Appendix — Dunaway v. New York
Supreme Court brief1979
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IN THE
Supreme Court of the United States
OCTOBER TERM, 1978
No. 78-5066
IRVING JEROME DUNAWAY,
Petitioner,
—vU3.—
STATE OF NEW YORK,
Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
OF THE STATE OF NEW YORK
PETITION FOR CERTIORARI FILED JULY 14, 1978
CERTIORARI GRANTED NOVEMBER 27, 1978
—
nt
IN THE
Supreme Cut of the United States
OCTOBER TERM, 1978
No. 78-5066
IRVING JEROME DUNAWAY,
Petitioner,
—vU3s.—
STATE OF NEW YORK,
Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
OF THE STATE OF NEW YORK
INDEX
Page
Relevant Docket Entries ..........................20000000-. PSPs Od ee 1
Trial Court’s Order for Suppression Hearing ........... snaoeneniae : 2
Original Suppression Hearing (February 24, 1972) .............. 4
Testimony of Francis Novitskey ..................00..000.0....0.0..00 6
Testimony of Joseph Dominick ...........000....0.2200.000000ccceeee--- 21
Testimony of Irving Dunaway ........................000000.ceeseeeceeeee 31
Decision of Appellate Division Affirming Selene of Con-
I eel hie des cana art cleanness eadeatiack dedlietninnemedatkedsnaaaaanlet 44
Decision of Court of Appeals Affirming Judgment of Con-
ee EA ARI RD AI A Ne RO POE AOL PONE RSS CU 44
Order of Supreme Court of the United States hii
Judgment of Conviction and Remanding to Court of Ap-
a a iran aa a ae eo slaves unsacomnbniandi 46
Order of Court of ‘ie eR on eCE 47
Second Suppression Hearing (August 3, 1976) ................... 50
Testimony of Anthony L. Fantigrossi ...... lecuaeegasokineioeton 51
Testimony of Gerard Lueciane .................... demande teneuanionens 62
Testimony of Robert Mickelson ..... A REED EC RT PIAL ER Oe 88
ii INDEX
Decision and Order of Hearing Court Granting Defendant’s
I ae cle pacenichionboieiih
Order of Appellate Division Reversing Order of the Hearing
Court and Defendant’s Motion to Suppress was Denied....
Decision of the Appellate Division .............0000..2000000..eccc. Rs
Opinion of the Court ................................ EOL RES
a, ws adie a psuhaubhecbonin
SAR SEITE IE RONNIE OTE NP Ra OE
Order of the Appellate Division Denying Defendant’s Motion
to Moaicy the Orders of the Court. ......................................
Court of Appeals Certificate Dismissing Defendant’s sic
I UE? SE Oy ncn ccc ecccnsccnsccscececcsecnsceense
Order of the Court of Appeals Denying Defendant’s Motion
Ss sd caubiebdesuadarsivicsiwbiackbcaenes
Order of Supreme Court of the United States Granting
Motion for Leave to Proceed In Forma Pauperis and
Granting Petition for Writ of Certiorari ............00000000.......
10.
t #
12.
1
RELEVANT DOCKET ENTRIES
Order of Appellate Division, Fourth Department affirm-
ing defendant’s judgment of conviction without opinion
(June 29, 1973)
Order of the New York State Court of Appeals affirming
defendant’s conviction without opinion (October 23, 1974)
Defendant’s petition for certiorari filed with Supreme
Court (January 25, 1975)
Order of the United States Supreme Court granting de-
fendant’s motion for leave to proceed in forma pauperis
and for certiorari which remanded this case to the New
York Court of Appeals (June 30, 1975)
Order of the New York Court of Appeals remanding this
case to the Monroe County Court for further proceedings
(December 29, 1975)
Decision and order of the Monroe County Court sup-
pressing defendant’s confession as being obtained in vio-
lation of his Fourth Amendment Rights (March 11,
1977)
Order of the Appellate Division, Fourth Department re-
versing the order of the Monroe County Court (March 1,
1978)
Order of the Appellate Division, Fourth Department
denying defendant’s motion to reargue the appeal (April
7, 1978)
Certificate of the New York State Court of Appeais dis-
missing defendant’s application for leave to appeal (May
10, 1978)
Order of the New York State Court of Appeals denying
defendant’s motion to reargue the application for leave
to appeal (June 13, 1978)
Defendant’s petition for certiorari filed with Supreme
Court (July 14, 1978)
Order of the United States Supreme Court granting de-
fendant’s motion for leave to proceed in forma pauperis
and for certiorari (November 27, 1978)
2
STATE OF NEW YORK
COUNTY COURT
COUNTY OF MONROE
Indictment No. 458
THE PEOPLE OF THE STATE OF NEW YORK
—vs.—
IRVING JEROME DUNAWAY AND THOMAS JAMES MOSLEY
ORDER
The above named defendant, Irving Jerome Dunaway,
having brought the following motions: (a) a motion for
Discovery and Inspection pursuant to CPL Section 240.10
et seq. asking to discover and inspect any statement
made by him, and also any reports, documents, examina-
tions, made in connection with the case, and any photo-
graphs made at the scene; and (b) a motion to disclose
any evidence favorable to the accused under the doctrine
of Brady v. Maryland, 373 U.S. 83, and (c) a motion
for a bill of particulars pursuant to CPL Section 200.90;
and (d) a motion to suppress any statement made by
him pursuant to Section 710.20 (3) of the CPL; and (e)
a motion to suppress tangible evidence pursuant to Sec-
tion 710.20(1) and (f) also to suppress any identifica-
tion evidence pursuant to Section 710.20(5), and said mo-
tions coming on to be heard on the 11th day of Novem-
ber, 1971, Charles F. Crimi, Esq., appearing on behalf
of the defendant Dunaway, and Jack B. Lazarus, District
Attorney of Monroe County, Eugene Bergin, Esq., of
counsel, appearing for the People of the State of New
York and it further appearing that the People of the
State of New York, have complied with the demands of
the defendant as to the (a) motion for discovery and in-
3
spection, and the People having represented to the Court
that they are not in possession of any evidence favorable
to the accused as to the motion (b) to discover such evi-
dence, and the People having complied with the demands
for particulars as to the motion (c) for bills of particu-
lars and it appearing further that the People do not in-
tend to offer into evidence any physical, tangible evidence
as sought to be suppressed by (e) the motion to suppress
pursuant to Section 710.20(1), and the People further
do not intend to offer any identification evidence as
sought to be suppressed by (f) the motion to suppress
pursuant to Sec. 710.20(5); and it further appearing
therefore that the sole remaining motion be the motion
(d) to hold a hearing and tc suppress any statement made
by the defendant Dunaway pursuant to Section 710.20(3)
of the CPL, now on motion of Charles F. Crimi, Esq.,
attorney for Defendant Dunaway, it is hereby
ORDERED, that a hearing be held prior to the trial,
to determine the admissibility of any statement, written
or oral, made by the defendant Dunaway, pursuant to
Section 710.60(4).
December 9, 1971
/s/ George D. Ogden
GEORGE D. OGDEN
County Court Judge
Filed Apr. 20, 1973
4
STATE OF NEW YORK
COUNTY COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK
—vs.—
IRVING JEROME DUNAWAY, THOMAS JAMES MOSLEY,
DEFENDANTS
HALL OF JUSTICE, ROCHESTER, NEW YORK
Presiding: HONORABLE GEORGE D. OGDEN,
Monroe County Court Judge.
TRANSCRIPT OF PROCEEDINGS OF HUNTLEY
HEARING AND TRIAL—February 24, 1972
* * * *
[3] (February 24, 1972—10:51 A.M.—Court convened—
Defendants present and by counsel.)
MR. BERGIN: May it please the Court, the People
move for trial in the case of the People of the State of
New York versus Irving Jerome Dunaway and Thomas
James Mosley, Indictment No. 458, filed August 26, 1971.
MR. DONOVAN: The Defendant Mosley is ready,
Your Honor.
MR. CRIMI: The Defendant Dunaway is ready.
THE COURT: Are both defendants to be tried to-
gether in the one action?
MR. DONOVAN: Yes, Your Honor.
THE COURT: Mr. Crimi?
MR. CRIMI: As far as Dunaway is concerned, Your
Honor, it is my understanding that there is no statement
going to be used. If there is a statement of the co-
5
defendant Mr. Mosley, and at the present time it does
not appear that I do have any grounds for a separate
trial.
THE COURT: All right. Are you ready, Mr. Dono-
van?
[4] MR. DONOVAN: Iam ready, Your Honor.
THE COURT: Mr. Crimi?
MR. CRIMI: Yes, Your Honor.
MR. BERGIN: The People are ready.
Your Honor, the People do intend to offer at this
trial a statement and/or admission made by the Defend-
ant Dunaway, and we are ready to proceed with a
Hearing, if the Court orders such.
I would like to say at this time, Your Honor, that the
Defendant Thomas James Mosely did make a statement
to the police upon his arrest, a stenographic statement
which I have given a copy to Mr. Donovan. It is not
our intention to use the statement in the trial in chief
of the prosecution, Your Honor.
MR. DONOVAN: I, therefore, have no desire for
any Huntley Hearing on the part of the Defendant
Mosely.
MR. CRIMI: Well, at the present time, Your Honor,
if the District Attorney represents that the statement
of the co-defendant is not going to be used I still think
that I am [5] entitled to a severance.
THE COURT: Do you want a Huntley Hearing?
MR. CRIMI: Yes. I had moved for a Huntley Hear-
ing and one had been ordered, Your Honor.
THE COURT: All right.
MR. BERGIN: The People are ready. While we are
on the statements I might just say for the record that
I have given to Mr. Crimi a copy of the stenographic
statements made by his client and also a copy of the
statement made by the Defendant Mosley, and I have
also provided Mr. Donovan with copies. Is that right?
MR. DONOVAN: Acknowledged.
MR. CRIMI: Yes.
THE COURT: All right.
* * * *
6
[30] FRANCIS NOVITSKEY, Detective with the
Rochester Police Bureau, called herein as a witness on
behalf of the People of the State of New York, having
first been duly sworn, was examined and testified as
follows:
[31] DIRECT-EXAMINATION
BY MR. BERGIN:
You are with the Rochester Police Bureau?
Yes, I am.
What is your position there, sir?
Detective, Physical Crimes Squad.
How long have you been with the Police Bureau?
Twenty years.
Now, Detective, on the morning of August 11,
1971, did there come a time while you were there at the
Public Safety Building and that you had occasion to
see the Defendant Jerome Irving Dunaway?
Ne PoPpere
A. Yes, I did.
Q. That is Irving Jerome Dunaway?
A. Yes.
Q. Could you tell the Court what time it was that
you first saw Mr. Dunaway?
A. It was about 9:00 A.M. on the 11th of August.
Q. Was he brought into the Bureau by some officers?
A. Yes, he was.
Q. Can you tell us what transpired after you first
saw Dunaway; what happened, please?
A. Well, I advised him of his constitutional rights.
He waived same.
[32] Q. Now, what—
MR. CRIMI: I object to the conclusions of the an-
swers here.
THE COURT: Sustained.
Q. Was this in a certain office in the Detective Bu-
reau?
A. Yes, it was in an interview room.
Q. Just how did you go about advising the defendant
of his constitutional rights?
7
A. I advised him verbally that he had a right to
remain silent; that he did not have to answer any ques-
tions if he did not wish to; that anything he did say
would be used against him in a Court of Law. He had
a right to consult with an attorney before answering
any questions; to have an attorney present with him
during the questioning by us if he so desired; if he could
not afford an attorney, one would be provided for him;
if he did consent and agree to discuss this matter without
an attorney present he could terminate the discussion at
any time. I asked him if he understood these rights.
He stated he did. I asked him if he agreed to waive
these rights and consent to discuss the matter with me,
and he stated he would.
Q. Did you use one of these police waiver cards,
detective?
[33] <A. Yes.
Q. Do you have that present with you?
A. Yes, I do.
MR. BERGIN: Would you mark this, please?
(Whereupon People’s Exhibit No. 1 was marked for
identification: a notification and waiver card.)
Q. Detective, I show you a card marked Exhibit 1
for identification, and ask you what this is?
A. This is the notification and waiver card.
Q. Did you have occasion to use this particular card
in the morning of August 11th?
Yes, I did.
Is there some writing on the back of that card?
Yes, there is.
Would you tell us what that is?
It has the date, 8-11-71; time, 9:30 A.M.; place,
Room 478, Public Safety Building: person interviewed,
Irving Dunaway: persons interviewing, I signed it my-
self, Novitskey, and Detective Sal Ruvio also signed it.
Q. Do you recall, detective, if you read this card to
the defendant Dunaway or if you gave him the rights
as you did here from your own memory of these?
[34] A. I gave it to him as I did here. I had the
card right there with me.
PO PO Pp
8
Q. You get to know these after a while?
A. Certainly do.
Q. Iunderstand this card is being revised now?
A. It’s to be revised, yes.
Q. But, Mr. Dunaway did say that he understood
what you told him?
A. Yes, he did.
Q. He said he would discuss this with you without
a lawyer?
A. Yes, he did.
Q. Could you tell us what was said after that took
place?
A. Well, he stated that he and another youth—
Q. Did you ask him questions or—
A. Yes, I did. I asked him about the homicide at
the pizza parlor on Genesee Street. I asked if he knew
anything about it. He stated he did. He told me that
he was there when it happened. He stated that they were
going to the bridal shop first. They changed their mind,
walked away to the pool room again. They later re-
turned to the bridal shop. It was closed. They looked
over the pizza shop. He knew the name of it, the Tower
of Pizza. He said there was someone [35] coming out
of the pizza shop and someone was walking up the
street. They waited until these people cleared away,
and at this time he and his accomplice entered the store,
the accomplice having the gun, a sawed off shotgun.
He described it as a Couble barrel, double triggers. Upon
entering the store there was a white woman behind the
counter who headed toward the swinging doors to the
rear of the store, and stated something to the effect
that he has a gun. On this, a man came out from the
back room through these swinging doors, and he was
headed toward the cash register at the time.
Q. Who was?
A. Mr. Dunaway, over there.
Q. And he—
A. And he heard the gun go off. He wanted to run
out of the store. He fell up against the door, and in-
juring his ear. He ran down Clifton Street up Epworth
Street, Lennox Street to an aunt’s house where he had
@w
9
his ear treated. He told his aunt he had a fight with his
girlfriend and she bit him. Then, he changed his story
and says that the girlfriend cut his ear with a can opener.
He didn’t know where his accomplice went at this time. ‘
This was— mr
[36] Q. Was this in substance what he told you?
A. On the morning of the 11th, yes.
Q. Did there come a time when you called for a
police stenographer to normally take this down?
A. Yes, I did.
Q. Do you know about what time this was?
A. That was about 10:20 AM. on the 11th.
Q. Who was the police stenographer?
A. Sam Shadoff, on this one.
MR. BERGIN: Would you mark this, please?
(Whereupon People’s Exhibit No. 2 was marked
for identification: a statement.)
Q. Detective, will you tell us, after Mr. Shadoff ar-
rived, what transpired; what did he do, what happened?
A. I had him identify himself as to age, name.
Q. Well, did you take a statement of him in the pres-
ence of Mr. Shadoff?
A. Yes, I did.
Q. Who was present at that time?
A. Well, it was Mr. Dunaway, myself and San Shadoff
in the beginning.
Q. Did any other officers ask this defendant any
questions?
A. Yes. Later on in the statement Detective-Lieu-
tenant [37] Fantigrossi came in and asked him questions.
