People v. Di Fabio

Callahan, J. P., and Green, J.

(dissenting). We would affirm the order suppressing defendant’s statement essentially for the reasons stated in the comprehensive decision of the hearing court (Mark, J.). The record amply supports the hearing court’s finding that defendant was in custody shortly after his arrival at police headquarters on March 4, 1985 (see, People v Mirenda, 57 NY2d 261; People v McNeeley, 77 AD2d 205, 208-209). Defendant did not confess until several hours later after being interrogated by at least six different law enforcement officers. Although defendant initially agreed to accompany the detectives to the police station, he did so solely for the purpose of taking a polygraph test. Since he was never given the test despite ample opportunity to do so, it is clear that the polygraph was used as a pretext to entice the defendant to come to the station so he could be interrogated until he confessed (see, CPL 60.45 [2] [b] [i]). In fact, as the hearing court found, Officers Hagler and Muscatella decided even before speaking with defendant at the school that they would not arrest defendant until after a confession was obtained. Indeed, when the headmaster of the school at which defendant worked called the police around 8:30 p.m. to inquire whether defendant had obtained an attorney, the officer replied "No. Our job is to get as much information as we can before that occasion.” Thus, there is ample support in the record to support the hearing court’s finding that the station house interrogation of defendant was pursuant to a premeditated plan to extract defendant’s confession by false promise without the benefit of his right to counsel (see, People v Wilson, 56 NY2d 692, 694; People v Edgerton, 115 AD2d 257, 259-260, lv denied 67 NY2d 882; People v Cooper, 101 AD2d 1).

Moreover, the confession in this case was not a voluntary act, born of free will. Rather, it was the product of the concerted efforts of at least six police officers against a single defendant constituting unlawful inducement and mental coercion (see, Haynes v Washington, 373 US 503, 513; Lynumn v Illinois, 372 US 528, 534; Ferguson v Boyd, 566 F2d 873). "It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will *923of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity” (Miranda v Arizona, 384 US 436, 457). (Appeal from order of Supreme Court, Monroe County, Mark, J. — motion to suppress.) Present — Callahan, J. P., Denman, Boomer, Green and Balio, JJ.