People v. Gonzalez

Greenblott and Staley, Jr., JJ.,

dissent and vote to affirm in the following

memorandum by Staley, Jr., J. Staley, Jr., J. (dissenting). We respectfully dissent and vote to affirm. At the Huntley hearing, defendant testified that she was accompanied by police officers in a squad car to the police station. Once she was inside the police station, the officers asked the defendant where her husband could be found. She stated that she did not know his *777whereabouts. The officers questioned her as to the whereabouts of her husband for approximately 20 minutes before they read her the Miranda warnings. The questions were repetitious and confined to the inquiry of defendant’s knowledge of "where her husband was”. After having been read her rights, she said she did not need a lawyer because she had nothing to say. Detective Miller, who had been assigned to interrogate defendant, testified he gave defendant her Miranda warnings before he talked to her, and that he completed the written rights waiver form which is page one of the statement, and that defendant read it and signed it. Miller testified that defendant did not tell him she had "nothing to say”, and further that she did not request that the questioning cease. The questioning was pursued to approximately 1:45 a.m. on February 9, 1979 when defendant signed the inculpatory statement. Miller testified that after the statement was taken, she talked to her friends for quite awhile, and she was then placed under arrest. Defendant contends that the questioning by the police officers amounted to custodial interrogation 'without the proper safeguards of the Miranda warnings. It is conceded by defendant that within 20 minutes of her arrival at the police station, she was given the Miranda warnings, and that before Detective Miller questioned her, he orally advised her of her rights, and that she voluntarily signed a written waiver of rights. During the 20 minutes, defendant was repeatedly asked if she knew where her husband was, and her reply was "no”, and she testified that she was not asked anything else. When she was advised of her rights and asked if she wanted an attorney, she replied "I don’t need one. I don’t have nothing to say.” The trial court found that defendant was advised of her rights, waived them and voluntarily made the statement, and that she was not under any influence of fear produced by threats, coercion or force. When defendant first arrived at the police station, the focus of questioning by police officers was on the whereabouts of Antonio Gonzalez and not on defendant as a suspect in the escape of her husband. The questions asked by the police were not intended to elicit self incriminating answers from defendant, but instead, were asked to obtain any relevant information which could aid in the apprehension of the escapee from the Chemung County Jail. Thus, because the questioning was investigatory in nature, and not accusatory at this early state, the defendant did not, at that time, undergo custodial interrogation. "When the process shifts from investigatory to accusatory— when its focus is on the accused and its purpose is to elicit a confession—our adversary system begins to operate” (Escobedo v Illinois, 378 US 478, 492). Thus, a person is entitled to invoke his rights where the investigation is no longer a general inquiry to an unsolved crime, but has begun to focus on a particular suspect who has been taken into custody and asked questions which seek to elicit incriminating statements. Here, the custodial interrogation began when Detective Miller began his detailed questioning of defendant after she had signed the waiver of rights statement. Defendant contends that after the interrogation began, she told Detective Miller that she did not want a lawyer, and had nothing to say, and such statement constituted a declaration of her right to remain silent. Defendant continued to answer question's willingly, and at no time did she affirmatively request to remain silent. In addition, Detective Miller testified that defendant did not tell him that "she had nothing to say”, and that she did not say that she wished the questioning to cease. The trial court determined the issue of defendant’s contention that her right to remain silent was violated as an issue of credibility in favor of Detective Miller’s version. Such determination is based upon credibility, and should not be disturbed (People v Fox, 65 *778AD2d 880; People v Middleton, 50 AD2d 1040). The order denying the motion for suppression of defendant’s statement should be affirmed.