Q. All right. Do you recall about how long this took,
to take this formal statement?
A. Id have to say twenty minutes. I would just have
to guess.
Q. All right. Detective, I show you People’s Exhibit
No. 2 marked for identification, and ask you if you will
look at it?
A. Yes,
10
Q. You have had occasion to read this transcript over
in preparation for this trial, Detective?
A. Yes, I did.
Q. Is this transcript I hand you now, 1s this the
transcript of what was said by you and Mr. Dunaway
that morning?
A. Yes, it was.
Q. Can you tell us now what time it was that this
formal transcript ended?
A. Yes. It ended at 10:45 A.M.
. After 10:45 A.M. what happened?
A. Well, after 10:45 the blotters were made out and
ut in detention.
g >. Now, you have related to us the statement that
he gave [38] to you orally before you called a stenogra-
pher in?
A. - 308. ;
Q. When the stenographer was present, did you go
over the same material with him?
A. Yes.
Is this, in sum or substance, the same as he said
in front of the stenographer?
A. Yes.
. So, then, on that morning you did not see him
after 10:45 A.M.?
A. Not on that morning, no.
Q. Did there come a time later on at any time when
you had occasion to see Mr. Dunaway again?
A. Yes. It was the evening, around ten o’clock, on
e 11th of August.
8 Q. Will ai tell the Court what happened; what
the reason for seeing him on that occasion was? |
A. Called back into the building because Mr. Duna-
way wanted to talk to myself and my partner. I went
down to the cell block and put him in one of the smaller
interview rooms there, and he told us that he wanted to
come clean and tell the whole truth on it. So, I told him,
“You have already been advised of your rights. [39] You
remember those rights?” He says, “Yes.” He says he
knows them. He then gave us a verbal statement that
he, Ronald Adams were over at 69 Lennox Street in a
11
girlfriend’s house, and they discussed getting some money
some place. They didn’t know exactly where, yet, or
anything. Ronald had the gun. They left the house.
They walked over to the bridal shop on Genesee Street.
They returned back to 69 Lennox Street, and they asked
TJ Mosley to drive them down to Genesee Street, at
which time Mr. Mosley did drive them, and Mr. Mosley
parked at the Sportmen’s Grill. He didn’t know the
name of the grill. He said the bar at the corner of Clif-
ton and Genesee.
Q. Clifton?
A. Clifton and Genesee. Himself and Ronald got out
of the car. They went back to the bridal shop. It was
closed. Then, they went into the Tower of Pizza, and
there it’s just about the same thing.
Q. Did he relate again to you as to what happened
inside?
A. Just about the same. Yes, went inside—he related
about something—he stated when he left the store, he
stated again he fell and injured his ear. They ran back
to the car, which was still parked back there, got [40]
into the car and were driven up to Atlantic Street where
he then got off at his aunt’s house.
Q. Now, this was a verbal statement he made to you
in the detention area that evening of the 11th?
A. That’s right.
Q. Was there anyone else present at that time?
A. Detective Dominick.
Q. What did you do after he told you that?
A. We told him we would see him again in the
morning and discuss it further. We then left there and
went in search of Adams and Mr. Mosley.
Q. You did not take a stenographic statement that
evening?
A. No, I did not.
Q. Did there come a time when you did have that
verbal statement taken stenographically?
A. Yes, we did.
Q. When was that?
a7 That was the morning of the 12th, about 7:40
12
Q. How was that done?
A. Well, we brought him back up in the interview
room. At this time we had Paul Messina, Stenographer,
come up and take it; and in sum and substance he told
me the same thing he said the previous night.
[41] Q. This was in the presence of a stenographer
Paul Messina?
A. That’s right; yes.
MR. BERGIN: Would you mark this, please?
(Whereupon People’s Exhibit No. 3 was marked for
identification: a statement. )
MR. BERGIN: Would you mark these two pages
also, please?
(Whereupon People’s Exhibit No. 4 was marked for
identification: two pages of sketches. )
Q. Detective, I show you Exhibit No. 4 marked for
identification, two pages of sketches of some sort. I hand
you those and ask you what they are?
A. Yes. These are drawings made by Mr. Dunaway
as to the location of the crime, and the drawing is the
interior of the pizza place.
Q. These were made by Mr. Dunaway in your pres-
ence?
A. Yes, they were.
Q. When were they made?
A. They were made the morning of the ilth of
August.
Q. That is the morning when you had the first con-
versation with him?
A. That’s true.
Can you tell us was there any conversation about
the [42] drawing of the sketches or how did it come
about?
A. Yes. Have him describe the inside of the house,
as to the location of the woman and Adams, and also the
swinging doors in the back. This door and the cash
register, as to his statement.
Q. Well, did you ask him to draw it out, or did he
say he would draw it, or what happned?
13
A. No. I asked him if he could draw it, and he stated
he would.
Q. He said he would?
A. Yes.
Q. And this is what he drew?
A. Yes.
Q. Now, there are two pages. Can you identify the
first one with the Exhibit mark on it; what is that page
the first page?
_A. Well, this is a drawing showing how—the direc-
tion he took after leaving the pizza place there down on
Clifton, up Epworth to Atlantic Street. At this time
he stated he was on foot, and he ran all this distance.
Q. This is a sketch that he drew?
A. That’s right.
Q. And the second page is what, sir?
[43] A. It’s a description, his drawing describing the
interior of the pizza place.
Q. All right.
A. And it also describes—
Q. On the first page is there a gun there?
A. ; Yes. He made a drawing here of the gun, re-
sembling the gun that was used.
Q. I hand you Exhibit No. 3 for identification, and
ask you if you recognize this?
A. Yes.
Q. Do you recognize that transcript, detective?
A. Yes.
Q. What is that a transcript of?
A. This is a transcript that was taken on the morn-
we ' we 9 - tam Messina, the stenographer.
. You have had a chance tor i ?
x a. an ead this over?
. Does this contain stenographically wh
you verbally the night i ik the Abaorrthegflen
4 bag :
, n the times, would yo i i
stenographic statement started? on ee er
A. It started at 7:41 A.M. on the 12th.
[44] Q. How long did it take? When did i ?
A. It ended at 8:06, alt
14
Q. After 8:06, did you have anything further to do
with Mr. Dunaway; any further conversation with him?
A. No. We then returned him back to the cell block.
Q. So, have you related, sir, everything this defendant
has told you about the occurrence of this crime?
A. He did state—I don’t remember just when it was,
but he did state he wanted to give himself up shortly
after the crime was committed, but he was threatened
that if he did so—he was threatened about bodily harm.
Q. When -vas this, detective?
A. I don’t recall whether it was the night in the cell
block or the return to his cell block after the second
statement. I just don’t recall when it was.
Q. Now, during your interviews with this defendant,
and they consisted of three; is that correct?
A. Yes.
Q. Did you or any other officers physically abuse the
defendant in any way?
A. None whatsoever.
Q. Was there any force or pressure, coercive means
used at [45] all by you or any other members of the
Police Bureau?
A. No, there wasn’t.
Q. Detective, would you identify here in court the
person that you called Mr. Dunaway, if you do see him
here?
A. Yes. He’s sitting here with the gray double
breasted suit on at the table there. |
Q. Can you tell us where he is in relationship to
Mr. Crimi?
A. Yes. He’s to Mr. Crimi’s immediate left.
Q. Mr. Crimi’s left?
A. Yes.
Q. Or right?
A. I’m sorry; right.
MR. BERGIN: Thank you, detective. You may ask.
15
CROSS-EXAMINATION
BY MR. CRIMI:
Q. Detective Novitskey, I believe you stated that
Sam Shadoff came and took a statement at about 10:20
on August 11, 1971; is that correct?
A. Yes, I did.
. How long before 10:20 had you called for Sam
Shadoff?
A. Idon’t remember. I have no idea.
Q. Was he on duty in the building that day?
A. He should have been, yes.
[46] Q. I think you said that it was approximately
nine o’clock in the morning, that same morning, that
— Dunaway was brought to you; isn’t that correct?
. Yes.
Q. So, that you had occasion to speak to him from
approximately nine o’clock until 10:20, 10:15; is that
correct?
A. That’s correct.
Q. So, that your conversation with him then lasted
for that length of time; is that correct?
A. That’s correct.
Q. Now, I want to show you People’s Exhibit No. 1.
You tell me this was the waiver card that the Police
Department uses; is that correct?
A. That’s correct, sir.
Q. Now, is there anything on that card, on either
side —— that is in the handwriting of Irving Duna-
way?
A. No, there isn’t.
Q. That card—whose handwriting is it on that card?
A. Mine and Sal Ruvio’s signature, and also there’s
a notation here by Detective Dominick.
Q. Is there anything on that card that states the
time that you read those—the card to Mr. Dunaway?
A. Yes, there is.
[47] Q. All right. But, that was written in; is that
correct?
A. That’s right.
16
Q. Is that your handwriting of the time?
A. That’s right.
Q. I notice here it has a note, 7:40 A.M. 8-12, in
pencil. What does that mean?
A. Detective Dominick put that note on there on the
12th of August, when we proceeded to take another
statement from him.
Q. Now, it is your testimony that at 9:00 A.M. on
8-11-71, you read what was on this card to Irving
Dunaway?
A. I give it to him verbally, but I had the rights
with me present.
Q. Did you read the card?
A. No, I didn’t.
Q. Oh, you did not read from the card?
A. No, I didn’t.
Q. So, on the card, where it says, “Do you under-
stand what I have just told you,” and it says response,
“Yes,” that is your handwriting?
A. Yes.
Q. But, as a practical matter, that particular ques-
tion does not answer what is on this card, but what you
told [48] him verbally; is that correct?
A. Which is verbatim with the card.
Q. Which is verbatim with the card?
A. Yes.
Q. You have got this memorized, have you?
A. Oh, yes.
Q
. All right. Would you please tell me now what
this card says?
A. That you have a right to remain silent.
Q. Well, no, you had it memorized?
A. Yes.
Q. Well, then, read it to me verbatim?
A. “I am now advising you that you have a right
to eg
THE COURT: You do not mean to read it, do you?
MR. BERGIN: I object.
Q. Iam sorry, give it to me—
A. I am now advising you that you have a right—
roe
17
MR. BERGIN: I object, Your Honor. The witness
has testified what he advised the defendant in his direct-
examination. I object to his being asked whether he
memorized that card verbatim and to give it back to
him verbatim. What is an issue is actually what the
defendant [49] was told.
THE COURT: There is no question that is an issue,
but this may have some effect upon the credibility of the
witness. Overruled.
A. I am now advising you that you have a right to
remain silent. You do not have to answer any questions
if you do not want to; that anything you do say would
be used against you in a court of law; that you have a
right to consult with an attorney before answering any
questions and to have an attorney present with you dur-
ing the questioning by me if you so desire. If you can’t
afford an attorney, one will be provided for you. If you
do consent and agree to discuss this matter without an
attorney present, you can terminate the discussion at
any time. I then asked him—
Q. All right. Is that the exact speed at which you
were—
A. No, definitely not.
Q. You were slower?
A. Yes.
THE COURT: Is that what is on the card, Mr.
Crimi?
MR. CRIMI: Basically it is, yes, Your Honor. There
are some small variations.
[50] Q. All right. Now, Detective Novitskey, you have
been on the force for twenty years; is that correct?
A. Yes, sir.
Q. And I have assumed you have used, since at least
1964 or so, these cards; isn’t that correct?
A. Whenever they came out, yes.
Q. Whenever they came out. I will pick ’64.
A. Yes.
Q. Now, haven’t you had occasions where you have
had defendants initial the card?
A. Ihave, but very seldom.
18
Q. But, at any rate you did not ask Mr. Dunaway to
initial this card?
A. No, I did not.
Q. Did you do anything other than tell him what
these—tell him about these rights to an attorney; did you
attempt to explain anything on the card?
A. No. I asked him if he knew what the rights meant.
He stated he did.
Q. That is the only question you asked him, “Do you
know what they mean,” and he said, “Yes.”
A. I asked him then if he would agree to waive the
rights and consent to discuss the matter with us, and
he [51] stated yes.
Q. Did you try to explain what waive meant or agreed
meant?
A. No, I did not.
Q. Then, after you did that, then, you began talking
to him, I take it?
A. That’s right.
Q. You had not talked to him about the crime prior
to that, had you, prior to the rights?
A. No.
Q. Now, this was August 11, 1971, and the crime
took place in March of that year; is that correct?
A. That’s true.
Q. Did you find, in talking to him, that he was
vague as to dates and times and places?
A. Yes, he did not know the date.
Q. Did you do anything to refresh his recollection?
A. Well, I asked him if he remembered what month.
He says it was in March. I asked him what day. He
says a Friday. I asked him which Friday. He says the
last Friday in March. That was about the extent of the
date.
Q. Well, did you give him any kind of a synopsis
prior to questioning him to refresh his recollection as
to what you were after and what you were going to
discuss about [52] it, or did you immediately start ask-
ing him questions?
A. No. I asked him about—well, I told him we were
going to talk about the murder at the Genesee Pizza
19
Shop, and I asked him if he knew anything about it.
He said yes. Then, he was advised, and we went to it
from there.
Q. Well, I take it from what you have just said now,
that you advised him after he said yes?
A. Yes.
Q. So, that there was a sentence or two prior to the
advisement of the conversation; is that correct?
A. Well, yes. We have to let him know we are
going to talk about it, so he can know whether to waive
his rights.
Q. Well, I just wanted to make one thing clear, that
the first thing you did was not advised him of his rights;
you talked to him and you told him that you wanted to
talk to him about the pizza parlor murder and did he
know anything about it, and he said yes, and then you
advised him of his rights?
A. That’s correct.
Q. Now, Exhibit 4 is apparently two diagrams. Can
you tell us approximately when these were drawn; in the
beginning [53] of the conversation that you had or to-
ward the end?
A. It was during the conversation before the state-
ment was taken.
Q. This occurred during the oral conversation?
A. Yes.
Q. Were you having some difficulty understanding
what Dunaway was saying; that he tried to clear it
up by diagram or what?
A. Well, yes. After I said something to myself—when
he told me he hit the pizza place and ran down a cer-
tain street—but, the other streets I’m not too familiar
with them—and he drove up this—
Q. You weren’t familiar?
A. Not with some of them, Atlantic and some others.
Q. Now, after the first stenographic statement was
concluded, I take it you testified he was booked and that
he was put in a cell; is that right?
A. Yes.
Q. In the detention area?
A. Right.
20
Q. You say then that ten or eleven o’clock that very
night, that you got a message that he wanted to talk
to you?
A. That’s true, yes.
[54] Q. And you went up there and saw him at that
time?
A. Yes.
Q. Did you readvise him of his rights at that time?
A. At that time I told him—vwell, I asked him, “Do
you remember your rights, what I read to you this
morning?” He said, “Yes.” And he says he wanted to
clear up his story; he wanted to tell the truth.
Q. All right. How long did that oral conversation
take place?
A. It wasn’t—lI’ll have to guess, but it was a very
short time; five to ten minutes.
Q. Then, you came back in the morning with a dif-
ferent stenographer Mr. Messina; is that correct?
A. Yes.
Q. Did you make any notes concerning this transac-
tion?
A. I made a supplement—my partner made a supple-
ment out.
Q. Do you have that with you?
A. No, I do not.
MR. CRIMI: Do you have that, Mr. Bergin?
MR. BERGIN: Detective Dominick’s report?
