People v. Jamison

Bloom and Silverman, JJ.,

dissent in a memorandum by Silverman, J., as follows: I would affirm the judgment appealed from. As the majority states, at the end of the Miranda warnings, the police officer asked: "Now that I have advised you of the rights, are you willing to answer the questions without an attorney present?” I do not agree that this question constituted interrogation which made the defendant’s ensuing monologue other than "voluntary and spontaneous”. This question did not ask any facts as to the crime. It was merely an integral part of the Miranda procedures which require both warnings and waiver. ("The warnings required and the waiver necessary in accordance with our opinion today”. [Miranda v Arizona, 384 US 436, 476].) The question is merely an effort to comply with the Supreme Court’s statement as to how a waiver may be established. "An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver.” (Miranda v Arizona, supra, p 475.) If this question constitutes interrogation, then the Miranda procedure of which it is an integral part constitutes interrogation; and indeed it suggests that it is improper even to administer Miranda procedures on a postindictment arrest. This court has recently held that a voluntary, spontaneous postindictment statement made in the absence of counsel is admissible. (People v Roucchio, 70 AD2d 322.)