MEMORANDUM

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS : CRIMINAL TERM : PART K-8

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                                     X

THE PEOPLE OF THE STATE OF NEW YORK          : BY: ROBERT CHARLES KOHM, J.
                                            :
         -against-                           : DATE: NOVEMBER 22, 1999
                                            :
                                            :
KHETWAROO KHETWAROO,                         : INDICT. NO. 4125/98
                                            :
             Defendant.                      :
                                     X
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Defendant moves to suppress his statements on the ground that he did not knowingly and intelligently waive his Miranda rights prior to making the statements.

A Huntley hearing was held before this Court on September 15, 1999 and continued on October 25, 1999. The sole witnesses were Detective Oscar Flowe, who had arrested defendant and administered the Miranda warnings, and Doctor Jill Bowen, Deputy Director of Forensic Psychiatry at King County Hospital, called for the defense. The Court finds both witnesses to have been credible. The following findings of fact and conclusions of law are based upon their testimony and upon the exhibits entered into evidence at the hearing. Those exhibits consist of copies of both the Miranda warnings read to and signed by defendant and the statement made by defendant and reduced to writing by Detective Flowe, as well as defendant's videotaped statement.

Defendant was arrested by Detective Flowe at approximately 8:37 P.M. on December 5, 1998 in connection with an assault on defendant's wife. Defendant was brought to the precinct, about a five to ten minute drive away, and placed in the precinct's interview room. The dimensions of the windowless interview room are about 8' X 12'. Defendant was not handcuffed in the room, although he was while being transported.

Detective Flowe chatted with defendant for awhile before beginning to read defendant his Miranda rights at 9:00 P.M. Defendant seemed relatively calm and relaxed. Contrary to defendant's allegation, defendant did not appear intoxicated.

The Detective stopped after reading defendant each of the Miranda rights in order to ask defendant whether or not he understood the right. If defendant indicated that he did not understand or hear, Detective Flowe would either repeat the previously read right or rephrase it until defendant responded with a "yes" that he understood. Detective Flowe wrote defendant's affirmative response next to each right on the Miranda warning card. Defendant also signed his last name next to each right read, but the Detective was unable to recall whether defendant signed after each was read or at the conclusion of the Miranda advisories. Upon conclusion of the advisories, Detective Flowe asked defendant to sign the warning card where the signature of the defendant is called for. Defendant signed twice, once for the defendant or "interviewee", and once where the signature of the interviewer is requested.

Detective Flowe began questioning defendant when he had finished advising him of his Miranda rights. The questioning began at approximately 9:23 P.M. Upon completion of questioning, defendant indicated to the Detective that he did not want to write his own statement. The Detective did not recall if he had asked defendant whether or not defendant could write. He had not asked defendant whether he could read.

Thus, Detective Flowe wrote defendant's responses as defendant's statement. The Detective then read the statement to defendant to ascertain whether he had accurately portrayed defendant's responses and whether defendant still concurred. Defendant indicated that he understood and agreed with the statement.

At approximately l0:00 P.M., Detective Flowe asked defendant to draw a picture of the knife he had used in the assault. Defendant did so.

Assistant District Attorney Scott Kessler came to the precinct to videotape defendant's statement at approximately 12:45 A.M. During the nearly three hours prior to ADA Kessler's arrival, defendant mostly remained in the interview room. He might have been placed in a cell for one or more periods of time. Detective Flowe took pedigree information from defendant in order to complete his on-line booking sheet. The Detective also asked defendant for blood samples, apparently from defendant's clothing and nails. Defendant complied with the request. Given the opportunity to call his family, defendant declined the offer.

When ADA Kessler arrived at the interview room to take defendant's statement, he told the defendant that he was going to advise him of his rights before speaking to him. He then informed defendant that if defendant didn't understand anything he was saying defendant should ask him to repeat or explain and he would do so.

The ADA then advised defendant of his Miranda rights using the language from the Miranda warning card. Defendant responded "yes" when asked, after each, if he understood. The ADA then questioned defendant. When defendant seemed not to have heard or understood a question, ADA Kessler either repeated it more slowly or rephrased it until defendant's response to the question indicated that defendant understood. Similarly, if defendant's response was unclear, ADA Kessler rephrased the response as he understood it and asked defendant if that was what he had meant. Defendant would either affirm that it was or give a slightly different reply. The entire interview took approximately fifteen minutes.

Dr. Bowen testified that she had conducted a CPL 730 examination of defendant on May 3, 1999. As part of the exam, defendant was give three simple words to repeat back to her. Five minutes later he could remember only one of the three words. The Doctor also determined that defendant was hard of hearing, had a heavy Guyanese accent, was basically uneducated, suffered from mild dementia and had a history of substance abuse, primarily of alcohol. Dr. Bowen further testified that defendant sometimes needed things explained to him in simple, more concrete terms. Defendant had, for example, difficulty in understanding the concept of "District Attorney". The Doctor also stated that she could tell when defendant didn't understand something; he would either say, in some manner, that he didn't understand or would fail to respond.

Dr. Bowen was one of two doctors who had found defendant competent to stand trial, as did this Court subsequent to a CPL 730 hearing held on August 4, 1999. A third doctor had found defendant unfit to stand trial.

Defendant alleges that his mental disability and lack of education made him unable to understand his Miranda rights and, thus, unable to waive them. Defense counsel also argues that defendant would have forgotten the first of the Miranda rights by the time the rest of the rights were read to him, so that he could not be said to have known what rights were being given up when asked if he was willing to answer questions.

The fact that defendant was found competent to stand trial does not preclude a finding that defendant did not knowingly waive his Miranda rights (see, People v Posey, 74 Misc 2d 149). In determining whether a defendant is competent to stand trial, the inquiry is whether the defendant has both the capacity to comprehend his or her position and the nature of the proceedings and the ability to communicate with and assist counsel so as to prepare any available defense (CPL 730.10[1]; see, Dusky v United States, 362 US 402; People v Francabandera, 33 NY2d 429; People v Valentino, 78 Misc 2d 678; People v Posey, supra). For many defendants found competent to stand trial, much of the proceedings will not make sense unless and until explained in a manner they can understand (see, People v Posey, supra).

In determining whether a waiver of Miranda rights has been "voluntarily, knowingly and intelligently" made (Miranda v Arizona, 384 US 436, 444), the inquiry is whether the waiver was the product of a free and deliberate choice, rather than the product of intimidation, coercion or deception, and whether 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, 478 US 412; Fare v Michael C., 442 US 707).

Here, the voluntariness of the waiver is not at issue. Whether defendant had the requisite level of comprehension necessary to validly waive his Miranda rights and make a confession without the presence of counsel must be determined from the totality of circumstances surrounding his interrogation (id; see also, People v Williams, 62 NY2d 285; People v Dunn, 195 AD2d 240; People v Williams, 174 AD2d 969, lv denied 78 NY2d 1015). Defendant's mental capacity is only one of the factors to be considered (People v Williams, 62 NY2d supra; People v Dunn, supra; People v Williams, 174 AD2d, supra).