On March 9, 2007, April 11 , 2007 and April 18, 2007 a hearing was conducted by Thomas J. Spota, District Attorney, by Scott Gross and Kathleen Kearnon, Assistant District Attorneys pursuant to an order of a Judge of this Court (Iliou, J) dated July 18, 2006 concerning Dunaway and Huntley. Defendant was represented by Scott Lockwood, Esq.

The defendant is charged with Stalking in the Fourth Degree in violation of New York State Penal Law §120.45(2) and Endangering the Welfare of a Child in violation of New York State Penal Law Section 260.10 (1) both as Class A Misdemeanors.

Defendant alleges that the police lacked probable cause to arrest, and requests suppression of his written statement.

The burden of proof at this hearing rests with the prosecution. The People called Police Officer William Zambito to testify on March 9, 2007 and Police Officer Mathish Arnold on April 11, 2007. On April 18, 2007 defendant called Ed McGraft, Jr. and defendant also testified.

After listening to the testimony of Police Officer William Zambito and Police Officer [*2]Arnold and observing their demeanor, the Court finds their testimony to be credible. Based upon that testimony and the investigation which included the statement of a thirteen year old and his father, probable cause existed for the arrest of defendant given the totality of circumstances presented.

Initially, the Court must insure that the statement was not coerced or otherwise produced in an involuntary manner. Defendant herein fully cooperated with the investigation and remained, calm" and lucid" throughout the questioning. No threats, promises or coercion occurred. While the Court finds the testimony of Ed McGraft, Jr. to be credible, that testimony establishes only that when $100.00 station house bail was posted defendant was tired", had a long day, looked pale", very embarrassed and fatigued. Mr. McGraft could not speak to defendant's physical condition at the time of his arrest and written statement. No medical evidence was offered from any qualified professional as to the effect of defendants failure to take medication for his diabetic condition until his release.

Defendant testified that on January 29, 2006, he encountered the police at his front door. The police, he was told, were investigating a stolen flute. Defendant invited the police in to show them the flutes that he owned. The officers followed defendant upstairs to look for another flute, although defendant did not want them upstairs in his father's house. Defendant was invited to the precinct, just to talk" about the thirteen year old. He was not permitted to order Chinese food for his father for dinner, nor to take medicine (Novalog, a short term insulin) at 4:30PM. He did not however object, didn't say anything", wasn't handcuffed, and voluntarily went to Third Precinct with the officers. He walked out of his father's house himself and upon arrival at the precinct followed the officers in. At the precinct the conversation was, very heated". One officer confronted defendant, Your face will be on the front page of Newsday. You will kill yourself. We know what you did." Defendant admitted that he gives money to friends and fully cooperated with the questioning. When he tried to use the restroom upon arrival at the precinct he was told he had to be accompanied by an officer. Officer Zambito took defendant to the restroom. When a metallic luggage case was brought into the room, a device defendant believed to be a polygraph, defendant, told my account". Defendant was fully cooperative and signed the written statement that was produced. Defendant maintains that Miranda warnings were not read to him until after the statement was written and that he simply did as instructed". Observing defendant's demeanor on the stand and his confusion the Court cannot credit defendant's version of events.

A defendant in custody must be given Miranda warnings before being interrogated [*3]regardless of the severity of the offense. Berkemer v. McCarty, 468 U.S.420, 104 S.CT.3138,3140, 82 L.Ed.2d 317 (1984). Waiver of the rights secured by the Miranda warnings [180 Misc 2d 511] must be knowingly and voluntarily made. People v. Sirno, 76 NY2d 967, 968, 563 N.Y.S.2d730, 565 NE2d 479 (1990); People v. Williams, 62 NY2d 285, 288, 476 NYS2d 788, 465 NE2d 327 (1984); C.P.L. § 60.45.