MR. CRIMI: Well, he did not make a report at all.
THE WITNESS: No, my partner made it.
[55] MR. CRIMI: Are you going to call Detective
Dominick to the stand?
MR. BERGIN: Yes.
Q. Did you testify before the Grand Jury?
A. Idon’t remember.
MR. BERGIN: I think he did. Yes, Detective Novit-
skey did testify before the Grand Jury.
MR. CRIMI: May I have a moment, Your Honor,
please?
THE COURT: Yes.
(Whereupon Mr. Crimi had a moment.)
21
Q. I am going back to Exhibit 1. Was this made in
the presence of Mr. Dunaway, written out, handwritten?
A. Yes. Well, I was stating his rights and I was
filling in, yes.
Q. So, he was in a position to see you writing this
out?
A. Yes.
MR. CRIMI: I have no further questions.
MR. DONOVAN: Noquvestions, Your Honor.
MR. BERGIN: I have no further questions.
THE COURT: Thank you, detective. You may step
down.
(Witness excused. )
[56] MR. BERGIN: The People call Detective Domi-
nick.
JOSEPH DOMINICK, Detective with the Rochester
Police Bureau, called herein as a witness on behalf of
the People of the State of New York, having first been
duly sworn was examined and testified as follows:
DIRECT-EXAMINATION
BY MR. BERGIN:
Q. Detective, you are with the Rochester Police
Bureau?
A. Yes, sir.
Q. You work with Detective Frank Novitskey on
many cases?
A. Yes, sir.
Q. Did there come a time last summer, the month of
August, when you had occasion to see the Defendant
Irving Jerome Dunaway?
A. Yes, sir.
Q. Can you tell the Court when it was that you first
came in contact with Mr. Dunaway?
A. It would be on August 11, 1971, at approximately
9:00 A.M.
Q. Where was that?
A. At the Public Safety Building, sir.
22
Q. Can you tell us what happened at that time?
A. He was under arrest at the time, sir, and I
recall that [57] my partner, Frank Novitskey, was af
the Public Safety Building and did question him that
morning. ; oe
Q. Were you in on any of the interviewing at that
time?
A. Not that day, no, sir.
Q. Were you present later on? We understand that
Mr. Dunaway called and was seen again later that night.
Were you present with Detective Novitskey, then?
A. Yes, sir.
Q. Can you tell us how that came about and what
your recollection is as to what happened that evening?
A. Well, it was about 10:00 P.M. on August 11, 1971.
We received word that Irving Dunaway was in custody
at that time and wanted to talk to some detectives. I
recall that my partner Frank Novitskey and I did go
to the cell block to talk to Mr. Dunaway. He stated that
he had lied about a statement that he had made to De-
tective Novitskey, and he wanted to clear some matters
up.
"9. Do you recall what he said at this time?
A. I recall that he mentioned he had lied about it,
and that there was also a third party involved by the
name of TJ Mosley. We talked to him for a short time,
and then we went about our way attempting to locate
Mr. Mosley and one Ronald Adams.
[58] Q. Did there come a time when you reduced this
conversation to a stenographic transcript?
A. Yes, sir.
Q. When did that happen?
A. About 7:40 A.M. on August 12, 1971. That was
in the Public Safety Building.
Q. That was the next morning after you talked with
Dunaway? |
A. The morning after, yes, sir.
Q. Who questioned Mr. Dunaway at that time?
A. Detective Novitskey, sir.
Q. Do you recall at this time what Mr. Dunaway
said on that morning of the 12th?
23
A. He stated that he was at home on Lennox Street.
I believe it was 69 Lennox Street, on Friday, the 26th
of March, 1971. He was with a fellow he called “Bay-
Bay,” which would be Ronald Adams, TJ Mosley, and
one Henry Jones; that he and “Bay-Bay” had talked
about getting some money. They had discussed a rob-
bery. He said he recalled that they walked down Genesee
Street toward Main going to the bridal shop on Genesee
Street. He recalled that “Bay-Bay” had a shotgun un-
derneath his coat. He said that he arrived at the bridal
shop. I don’t recall the reason, but they turned around
and went [59] back to Lennox Street. He said then they
got TJ Mosley to drive them down to Genesee Street.
He says they were left off by Clifton, I believe—by Clif-
ton Street, and then they looked into the bridal shop and
it was closed at this time. Being around 10:00 P.M.,
then they walked into the—they noticed a pizza parlor
that was open on Genesee Street, and they decided to
go there, to hold it up; and he stated upon entering the
pizza shop he recalls seeing a woman there, and she
yelled out to someone in the back room, “A man’s got
a gun.” He says he walked over to the cash register.
Then, he heard a shot. He says both of them ran from
the pizza parlor, he and “Bay-Bay,” and as I recall he
fell upon making an exit, on the door I believe, and he
hurt his ear. He says then they went to a parking lot
next to the Sportmen’s Grill on Genesee and Clifton, got
into a car, and with TJ Mosley they went back to Lennox
Street. But, Irving Dunaway said that he didn’t go to
69; that he went to his aunt’s home, which I believe
it was 26 Lennox Street, and that later—he stated also,
that he recalled his aunt mentioning something about
his ear. I believe he said he hurt it with a can opener
or something to this effect. Then, he went back to 69
[60] Lennox Street and he had a short conversation
with “Bay-Bay” or Ronald Adams.
Q. Now, did you see Mr. Dunaway after the morning
of the 12th of August, when this stenographic statement
was taken? Did you have any conversation with him
after that?
A. I don’t recall, sir.
24
Q. Did you or any police official or anyone use any
force or pressures on Dunaway to make a statement?
A. None whatsoever, sir, no.
MR. BERGIN: That is all I have. You may examine.
CROSS-EXAMINATION
BY MR. CRIMI:
Q. Detective Dominick, I think you testified it was
about nine o’clock in the morning that you saw Mr.
Dunaway for the first time; is that correct?
A. Yes, sir.
Q. August 11th?
A. Yes, sir.
Q. Where did you see him?
A. He was at the Public Safety Building, sir, Police
Headquarters.
[61] Q. Police Headquarters?
A. Yes.
Q. Did you talk to him at all on that morning?
A. No, sir.
. You merely saw him in police headquarters on
the fourth floor, I take it?
A. Fee.
Q. You saw him in the interrogation room or where?
A. No, in the hallway, sir.
Q. You had nothing to do with his being talked to
by Novitskey, your partner?
A. No, sir.
Q. So, the first opportunity that you had to talk to
Mr. Dunaway was at about ten o’clock that night; is
that correct?
A. Yes, sir.
Q. You went there because you had gotten a message
that he wanted to talk to you?
A. Yes, sir.
Q. Did you at any time that night when you talked
to him, did you advise him of any rights, so-called?
A. Detective Novitskey did.
Q. In your presence?
[62] <A. Yes, sir.
25
This was approximately ten o’clock?
Yes, sir.
That night; is that right?
Yes, |
Did he advise him from a card, or did he—
I believe it was verbally, sir.
Verbally?
Yes, sir.
. He gave him all of the rights that ili
with soumuat® g at you are familiar
OPOPOPOPO
A. Yes, sir.
Q. The right to an attorney, et cetera?
A. Yes, sir.
’ ’ y
Q. Well, you advise them of the right ;
the right to remain silent? ee
A. Oh, yes, sir.
Q. Isn’t that correct?
A. Yes, sir.
Q. So, at ten o’clock that ni
/ . ght Detective Novitske
63 . . “J
phan vised him of each of those rights; isn’t that
A. Yes, sir.
Q. You had nothing—strike that. Th
; en, at seve
sae tara fe this conversation at ten o'clock?
; wasn’t long, sir. : i i
ae g, sir. I don’t think it was five
Q. Then, you saw Mr. Dunaw in i
ing; is that correct? fasta arte ctinerial
A. Yes, sir.
Q. When you saw him in the morning, was there any
conversation with him prior to the sten .
there, or was it all simultaneous? ——
A. I don’t recall, sir.
Q. You do not recall?
A. No.
Q. At that time did you readvise hi i
im of his rights?
i: I would have to say it was Detective Novitekey,
26
Q. Did you make any report or notes as to your
activity concerning what you have testified to today,
a supplemental report or anything?
A. Well, there were many supplemental reports filed
in this particular case, but I don’t recall any about what
I have just testified to, no.
Q. There was no report made by you concerning
what you have [64] testified tc today; is that correct?
A. Idon’t recall any, sir, no.
MR. CRIMI: Well, Your Honor, I think Detective
Novitskey said that he did make a report.
THE COURT: The officer’s testimony, I think, is
controlling.
MR. CRIMI: Well, if there is—
THE COURT: Officer Novitskey, according to my
recollection, was not sure whether any report was made.
You may ask again, if you wish, to try to refresh your
recollection.
Q. It is your testimony that you did not or you do
not recall making a report?
A. Ihonestly don’t recall, sir.
Q. You could have made a report?
A. It is possible, yes.
MR. CRIMI: Well, I think in this posture, Your
Honor, I think if the District Attorney has the report
he should allow me to look at it for purposes of cross-
examination.
THE COURT: If he has it, he will furnish it.
MR. BERGIN: I have a report here, Your Honor.
I do not know if it is this officer’s or not. [65] It appears
to be.
May I identify this myself first with him to see whether
it is? .
THE COURT: Yes.
PRELIMINARY EXAMINATION
BY MR. BERGIN:
Q. Detective Dominick, is this your report?
A. Yes, sir.
27
MR. BERGIN: Your Honor, I will object. I would
like to show the report to the Court. I would object
to just giving this to Defense counsel at this time. It
contains a lot of other material. It contains the names
of witnesses and other investigative work that this of-
ficer did not testify to.
THE COURT: I suppose the testimony in this case
is somewhat limited to the voluntariness of an alleged
confession; isn’t it, Mr. Crimi?
MR. CRIMI: I am sorry, Your Honor, I did not
hear you.
THE COURT: Any testimony in this hearing is
limited to the voluntariness of any alleged confession.
It does not include the testimony [66] as to the com-
mission of the alleged crime itself.
MR. CRIMI: That is right.
THE COURT: Well, if this report has nothing to
do with this statement, any statement that was made
in the detective’s presence, I cannot see where it is rele-
vant at this time.
MR. CRIMI: Well, I do not understand District At-
torney to say that there is nothing in there.
MR. BERGIN: No, I didn’t say that. Maybe I should
make myself more clear.
There is material in this report concerning the ap-
prehension of Mr. Dunaway and some things that have
been testified to, but there is an awful lot of other
niatters in here that has no part of this hearing.
MR. CRIMI: Is it severable?
THE COURT: I will rule that anything that is ger-
mane to this hearing or to the purpose for which it is
had may be examined by defense counsel at this time.
MR. BERGIN: All right. Your Honor, I will [67]
give Mr. Crimi the report, and I know he will just
refer to the reports that are germane to this hearing.
MR. CRIMI: All right.
28
CROSS-EXAMINATION
BY MR. CRIMI CONTINUED:
Q. Did you testify before the Grand Jury?
A. I’m quite sure I did, sir. Yes.
MR. BERGIN: No, he did not.
MR. CRIMI: Just a minute, Your Honor.
THE COURT: Yes.
(Whereupon Mr. Crimi had a moment.)
MR. CRIMI: I have no further questions, Your
Honor.
MR. DONOVAN: Before I decide, I would like to
see the statement myself, Your Honor.
THE COURT: Yes.
(Whereupon Mr. Donovan reviewed the statement. )
MR. BERGIN: If Your Honor please, I object to
Mr. Donovan reviewing all the report, and I know he
will do it in the nature of Mr. Crimi. The first part
of this report refers to the testimony in this hearing.
(68] THE COURT: Well, inasmuch as the report is
not severable, I rule that Mr. Donovan, representing Mr.
Mosley, has a right to examine the report as it concerns
the matters testified to in this hearing.
MR. BERGIN: Thank you, Your Honor.
MR. DONOVAN: I have no questions.
MR. BERGIN: Ihave no further questions.
* * * *
[75] MR. CRIMI: Your Honor, at this time I move
that the Court order excluded and stricken from the
record any and all testimony relating to the alleged
admissions and/or confessions made by the Defendant
Irving Dunaway, as testified to by two detectives, two
or three [76] detectives in this hearing, on the grounds
that such admissions and/or confessions are made with-
out the proper advice of counsel, and I am referring to
those constitutional rights which were spelled out in
Miranda versus Arizona, a Supreme Court case, and a
waiver of those rights as spelled out both in the case of
29
Miranda versus Arizona and in the case of Johnson
versus Zerbst, also a Supreme Court case; and the latter
case stands for the proposition that before there can be
a valid waiver of any constitutional rights, there has
to be, on the part of the person waiving it, an intelligent
and understanding waiver of these rights, and a waiver
which is consonant to an understanding of the rights and
what he has given up.
The testimony in this particular hearing indicates that
verbally at about nine o’clock when the defendant was
at Police Headquarters and in an interrogation room,
in a police atmosphere, he was verbally asked—or ad-
vised, I should say, of his rights to [77] remain silent;
and that he did not have to answer any questions, and
his right to have an attorney, et cetera, as testified to
by Detective Novitskey; and Detective Novitskey then
said that he asked him, he asked the defendant whether
he understood him, and the defendant said, “Yes,” and
then he asked the defendant, “Do you agree to waive
these rights and consent to us talking to you,” and the
defendant allegedly said, “Yes.”
I say that in looking at this Exhibit which is in evi-
dence and which contains many, or I should say several
very fundamental constitutional rights, which speak of
self-incrimination, which speak of the right to an at-
torney, which speak of the right to an attorney in the
event that you cannot afford one, and also which more
importantly talks about a waiver of such rights, that
just the mere asking in a police atmosphere and in an
interrogation room, just the mere asking is—“Do you
understand these,” and “Did you agree to waive these
rights,” [78] is not a sufficient showing that that in-
dividual understands what his rights as a citizen were,
understands the consequence involved and understands
what it meant to waive these rights.
As part of the motion, then, I contend that there not
being sufficient evidence of an understanding, an intelli-
gent waiver of these rights, assuming that the rights
were read or given to him at the time that the detective
testified, which we must assume, because that is the
state of the evidence at this point. Assuming that, I say
30
that there is not sufficient proof of an intelligent waiver
and understanding of these rights, and if the Court
were to agree with me, that it would seem to me that
this would become a primary illegality, which would then
effect the subsequent testimony as to Exhibit 2 and 3
in evidence.
I have a further motion that deals with the suppres-
sion of the evidence, and the basis of that is that the
testimony, to this [79] point, indicates that on August
11th at approximately seven—strike that out—at ap-
proximately 8:30 in the morning the three detectives
left in a police car, went to the defendant’s residence
on Broad Street. One detective stationed himself in a
driveway, admittedly to watch and see whether there
was any situation that might arise that the person
whom they were looking for might try to get away, and
I think one detective went to the front door and one
detective was in the car. Subsequently they walked to
another home where the detective also positioned him-
self in the driveway and one went up to the front door,
and then the three left, including the defendant, in a
car and brought down to headquarters.
I think that those facts specify custody, and that in
effect, at that particular point, the defendant was under
arrest. He had lost his freedom of movement as de-
fined in the Miranda versus Arizona case; and further-
more, there is testimony by Detective Dominick [80]
that when he had seen the defendant, it was nine o’clock
and the defendant was under arrest; and further, there
is testimony that these rights were not read or at least
not told to the defendant until after the defendant had
admitted that he knew something about the incident in
which they wanted to question him on.
