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Duress was inherent in the choice given these petitioners


The defendant is charged with violating the Penal Law, Menacing in the Second Degree and Disorderly Conduct.

The People seek to introduce, and the defendant seeks to suppress, a written statement given by the defendant to the Port Authority Police. A Huntley hearing was held before Judicial Hearing Officer. The People called three witnesses. The defendant did not call any witnesses. The Court has reviewed the hearing transcript, the criminal court file and memoranda of law submitted by the People and the defendant to the Judicial Hearing Officer. Based upon the foregoing, and the recommended Findings of Fact and Conclusions of Law, this court adopts the Judicial Hearing Officer’s Findings of Fact, but modifies in part the Conclusions of Law, by denying the defendant’s motion to suppress the statement he gave to the Port Authority police.

The testimony adduced at the hearing reveals the charges in this action originate from a traffic dispute that occurred on the morning of August 14, 1997. The two complainants allege that a man followed them off the highway into a parking lot near building 14 at John F. Kennedy International Airport, their place of employment. They further stated that the man proceeded to threaten them while brandishing a handgun. The complainant’s supervisor is alleged to have witnessed the incident.

That same day, the complainants reported the incident to the Lieutenant, the Tour Commander at the Port Authority Police Department’s Command Office. The complainants provided the Lieutenant with a description of the man, his car and the vehicle’s license plate number. Later that morning, it was revealed that the vehicle in question belonged to the defendant, a Port Authority police officer who worked at the Command Office.

The Lieutenant informed the Commanding Officer on duty at the time, about the report he received from the complainants. He instructed the Lieutenant to have the Detective Unit interview the complainants and to advise the defendant not to report to his post. After being interviewed by a detective, the complainants left the Command Office. One of the complainants returned almost immediately and told the Lieutenant that the car driven by the man who had threatened them was in the parking lot. The Lieutenant indicated to one of the complainants that he was aware of this information and they would investigate. Subsequently, the complainant inadvertently observed the defendant, in uniform, standing at a sign-in area, and he told the Lieutenant the defendant was the man who threatened him and his companion. The Lieutenant updated the Deputy Commander as to these events, and he directed the Lieutenant to notify the Commanding Officer of the Special Investigations Unit.

The defendant and the union delegate were summoned to the Tour Commander’s office When they arrived, the Lieutenant advised the defendant that he had a directive and needed to get a handwritten concerning the incident on August 14th. After being read Rule 3, the defendant and the union delegate left the office while the Lieutenant remained behind. Approximately one hour later, the defendant and the union delegate returned and submitted the written statement in question.

The case at the bar presents unique and difficult issues involving two competing fundamental interests. First, is the defendant’s Fifth Amendment right not to be compelled to be a witness against himself in a criminal proceeding. This right is significant and, where appropriately exerted, privileges an individual not to answer official questions put to him in any proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings. Balanced against this right is the general public’s fundamental interest in holding public servants accountable for breaches of their trust. It is well settled that public employees, charged with a public trust, do not have an absolute right to refuse to account for their official actions and at the same time retain their employment.

The defendant emphasizes the fact that the Queens County District Attorney’s office was contacted prior to obtaining his statement. In the Court’s opinion, this fact is not determinative and disagrees with the defendant that a criminal investigation had commenced the moment the District Attorney’s office was called. At the point when the defendant executed his statement, a mere forty-eight hours after the alleged incident, the investigation remained an interdepartmental one. There is no indication that the District Attorney’s office had any role in the Port Authority’s investigation. In fact, the evidence is to the contrary. Detective Inspector was told that a meeting date would be selected on August 18th two days after the defendant gave his statement. Furthermore, the Port Authority’s internal investigation was clearly in its infancy on August 16th. The defendant was not arrested on the within charges until three months after he made his statement. In any event, the Court is not persuaded that the mere existence of a criminal investigation would alter the application of principles enunciated in the similar case.

Additionally, the totality of the circumstances did not necessitate reading the defendant Miranda warnings prior to attempting to obtain his statement. Before Miranda warnings need be given, the elements of both custody and interrogation must be present. The test for determining whether the defendant was in custody is an objective one. The Court must consider whether a reasonable person innocent of any crimes would have believed he was in custody under the circumstances. In the present case, the defendant was not directly questioned or interrogated regarding his actions on August 14th; rather, a written statement was requested. The Lieutenant requested the statement from the defendant while a union representative was present and the defendant was then permitted to leave the Tour Commander’s office with his representative to draft the statement. The fact that the defendant was under internal investigation at the time the statement was made did not render the circumstances custodial. Under these circumstances, no reasonable person in the defendant’s position could have possibly believed that at the conclusion of the interview he would be relieved of the shield and gun, handcuffed and taken to central booking.

