of the Miranda rights read to him. After the sixth right was read to him, defendant asked Det. Dietrich to repeat it and then subsequently said that he understood that one too. (See People's Exhibit 1 in evidence).
After defendant orally answered all six questions in the affirmative, Det. Dietrich handed him the memo book containing the Miranda warnings and gave him a pad. Defendant then wrote down his answers to the six questions; next to each number (1-6), he wrote the word "yes," wrote his initials and in parenthesis placed the letters Jr., because his name is a junior. (See People's Exhibit 2 in evidence, top portion). Detective Peters was present in the room while defendant was being read the Miranda rights. Neither detective had guns drawn and no promises were made to defendant. Defendant was asked if he wanted anything to eat or to drink and responded that he did not.
After the Miranda warnings were read and defendant had answered in the affirmative, both orally and in writing, Det. Dietrich again asked defendant to explain the workings of a McDonald's restaurant. Thereafter, Det. Dietrich asked defendant why, if it was not his responsibility to give the customers the burger, would the officer who was outside say that it was defendant who gave him the burger. Defendant then told Det. Dietrich that he meant it as a joke; that as he was putting the burger together, he reached into his pants pocket, it had lint and dirt on it, so he sprinkled it on the burger, packaged it up and gave it to the girl, who gave it to the customer. Detective Dietrich then asked defendant to write that statement down, which he did. Subsequently, Det. Dietrich went out of the room and informed his supervisors of defendant's statement.
Detective Dietrich testified that it was his belief that Officer Florio was outside in a radio car at that time.
When Det. Dietrich re-entered the room, defendant was still writing. Defendant wrote that he was looking at the screen to see what was on it; it showed a Big Mac, so as he was making the sandwich, he put his hand in his pocket and took out a lot of stuff. He did not know there was glass in his hand because he was looking to see if anyone saw him put the items from his pocket into the burger. It was all a joke and he did not know it was going to be sold to a cop. Questioning did not consume the entire period of time because during course of the interview with defendant, Det. Dietrich frequently left the room to advise his supervisors of defendant's disclosures; he also looked around the premises for the source of the glass. Defendant was alone in the room during these times.
In response to the above writing, Det. Dietrich asked defendant where the glass came from. Defendant replied that the glass came from the manager's office; that while sitting at a desk in the manager's office, making a telephone call, he opened the center drawer and saw some glass. Detective Dietrich then went to the manager's office, saw no glass in the drawer, returned to defendant and told him that there was no glass in the manager's office. Defendant told Det. Dietrich that was where he got it.
Detective Dietrich then ask defendant to write that statement down. Defendant wrote that when he came in to work about 11:15 P.M., he went to the crew room to change into his uniform. When he finished changing, he asked one of the managers if he could use the telephone. He went to the manager's office, looked in the drawer and found little pieces of glass that he put inside his pocket. Later on, the screen showed a Big Mac; he started to make the sandwich and when he was about to finish, he put the little pieces of glass in the burger, as a joke. He mixed it up with the sauce so the person who bought it could not see it. After he finished, he closed the box and gave it to the girl up-front. Defendant then printed and signed his name and the date (1/30/05). (See People's Exhibit 2 in evidence). Detective Dietrich then wrote that he had witnessed the statement, providing his name, shield and command.
Defendant continued talking and Det. Dietrich wrote "continued at 0600 hours." Defendant's additional written statement was that when he was finished with the burger, he went to the window to see who he was giving it to, realized it was a cop, packed up the sandwich with the glass in it and handed him the bag. He also told the officer to have a good evening. Detective Dietrich then had defendant print and sign his name and date and underneath again wrote that he had witnessed the statement. Defendant was then placed under arrest by Officer Bowden and transported to the 41st Precinct Detective Squad.
During the hearing, the People turned over, as part of their discovery, the District Attorney's write-up, in which there was a statement from defendant, given to Police Officer Bowden, which the People indicated was not given to defendant in their voluntary disclosure form. The sum and substance of that statement was that defendant stated that he got the glass from a broken picture frame at home, he wrapped the glass in a white napkin and put it his pocket. He later said that he wanted to say sorry to the officer. The People introduced no evidence of this statement and neither the People nor defendant made any argument in their post-hearing briefs about this statement. Accordingly, this court will not address the admissibility of this statement.
