People v. Balint

OPINION OF THE COURT

Bloom, J.

Defendant, a 40-year-old registered nurse was charged with the murder of her fiancé, Victor Eckes. Prior to trial she moved to suppress statements made by her to the police and certain physical evidence. The hearing court denied her motion. Thereafter, she pleaded guilty to manslaughter in the first degree. We are of the opinion that the statements made by defendant and the gun, the location of which was indicated in her statement, and which she actively assisted the police in finding, should have been suppressed. Accordingly, we reverse the conviction and remand the case for a new trial.

On May 16, 1980, at or about 5:45 o’clock in the evening Detective Hildebrandt was approached by a couple who informed him that someone had just been shot in Fort Tryon Park. The two witnesses told him that they had observed a white female with blond hair, wearing a white dress and light coat and carrying a large black bag, fleeing from the scene of the shooting. Hildebrandt repaired to the park where he saw a man, later identified as Eckes, sitting on a park bench, with two bullet wounds, one in the head and one in the chest.

Hildebrandt immediately called for assistance and, at about 6:00 p.m. he was joined by Detective Serpa and Police Officer Montuori. Serpa questioned four witnesses. From them he received substantially the same information which had been imparted to Hildebrandt. A search of the area disclosed two .38 cartridges, one live and one spent, in the vicinity of the bench upon which the victim had been found.

At about 7:30 p.m. Serpa was notified that a white female appeared at the precinct at about 7:15 and had reported a shooting in Fort Tryon Park. Approximately 20 minutes later Serpa returned to the station house where he met defendant. He began to question her about the murder. Defendant told him that the victim was her fiancé; that she and the deceased were sitting on a park bench when a black man emerged from the bushes carrying a radio in one hand and a gun in the other. According to defendant, the black man, without uttering a word, fired two shots at point-blank range and fled. Defendant, unnerved by the incident, ran home, changed from her nurse’s uniform into street clothes and took her dog out for a walk. Upon again returning to her home she left the dog there and went to the station house to report the shooting.

During the initial interrogation of defendant by Serpa, he dispatched Detective Hildebrandt and Police Office Montuori to defendant’s home to verify that she lived there together with her mother and to check whether the story related by defendant to Serpa coincided with such information as she may have divulged to her mother. This occurred sometime between 8:30 and 9:00 p.m. Despite the apparent absurdity of her story, she was, at this point, no more than a suspect. Objectively viewed, although she may not have been free to leave the precinct there was not yet enough evidence to warrant an arrest.

The events leading to the examination of the handbag allegedly used in common by defendant and her mother are described in detail in the opinion of our brother Sandler. Following this “consensual” examination by Police Officer Montuori, Montuori telephoned Serpa and notified him of the finding of a bullet in the purse of the same caliber as that used in the slaying. By this time approximately two and one-half hours had elapsed between initiation of the interrogation of defendant by Serpa, which had continued intermittently during that period, and the receipt of the phone call from Montuori. Serpa conveyed to defendant the information about the finding of a bullet which had been related by Montuori and then left her alone. He returned shortly and continued the conversation. When this conversation had continued for approximately an hour without any appreciable results, Serpa suggested that she call her mother. By this time defendant had become more than a suspect. At about 11:00 p.m. defendant called her mother. When the call was made the finding of the bullet in the purse was confirmed. Shortly thereafter defendant made the statement which was the subject of the motion to suppress. Then and only then was defendant advised of her Miranda rights (Miranda v Arizona, 384 US 436).

After defendant had made her statement Serpa asked defendant what she had done with the gun. She responded that she had dropped it in a waste can, giving him the location of the can. Police were dispatched to pick up the weapon. However, they were unable to find it. At Serpa’s request defendant led the police to the precise waste can in which she had disposed of the gun. There, it was recovered.

Whether or not the interrogation of defendant was custodial when first she related her story to Detective Serpa may be open to dispute. However, after the intermittent interrogation had continued for some two and one-half hours and Serpa had been notified that a bullet had been found in “our” handbag the conclusion is inescapable that, even without the formality of an arrest, defendant was in custody. The fact of custody ought not hinge on such nebulous factors as police testimony that defendant “was free to leave” or on defendant’s subjective reaction that she was not free to leave. It is to be determined on the basis of objective realities (People v Yukl, 25 NY2d 585; People v Rodney P., 21 NY2d 1). Making due allowance for the deference which an appellate, tribunal is required to give to. the finding of the trier of the fact, we are, nevertheless, impelled to the conclusion that judged by that standard, defendant was in custody. While defendant’s presence and interrogation in the police station does not, of itself, necessarily warrant a finding of custody (People v Pugliese, 26 NY2d 478) it is an element to be considered together with all other surrounding circumstances. When Serpa suggested to defendant, approximately one hour later, that she telephone her mother to confirm the finding of the bullet, he did so in anticipation that confirmation of that fact would lead to a confession. Judged by any objective standards defendant was no longer free to leave the station house. She was no longer a mere suspect. She was, in Serpa’s eyes, already a defendant. All that was needed to close the case was a confession. The result confirmed Serpa’s anticipation. Only then was defendant notified of her Miranda rights. Only then, after she had already spoken, was she informed that she had the constitutional right to remain silent; that anything she said might be used against her and of her right to counsel. In the circumstances presented, we are impelled to the conclusion that defendant’s Miranda rights were violated. It follows therefrom that her confession should have been suppressed. Necessarily, therefore, the gun, the location of which was indicated in the confession and which thereafter was recovered with the active assistance of defendant, should, likewise, be suppressed as the fruit of the unlawfully extracted confession (Wong Sun v United States, 371 US 471).

the judgment of the Supreme Court, New York County (G. Roberts, J., at plea and sentence; McGinley, J., at the suppression hearing) rendered September 11, 1981 should be reversed, on the law and the facts, the motion to suppress the defendant’s statements and gun granted, and the matter remanded for a new trial.