I, therefore, say that the custody and the questioning
besides my contention that they followed, they were fol-
lowed by an unintelligible waiver of the rights, and also
taken a period of custody for which there was and has
not been established any probable cause to hold the de-
fendant for any questioning whatsoever. That comes
under the case of —
31
THE COURT: A Supreme Court case?
MR. CRIMI: It is a Supreme Court case. It started
in New York. It begins with an M. I can supply the
Court with that case.
THE COURT: It is a Supreme Court case?
MR. CRIMI: It is a Supreme Court case.
THE COURT: Ido not know what it is.
[81] MR. CRIMI: It begins with an M, and I con-
fuse it with Miranda. Morales versus New York. That
ease held that any questioning during the period which
the defendant was in custody without there being prob-
able cause vitiates any questioning or any statement
taken during that time.
THE COURT: Your motion, in all respects, is denied.
MR. CRIMI: Exception, Your Honor.
THE COURT: On your motions.
MR. CRIMI: Exception, Your Honor.
THE COURT: Have you anything, Mr. Donovan?
MR. DONOVAN: Nothing, Your Honor.
MR. CRIMI: The defendant wishes to testify.
IRVING JEROME DUNAWAY, Defendant, called
herein as a witness on behalf of himself, having first
been duly sworn, was examined and testified as follows:
DIRECT-EXAMINATION
BY MR. CRIMI:
Q. Would you kindly state your name, please?
A. Irving Jerome Dunaway.
Mr. Dunaway, would you please speak as loudly
as you [82] possibly can. Are you the defendant in this
case?
Yes.
How old are you now?
Nineteen.
When were you born?
November 28, 1952.
Did you gradaute from high school?
No, I didn’t.
>POPO POD
32
Q. How far did you go in school?
A. To the 10th grade.
Q. When did you finish the 10th grade?
A. 1969.
Q. Now, did there come a time on August 11, 1971,
at approximately 8:30 in the morning that you saw some
policemen?
A. Yes.
Q. Can you tell us where you were at that time?
A. I was at a friend’s house, 102 Walnut Street.
Q. Tell us what happened at that time and place?
A. About eight o’clock my sister came over. She
told me that the police were at my house on Broad
Street. She said they wanted to question me about some-
thing. So, I opened the door to go home on Broad Street.
[83] Q. Allright. Where do you live?
A. 865 Broad Street.
How far is 865 Broad Street from that Walnut
Street address that you were on?
A. About a half a block.
Q. Your sister had come over to Walnut Street and
brought that message to you?
A. Yes.
Q. After she had given you that message, you then
did what, if anything?
A. I was leaving to go to my house on Broad Street.
Q. All right. Well, then, tell us what happened as
you were leaving?
A. As I walked out the door there was a detective
at the bottom of the steps. As I came down the steps
he grabbed me by the arm, and he called another detec-
tive from the rear of the house. The other detective
came and he got me by the belt of the pants, and then
we started walking toward Broad Street. When we got
around to Broad Street there was another detective in
the cleaner’s next door on the telephone. They called,
and then they put me in a car and we left.
Q. All right. At the time that you came out of the
door, [84] can you tell us whether or not the detective
33
asked you who you were, or any conversation whatso-
ever?
A. No. We just told the other detective—he just said,
“T got him.”
Q. All right. Now, then, you eventually got in the
car?
A. Yes.
Q. Do you recall where you were sitting in the car?
A. In the back seat.
. Was there anybody else sitting with you in the
back seat?
A. There was one detective in the back seat.
Q. Now, these two detectives that you have talked
about, did you see him here testifying today?
A. Yes.
Q. You did?
A. Yes.
Q. Once you got into the car, where did you go, if
anywhere?
A. To the Detective Bureau, Civic Center.
Q. Now, was there any conversation in the car con-
cerning what they wanted to talk to you about or any
conversation about anything?
A. No. I only asked them why they wanted to talk
o me.
Q. What did they say?
[85] A. Nothing.
Q. So, they did not converse with you the facts of
this case?
A. No.
Q. All right. Have you any recollection about what
time it was when you got to the police headquarters?
A. About twenty or quarter of nine, or nine o’clock.
Q. Do you know where they took you?
A. They took me to a room in the Detective Bureau.
Q. All right. Now, the two detectives that picked
you up, were they ever in that room with you?
A. I don’t remember.
Q. Who was in the room with you, if anyone?
A. At first they put me in a room and they left.
Then, another—I think it was a lieutenant came.
34
Q. Did he talk to you at all?
A. Well, he told me—first, he asked me did I know
a Ronald Adams, and then he asked me do I know a
Hubert Johnson. Then, he told me that he had got some
information from Hubert Johnson that I and Ronald
Adams were in the pizza parlor on Genesee Street.
Q. Allright. This was a lieutenant, was he?
A. I think it was a lieutenant.
[86] Q. Was it anybody that testified here today?
A. Yes.
Q. Well, which one of the fellows that testified today
was it?
A. The third one.
Q. The white-haired fellow?
A. Yes.
Q. All right. Now, before he—strike that out. When
did he, if he did, advise you of your right to have an
attorney, your right to have an attorney if you could
not afford an attorney, of your right to remain silent, of
your right to know that anything you said. would be
held against you? When did he advise you of those
rights?
A. Just before he got ready to take the statement.
Q. Now, when you say got ready to take the state-
ment, what do you mean by that?
A. When the man came in with the shorthand, that
wrist shorthand.
Q. So, that up to the time to just before the man
came to take the statement, you say you were not ad-
vised of any of the rights; is that correct?
A. Yes.
[87] Q. Now, how long was it from the time that you
go to headquarters to the time that the man came down
to take the statement?
A. Between forty-five minutes and an hour, I’d say.
Q. During that time were you talking to the de-
tectives?
A. Yes.
Q. How many people were in there, the one person
that you were talking to or more than one?
A. I think it was three.
35
Q. Three?
A. Yes.
Q. You were talking to these people while you were
there?
A. Yes,
Q. During that time did you draw these diagrams?
A. Yes.
Q. Now, you drew these diagrams before you were
told about your various rights; is that correct?
A. Yes.
Q. During that time did anybody threaten or abuse
~*~ or ~ you or anything like that, Irving?
. No.
Q. Your answer is no; is that correct?
A. No.
[88] Q. I want to show you in this Exhibit 1, and
outside of today, when was the first time that you saw
this, if you did, this particular Exhibit?
A. The morning after my arrest.
Q. That would be August 12th?
A. Yes.
Q. About what time, if you can recall, did a sten-
ographer or the man who came to take the statement,
about what time was it?
A. It was after ten o’clock.
Q. After ten o’clock?
A. Yes.
Q. When that man came down, then, what if any-
thing was said or done in relation to your rights?
A. I was told my rights, then, after we came down.
Q. All right. After you were told your rights, then
they started asking you questions again?
A. Yes.
Q. Now, Irving, is that the first time you were told
your rights from the time you were pick :
that morning? y picked up at 8:30
A. Yes.
Q. Then, you did discuss and answer questio
*) [ — took them down; is that right? ns, and
. Yes.
36
Q. Later on that day did there come a time that you
saw the detectives again?
A. Yes.
Q. About what time was that?
A. It was at night. I’m not sure what time it was.
Q. What occurred then, if anything?
A. The detective asked me if I know where they
could find a Ronald Adams.
Now, how many detectives were there at that
time?
A. Two.
Q. Two?
A. Yes.
Q. Did you see them here today in court?
A. Yes.
Q. You do not know their names, do you?
A. No.
Q. Would it refresh your recollection if I said the
third and fourth detective?
A. Yes.
Q. That testified here?
A. Yes.
[90] Q. Now, before they started to talk to you at
that time, did they say anything about your rights or
remind you of your rights or anything?
A. No.
Q. How long did you talk to them that night?
A. About twenty-five or ten minutes.
Q. Can you tell us whether or not you had requested
them to come and see you that night?
_I don’t know.
You don’t remember?
No.
When did you see them again, if any?
After that night?
Yes.
The next morning.
Where was that?
. Well, one detective came upstairs and got me from
the city lockup.
rPOPOPOPOD>
37
Q. Where did you go?
A. To the detective bureau.
Q. What happened when you got there?
A. He told me that he wanted to take another state-
ment.
All right. Before they took that statement from
you, [91] did they say anything to you about your
rights?
A. Yes. He told me my rights.
2 <0 the stenographer was present at that time?
. Yes.
Q. You did then answer questions; is that correct?
A. Yes.
Q. Well, on the two occasions prior to the questioning
of the statements that you were told your rights, can
you tell us whether or not you understood what was said
to you and what you were waiving? Did you understand
what they were telling you?
A. I really didn’t understand.
Q. . by you ever been questioned by police before in
your life
A. No.
Q. Have you ever been in an interrogation room
before?
A. No.
Q. Now, throughout all of this—strike that out. All
these times that you talked to the detectives, did they
at any time hit you or physically abuse you at all?
A. No.
MR. CRIMI: That is all. You may examine.
[92] CROSS-EXAMINATION
BY MR. BERGIN:
_ Q. Mr. Dunaway, you have gone to the 10th grade
in Rochester ; is that right?
A. Yes.
Q. Your education?
A. Yes.
38
That was at Madison High School?
. Yes.
Where did you go to school before Madison?
Number 30 School.
Is that in the City of Rochester?
Yes.
. How long had you lived in Rochester? Were you
born in Rochester?
A. Yes.
Q. You attended schools in the Rochester City Dis-
trict?
A 2a.
Q. Throughout your ten years of schooling?
A. Yes.
Q. Where was the primary school? You gave me a
number. Where was that located; in the City?
A. I think it was Otis Street.
Q. How many grades did you go there?
[93] A. I finished the 6th grade.
Q. Then, where did you go?
A. Madison.
Did you go to Junior High School at Madison,
OPOPOpo
then?
A. Yes.
Q. Then to the regular high school after junior; is
that right?
Yes.
What did you do after you left school?
I went to Job Corps.
To the Job Corps?
Yes.
Did you work there?
Yes.
What type of work did you do there?
Electronics.
Electronics?
Yes.
. Did you work for an employer, for some company,
or what?
A. No, it was like a school.
OPOPOPOPOPOP
39
Q. Where is that located?
A. I was at a camp in Edison, New Jersey. I was
transferred from there to Indianapolis.
[94] Q. What did you study in Edison, New Jersey?
Electronics.
From there you went to Indiana?
Yes.
What did you study there?
Electronics.
When did you leave Indiana?
. I can’t remember, but I stayed in Job Corps for
six months.
Q. Where did you go from Indiana, from your work
there?
>OPOPODP
A. Back home.
Q. Back to Rochester?
A. Yes.
Q. Did you work here back in Rochester when you
came back or not?
Not as soon as I got back.
But, did you obtain employment sometime later?
Yes.
Where did you work then?
I think it was the Farm Metal Division.
What? 7
Farm Metal Division.
Metal Division?
A. Yes.
Q. Who was at 102 Walnut Street? You said there
was a friend who lived there?
A. A friend of the family’s, yes.
Q. That is where you were arrested?
A. Yes.
Q. You say the police officers did not say anything
to you at all; they just grabbed a hold of you and took
you in?
A. Well, after the first one grabbed my arm, he told
the other one, “I got him.” That was all he said.
Q. Had you ever met these officers before?
A. No.
POPO PO p
AN
[9
40
Q. They didn’t ask you who you were?
. No.
° Is there any way they would have known who you
were?
A. I’m not sure. ;
Q. You say they didn’t ask you who you were!
A. No.
Q. You heard the detectives say here this morning,
“Are you Mr. Dunaway,” and he said, “Yes.” Do you
deny that?
A. Pardon me? :
. You deny that you indicated your name to them?
[96] A. I don’t remember.
Q. You don’t remember what?
A. Telling them myname. —
Q. You don’t remember telling the detectives your
name?
A. No.
Q. You don’t think they just pick up anybody without
knowing who the person was if they didn’t have a name.
A. They—
. Pardon? :
z I don’t remember—I don’t remember telling no-
body.
Q. You don’t know?
A. I don’t remember.
_ What time was it that they came to this address
and took you in?
A. About eight o’clock.
Q. You have heard the detectives testify to the var-
ious times involved here. Were the detectives correct in
their times?
A. I don’t—
Q. ‘The times that the officers gave you, is that your
memory of the times when you were arrested, taken
downtown and gave these various statements?
A. No.
[97] Q. What?
A. Would you repeat that, please?
41
Q. All right. You said they came and got you about
eight o’clock?
A. Yes.
Q. Then, you were taken right downtown?
A. Yes.
Q. And at nine o’clock Detective Novitskey started
talking to you; is that right?
A. Yes.
Q. Then, a stenographer came later on and you were
talked to in the presence of the stenographer; is that
right?
A. Yes.
Q. How long were you there before the stenographer
came?
A. Hour and forty-five minutes.
Q. Are these diagrams that you were shown here, you
yourself drew those diagrams?
A. Yes.
Q. Were you told what to draw or anything?
A. Iwas told to draw it.
Q. You were asked to draw a diagram, but you pro-
vided the information on the diagram; is that true?
A. Yes.
[98] Q. Now, the evening of your arrest on August
11th, you were talked to again in the detention area by
the detectives; is that right? They came up and talked
to you again?
A. Yes.
Q. Did you ask someone in the jail there that you
wanted to say something further to the detectives?
A. I don’t remember asking him.
Q. You do not remember that?
A. No.
Q. Then, it is possible that you may have asked to
see the police again?
A. Yes.
Q. You are not denying that?
A. No.
Q. These statements that the police testified to, you
gave these statements voluntarily to the police; did you?
A. Yes.
42
MR. BERGIN: Thank you, sir.
MR. CRIMI: That is all.
MR. DONOVAN: [have no cross.
THE COURT: You may step down.
(Defendant excused. )
MR. CRIMI: I do not have any other witnesses, [99]
Your Honor.
THE COURT: Any witnesses, Mr. Donovan?
MR. DONOVAN: No, Your Honor.
THE COURT: Any rebuttal, Mr. Bergin?
MR. BERGIN: No, Your Honor.
THE COURT: The proofs are closed.
MR. CRIMI: Your Honor, I repeat each and every
motion that I made at the end of the Prosecution’s
presentation on this hearing, and renew the same with
the same force and effect, and with the added advise-
ment that the defendant has now testified and he has
testified that he was not advised of his rights until
shortly prior to the taking of the stenographic transcript
or stenographer statement; and also that he did not
comprehend fully the rights or the waiver of the rights
as said to him when they were said to him prior to
the transcript being taken.
I think that this proof certainly, if nothing else, either
negates or equals the proof of the Prosecution, and in
the case the Prosecution has not met its burden and at
this [100] hearing, to satisfy this Court that these state-
ments should be admissible as being not only voluntarily
made, but also as made following the proper advice as
dictated by Mirana versus Arizona and other cases
which have followed suit.
THE COURT: Is there anything you wish to say,
Mr. Donovan?
MR. DONOVAN: Nothing, Your Honor.
THE COURT: Mr. Bergin?
MR. BERGIN: I just urge upon the Court the fact
that this defendant is an educated or a person who is
brought up in Rochester. He went to the city schools
in Rochester, 10th grade. He was given an opportunity
43
to study electronics out of state. The detective testified
here as to the advising of his rights and the defendant
said at that time that he understood them.
I think that the proof is sufficient on this hearing,
Your Honor.
THE COURT: Upon all the testimony received, I
find that the People have proved beyond a [101] reason-
able doubt that the defendant Dunaway intelligently un-
derstood the warnings and knowingly expressed his
waiver of his constitutional rights.