Sometime after 8:30 A.M., Det. Peters approached the holding cell where defendant was being held and asked if he still understood the Miranda rights he had been given earlier. Defendant replied that he did. He then asked where the glass came from and defendant told him that the glass came from a broken picture frame at his home.
At approximately 12:45 P.M., an Assistant District Attorney ("ADA") responded to the 41st Precinct and conducted a videotaped interview of defendant. The ADA once again advised defendant of his Miranda rights, defendant indicated that he understood them and agreed to
answer questions. In this videotaped statement, defendant reiterated his earlier statements. During this interview defendant admitted that the Miranda warnings were read to him earlier by a detective and that he understood them at that time. (See People's Exhibit 3 in evidence).
Defendant's Case
At the hearing, defendant presented the testimony of an expert, Dr. Marc Janoson, a forensic psychologist.Dr. Janoson evaluated defendant to determine whether he was competent to waive his Miranda rights. In the course of this evaluation, he saw defendant for approximately two to three hours on four separate dates. He interviewed defendant and gave him a battery of tests that are commonly administered in Miranda evaluations. In making his assessment, Dr. Janoson reviewed the complaint, the indictment, defendant's videotaped and written statements and Det. Dietrich's deposition. He also reviewed some of defendant's transcripts from his school.
Dr. Janoson has a doctorate in psychology from Hofstra University and completed a two-year program in Family Forensics from Washington Square Institute for Mental Health. He is licensed to practice in New York and has practiced forensic psychology for approximately ten years. At the time of the hearing, Dr. Janoson was a member of the 18B expert panel in Brooklyn. He admitted he was criticized on a Miranda hearing case by Judge Wittner as having a anti-law enforcement bias because he had given defendant's version of events without giving law enforcement's. He also stated that he had testified in over 100 cases and was found not to be credible by Judge Tomei.
Detective Dietrich testified at a deposition in a civil suit by Officer Florio against defendant and McDonald's.
The first test Dr. Janoson administered was the Gudjonsson Compliance Scale ("GCS"), a test that is commonly used in Miranda competence evaluation to access how compliant a person is. The result from this test indicated that defendant was not overly submissive, i.e., this test did not find him to be overly compliant.
The second test was the Gudjonsson Suggestibility Scale ("GSS"), a test used in Mirand a evaluations to access how a person responds when given negative feedback to their answers, i.e., do they change their opinions. On this test defendant tested as highly suggestible. Dr. Janoson testified that given feedback that his responses were not credible, defendant's responses would change. Dr. Gudjonsson admitted that the results from the GCS and GSS are self-contradicting.
The third test given was the Comprehension of Miranda Rights ("CMR"). This test is part of the Grisso battery — a series of four sub-tests that relate to how well a person understands Miranda rights at the time of the evaluation. Dr. Janoson opined that from this test, defendant was not aware that he could have an attorney present during the interrogation.
The fourth test was the Comprehension of Miranda Rights Recognition ("CMRR"), also part of the Grisso battery. Here, defendant was read the following Miranda rights: (1) you do not have to make a statement and have the right to remain silent; (2) anything you say can and will be used against you in a court of law; (3) you are entitled to consult with an attorney before interrogation and to have an attorney present at the time of interrogation; and (4) if you cannot afford an attorney, one will be appointed for you. Defendant scored eight out of a possible twelve on this test and the possibility that defendant was malingering was ruled out.
The language used in this test is taken from the text used in St. Louis, MO.
The fifth test was the Comprehension of Miranda Vocabulary ("CMV"), another part of the Grisso battery. In this test, defendant was asked to define six words that appear in the Miranda warnings used in the CMRR. Here, defendant was unable to give an acceptable definition of the words "entitled" and "interrogation." He did, however, fully understand the words "attorney," "appoint," "right" and "consult."