Finally, the defendant’s position that his constitutional rights were violated by obtaining his statement without informing him that the complainants had made a report of the August 14th incident is without merit. Neglecting to disclose this information had no coercive effect. Indeed, even if the failure to apprise the defendant of all the details in the case could be characterized as a deliberate act of deception or trickery, it did not render the statement involuntary. For a statement to be suppressed on these grounds, a stratagem employed by the police must be found to be so fundamentally unfair as to deny due process or likely to induce a false statement. In the Court’s view, the mere fact that the existence of complainants’ report was not revealed to the criminal defendant does not satisfy this standard. Accordingly, the defendant’s motion to suppress the written statement he gave on August 16, 1997 is denied.

The defendant seeks suppression primarily on the grounds of an alleged violation of his union contract. What the defendant seeks is an interpretation of the terms and conditions of the collective bargaining agreement, a ruling that a breach of that contract occurred and retroactive enforcement of the rights he feels are due under that agreement. This relief is not the type this Court is empowered to grant. The jurisdiction of the Criminal Court is restricted to hearing, trying and determining criminal charges, specifically misdemeanors and petty offenses. A remedy for a breach of this agreement is available to the defendant in the proper forum if or when he seeks redress for any job related sanctions he might incur. Thus, in determining whether the defendant’s statement should be suppressed, the proper avenue of inquiry for this Court is to analyze the particular circumstances as presented at the time the statement was made and decide whether they were likely to exert such pressure on the defendant as to disable him from making a free and rational choice.

In a trio of cases decided in relatively close succession, the United States Supreme Court confronted and balanced the fundamental interests presented in the instant case. In a similar case decided the same day, the Court, relying on its reasoning in a similar case held that the termination of twelve City employees for asserting their right against self-incrimination was unjustified as they had been presented with the choice of surrendering their constitutional rights or their jobs.

Under these cases, what is proscribed as unconstitutional is to condition public employment upon a waiver of the privilege against self-incrimination. Duress was inherent in the choice given these petitioners. As a result, they were deprived of an opportunity to make a free and reasoned decision and this is what automatically immunized the officer’s statements in another similar case and nullified the dismissals in yet another similar case. The Court aptly characterized the situation as one where the public employee is forced to select between the rock and the whirlpool. Thus, limiting the holdings of the court and its progeny to cases where there is a specific choice between job loss and incrimination is constitutionally sound, as the Fifth Amendment speaks of compulsion. It does not preclude a witness from testifying voluntarily in matters which may incriminate him. Accordingly, when a statement or waiver of some other fundamental right has been obtained under circumstances that do not present a Hobson’s choice between acquiescing or immediate sanctions, courts have declined to apply the holdings of the previously decided similar case and its progeny.

In the instant case, the defendant was never informed that he would be dismissed or experience any definite job related sanction if he refused to submit a written statement to the Lieutenant. While the defendant was told he must cooperate, he was also distinctly informed that he was not required to give evidence against himself in connection with the investigation. The advisory to the defendant that if he chose to speak, anything he said could be used in evidence at a disciplinary proceeding would, if anything, have the effect of chilling a reasonable person’s desire to speak, not coercing a potentially inculpatory statement, as is contended. Alerting the defendant that a disciplinary proceeding may be commenced against him did not amount to such an explicit threat that use immunity would have automatically attached to any statement he made. This caution was akin to the statement made to the defendant in Reed in that it was distinctly indefinite and speculative. Similarly, any fears the defendant might have harbored about potential disciplinary action after hearing this warning would not have invoked a similar case’s protections. If the Lieutenant had read Rule 4 to the defendant instead of Rule 3, then the defendant’s written statement would have to be suppressed. Port Authority employees who are read Rule 4 are informed that they will be subject to charges which could result in their dismissal if they fail to testify. However, since the defendant was not advised of Rule 4, these circumstances and the adherent larceny consequences are not before the Court. Accordingly, the Court finds the statements made by the Lieutenant to the defendant do not reflect the type of overt threat of imminent sanctions that would invoke the protections of the similar case, thereby cloaking the defendant’s statement in use immunity.

People who commit petit crimes are not far from getting themselves involved in a more serious one. If you want to pursue a petit larceny dispute, hire the Queens County Petit Larceny Attorney or the Queens County Shoplifting Lawyer together with the Queens County Criminal Lawyer from Stephen Bilkis and Associates.

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