The statements given were entirely voluntary. They
were knowingly made and were made with the know]
of the so-called Miranda rights. —
Your motion, in all respects, is denied.
MR. CRIMI: Exception, Your Honor, with respect.
7 * =e *
44
DECISION OF APPELLATE DIVISION AFFIRMING
JUDGMENT OF CONVICTION
People v. Dunaway (Irving) .... 6-29-73... .4th Dept.
COURT OF APPEALS OF NEW YORK
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT
Vv.
IRVING JEROME DUNAWAY, APPELLANT,
ET AL., DEFENDANT
Argued September 9, 1974; decided October 23, 1974
Crimes—murder—contentions by defendant, convicted
of felony murder and attempted robbery, that statements
which, together with hand drawings, were made by him
at police headquarters, and which, following pretrial
hearing, were found to have been voluntarily made after
he was advised of, and waived, his constitutional rights,
were elicited following seizure of his person without prob-
able cause, that he was not advised of his rights until
after he made oral statements and drawings, that People
failed to prove he intelligently and understandingly
waived his rights, that admission of photographs of dece-
dent constituted prejudicial error, that prosecutor’s sum-
mation deprived him of fair trial, and that sentence im-
posed upon him was excessive—judgment of conviction
was properly affirmed.
People v. Dunaway, 42 A D 2d 689, affirmed.
APPEAL, b rmission of an Associate Judge of the
Court of pln from an order of the Appellate Divi-
sion of the Supreme Court in the Fourth Judicial De-
partment, entered June 29, 1973, which affirmed a judg-
ment of the Monroe County Court (GEORGE D. OGDEN, J.),
45
rendered upon a verdict convicting defendant of felony
murder and attempted robbery in the first degree, sen-
tencing him, upon the murder conviction, to an indeter-
minate term of 25 years to life, and, upon the attempted
robbery conviction, to a concurrent indeterminate term
with a maximum of 15 years. Defendant and one
Thomas James Mosley were tried jointly for the fatal
shotgun shooting of one Philip Argento, the proprietor
of a pizza shop, during an attempted robbery which oc-
curred on the night of March 26, 1971. Defendant tes-
tified that he had planned the robbery with Mosley and
one Adams, a juvenile who had actually fired the shot-
gun, and who was a prosecution witness; that he had
seen Mosley give Adams the shotgun earlier in the eve-
ning, but that.he did not know Adams had it with him
when he accompanied him to the pizza shop. In the
Court of Appeals defendant argued that statements
which, together with hand drawings, he had made at
police headquarters, and which, following a pretrial hear-
ing, were found to have been voluntarily made after he
was advised of, and knowingly waived, his constitutional
rights, were elicited following a seizure of his person
without probable cause; that he was not advised of his
rights until after he made his oral statements and the
drawings; that the People failed to prove he intelli-
gently and understandingly waived his rights; that the
admission of photographs of decedent constituted preju-
dicial error; that the prosecutor’s summation deprived
him of a fair trial, and that the sentence imposed upon
him was excessive.
Charles F. Crimi for appellant.
Jack B, Lazarus, District Attorney, for respondent.
Order affirmed; no opinion.
Concur: Chief Judge BREITEL and Judges GABRIELLI,
JONES, WACHTLER, RABIN and STEVENS. Taking no part:
Judge JASEN.
ee ee ee
46
SUPREME COURT OF THE UNITED STATES
ORDERS
June 30, 1975
No. 74-5913. DuNAWAY v. NEw York. Ct. App. N. Y.
Motion for leave to proceed in forma pauperis and cer-
tiorari granted. Judgment vacated and case remanded
for further consideration in light of Brown V. Illinois,
ante, p. 590. Reported below: 35 N. Y. 2d 741, 320
N. E. 2d 646.
47
COURT OF APPEALS OF NEW YORK
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT
Vv.
IRVING JEROME DUNAWAY, APPELLANT,
ET AL., DEFENDANT
Reargued November 17, 1975; decided December 29, 1975
Crimes—confessions—after Court of Appeals affirmed
order of Appellate Division which affirmed judgment of
County Court convicting defendant of felony murder and
attempted robbery, United States Supreme Court re-
manded case to it for further consideration in light of
Brown v Illinois (422 US 590)—on reargument follow-
ing remand, order of Appellate Division is modified and
case is remitted to County Court for further hearing and
proceedings—prior to defendant’s trial, motion was made
to suppress statements and drawings made by him on
ground that they were obtained during period of illegal
detention subsequent to illegal seizure of his person with-
out showing of probable cause, and court ruled only that
statements were voluntarily given after proper Miranda
warnings and therefore were not excludable on Miranda
grounds—no findings were made as to nature of deten-
tion, if that it was, and, if it was, whether there was
probable cause for detention, and present record is in-
adequate to support determination of that question—
accordingly, there must be factual hearing and such
other proceedings as may be necessary to determine is-
sues and, in event there was detention and probable
cause is not found for such detention, to determine fur-
ther question as to whether making of confessions was
rendered infirm by illegal arrest.
REARGUMENT, following a remand by the United States
Supreme Court, of an appeal, taken by permission of an
Associate Judge of the Court of Appeals, from an order
of the Appellate Division of the Supreme Court in the
Fourth Judicial Department, entered June 29, 1973,
Ss
48
which affirmed a judgment of the Monroe County Court
(GEORGE D. OGDEN, J.), rendered upon a verdict convict-
ing defendant of felony murder and attempted robbery
in the first degree. (See 85 NY2d 741, affg 42 AD2d
689.)
Charles F. Crimi for appellant.
Jack B. Lazarus, District Attorney (Edward J. Spires
of counsel), for respondent.
MEMORANDUM. This case has been remanded to us by
the Supreme Court of the United States “for further con-
sideration in light of Brown v. Illinois [422 US 590].”
(Dunaway v. New York, 422 US 1053.) We had previ-
ously affirmed appellant’s conviction for felony murder
and attempted robbery (35 NY2d 741).
On March 26, 1971, two men entered a pizza shop in
Rochester, New York, and, in the course of an attempted
robbery, one of them shot and killed the proprietor. Four
months later, on August 11, 1971, three police officers
went to Dunaway’s home to question him about his par-
ticipation in the robbery. If they had any reason for
suspecting him the record does not disclose it. Finding
him at a nearby house, the police, according to their own
testimony, asked Dunaway “to come downtown * * * to
talk * * * about something”.
There, defendant was taken to an interrogation room
where he was given warnings required by Miranda Vv.
Arizona (384 US 4386). He then waived his right to
counsel and consented to talk to the detectives. During
the course of the interview, Dunaway, at the request of
the officers, drew two incriminating sketches and made
two incwlpatory statements.
Prior to trial, a motion was made to suppress the
statements and drawings on the ground that the evidence
was obtained during a period of illegal detention subse-
quent to an illegal seizure of appellant’s person without
a showing of probable cause. The court ruled only that
the statements were voluntarily given after proper
Miranda warnings and therefore were not excludable on
Miranda grounds. The Appellate Division affirmed that
decision without opinion (42 AD2d 689).
Gk...
49
Specifically, no findings were made as to
the detention, if that it was, and, if it hod per vet
there was probable cause for the detention and as the
District Attorney commendably concedes, the present rec-
ord is inadequate to support a determination of that
question. Accordingly, this case must be remitted to the
Monroe County Court for a factual hearing and such
other proceedings as may be necessary to determine the
issues (Morales v. New York, 396 US 102) and. in the
event there was a detention and probable cause is not
found for such detention, to determine the further ques-
— _ hacag ad = making of the confessions was
red infirm the ille }
ns 12 ne th netiy gal arrest (see Brown v. IIli-
ief Judge BREITEL and Judges Jas
JONES, WACHTLER, FUCHSBERG, pt ree cn glaring
On reargument: Order modified and case remitted to
the County Court, Monroe County, for further hearing
and proceedings in accordance with the memorandum
herein and, as so modified, affirmed.
50
STATE OF NEW YORK
COUNTY COURT
COUNTY OF MONROE
THE PEOPLE OF THE STATE OF NEW YORK
—vs—
IRVING JEROME DUNAWAY, DEFENDANT
Presiding Judge: HONORABLE DONALD J. MARK,
MONROE COUNTY COURT JUDGE.
SUPPRESSION HEARING—August 3 and 4, 1976
[3] THE COURT: For the record, this is the case of
the People of the State of New York versus Irving Je-
rome Dunaway. This is a hearing mandated by the Court
of Appeals decision dated December 29, 1975, regarding
38 NY 2812 to determine whether the Defendant, Irving
Jerome Dunaway’s confession was valid or invalid under
the principles enumerated under US, Brown versus II-
linois, 442 US 590, June 26, 1975.
Is that a correct statement of the proof of the hearing?
MR. CRIMI: Yes.
THE COURT: Are the People ready to proceed?
MR. SPIRES: Yes.
THE COURT: Is the defense ready?
MR. CRIMI: Yes, your Honor.
ANTHONY L. FANTIGROSSI, called herein as a wit-
ness, first being duly sworn, testified as follows:
51
DIRECT-EXAMINATION
BY MR. SPIRES:
4 om er identify yourself?
; am Chie i
Palle Bacenaae etective of the Rochester, New York
Q. Your rank is major?
"a - Major.
- Tell us what rank and iti
! tion you had j
A. Detective L <a F > Ae
Crise eae leutenant in charge of the Physical
Q. As such were you involved i i
ed in the investigati
er os ane a on or about ~ meee
i i ’
as the Tower of Pizza lS prin = — _—
. We :
wi re you so involved on or about August 10,
*) pe: sir, I was.
° nd did a devel
you wens teeaieals velopment occur on August 10th that
. Yes, sir.
Q. Tell us about that.
Q. This was Mickelson wh j
done this?
A. Yes, sir. He also info :
, sir. rmed us about
ed = name of Jones. I got the report leis tea pes
Jail pending an indictment for burglary. I went to the
52 :
jail and interrogated Jones for approximately two hours.
The information they had given us was Jones admitted
to Sparrow that he and Dunaway committed a robbery
and killing. In talking to Jones he finally, after two
hours, admitted that he had nothing to do with it. The
reason he knew is he was serving time at the jail with
another man by the name of Adams. Adams told him.
MR. CRIMI: I object. We are getting into hearsay
far removed.
MR. SPIRES: It is admissible on the issue of probable
cause to arrest. The argument as to whether or not it is
insufficient hearsay, is to be made at the conclusion of
the proof.
MR. CRIMI: I could understand allowing what the
informant tells the witness, but now he is telling us
[6] what the informant heard from somebody else. I
think we are getting into a field of double and triple
hearsay. That is my objection.
MR. SPIRES: I will respond later.
MR. CRIMI: I have an objection.
THE COURT: Off the record.
(Whereupon there was an off the record discussion. )
THE COURT: Please excuse the interruption. The
objection is overruled.
Q. Major Fantigrossi, since the recess have you had a
chance to refer to your report concerning the matter?
A. Yes.
Q. Does that report indicate whether or not the man
you described as Jones, whether that was the correct
name?
A. No, James Cole.
Q. If I may substitute for the name Cole for Jones,
please. You used it and after you used it, after you had
spoken to Mr. Cole for two hours, he told you you were
about to—
MR. CRIMI: I object, that is leading.
THE COURT: Sustained.
Q. What did Mr. Cole tell you?
A. He stated to me at about a month or two before,
while at jail, that there was a fellow by the name of
53
Adams in jail [7] with him. At the time
" when I
speaking, Adams was sentenced to Elmira er told
me that Adams described to him that his brother referred
to as bad was involved in the Tower of Pizza shooting
and his brother did the shooting which he did not intend
cae aaa the be he explained it to him. The
im, a fe i
rimosoelge te ses ow by the name of Irving, also
a Pee that conclude pretty much your conversation
A. Yes, sir.
: der did you do then?
- Back to the Public Safety Building and I directed
several teams of detectives to t i age
in Adams shel aiid go out and see if they could
; ad you, at that time, determined at the tim
gave the direction to these teams of detectives ut Giat
time, to determine who Axlerod was?
eg was Dunaway.
- You determined that through your investigation?
A. We first received the information as Irving, the
picture was picked out by Sparrow.
Fen CRIMI: I object to all of this. This is a series
0 hearsay transactions in determination and conclusions
made without any basis in fact. It [8] seems to me—
THE COURT: Overruled.
MR. CRIMI: Exception.
ot COURT: Noted.
; think you interrupted in the middle of
nS 0 as iy ona was whether or not you ‘had -
ne at Dunaway was Ax
ne y lerod through the IDMO
MR. CRIMI: It is leading and improper]
THE COURT: Sustained as iadiaw ar Sgensen
alt ow did you determine that Dunaway was Axle-
A. That was his nickname.
2 rst yp dts determine that?
; on’t know if it was on the record th is-
covered that Dunaway was also referred to Aeon ss
cantina
Se
54
Q. When you directed teams of detectives to seek
Adams and Dunaway, what direction, if any, that you
recall, did you give to the detectives concerning Mr.
Dunaway?
A. Pick him up and bring him in.
Q. Did you at that time that you issued these direc-
tives believe you had probable cause to arrest Dunaway?
MR. CRIMI: I object to that question.
THE COURT: Sustained. I think that is a question
for this Court to determine.
[9] Q. Did you at any time direct any of these detec-
tives to arrest Dunaway?
MR. CRIMI: I object to the word “arrest.”
THE COURT: Overruled.
THE WITNESS: I don’t know if I said arrest and
investigation. The name comes up and suspect’s name
comes up and we pick them up and bring them in for
questioning.
Q. Your instruction was to pick him up and to bring
him in?
A. Yes.
MR. SPIRES: No further questions.
CROSS-EXAMINATION BY MR. CRIMI:
Q. Did you testify before the grand jury on this
matter?
A. I don’t believe I did.
(Whereupon there was an off the record discussion. )
MR. SPIRES: In the event Major Fantigrossi testi-
fied, it will be furnished to you.
THE COURT: If Mr. Crimi wants to call him back,
it will be granted. -
MR. CRIMI: If I call you Lieutenant, excuse me.
You have been promoted since the last time I had you.
What time on August 10, 1971, that you received a call
from Detective Mickelson?
A. May I refer to my report?
[10] Q. Yes.
A. 20:30 hours, would be 8:30 in the evening.
55
Q. That he told you at that time that he had infor-
mation from an informant, is that correct?
A. Yes, sir.
Q. That information was that a James Cole was one
of the people who had something to do with the killi
Philip Argento? 4 cheat
A. Correct.
Q. During that phone call with Mickelson, did he
mention anything about Dunaway or Adams?
A. No, sir.
Q. Did he tell you who the informant was who told
you James Cole was one of the participants?
A. Yes, he did.
Q. Who was the informant?
A. O. C. Sparrow.
_ Q. So, when you left to go to the Public Safety Build-
ing, you were thinking in terms of having James Cole
picked up, is that correct? ;
A. First I wanted to talk to O. C. Sparrow before we
went to Cole. I wanted to talk to Sparrow. Sparrow
was interrogated.
Q. You wanted to check out the information that Cole
had given [11] to Mickelson?
. No, Sparrow had given to Mickelson.
Sparrow had given to Mickelson?
Yes.
Q.
A.
2. Then you did talk to Sparrow, is that correct?
Q.
>
Yes, ‘sir, I did.
Had you ever had occasion to talk to Sparrow be-
fore?