The sixth test was the Function of Rights Integration. According to Dr. Janoson, this is the most significant of the four Grisso sub-tests, in that this test determines whether the defendant understands the adversarial nature of the interrogation. Defendant scored in the lowest one percent of the population. Dr. Janoson opined that based on all of the Grisso tests, defendant did not comprehend the Miranda warnings. Specifically, defendant did not understand that he could have an attorney present during the interrogation and he did not understand fully the right to silence.
The seventh test was the Wechsler Adult Intelligence Scale, 3rd edition, which is the standard IQ test used for assessing intelligence in adults. His full scale IQ was 88, which is called low-average. His verbal IQ was 81, which is also low-average.
The eighth test was the Wide Range Achievement Test (WRAT), 3rd edition. From this test it was determine that defendant's reading level was at the fifth grade, which meant that he was able to recognize or decode words at the fifth grade level; however, there was no assessment of understanding on this instrument. Dr. Janoson explained that comprehension is how well a person understands the contents of what they are reading, which is an abstract skill, and that this test was limited to word recognition or decoding. Dr. Janoson asserted that most experts and published forensic psychologists on Miranda issues report that one needs either a sixth or a seventh grade reading level to understand the Miranda rights.
The ninth test was the Minnesota Multiphasic Personality Inventory ("MMPI"), 2nd edition. From this test defendant was found to have psychiatric problems. The MMPI indicated that defendant was subject to confusion in the face of stress, that he is dependent and guilt-ridden. Dr. Janoson opined that a person with this MMPI profile would be more inclined to make a false confession.
The next test was the Millon Clinical Multiaxial Inventory, 3rd edition. From this test, it was determined that defendant did not have an antisocial personality disorder; however, he had dependent personality traits.
The last test was the Personality Assessment Inventory. This test corroborated what the other instruments indicate about defendant's personality, i.e., he had trouble with interpersonal relationships and was lacking in self-confidence.
Defendant attended a program called City As School which, according to Dr. Janoson, is a school for academically challenged students. Dr. Janoson also reviewed defendant's school transcript. On one transcript, defendant was taking seven courses and failed or did not receive credit for five out of seven of the academic courses. One of the courses he did pass was gym.
In his interviews with the defendant, Dr. Janoson testified that the defendant had told him that, on the night of the alleged crime, he had two hours of sleep in two days. Dr. Janoson testified that lack of sleep would have certainly downgraded defendant's already shaky judgment and thinking.
Dr. Janoson opined that based on all the data, defendant has all the underpinnings of a person who cannot consistently, intelligently and knowingly waive Miranda rights.
People's Rebuttal Case
On their rebuttal case, the People called Dr. Cheryl Paradis, a forensic psychologist. Dr. Paradis reviewed Dr. Janoson's reports, the police reports, defendant's videotaped and written statements and interviewed both defendant and his mother. Defendant presented as a typical young man who lived at home with his mother, was hard working, had worked continuously since his arrest, was respectful of his family, and was motivated to achieve — he indicated he wanted to finish high school and go to culinary school. Defendant had never been in counseling and a review of his background showed no history of psychiatric illness.
At the time of the hearing, Dr. Paradis was working as a forensic psychologist at Kings County Hospital. She received a doctorate in clinical psychology from Yeshiva University and has been a practicing forensic psychologist for approximately 20 years. She has been qualified as an expert in forensic psychology about 75-100 times in different courts.
Dr. Paradis indicated on cross-examination that living at home may present some dependency issues; however, on redirect she testified that that did not strike her as being unusually dependent or unusually immature and that this would not affect the way defendant understands Miranda rights.
Dr. Paradis opined that from all the data, defendant was intelligent enough to understand the Miranda warnings and was mentally healthy enough to have intelligently waived them. As part of her evaluation, she called defendant's school and was informed that defendant had not been in nor had he ever been referred for special education or special education classes. Although defendant attends an alternative type of high school, students attend this school for a variety of reasons, not necessarily because they are slow learners. She indicated that although defendant is behind academically, he was not "slow" because one could be academically behind for different reasons, yet have an average intelligence.