Unlike People v. Chapple, 38 NY2d 112, 378 NYS2d 682 (1979) relied upon by the defense, probable cause for defendant's arrest existed after the statement of the child and his father were secured. Moreover, Mr. Beyer was not subjected to a continuous interrogation" like Mr. Chapple, nor was Mr. Beyer under arrest until he voluntary arrived at the precinct, made the written statement, and was arrested at 16:50 hours. In People v. Bethea, 67 NY2d 364, 502 NYS2d 713 (1986) like Chapple there was a single continuous chain of events" which placed the defendant under continuous interrogation and warnings administered were insufficient to protect Mr. Betheas's rights. Here, by his own testimony Mr. Beyer, did as instructed" was fully cooperative with the police, knowingly and voluntarily waived his rights at 16:20 hours.

The use of guile or trickery by the police need not result in involuntariness of a confession without some showing that deception was so fundamentally unfair as to deny due process or that promise or threat was made that could induce false confession. People v. Zehner, 112 AD2d 465, 490 NYS2d 879, (3rd Depart. 1985). Here, the deceptive use of a polygraph, or a brief case defendant believe to be a polygraph, was not so fundamentally unfair as to deny due process or that a promise or threat was made that could induce a false confession. The Officers conduct was not so egregious that would render defendants confession inadmissable. People v. Leonard, 59 AD2d 1, 397 NYS2d 386 (2nd Depart. 1977); People v. Zimner, 68 Misc 2d 1067, 329 NYS2d 17 affd. 40 AD2d 955, 339 NYS2d 671 (4th Depart. 1972). Trickery (i.e. police investigating a stolen flute, this is a polygraph machine") without more does not make a confession inadmissable. People v. Tarsia, 67 AD2d 210, 415 N.,Y.S. 2d 120 (3rd Depart. 1979); People v. Pereira, 26 NY2d 265, 309 NYS2d 901 (3rd Depart. 1993); People v. Boone, 22 NY2d 476, 293 NYS2d 287 cert. den. 393 U.S. 991, 89 S.Ct. 464; People v. McQueen, 18 NY2d 337, 274 NYS2d 886 (4th Depart. 1998); People v. Solari, 43 A.D. 2d 610, 349 NY S. 2d 31, affd. 35 NY2d 876, 363 NYS2d 953 (1974). People v. Tankleff, 199 AD2d 550, 606 NY S. 2d 707 affd 84 NY2d 992, 622 NYS2d 503 (1994). The deception must be accompanied by a threat or promise before a confession becomes involuntary. Here, while defendant may initially have been deceived as to the nature of the investigation concerning a flute, upon learning the true nature of the investigation he voluntarily accompanied the police to the precinct. At the precinct despite the statement of Officer Zambito, we know what you did....". Defendants statement was not the result of any threat or coercion and was voluntarily made.

There is no indication that defendant's diabetic condition and lack of insulin adversely affected his ability to knowingly and voluntarily waive his Miranda rights. People v. Ruger, 279 A.D. 795, 718 NYS2d 732 (3rd Depart. 2001); People v. Kemp, 266 AD2d 887, 698 NYS2d 140 (4th Depart. 1998) lv. denied 94 NY2d 921, 708 NYS2d 361 (2000); People v. May, 263 AD2d 215, 702 NYS2d 393 (3rd Depart. 2000) lv. denied 94 NY2d 950, 710 NYS2d 7 (2000). The [*4]fact that defendant had to ask permission and be escorted to use the bathroom, a request which was granted, does not demonstrate that his statements were involuntary or that his will was overborne by an atmosphere of police domination.

The credible evidence establishes and this Court finds that defendant was read his Miranda warnings at 16:20 hours and voluntarily agreed to speak with the police. This waiver was freely, voluntarily, and intelligently made. In fact, cross examination established that defendant was fully cooperative, calm, lucid and made no comments as to his health. Defendant's need for prescription medication played no role in his voluntarily giving his statement. The People have proved beyond a reasonable doubt that defendants statement were voluntary and as such are admissible at trial. Therefore, the defendant's application to suppress is denied in all respects.

This constitutes the decision and order of the Court.

New court date: May 4, 2007

DatedApril 27, 2007J. D. C.

Hon. Paul M. Hensley