A. ¥ don’t believe so.
Q. Wag Sparrow told you that Cole had said to him
that he, Cole and someone by the name of Irving had been
involved in the shooting?
A. Yes, sir.
_ Q. It turned out it wasn’t true that Cole was involved
in the shooting?
_ We found that out after we questioned him at the
jail.
Q. Cole was already incarcerated?
A. Yes, sir.
56
Q. Now, you also testified that you then talked to
Adams, is that correct?
A. No.
Q. You didn’t?
A. No, I didn’t testify to talking to Adams.
. Somebody talked to Adams, who was it?
[12] A. You mean Dunaway was picked up?
Q. Yes, sir.
A. No, sir, Adams was picked up after Dunaway.
Q. There is two Adams?
A. No, the other Adams was in Elmira. Cole had
talked to Adams. :
Q. Cole told you he had talked to Adams, which
Adams?
A. This is Hubert Adams, the brother of the 15-year-
old that was arrested on the case.
. And Cole, did you talk to Cole and Cole stated to
you that he had talked to Hubert Adams?
A. Yes, sir.
Q. Two months before?
A. I am not sure. Let’s see, yes, about two months
before, right.
Q. That Hubert Adams had told him that his brother
BayBay was an individual by the name of Irving, had
committed this robbery and murder at the Tower of
Pizza?
A. Yes. ;
Q. Now, had you ever had any dealings with James
Cole?
A. - No, sir. ;
Q. And Cole denied that he was involved, is that cor-
rect?
A. Yes, sir.
[13] Q. Based on what Cole had told you, you then
directed certain men to pick up Adams and Dunaway, 1s
that correct?
A. Yes, sir.
Q. Now, how did you bring that about? How did you
make that direction?
A. Well, I am trying to remember as best I can. If I
could go with the usual procedure, I informed them to
57
bring Dunaway in for questioning and Adams in for
questioning.
Q. How many men did you call in?
A. Iam not sure. I may have called another team.
Q. When you say “team”—
A. Two men.
Q. And, well, one of the teams must have been Mickel-
son and Luciano?
A. Right.
Q. Were they on duty at that time?
A. I believe Mickelson was just finishing. I am not
sure, it is hard for me to remember. Mickelson was in-
volved in the investigation. When they called me in with
Detective Ruvio. There is two or three people, this is
Swory C, detectives, they do not work in Physical Crimes
quad.
Q. Were they in headquarters?
[14] A. They were in my office before I got there
originally.
Q. Both teams were in your office?
A. I called the other team after I got the information.
Q. Where was the other team, on duty?
A. No, they went home. ~
Q. So, you called them at home and told them—what
did you tell the other team?
A. They were looking for Dunaway and Adams.
Q. You told them to come in?
A. I believe Novensky and Joe Dominick, I am not
sure if they came in that night or not. They were the two
detectives. It is hard for me to recall who I called in at
that time. I don’t have it on my report.
Q. When you gave instructions to your subordinates
to pick up an individual, you mean for them to actually
bring them physically to headquarters?
A. Definitely, sir.
Q. I take it you made no application for an arrest
warrant?
A. No.
Q. You just told them go out and pick them up and
bring them in?
A. Yes, sir.
ee
58
. Based upon the information that you had received
from Cole, [15] is that correct?
rrect.
Now you never yourself talked to Hubert Adams?
No, sir.
Do you know whether Mickelson did? _
No, sir, he wasn’t even here. He was in Elmira.
Who is Hubert Johnson, do you know?
Hubert Johnson?
. Yes. Did you ever hear that name? I am looking
at this now.
A. I didn’t hear of that name. No, sir.
Q. Now, were you contacted radio-wise with any of
the teams as to whether or — they had successfully suc-
in picking up Dunaway
ea Not en 5 I was in my office, I stated that I
didn’t know how late I was there. Dunaway was picked
up the next morning. I am not sure if I was in my office
yhen he was picked up.
“e Did se leave falivenitieg that they were to call
you when he was picked up?
. Yes, sir.
° Along with your direction, they were to be picked
up and brought to the Public Safety Building?
[16] A. Right.
Q. He was going to be questioned, is that right?
A. Correct, sir.
Q. Did you instruct them at the time they picked him
up that they would tell him what he was being picked up
for?
A. They knew just as much about the case as I did.
I doubt very much if I gave them instructions. —
Q. Did you advise or instruct them to advise him of
his rights when he was picked up? ; ;
A. That is the standard procedure. I didn’t give them
that type of instruction. They are aware of it already.
Q. Did you give them any instruction in the event that
Dunaway didn’t want to come down to headquarters?
A. No, I did not.
OPOPO poy
59
Q. You just said to them to go out and pick him up
and bring him in, is that correct?
A. Correct.
Q. I take it, obviously, if you said nothing further
that you didn’t tell them to make an appointment with
him to come in on some other day?
A. No, sir, I wouldn’t advise them that way.
Q. Did you do any other further checking before you
gave those instructions as to the—Mr. Dunaway’s involve-
ment in that [17] matter?
A. Did I do anymore what?
Q. Did you check out Cole’s story further before you
told the teams to go out and pick up Dunaway?
A. No, sir.
Q. Did you at any time interrogate Dunaway?
A. I believe I spoke to him after he was brought in.
Q
A
Q
a
Yes.
That was—do you recall whether this was before
or after Detective Novensky spoke to him?
A. I believe—I just can’t recall. I know I did speak
to Mr. Dunaway.
Q. At some point?
A. Yes, sir.
Q. But you were not there when he was physically
picked up at 102 Walnut Street?
A. No.
Q. Did you get a call via the radio or other form of
communication when he was picked up at the time he was
picked up?
A. I don’t recall, but I can’t recall how I found out
about it, sir.
Q. At any time did you apply for an arrest warrant?
[18] A. No, sir.
Q. There was no question in your mind that he was to
be picked up and was to be brought to police headquarters
for questioning?
A. No question at all, counselor.
. That was when, in the morning?
60
Q. And you did not give any instruction that he should
be questioned where they found him or made an appoint-
ment for him to come back later?
A. No, sir.
Q. Now, actually, August 10, 1971, when you received
this information, was some three or four months after the
murder, is that correct?
A. Yes.
Q. Where this crime took place was quite a distance
from where they picked up Mr. Dunaway, is that correct,
sir?
A. Walnut Street, I would say is a mile, a mile and a
half from Genesee Street.
Q. It is not in the approximate neighborhood?
A. No, sir.
Q. This information that Mr. Cole related to you was
in itself a month or two old when he had talked to
Hubert?
A. Right.
MR. CRIMI: No further questions.
[19] REDIRECT-EXAMINATION BY MR. SPIRES:
Q. At this time you gave the instructions to detectives
to pick up Dunaway and bring him in. Did you ever con-
sider applying for an arrest warrant?
MR. CRIMI: I object.
MR. SPIRES: You asked him.
THE WITNESS: | I didn’t have enough information to
get a warrant.
RECROSS-EXAMINATION BY MR. CRIMI:
You had not enough information to get a warrant,
Major, but there is no question that you wanted him
physically brought down to headquarters and questioned
at headquarters, is that correct?
A. That’s correct.
Q. I take it that you are saying you didn’t think that
‘your information would have required an application for
an arrest warrant?
A. That is correct.
61
Q. You're allegedly saying that your information was
sufficient to physically pick up a suspect and bring him
down to headquarters?
A. I wouldn’t do it any other way, counselor.
Q. And do you think that—did you tell him he had to
come [20] down voluntarily or had to bring him down?
A. I told him to bring him in.
Q. You told them to arrest him?
A. If you are talking about taking away the freedom
of movement, if that is the word, yes, then it is arrest.
Q. Yet if you restricted his freedom of movement and
it is an arrest, you still don’t think you had probable
cause, do you?
A. I think I had probable cause to bring him in and
rete him up. I doubt if I had probable cause to charge
im.
Q. You differentiated between probable cause to arrest
a person and probable cause to charge a person?
A. Right, counselor.
Q. How do you differentiate a probable cause for a
warrant of arrest from probable cause from seizing a
person and bringing him in to headquarters?
A. Probable cause to obtain a warrant, you must have
enough information to substantiate a charge. In probable
cause of picking up a man for questioning, which is done
all the time based on information, this is done also.
Q. Well, it is not what is done—
A. That is to bring him in. I think I have that right
as a police officer. If I haven’t, I just found out.
[21] Q. You think you have the right to physically re-
move a person from his home and bring him down to
headquarters with insufficient information to get an arrest
warrant?
A. Yes, I would say yes.
Q. So, that you don’t want Mr. Dunaway to be de-
tained on the spot and questioned, you wanted him physi-
cally brought down to headquarters and in your interview
rooms to be interrogated?
A. That’s true, counselor.
MR. CRIMI: Thank you. That is all.
ee” Lott ae ae So ee!
eee
————eee
—
62
REDIRECT-EXAMINATION BY MR. SPIRES:
Q. As long as you are talking about standard pro-
cedures in this area, did you at any time direct your de-
tectives who were sent on missions to pick up suspects
and bring him in for questioning, did they have a par-
ticular procedure to follow?
MR. CRIMI: I object to the standard procedures.
They may be wrong for all I know.
MR. SPIRES: So, what—
MR. CRIMI: That is not the issue. What did they do
in this case?
MR. SPIRES: It certainly is. If their procedures are
to go out and pick up somebody and bring them in, [22]
they might not find it necessary to pick the person up.
This is the area that I want to find out.
THE COURT: I think you should give the question to
Officer Fantigrossi as to what the instructions were of
Fantigrossi of the teams.
Q. Let me ask a further question. I will strike that.
I think perhaps another witness may clarify the matter.
Thank you.
(Whereupon the witness was excused. )
GERARD LUCIANO, called herein as a witness, first
being duly sworn, testified as follows:
DIRECT-EXAMINATION BY MR. SPIRES:
Q. Before we proceed with the questioning, may I ask
Court to take judicial notice of the entire transcript of the
prior proceeding before Judge Ogden which constitutes
a pretrial hearing under the admissibility of the confes-
sion and statement so that the entire transcript may be
considered as evidence in the case.
MR. CRIMI: I quite frankly, I don’t know what the
procedure is and how these proceedings are to be handled.
I don’t know what your Honor wants as far as this hear-
ing is concerned. The mandate [23] from the Court of
Appeals seems to indicate they wanted to find out whether
there was an illegal detention or custody involved and
63
what effect that would have to the subsequent taking of
the statement.
Now, somehow I think that, however you want to
word it or phrase it, the records of the first trial, par-
ticularly the pretrial suppression hearing certainly should
be part of this proceeding, but this is on the other hand a
supplemental hearing. I don’t want to be restricted as to
what was in the record.
THE COURT: Insofar as applicable, the Court will
take into consideration the pretrial hearing and you are
not limited to follow the mandates of the Court of Appeals
and elicit any testimony that you find applicable to this
proceeding.
(Whereupon Mr. Spires commenced his direct-exami-
nation of Officer Luciano. )
Q. Now, Gerard Luciano, what is your present rank
and position?
. a I am Detective, Grade B, assigned to the Narcotics
quad.
Q. The Rochester Police Department?
A. Yes, sir.
[24] Q. You testified, did you not, at a previous hear-
ing before Judge Ogden in this matter?
A. Yes, sir.
Q. And have you had occasion before taking the stand
today to read over that prior testimony that you gave and
to refresh your recollection?
A. Yes, sir, I did.
Q. And referring, if I may, to your previous testi-
mony in 1971. I believe you went to Dunaway’s house
where Dunaway was located on August 11, 1971?
A. Yes, sir.
Q. I think you testified there was a time you came out
of the house?
A. Yes, sir.
Q. Did you see him emerge from the doorway of the
house?
A. Yes, sir.
Q. Then did you go over to him at that place?
A. Yes, sir, when he was coming down the steps.
64
Q. Did you, if you recall, touch him in any way?
A. No, sir, not that I can remember.
Q. Again, referring to your prior testimony, as I un-
derstand it, Detective Mickelson walked with Dunaway to
the police car?
[25] MR. CRIMI: I object to this. I am trying to
make a record here and referring to the Defendant, I
feel it would be ordinarily, if he asked what he did on
that particular day.
MR. SPIRES: I am trying to avoid duplicating the
record.
MR. CRIMI: I don’t know how you are going to re-
view the case going from the testimony here and going
back to the trial at the time or previous records.
MR. SPIRES: I am willing to let Mr. Crimi have
whatever leeway he needs on cross-examination as to both
questions asked, today or previously asked.
MR. CRIMI: That is not the point. The point is you
should ask him what he did on that particularly. day and
not referring to the testimony. How do I cross-examine
him? I object to the form of the question.
THE COURT: You want it treated as a de novo
hearing?
MR. CRIMI: Yes.
MR. SPIRES: I don’t think that is the intent of the
Court of Appeals. The issue is not developed in the prior
hearing.
THE COURT: I am sure your understanding of that
decision is correct.
[26] MR. SPIRES: I am trying to avoid duplicating
where Judge Ogden went through and agree the question
is leading. I explained why I was proceeding in that
fashion.
Q. Did you have any instructions from anyone that
morning, the morning of August 11, 1971 what to do with
relation to Dunaway?
A. No, sir.
MR. CRIMI: No?
THE WITNESS: No.
Q. How did you come to be at the premises where you
encountered Dunaway?
65
A. I was sent to the Public Safety Building to pick up
Mickelson and Ruvio. On the way back to the unit we
were working they decided to stop by Broad Street where
Dunaway lived to find out one more time if he was home.
Q. Did you go from the Public Safety Building to pick
up Mickelson and Ruvio?
A. No, sir, I went to the Public Safety Building to
pick them up.
Q. And then the three of you proceeded to Broad
Street to try one more time to locate Dunaway?
. Yes, sir.
[27] Q. You hadn’t previously tried to locate them?
A. No, sir.
Q. You and Mickelson and Ruvio had?
A. Yes.
. Were you just transportation for those two detec-
tives?
MR. CRIMI: I object, it is leading and suggestive.
THE COURT: Sustained as leading.
Q. Did you know the purpose of Mickelson and Ruvio’s
trip to Broad Street?
MR. CRIMI: I object to that, your Honor.
THE COURT: Overruled.
THE WITNESS: To see—
MR. CRIMI: It is calling for him to know the opera-
tion of the mind of Ruvio and Mickelson.
MR. SPIRES: Maybe they told him.
MR. CRIMI: That is hearsay.
MR. SPIRES: So hearsay is permitted by statute on
this hearing.
THE COURT: You may ask what they told him as to
the hearsay, it is overruled.
MR. CRIMI: Exception.
THE COURT: Exception noted.
Q. Did you know why they were going out there?
[28] <A. Yes, sir.
Q. Why?
A. To see if Dunaway was home.
Q. Do you know why they wanted to do that?
‘ A. Yes, sir, they were going to pick him up if he was
ome,
66
Q. Now, how do you know that?
A. They told me that.
Q. Who told you?
A. Mickeison.
Q
. What did he say?
MR. CRIMI: This is not on the probable cause, this is
plain hearsay. |
MR. SPIRES: Mr. Crimi made the same objection at
the original hearing. The U. S. Supreme Court, both
Federal and State Supreme Court said hearsay is ad-
missible when dealing with the case of probable cause to
arrest. Does this particular question have anything to do
with probable cause?