Dr. Paradis readministered two tests: the WRAT, a decoding test, where defendant scored in the 6.9 grade level and the Validity Indicator Profile, which indicated that defendant was not a malingerer, i.e., he was not faking his academic or intellectual problems. In her opinion, defendant waived his rights knowingly and intelligently, having found that he was intelligent enough to understand the words of the Miranda warnings and sufficiently mentally healthy to act knowingly. She reached no opinion as to whether his waiver was voluntary, since he told her that he had been pressured and he was quite young when he made the statement.
On Dr. Janoson's administration of this test, defendant scored in the fifth grade level. Dr. Paradis administered the test slightly more than one and one-half years after Dr. Janoson.
She was critical of Dr. Janoson's conclusions, observing that he failed to integrate the various test results and findings. Specifically, she noted that some of the test results contradicted each other and some of the tests were not administered as designed. For example, Dr. Janoson reported that defendant's reading level was at the fifth grade, yet two of the three personality tests that Dr. Janoson administered required a higher reading level; given that those tests were able to be scored, Dr. Paradis doubted the determination of defendant's reading level at the fifth grade. She reconciled this finding to mean that although defendant could not pronounce words correctly, his reading was better than the fifth grade level and was sufficient that he could accurately complete self-administered tests which required sixth and eighth grade reading levels.
The Millon specifies that an individual must have an eighth grade reading level in order to take the test. The MMPI specifies that an individual have a sixth grade reading in order to take the test.
In her examination of the results from the Grisso tests, Dr. Paradis testified that they had major limitations because the words used do not match the words used in Miranda warnings in New York State. In one part of the Grisso tests, defendant was asked to define six words, two of which are not words used in NewYork Miranda warnings; the Grisso test uses the word "interrogation" while New York Miranda warnings use the word questioning, and uses the word "entitled," which is not found in New York Miranda warnings. From the vocabulary part of the Grisso test, defendant understood the other four words, i.e., "attorney," "right," "appoint," and "consult." She testified that although the Grisso test provides some useful information, one cannot rely on that score alone. While a literal reading of selected portions may support an argument that defendant was unable to understand some of the words, it is the entirety of the information that must be considered and that one should not rely on an individual's score in isolation.
Dr. Paradis testified that the Grisso test is a measure of understanding Miranda rights, as well as understanding how the court processes work and that test can be used either quantitatively, i.e., scoring it a certain way following the manual or it can be used qualitatively, i.e., just seeing how someone answers some of the questions.
Furthermore, the Grisso test manual specifically directs the test administrator to inquire further and to encourage the test subjects to talk about themselves. Dr. Janoson failed to do so in his administration of the Grisso test, the result being that defendant received low scores. When Dr. Paradis administered this test, however, she asked defendant about the words used in New York Miranda warnings and he had no problems in reading, explaining or understanding the words.
Dr. Paradis reviewed defendant's scores on the GSS, where Dr. Janoson found that defendant was highly suggestible; however, in her interviews with defendant, she testified that defendant was not overly compliant. She cited an example where she requested defendant's permission to contact his school. She testified that defendant politely but assertively asked her why, which indicated that he was not an overly submissive young man but an individual who could stand up for himself.
In reviewing defendant's videotaped statement, Dr. Paradis testified that he looked tired but not exhausted. She testified that he understood the questions posed to him and was not distracted nor did he show any signs of stress, emotional break down or cognitive disorganization; he gave an organized story. She cited one example in the videotape where the ADA misheard him and said "seven;" defendant corrected the ADA and told her it was "several." This indicated to Dr. Pardadis that defendant was listening and was not distracted. She also testified that defendant used language and vocabulary words appropriately and saw no evidence that defendant was frightened or confused.
Finally, although Dr. Janoson's opinion was that defendant had very serious psychiatric problems, he failed to diagnose defendant with a specific mental illness. She found that the defendant had no psychiatric illness.
