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Defendant is Charged with Endangered with the Welfare of a Child


The Defendant is charged with Endangering the Welfare of a Child, in violation of Penal Law § 260.10(1), and two counts of Public Lewdness, in violation of Penal Law § 245. It is alleged, in sum and substance, that on March 15, 2008, at approximately 2:10 p.m. and 2:40 p.m., in a public men’s room at the Mall, the Defendant “did expose his penis and masturbate his penis with his hand in clear view of the victim, a 13 year old boy.”

A lawyer said that the Defendant was allegedly identified by the boy and held by Mall security until the police arrived following their notification. The Defendant was placed under arrest, at approximately 3:20 p.m. on the date of the alleged incident outside and escorted to a police substation on the Mall’s lower level by two Nassau County Police Officers. At approximately 4:15 p.m., following questioning by a Nassau County Detective, the Defendant signed a three and one-half page statement regarding the alleged events.

The Defendant challenges the admissibility of this statement with a three prong attack. The Defendant alleges that the statement was the result of a custodial interrogation and that he was never advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). In the alternative, the Defendant argues that, even if he was advised of his rights, he was unable to make a knowing, intelligent and voluntary waiver thereof due to the fact that he suffers from an obsessive compulsive disorder (“OCD”) which, combined with the effects the arrest and interrogation procedures had on his condition, prevented him from comprehending these rights. Pursuant to stipulation of the parties, on July 29, 2009, July 30, 2009, August 12, 2009, October 1, 2009 and November 5, 2009 the court conducted a hearing pursuant to People v. Huntely, 15 NY2d 72, 255 NYS2d 838 (1965) regarding the voluntariness of statements attributed to the Defendant following his arrest on March 15, 2008.

The People bear the initial burden of proving the voluntariness of the Defendant’s alleged statements beyond a reasonable doubt. The People need also establish the legality of the police conduct, that the Defendant was advised of his Miranda rights and that he waived same. If the prosecution meets their burden, the burden of persuasion “shift[s] to defendant to establish that [his] statement was involuntary by reason of [his] diminished mental capacity

The police substation is located on the lower level of the Mall, on the same level as the Mall security office, a Post Office, and some stores. The front area of the substation is accessible from the public hallway. Everything was removed from the Defendant’s pockets and he was handcuffed, by one hand, to a bench in the front room of the substation. Officer Flood sat at a desk opposite the Defendant, and Officer Dockswell sat at another desk in the room. The Defendant was neither told why he was arrested nor Mirandized. He was not questioned while sitting in this room. During this time, the Defendant’s cell phone rang a few times before being turned off by one of the officers.

This rear room was approximately ten feet by fifteen feet, without windows and with two desks and a bench inside. The room was used as an office, as well as a place to store items such as paper, old chairs, tires, boxes and an old copy machine. The Defendant was placed on the bench in this rear room, with his left hand cuffed to the bench, and was left alone for about ten minutes. A police officer stood outside the open door of the room.

The Defendant testified, and argues, that he was never read his Miranda rights; nor was he ever given the opportunity to read his rights to himself. When confronted with a Miranda rights card which bears his signature in two places and with an Statement of Admission which begins with the phrase, “I have been told by the Detective…,” followed by the Miranda rights and initialed by the Defendant in two places, the Defendant testified that he signed four or five different papers that afternoon, without reading them. According to the Defendant he signed these papers because he was told the sooner he did so the sooner he would be released. The Detective testified that he never told the Defendant that he was going to be released.

The court further finds that the Defendant waived his Miranda rights, first by writing the word “Yes” two times, next to the questions, “Do you understand” and “Now that I have advised you of your rights, are you willing to answer questions” and then signing his name to the top half of the Miranda card, signing his name to the bottom half of the Miranda card following a reiteration of those rights, and finally by initialing the Miranda rights statement at the beginning of the Statement of Admission in two places.

The Defendant argues that the cumulative effect of the arrest and interrogation procedures, particularly the Defendant’s inability to contact his family, so exacerbated his OCD that he was unable to make a knowing and intelligent waiver of his Miranda rights. “In determining whether a suspect has made a knowing and intelligent waiver of his or her Miranda rights the Supreme Court has directed lower courts to review the totality of the circumstances surrounding the waiver.

In support of his argument that he was incapable of making a knowing and intelligent waiver of his Miranda rights, the Defendant eschews the testimony of Police Officer and Detective Sergeant, relying exclusively on his own testimony and that of the doctor.