MR. CRIMI: I don’t, your Honor—I don’t want to
elongate the hearing. If there comes a time when this
individual, who is on the stand, says he did arrest Dun-
away, then I could see that the hearsay comes in. We
are at a point, from what I under- [29] stand, that he
was there as transportation for Ruvio and Mickelson. I
don’t think there is proper foundation laid.
MR. SPIRES: If I can, more than on the issue of
probable cause, Article 740 of the Criminal Procedure
Law, the procedure to be followed on the suppression
hearing which this is, hearsay evidence is admissible.
THE COURT: Is this relevant to probable cause?
That is Mr. Crimi’s objection.
MR. SPIRES: If he wants to object on those grounds,
I will let the Court rule. I believe it—
MR. CRIMI: My objection is that we have not estab-
lished what Officer Detective Luciano did there yet, as far
as I know.
THE COURT: Sustained at this time.
Q. I would ask the Court to note and Mr. Crimi to
note that the Court has taken judicial notice of this wit-
ness’s prior testimony. All that is in the record, I am
trying to bring out something additional we don’t have is
what the Court of Appeals wanted us to do.
Who was the first person to speak to Mr. Dunaway on
that morning of the 3rd?
[30] A. Detective Mickelson.
67
Q. And did you—were you with Mickelson when he
spoke to Dunaway?
A. I was present, yes.
Q. How far away were you when you first spoke?
A. In distance, I can’t remember. I was close enough
to see Mickelson and the front door and the steps.
_Q. Do you know if Dunaway said anything to Detec-
tive Mickelson?
A. No.
Q. You don’t know or he didn’t say?
o i I aged know.
. Do you know if you heard i i
tik to Sees y everything Mickelson
A. I heard Mickelson talk to Dunaway.
Q. Do you know if you heard everything Mickelson
— & Ser
. No.
Q. Can you tell us what you did hear Mickelson say
to Dunaway?
A. Mickelson said, ‘Axle Dunaway, d
to come downtown with i ce ear
Q. Do you want to come down?
MR. CRIMI: I object to your question. Let him
testify.
THE COURT: He is repeating it. Overruled
81 MR. CRIMI: Exception ‘
. Did you hear any response by Dun
. No, I did not. rl . sia
. What happened after you heard thi
—— by Detective Mickelson? feria ied
. Detective Mickelson waved me over to the porch
re he started down the steps and Dunaway came ro
m.
Q. And then?
A. We walked to the police car parked on Broad
Street.
Q. The three of you?
rs Yes, sir.
. At any time did you obse i
sana y rve Mickelson touch
A. No.
68
MR. SPIRES: No further questions.
(Whereupon the Court was in recess for the date
August 3, 1976.)
(Whereupon the Court convened on August 4, 1976.)
(Whereupon Mr. Luciano retook the witness stand,
previously sworn as a witness. )
MR. SPIRES: May I be permitted to ask another
question or two of the witness?
THE COURT: Yes.
(Whereupon Mr. Spires continued his direct-cxami-
nation of [82] Mr. Luciano.)
Q. Detective Luciano, did you have a conversation
with me a few minutes before court this morning?
A. Yes, sir, I did.
Q. What was the subject of that conversation ?
A. I stated to you yesterday when I testified yesterday
that I testified I heard Mickelson tell the man at the door,
Dunaway, do you want to come downtown with us. I
didn’t hear him tell Dunway, Mickelson told me.
Q. You are testifying something you stated yesterday
was incorrect?
A. Yes. When Mickelson waved me over to the porch
he told me, I told him do you want to come downtown,
we want to talk to you. He is going with us.
MR. CRIMI: I object. How does that have to do with
probable cause?
THE COURT: He is correcting the testimony, is that
correct, Mr. Spires?
MR. SPIRES: Yes, sir.
MR. CRIMI: I guess you overruled my objection.
THE COURT: I think you have a motion to strike at
the conclusion of the question and answer.
A. Then we proceeded to the police car.
[33] Q. Let me ask you to clear up the record. When
Detective Mickelson spoke to Dunaway on the morning of
August 11th, did you hear Detective Mickelson speak to
Mr. Dunaway?
A. Yes.
69
Q. Did you hear what he said?
A. Just Axlerod or Dunaway, that was it.
on The part about coming downtown was not done by
ul
A. No, sir.
Q. That was told to you later?
A. Right.
CROSS-EXAMINATION BY MR. CRIMI:
_ Q. Detective Luciano, the events you have been testify-
ing to occurred on August 11, 1971?
A. Yes, sir.
Q. I think you testified—strike that. About what time
was it that you went to the home of M
Broad Street? r. Dunaway on
A. Around 8:00 o’clock.
Q. In the morning?
A. Yes.
Q. What was your tour of duty that i
August 11, 1971? ag cap onli
. bi oa wr -Poyponee 3 to 3:00 in the afternoon.
Q. Prior :00 in the morning, had you had -
thing to do [34] with this particular case? : ws
No, sir.
Q. I take it that prior to 7:00 o’clock in the morning,
August 11, 1971, you had no conversation with Lieutenant
Fantigrossi?
A. No, sir.
Q. Not correct?
A. No conversation.
Q. Can you tell us—strike that. You started your
tour of duty at 7:00 that morning?
A. Yes, sir.
Q. I take it you went io the police headquarters?
A. No, sir.
2 pipet did you go?
. At the time we were working out of
the Police Academy on Scottsville Road. refrac tel
Q. That is where you reported that morning?
A. Yes, sir.
70
Q. Approximately an hour later you were on Broad
Street?
A. Yes.
Q. How did you get there?
A. By car.
. How did it come about that you got a car and went
to Broad [35] Street?
A. I picked up the car at the unit office and told to go
to the Detective Bureau and pick up Ruvio and come back
to the office.
Q. Was anything said to you as to why you were to do
that?
A. No, sir.
Q. You did come down to police headquarters from
the Academy with your car?
A. Excuse me, I did or didn’t?
Q. Did.
A. Yes, sir.
Q. What time did you get to police headquarters?
A. I don’t know 7:30, quarter after seven.
Q. And at that time, that time you picked up Mickel-
son or plainclothesman Mickelson and who else?
A. Ruvio.
Q. What directions, if any, were you given at that
point by either Ruvio or Mickelson?
A. They said let’s go by Broad Street and see if Dun-
away is home.
Q. Was that the only conversation you had about what
you were going to do that morning?
A. No, they said they were going to pick him up.
[36] Q. Did they tell you they had been looking for
him all night long?
A. Yes, sir, they said they had been there before.
Q. Did they tell you whether or not they had instruc-
tions to pick them up from Lieutenant Fantigrossi?
A. No, they said they were going to pick him up if he
was there.
Q. Did you discuss how he was going to be picked up?
A. I assumed just pick him up.
71
Q. Well, was there any particular plan discussed as to
who would do what and how you would execute the pick-
ing him up?
A. No.
Q. The only conversation you had from police head-
quarters from Broad Street was that you were going to
pick him up, is that correct?
I imagine there was another conversation.
You mean concerning this case?
Yes, sir.
That is all that was said?
More or less.
You all were armed?
Yes, sir.
You had—who was driving?
A. I drove down,
. And Mickelson and Ruvio, I take it one was in
the front and one in the back seat?
A. Yes. |
Q. Now, there came a time, then, you got to Broad
Street, is that correct?
A. Yes, sir.
Q. Do you remember the address at Broad Street?
A. Not the street number, no.
Q. What did you do when you arrived at Broad
Street?
A. We left the vehicle.
Q. No, what did you do, you left the vehicle?
A. And I stood in the driveway of the house by the
sidewalk and Mickelson and Ruvio went to the door and
entered the house.
Q. Were you talking about Broad Street?
A. Yes, sir.
Q. Now, you were on Broad Street. This was this
house between what street, if you recall?
A. Near Walnut Street.
Q. Very far away from Walnut?
A. No, sir, not that far.
TOPO PO POY
9
©
72
And from where you were standing on Broad
Street address, on [38] the driveway, could you see
Walnut?
A. Parts of it, yes.
Q. Was there no obstruction between you and Walnut?
A. I could see the intersection. That is about it.
Q. Now, how long was Ruvio and Mickelson in the
Broad Street?
A. I would say no more than five minutes.
Q. Now, during that five minutes you were in the
driveway, is that correct?
A. At the driveway and sidewalk, yes.
Q. Was there any reason why you were outside while
the other two were in?
A. Yes, I was just stationed outside to watch for any-
thing unusual.
Q. Was this pursuant to some instruction?
A. No, sir.
Q. Well, did you all leave the car on your own? You
decided not to go in and to stay outside?
A. The only thing I say to them, I will stay outside
and you two go in.
Q. Were you in charge of the operation?
A. No, sir.
Q. Who was in charge of the operation?
A. Mickelson and Ruvio’s investigation, as far as I
was [39] concerned.
Q. They didn’t tell you to stay outside?
A. No, sir.
. You decided you were going to stay outside your-
self?
A. Yes.
Q. This was for if something unusual might happen,
is that correct?
A. Yes.
Q. What were you thinking in terms of unusual?
A. Sometimes when police go to houses, people do
strange things. They leave by windows and jump out of
second story windows.
MR. SPIRES: I could see the direction which this
cross-examination is leading and I would be willing, if
73
Mr. Crimi agrees, to stipulate that Detective Ruvio and
Luciano and Mickelson went looking for Dunaway on the
morning of August 11, 1971 with the intention of taking
him into custody physically, if that was necessary and
bringing him to the Public Safety Building.
THE COURT: Is that agreeable?
MR. CRIMI: I will take the stipulation, I don’t want
to curtail my cross-examination.
THE COURT: Very well. Proceed.
40] Q. Im other words, you were there to make sure
that Dunaway didn’t get away, is that correct?
A. Yes, sir, if need be.
Q. What were you prepared to do in the event he
tried to get away?
A. Stop him.
Q. Were you prepared to use any physical force, if
necessary?
A. That is a tough question. If physical force was
used against me, probably yes, but otherwise, no.
- = Would you let him flee without trying to tackle
im
A. I probably would try and tackle him.
Q. You were intent in seizing him that morning, is
that correct?
A. If need be, yes.
Q. Did you have a warrant of arrest on you?
A. No, sir, I did not.
Q. Any of the three have a warrant of arrest?
A. No, sir.
Q. Now, while you are standing on this driveway,
what, if anything, did you observe?
_A. A young lady come out of the house, out of the
side door.
Q. What did you do then?
A. She walked by me and I said good morning. She
walked down [41] Broad Street, turned the corner and
went into a house on Walnut Street.
Q. Were you able to see her take that course on
Broad Street all the way to Walnut Street?
A. Yes, sir.
74
Q. There was nothing obstructing your vision?
A. No, sir, I followed her.
Q. You saw her go into some house on Walnut Street,
is that correct?
A. Yes, sir.
Q. Now, Walnut Street runs, it is a side street that
comes into Broad Street, is that correct?
A. Yes, sir.
Q. I would say, correct me if I am wrong, it runs east
and west?
A. No, I would say Walnut runs north and south.
Q. And Broad Street runs east and west?
A. Yes.
Q. So you would say that Walnut runs north and
south and Broad Street runs east and west, is that cor-
rect?
A. More or less, yes.
Q. You followed this young lady down Broad Street.
How far were you stationed in the driveway at the corner
of Broad [42] and Walnut be?
A. 100 feet or less. ,
Q. And then did you follow her to the house on Walnut
Street or did you stay at the corner and just note the
house?
A. No, sir, I stayed at the corner and noted the house.
- Q. Could you see the address where you were?
A. No.
Q. How did you fix that house in your mind?
A. By the color and location on the street.
Q. Is it a fair statement to say that is about the third
house from the corner of Broad and Walnut?
A. I think it was.
Q. And these houses are cottage-type houses, is that
correct?
A. They are small, yes, sir.
Q. They have a stoop about three stairs?
A. Yes, sir.
Q. And they are fenced in?
A. I don’t remember being fenced in.
Q. And they have all small driveways?
A. Yes.
ae
75
Q. Now, thereafter you did what, after you viewed
this lady or young girl going toward this address?
__A. When Detective Mickelson came out I asked him
if he knew [43] who the young lady was who came out-
side and he said he didn’t see any young lady. I informed
him she came out the side door and went to a house on
Walnut Street.
Q. All of you went to the house on Walnut?
A. No, sir.
Q. Who did?
A. Mickelson and myself.
Q. Did you walk down there together?
A. Yes, sir.
Q. What discussion did you have?
Bs: We thought maybe that is where Dunaway might
Q. Did you both go up to the doorway of the house on
Walnut?
A. No, sir.
Q. What did you do and where did you go?
A. I stood down in the driveway.
; Q. Now, in other words, you assumed the same posi-
tion that you had before at Broad Street, you did the same
thing on Walnut and you stayed outside the driveway?
A. Yes, sir.
Q. Was that for the same reason you avoided any
possible flight or escape by Dunaway?
A. Yes, sir.
Q. And were you posted in the driveway?
[44] A. Right in the middle of the driveway, even with
the front porch or door so I could see Detective Mickelson.
Q. Also, to make sure nobody left that house?
A. Yes.
Q. Such as Dunaway?
A. Yes, sir.
Q. Now, correct me if I am wrong. That is a small
driveway, is it not?
MR. SPIRES: I object.
MR. CRIMI: Strike that.
Q. How wide would you say that driveway is?
A. I really don’t know. I couldn’t tell you in feet.
76
Q. Well, you have seen a lot of driveways, I take it,
in your lifetime. Can’t you estimate as to whether it was
six foot wide or seven foot wide or eight foot wide?
A. I wouldn’t estimate.
Q. From where you were positioned, how far were
you from the stairs and door at 102 Walnut?
A. I don’t really remember. The only thing I remem-
ber is I kept Detective Mickelson in sight, as far as feet
or distance, I don’t know.
. Were these small or large lots?
MR. SPIRES: I object to the form of the question.
[45] THE COURT: Sustained.
Q. Can you tell us how wide the lots upon which this
house was built was?
A. No.
Q. You have no idea how far away were you from
where you heard these so-called words of Mickelson?
A. No, sir.
Q. Absolutely no idea?
A. Not absolutely no idea, I can’t testify, six feet. I
don’t remember how far it was.
Q. There is nothing I could do to refresh your recol-
lection at this point?
A. I don’t think so.
Q. At any rate, from that standpoint, what did you
observe, if anything?
A. I observed Detective Mickelson knock on the door.
Q. Did you hear the knock?
A. Yes, sir.
Q. You heard the knock?
A. Yes, sir.
Q. And what else did you observe, if anything?
A. I heard Mickelson say, “Axlerod or Dunway.”
Q. Well, did you observe the door being opened?
[46] <A. No.
Q. Did you observe Mr. Dunaway?
A. Not at that time, no.
Q. Did you observe anybody else at the doorway at
that time?
A. No.
717
Q. So, you are, if we may call it, an observation, all
that you experienced at that time was hearing Mickelson
Saying that, Dunaway or Axlerod?
3 Yes, sir.
. Did you observe Mr. Mickelson with i
Dunaway in his hand? ee auaadial
6. No, sir.
. Did you see a picture of Dunaway before that?
A. Edews think ec, na lida
Q. picid noc a picture at all that was shown to
you or an i
etd ybody else in the car on the way down to Broad
A. I never saw a picture, if there was one, no, sir.
Q. Never saw one in anyone’s possession?
A. No, sir, not that they showed me.
Q. All right. You didn’t see Dunaway? All you heard
bie oT say Dunaway and Dunaway or Axlerod?
. Yes. :
Q. I don’t know whether you understand. wheth
| ‘ er he
said both [47] of those or I can’t remember whether he
~ oo or whether he said Axlerod.