CONCLUSIONS OF LAW I. PROBABLE CAUSE
In the Dunaway portion of the hearing, the People have the initial burden of going forward to establish that the arrest of defendant was supported by probable cause and providing evidence of the legality of police conduct. The burden then shifts to defendant to establish the illegality of police conduct. Dunaway v New York, 442 US 200 (1979). Defendant argues that his custodial detention began when he was removed to the employee crew room but that the police lacked probable cause to arrest him at that juncture. The People argue that defendant was not in custody, was being paid by his employer to be present at that McDonald's restaurant at all times prior to his "formal" arrest and was not being detained in the restaurant by the police.
In deciding the threshold issue of custody, the subjective beliefs of defendant are not the determinative factor. "The test is not what defendant thought, but rather what a reasonable [person], innocent of any crime, would have thought had he been in defendant's position." People v Yukl, 25 NY2d 585 (1969), cert denied 400 US 851 (1970); see also People v Simpson, 256 AD2d 205 (1st Dept 1998) lv denied 93 NY2d 902 (1999). Some of the factors relevant to this inquiry include the amount of time spent with the police, any significant restriction on defendant's freedom of movement, the location and atmosphere of the questioning and the nature of the questioning, namely whether it was investigatory or accusatory. See People v Centano, 76 NY2d 837 (1990).
Under the facts of this case, I find that at the time defendant was removed to the employee lounge he was not in custody because a reasonable person in defendant's position, innocent of any crime, would have believed that the police were conducting an investigation predicated on allegations of the presence of glass in Officer's Florio's hamburger. The facts surrounding defendant's presence in the restaurant are largely undisputed. The circumstances show that when the detectives arrived in the restaurant, they were in plain clothes, displayed no weapons, and proceeded to interview all of the employees present in the restaurant; defendant was not singled out to be interviewed. Nor was defendant physically restrained at any time and even though he was in a "small, windowless room" for approximately three hours, this was a somewhat familiar setting. See People v Pena, 300 AD2d 132 (1st Dept 2002) [suspect left alone in an unlocked room for an extended period was not deemed to be in custody]. Furthermore, there was no evidence that defendant objected to the presence of and questioning by the detectives, that he refused to answer, asked to terminate the interview or to go home.
Since defendant admits, in his post-hearing brief, that he worked the 11:00 P.M. to 7:00 A.M shift, the reasonable inference is that he was being paid to be there. Moreover, there is no indication that the detectives openly accused defendant of the crime or that the detectives communicated to defendant that he was a suspect and not a mere witness. As the United States Supreme Court stated in US v Mendenhall, 446 US 544, 554 (1980), "the Court has . . . acknowledged [the] need for police questioning as a tool in the effective enforcement of the criminal laws. Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished.'" Nothing in the record indicate that defendant was restrained of his freedom of movement by the police to the degree associated with a formal arrest. Indeed, until that point in time that defendant stated that he placed the glass in the hamburger, there is nothing in the record to indicate that he was being detained in any manner except for an investigatory inquiry surrounding the discovery of glass in a Big Mac. Although defendant may have felt that he had to cooperate with the police, "[a]n assumption that one is required to cooperate with the police can hardly be equated with an arrest." ( People v Yukl, supra, 25 NY2d at 590, quoting Hicks v United States, 382 F2d 158). Contrary to defendant's contention, I find that he was not in custody at the time he was removed to the employee locker room. Consequently, defendant's pre- Miranda statements are admissible. I further find that once defendant made his first inculpatory statement, the police had probable cause for his arrest. See People v Beckwith, 303 AD2d 594 (2d Dept 2003). See also People v Warren, 300 AD2d 692 (3d Dept 2002), lv denied 99 NY2d 203 (2003); People v Strawbridge, 299 AD2d 584 (3d Dept 2002), lv denied 100 NY2d 599 (2003).
Pursuant to Miranda, the police must advise a defendant of his Miranda rights only if two conditions are met: custody and interrogation. See Thompson v Keohane, 516 US 99 (1995).