Over the years the Defendant was treated by a psychologist and a psychiatrist, first with behavior modification techniques and later with medication, adjusted up or down, depending upon what was going on in the Defendant’s life. According to the Defendant he had seen his psychiatrist a few times before the date of the alleged incident herein because he had a heightened sense of anxiety caused by an upcoming interview for an Assistant Principal’s job.

According to the Defendant, when he was first approached by the police on the date in question he began to experience an increasing level of anxiety. When he was placed in handcuffs he began to get nervous; when the officers took him by the arms and escorted him downstairs to the police substation his level of concern escalated; when no one would tell him why he was being arrested he began to experience a high level of anxiety, which got even higher as he was compelled to walk on certain tiles he would normally avoid. Of great significance to the Defendant was his claim that while on the way to the police substation, as well as while sitting in the substation, his cell phone rang a number of times and he could see that members of his family were trying to reach him, but the officers would not let him answer the phone, ultimately turning it off. The Defendant testified that this made him extremely anxious because, as part of his OCD, he needs to be able to contact his family and they need to be able to contact him at all times.

The Defendant testified that a “central part of his obsessive compulsive disorder is to have contact with [his] family, and … [he] need[s] to be able to contact them, and being unable to contact them … really breaks down [his] mind[.]”The Defendant further testified, however, that he only had a “brain freeze” one other time in his life, when he was a teenager and could not reach his father one day, but even then “[t]he only way it would be similar really is [he] couldn’t get in touch with a family member.” In fact, the Defendant testified that depending on the degree of anxiety from which he is suffering at a given moment he simply cannot process any information; but, March 15, 2008 was the only time in his life he could not process information.

The court readily accepts that the Defendant found himself in a situation which would produced a feeling of great anxiety. The court further accepts that the Defendant would like to have found himself anywhere but handcuffed to a bench in a police substation facing interrogation, wishing to contact his family. The court does not find, however, that these feelings prevented the Defendant from making a knowing and intelligent waiver of his Miranda rights.

The Defendant’s statements will be found to have been involuntarily made if they were the product of threats of physical force, improper conduct which impaired his physical or mental condition to the extent of undermining his ability to decide whether or not to make a statement, and promises or statements of fact which created a substantial risk that he may falsely incriminate himself.

The approximate two and one-half hours that the Defendant was held at the police substation located in the Mall and the approximate one and one-half hours of questioning before the Defendant signed his statement “fall far short of the kind of persistent and overbearing interrogation which has been held to be objectionable.”

That the police did not tell the Defendant why he was being detained and interrogated is not indicative of police coercion, as “[b]efore questioning, the police were under no obligation to inform the defendant of the specific crime they were investigating.

Likewise, contrary to the Defendant’s claim, “[t]he police were under no obligation to tell the [31]-year-old defendant’s [family] of his whereabouts while he was being questioned” nor would their alleged refusal to allow him to call his family, by itself, render his statement involuntary.

The Defendant’s reliance on U.S. v. Conley, 859, supra. is also misplaced. In addition to being of no controlling authority on this court, in the case sub judice, unlike in Conley, id., no one ever promised the Defendant that any of his statements would be “off the record. “Similarly, there is no evidence that anyone even agreed that certain statements made by the Defendant would be “off the record.” The only testimony on this issue was provided by Detective Sergeant, who merely testified that there were certain statements the Defendant asked not to be included in the written statement, so they were omitted.

Finding no inappropriate police conduct, suppression may still be had in that “rare case where it clearly appears that at the time of the confession the confessant was so intoxicated as to lack mental capacity[.]” The same criteria are applicable to admissions made by a defendant suffering from a mental disease.”

“The mere fact that a defendant suffers from a mental illness, and/or possesses limited intellectual capacity, is not sufficient to warrant the suppression of an otherwise admissible statement. Suppression should be granted only when it appears that a defendant was unable to appreciate the nature and consequences of his statement.”

Based upon all of the foregoing, the Defendant’s motion to suppress his statements is denied; and, the statements in question are admissible on the People’s direct case at the time of trial.

Here in Stephen Bilkis and Associates, we have our Nassau County Child Custody Attorneys, who will file your petition with the court to seek custody over your child. For other matters, you can also consult our Nassau County Family Lawyers. Call us for more information.

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