II. DEFENDANT'S POST-MIRANDA STATEMENTS
Where a defendant has challenged statements made by him, the People have the burden of proving the voluntariness of a defendant's statements beyond a reasonable doubt. People v Holland, 48 NY2d 861 (1979); People v Witherspoon, 66 NY2d 973 (1985); People v Comfort , 6 AD3d 871 (3d Dept 2004). Once the lawfulness of the police conduct is established, the burden shifts to defendant to show that he was not mentally competent to voluntarily and intelligently waive his rights. People v Love, 57 NY2d 998 (1982); People v Hughes, 280 AD2d 694 (3d Dept 2001), lv denied 96 NY2d 801 (2001); People v Duncan, 279 AD2d 887 (3d Dept 2001), lv denied 96 NY2d 828 (2001); People v Guillery, 267 AD2d 781 (3d Dept 1999) lv denied 94 NY2d 920 (2000); People v Billington, 163 AD2d 911 (4th Dept 1990), lv denied 76 NY2d 891 (1990); People v Tinning, 142 AD2d 402 (3d Dept 1988), lv denied 73 NY2d 1022 (1989).
Defendant's first argument is that his confession was involuntary because it was the product of deceitful and psychologically coercive questioning by the police. Specifically, he argues that having no prior experience with the criminal justice system, the police exploited his vulnerability by placing him in a "guarded, windowless crew room," interrogating him for several hours, and deceiving him by telling him that he could go home if he told them what they wanted to hear. He further contends that he was sleep deprived, having had two hours of sleep in two days, had nothing to eat or drink that entire morning, and was tired and scared. Defendant's second argument is that his intelligence and background rendered him unduly susceptible to police coercion or intimidation and that his intellectual capacity is so severely limited so as to make an intelligent, knowing and voluntary waiver of his rights impossible under these circumstances. Miranda v Arizona, 384 US 436 (1966), mandates that a defendant's statements made during custodial interrogation may only be used against him if the statement was made voluntarily and that defendant made a knowing and intelligent waiver of his right to remain silent and make a statement only after consulting with counsel. To prove a valid waiver, the People must show that the waiver was the product of a free and deliberate choice, rather than the product of intimidation, coercion or deception, and that it was made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. See Moran v Burbine, 475 US 412 (1986); Fare v Michael C, 442 US 707 (1979). See also United States v Male Juvenile, 121 F3d 34 (2d Cir 1986); United States v Jaswal, 47 F3d 539 (2d Cir 1995). In determining whether a statement is uncoerced and voluntary, it is necessary to assess the totality of the circumstances surrounding the interrogation. Factors relevant to the totality of the circumstances include police conduct, conditions of interrogation and the characteristics of defendant, such as age, education, intelligence, experience, and the defendant's physical and mental state. Nelson v Walker, 121 F3d 828 (2d Cir 1997); Green v Scully, 850 F2d 894 (2d Cir 1988), cert denied 488 US 945 (1988).
The only basis for these allegations is the defendant's interviews with Dr. Janoson and, to a limited extent, with Dr. Paradis. The defendant elected not to testify at the hearing, depriving the court of the ability to evaluate these claims from their purported source.
Upon considering the circumstances surrounding defendant's confession, I find that the People have met their burden, through evidence at the hearing that established that Det. Dietrich read defendant his Miranda rights, defendant indicated that he understood them and then orally and again in writing, agreed to waive those rights, signing a written waiver. As discussed above, defendant was seated in a familiar employee locker room during the waiver and subsequent questioning; there was no testimony that defendant was in handcuffs.
Detective Dietrich and his partner arrived at the restaurant at approximately 2:50 A.M., he spoke to defendant between 4:00 and 4:30 A.M. and read defendant's his Miranda rights at approximately 4:45 A.M. At approximately 8:00 A.M., defendant was transported to the 41st Precinct, when an ADA was called to take a videotaped statement. The questioning in the employee locker room lasted from approximately 4:00 A.M. to 6:00 A.M., during which time the defendant remained uncuffed in the same room. Detective Dietrich was in and out of the room during the course of the interview with defendant and that during the times Det. Dietrich left the room, defendant was alone. Thus, there was not continuous questioning while defendant was in this room. Furthermore, defendant was asked if he wanted something to eat and drink, which he declined.
The police waited until 8:00 A.M. to transport defendant because they did not have access to the 41st Precinct Detective Squad earlier.
At approximately 8:00 A.M., when defendant arrived at the 41st Precinct, a telephone call was made requesting the presence of an assistant district attorney. There was no evidence that defendant was questioned from the time he left the McDonald's to the time Det. Peters approached him at 8:30 A.M. in his holding cell. Further, Det. Peters asked defendant if he still understood the Miranda warnings that had been given earlier and only when defendant replied in the affirmative, did he ask where the glass came from. There was no evidence that defendant was questioned after he gave his statement to Det. Peters until the ADA arrived and took a videotaped statement from defendant. Furthermore, the videotaped and written statements both showed: (1) the warnings were read to defendant; (2) that he affirmatively responded he understood each and every Miranda right read to him; (3) that he wished to waive those rights; and (4) that he voluntarily made the statements. Moreover, in the videotaped statement, defendant indicated that he understood the rights read to him earlier by the police.
Where a defendant indicates understanding of Miranda rights and "promptly after having been administered those rights proceeds to make a statement or answer questions during interrogation, no other indication prior to the commencement of interrogation is necessary to support a conclusion that the defendant implicitly waived those rights." People v Sirno, 76 NY2d 967 (1990). The court credits the testimony of the detectives and finds that under the totality of the circumstances, defendant's waiver and confession were not the product of a coercive police environment. Importantly, at no time during the interview did defendant complain of the conditions of the interrogation.
Additionally, there was no evidence of physical abuse or threats and neither the duration nor the conditions of questioning was so oppressive as to overbear defendant's will. See Green v Scully, 850 F2d 894 (2d Cir 1988). Defendant was not confronted with trumped-up charges or false evidence, nor were false offers of leniency made to him in exchange for his confession. The only tactic Det. Dietrich used was, when he confronted defendant about the discrepancy as to whose responsibility it was to give the burger to the customer, to tell defendant that Officer Florio, who was outside, had said that defendant had given him the hamburger. Detective Dietrich then gave defendant an opportunity to respond. What followed was defendant's confession. Nothing about the conditions of the interrogation itself suggest that defendant's will was overborne.
Defendant, in his post-hearing memorandum, claims he was coerced because the police deceived him by telling him that he could go home if he told them what they wanted to hear. There was, however, no testimony at the hearing consistent with this claim. Most notably, the defendant did not take the stand to counter the version of events inside the employee changing room put forth by Det. Dietrich or to explain directly to the court how his Miranda waiver had been obtained or his confession coerced. Furthermore, even if the statement had been made, an affirmative misrepresentation by police in an interrogation, without more, is insufficient to render a confession involuntary. See Dallio v Spitzer, 170 F Supp 2d 327, 340 (EDNY 2001), affd 343 F3d 553 (2d Cir 2003), cert denied 541 US 961 (2004) ("the fact . . . that the police lie to a suspect to elicit his confession does not necessarily render it involuntary.").
In view of the totality of the circumstances, I find that the People have met their burden in showing that defendant's confession was voluntary. Defendant has failed to show any illegality in the police conduct. Having determined that the police conduct did not overbear defendant's will to resist, the ultimate question is defendant's degree of understanding of the Miranda rights and his ability to waive them knowingly and intelligently. To meet his burden of persuasion (see People v Billington, 163 AD2d 911 [4th Dept 1990], lv denied 76 NY2d 891) and to refute the voluntariness of his confession, defendant called a single witness: a psychologist who had previously examined him and given him a battery of tests. That psychologist, Dr. Janoson, testified that based on the tests administered to defendant it would be a very difficult task for him to fully understand and comprehend what was read to him (the Miranda warnings) and that he did not possess the cognitive ability to appreciate the Miranda warnings, specifically the right to remain silent and the right to counsel. He also found defendant to have a dependent personality, a below average IQ, limited education, impaired reading ability and psychiatric problems. He further opined that defendant's low intelligence and background rendered him incapable of executing a proper Miranda waiver, making his statements involuntary.
In considering limited intelligence (and the related factor of low IQ), courts have adhered to the standard set forth by the Court of Appeals in People v Williams [ 62 NY2d 285 (1984)] which held that, "an effective waiver of Miranda rights may be made by an accused of subnormal intelligence so long as it is established that he or she understood the immediate meaning of the warnings." See also People v Hernandez , 46 AD3d 574 (2d Dept 2007), lv denied 11 NY3d 737 (2008); People v Comfort , 6 AD3d 871 (3d Dept 2004); People v Corona, 173 AD2d 484 (2d Dept 1991), lv denied 78 NY2d 954 (1991); People v Bucknor, 140 AD2d 705 (2d Dept 1988), lv denied, 72 NY2d 1043 (1988); People v Gerald, 128 AD2d 635 (2d Dept 1987), lv denied 70 NY2d 646 (1987); People v Dorsey, 118 AD2d 653 (2d Dept 1986), lv denied 67 NY2d 1052 (1986). Voluntariness is a question of fact and mental deficiencies are but one factor to be determined under the totality of the circumstances. People v Matthews, 148 AD2d 272 (4th Dept 1989), lv dism 74 NY2d 950 (1989).
Here, I find that defendant has failed to meet his burden to show that the waiver of his rights was not intelligent and knowing. Dr. Janoson's testimony was directly contradicted by the People's expert in several crucial areas. Dr. Paradis testified that defendant was intelligent enough to understand the Miranda warnings and intelligent enough to be able to waive him. Notwithstanding Dr. Paradis testimony that she could not give an opinion as to whether the waiver was voluntary, defendant presented no objective evidence of coercive police conduct. Furthermore, parts of Dr. Janoson's psychological evaluation are inconsistent with defendant's position. Significantly, Dr. Janoson testified that defendant has severe psychiatric problems, yet there was no diagnosis of a condition, nor was there any evidence that defendant was prescribed any medications or advised to pursue therapy. This court accepts the findings reached by Dr. Paradis and rejects the findings by Dr. Janoson.
Concerning defendant's performance on a battery of tests known as the "Grisso instrument," which are a major component of Dr. Janoson's opinion, these tests have not been generally accepted by New York courts and have not gained sufficient acceptance for reliability and relevance in the scientific community. See People v Hernandez , 46 AD3d 574 (2d Dept 2007), lv denied 11 NY3d 737 (2008); People v Cole , 24 AD3d 1021 (3d Dept 2005), lv denied 6 NY3d 832 (2006). This court is required to follow those decisions and willingly agreesthat the validity of the test results are significantly undermined because the words used in the Grisso tests do not match those used in Miranda warnings in New York.
Viewing the totality of the circumstances, I find that there was no improper police conduct and although defendant's psychological report points toward a low-average IQ and he was young at the time he made the statement, the statement itself is coherent and there was nothing negating defendant's capacity to understand and waive his Miranda warnings. A knowing waiver maybe made by a person of subnormal intelligence. See People v Williams, 62 NY2d 285 (1984); People v Love, 57 NY2d 998 (1982); People v Bucknor, 140 AD2d 705 (2d Dept 1988), lv denied 72 NY2d 1043 (1988); People v Munoz, 134 AD2d 532 (2d Dept 1987), lv denied 70 NY2d 958 (1988); People v Gerald, 128 AD2d 635 (2d Dept 1987), lv denied 70 NY2d 646 (1987); People v Mathis, 77 AD2d 720 (3d Dept 1980).
Accordingly, I find that in view of the totality of the circumstances, the People met their burden of establishing the legality of the police conduct and the defendant's waiver of his rights, beyond a reasonable doubt. The burden of persuasion thus shifted to defendant, who failed to establish that his confession was involuntary by reason of his diminished mental capacity or otherwise. Consequently, defendant's motion to suppress his statements is denied in its entirety.
This constitutes the decision and order of the court.