; e said both of the names, Axlerod ick-
name. Dunaway was the last.
Exactly what did you hear?
Axlerod or Dunaway.
Did you hear the word “or”?
No, I heard Axlerod and Dunaway.
You heard two words, Axlerod, Dunaway?
Yes,
Well, what did you observe after that?
7 Detective Mickelson waved me to the porch, like a
re.
Ao he say anything at all?
0.
Nothing at all?
No, sir.
Didn’t say I got him?
No, sir.
I found him?
No, sir, went like this—
POPOPOPO
cr
ges
POPO PO PO
78
Q. Just waved, didn’t say a word?
A. No.
Q. What did you do then?
[48] A. I went to the bottom of the stairs.
Q. Did you do anything else?
A. That is when Mickelson told me.
Q. Where was Mickelson at this point, the top or the
bottom of the stairs?
A. Still at the top. -
Q. Where was Dunaway?
A. Coming out the door.
Q. What, if anything, did you observe concerning
Mickelson and his hands? Did Mickelson have his hands
on Dunaway in any way, form or fashion?
A. No, sir.
Q. Did he have him by the arm?
A. No, sir.
Q. You are positive?
A. Yes, sir.
Q. Did he have him by the belt?
A. No, sir.
Q. You were able to observe that?
A. Yes, sir. ap
Q. You say Dunaway came down the stairs, is that
correct?
A. Yes, sir.
Q. Without any assistance from anyone, is that cor-
rect?
[49] A. Yes.
Q. When he got to the bottom, where were you? Did
you put your hands on his arm or pants or anything?
A. No, sir, not that I can remember.
Q. You say you can’t remember. Do you know or
don’t you know?
A. If I grabbed him? I think I would have remem-
bered. Kee
Q. What you are saying is you didn’t touch him, is
that correct?
A. My answer is, no, I don’t remember. cae
Q. At any point did you observe Mr. Mickelson either
holding him or in any way touching his arm or pants?
79
A. No, sir, not that I remember. He didn’t touch him
at all.
Q. So did you?
A. No, sir, not that I can remember.
Q. When you say you can’t remember, is that possible
that you did and can’t remember?
A. No, sir, I think if I did I would remember.
Q. As far as Mickelson is concerned, he never—is it
your testimony that from your observation, that at no
time did you see him have a hold of Mr. Dunaway’s arm
or pants?
A. No, sir.
Q. Or belt? It is your testimony that all three of you,
Dunaway and you and Mickelson were walking with
your arms [50] free of each other?
A. Yes, sir.
Q. Now, you never heard Mickelson ask Mr. Dunaway
whether he wanted to come downtown or not, is that
correct?
A. No, sir.
Q. You never asked Dunaway whether he wanted to
come downtown?
A. No, sir.
Q. What, if anything, did you do from the time that
you came into the bottom of the steps to the time that
Dunaway was brought to the police car?
A. I stayed with Detective Mickelson and Dunaway.
Q. Just walking beside them?
A. Yes, sir. 2
Q. At that point you would say Mr. Dunaway was free
to go or wasn’t he?
A. That decision would be made by Mickelson at that
point, not me.
Q. There never was any discussion about that at all
before you went to that house with Mickelson as to what
you would do?
A. Regarding what?
Q. Incase Dunaway didn’t want to come down?
A. No, Mickelson would make that decision when the
time came, [51] if need be.
22
In making their determination, the petitioner re-
spectfully submits that the Appellate Division erro-
neously equated ‘‘voluntariness’’ (the Fifth Amend-
ment threshold question) with factors relevant in de-
termining free will (Fourth Amendment application of
the exclusionary rule). Therefore, the Appellate Divi-
sion basically found that the prosecution had met
their burden of showing voluntariness, which merely
indicates that they were only able to establish the
“threshold requirement’”’ as established in Brown. The
two dissenters and the hearing court correctly found
“there were insufficient intervening circumstances to
attenuate the confession and remove the tainted effect
of the arrest...’ People v. Dunaway, supra, at 305
[Denman, J., concurring]. Petitioner will now show
how ‘‘the facts in this case are almost on point with
those in Brown.”’ People v. Dunaway, supra, at 308
[Cardamone, J., dissenting}.
In order to determine whether the primary taint of
petitioner’s arrest has been purged, the Court, in ad-
dition to finding that Miranda warnings were given,
must consider the three factors outlined in Brown.
First, ‘“‘the temporal proximity of the arrest and
the confession.’’ Dunaway was arrested and taken to
police headquarters at approximately 9 A.M. (A-6).
After making an oral confession, a stenographer was
called and began recording a second statement at ap-
proximately 10:20 A.M. (A-9). The petitioner con-
fessed within an hour and one-half after his being
arrested at police headquarters. In Brown, the ‘“‘first
23
statement was separated from his illegal arrest by
less than two hours’”’ Brown v. Illinois, supra at 604.
Secondly, we must examine “‘the presence of [any]
intervening circumstances. ‘‘Brown v. Illinois, supra,
at 604. Neither of the courts below have found nor
has the prosecutor alleged that there were any inter-
vening events of any significance. There was no lawful
arraignment, release from custody or entry of counsel
into the situation. Therefore, as in Brown, it can be
accurately stated that ‘‘there was no intervening
event of significance whatsoever.’ Brown v. Illinois,
supra, at 604; emphasis added.
The third factor outlined by this Court in Brown
was ‘‘the purpose and flagrancy of the official miscon-
duct” Brown v. Illinois, supra, at 604. Clearly, in the
case at bar, as in Brown, the detectives acknowledged
that the purpose of the action was to bring in the
petitioner ‘‘for questioning”’ in the hope that some-
thing might turn up. (A-56-57; 99). As detective Mick-
elson stated, ‘‘... he was in custody for an interview,
an interrogation.” (A-105). The apprehension of this
petitioner was clearly investigatory ‘‘in design and
execution.’’ See, Brown v. Illinois, supra, at 605. The
police action in this case constitutes flagrant official
misconduct as well. The detectives knew they lacked
sufficient information to obtain a warrent (A-60), so
they acted without one (A-61). They went to a private
dwelling prepared to make an arrest without a war-
rant when there were absolutely no exigent circum-
stances to justify that type of police action. It should
24
be noted that this Court has not retreated from its
holdings which require police to use the warrant pro-
cedures whenever practicable. See Terry v. Ohio, su-
pra, at 20 citing, Katz v. United States, 389 U.S. 347
(1967) Beck v. Ohio, 379 U.S. 89, 96 (1964); Chapman
v. United States, 365 U.S. 610 (1961). The fact that
the police did not originally confront the petitioner
with their weapons drawn is the only fact which tends
to mitigate the flagrancy of their conduct. It should
not be forgotten that the petitioner was a teenager
who had never been questioned by the police before
(A-37) and his request to find out why he had to go
downtown to be questioned was answered with a re-
sponse of ‘‘you'll find out when we get there’ (A-100).
It is only natural that he would be in fear of what
would later happen to him. Further, the police in ar-
resting petitioner without probable cause never ad-
vised him of his right not to go downtown with the
police (A-81). See Brown v. Illinois, supra, at 601 foot-
note 6.
The flagrant official misconduct of the police in this
case should not be condoned by this Court or any
other court. The petitioner's Fourth Amendment
rights were clearly violated and his subsequent
confessions?’ and sketches should properly be excluded
from evidence. Brown v. Illinois, supra; Wong Sun v.
United States, supra.
25
Point Il: Should This Court Choose To Differentiate
Between “Arrest” And/Or “Seizure” And
“Detention” And Should It Find That This ©
Petitioner Was Not “Arrested,” Then Did
Petitioner's “Seizure For Purposes Of De-
tention And/Or Interrogation” Violate The
Fourth Amendment.
Petitioner believes that his confrontation with the
police in this case constituted an ‘“‘arrest’’ (Point I(A) )
and, therefore, his subsequent confession should be
suppressed under this Court’s holdings in Brown v.
Illinois, supra and Wong Sun v. United States, supra.
However, since it appears that there may be a tech-
nical distinction between ‘‘arrest’’ and ‘‘a seizure for
purpose of detention and/or interrogation,”’ petitioner
will establish that his ‘‘arrest’’ or “seizure and deten-
tion”’ was in violation of the protections provided by
the Fourth Amendment.
Petitioner would first state that an attempt to dif-
ferentiate between ‘‘arrest’”’ and a ‘“‘seizure and deten-
? As in Brown, petitioner made a subsequent stenographic
statement to the police some hours after the first statement was
completed. However, this second statement, although found to
be voluntary at the February 24, 1972 Suppression Hearing, was
not admitted into evidence at his trial. Further, there was abso-
lutely no mention of this second statement at the August 3, 1976
Suppression Hearing nor was any evidence or argument offered
to show its ‘‘attenuation.’’ That statement was clearly and un-
mistakably a product or ‘‘fruit’’ of the first. See Brown v. Illinois,
supra, at 605 Footnote 12.
26
tion’’ for purposes of lessening one’s Fourth Amend-
ment rights undeniably contradicts the premise and
basic purpose of the Fourth Amendment; which is,
the right of our citizens to be secured in their persons
and homes. Clearly, the drafters of our constitution
felt that a warrent should issue only when based on
probable cause. Katz v. United States, 389 U.S. 347
(1967). This writer firmly believes that when the police
action constitutes a “‘seizure’’ under the Fourth
Amendment and when the police are acting without
probable cause and without a warrant, it is not logical
to believe that their ‘‘seizure’’ of a citizen without a
warrant can be based on less than probable cause.
Terry v. Ohio, supra, at 38 [Douglas, J., dissenting].
However, this Court has held to the contrary (See,
Terry v. Ohio, 392 U.S. 1 (1968) ) and petitioner re-
spects that ruling, as well as the fact that ‘‘Terry
begrudgingly accepted the necessity for creating an
exception from the warrant requirement of the Fourth
Amendment.’’ Adams v. Williams, 407 U.S. 143, 154
[Marshall, J., dissenting].
In Terry, the Court stated, ‘‘[W]e thus decide noth-
ing today concerning the constitutional propriety of
an investigative ‘seizure’ upon less than probable
cause for purposes of ‘detention’ and/or interroga-
tion.”’ Terry v. Ohio, supra, at 19, footnote 16. Later,
this Court went on to scate, ‘‘The ruling below, that
the State may detain for custodial questioning on less
than probable cause for a traditional arrest, .. ., goes
beyond our subsequent decisions in Terry v. Ohio, 392
/
27
U.S. 1 (1968) and Sibron v. New York, 392 U.S. 40
(1968).’’ Morales v. New York, 396 U.S. 102, 104-105
(1969)° Therefore, if Petitioner Dunaway was not “‘ar-
rested’’ but “seized for purposes of detention and in-
terrogation”’ the question left open by this Court in
Terry must now be answered. To reiterate, may a
person be ‘‘seized’’ on less than probable cause for
purposes of detention and interrogation? The peti-
tioner most respectfully submits that such police ac-
tion violates the Fourth Amendment, especially under
the facts of this case.
A: “ARREST” V. “SEIZURE AND DETENTION AND
INTERROGATION”
When a citizen is apprehended or ‘“‘seized’’ by the
police and is ‘‘detained’’ by being placed in a police
car and taken to police headquarters, he is clearly in
the exact same position as one who is “‘arrested’’ by
police. This writer honestly sees no reasonable basis
which would allow for a rational distinction between
* It is interesting to note that the New York Court of Appeals
persisted in reaching the same conclusion on the remand of that
case by this Court (People v. Morales, 42 N.Y.2d 129 (1977) ).
However, that court also held, “Since the finding of the trial
court [that the defendant consented to the police detention] is
supported by the record, we are precluded from upsetting it
[citations omitted]. Therefore, as an alternative basis for our
holding in this case is that the defendant consented to the police
detention."’ (People v. Morales, supra, at 138, emphasis added)
No finding of consent has ever been made in this case.
28
the status of two people so situated. See, Davis v.
Mississippi, 394 U.S. 721, 726-727 (1969). In Davis, —
the petitioner was ‘‘seized’’ and ‘‘detained’’ on two
separate occasions; first, on December 3, 1965 and, a
second time on December 12, 1965. The second deten-
tion lasted at least two days. Davis’ fingerprints were
taken by the police during each of the detentions. This
Court held that both the December 12-14 and the
December 3 detention violated Davis’s Fourth Amem-
dent rights, despite the fact that the State argued
that the December 3 detention was of a type which
did not require probable cause (This case was decided
after this Court’s decision in Terry v. Ohio, supra).
See, Davis v. Mississippi, supra, at 726. The Court
answered that argument by stating:
‘“.., to argue that the Fourth Amendment does
not apply to the investigatory stage is funda-
mentally to misconceive the purposes of the
Fourth Amendment. Investigatory seizures
would subject unlimited numbers of innocent per-
sons to the harassment and ignominy incident to
involuntary detention. Nothing is more clear
than that the Fourth Amendment was meant to
prevent wholesale intrusions upon the personal
security of our citizenry, whether these intru-
sions be termed ‘arrests’ or ‘investigative deten-
tions’ (footnote omitted). We made this explicit
only last Term in Terry v. Ohio, 392 U.S. 1, 19
(1968), when we rejected the notions that the
Fourth Amendment does not come into play at
all as a limitation upon police conduct if the of-
ficers stop short of something called a ‘technical
29
arrest’ ... Davis v. Mississippi, supra, at 726-
727.
Petitioner Dunaway is aware of the fact that the po-
lice action in Davis was referred to as ‘‘dragnet”’ in
nature (See, Davis v. Mississippi, supra, 728, Harlan,
J., concurring). However, it is most important to note
that the Court’s holding involved a finding that Dav-
is’ rights were singularly violated. Davis, individually,
was found to have been ‘‘seized”’ or ‘“‘arrested’’ when
he was taken to the police station on December 3 for
fingerprinting. I am sure that Court was upset with
the ‘‘dragnet”’ police operation, but the fact still re-
mains that it was Davis’ constitutional rights that
were specifically violated by the police action.
Other situations can be envisioned which would re-
sult in a ‘“‘seizure’’ and a less serious “detention for
questioning”’ (i.e. questioning a person on the street
in the setting outlined in Terry). See, Terry v. Ohio,
supra at 34-35, White, J., concurring. However, since
that factual setting is not before the Court in the case,
it should suffice to say that regardless of the label
attached to describe the citizen police confrontation,
be it ‘‘arrest,’’ ‘‘seizure,’’ or ‘“‘detention,”’ the Fourth
Amendment safeguards apply. Terry v. Ohio, supra;
Davis v. Mississippi, supra.
B: “REASONABLE SUSPICION”
In affirming petitioner’s judgment of conviction,
the New York Court of Appeals ordered a limited
30
hearing in which the lower court was to determine
whether probable cause existed for Dunaway’s “‘de-
tention”’ (People v. Dunaway, 38 N.Y.2d 812 (1975) ).
The trial court clearly found that there was no prob-
able cause for petitioner’s ‘‘arrest’’ (A-121). On appeal,
in affirming the finding that probable cause did not
exist, the Appellate Division for the first time found
that the information the police had amounted to ‘“‘rea-
sonable suspicion” (People v. Dunaway, 61 A.D.2d
299, 302 (Fourth Department, 1978)). Petitioner
strongly disagrees.
First, the information obtained from the first un-
tested informer (Sparrow) was established as having
been untrue. It was Sparrow’s hearsay information
that Cole and Irving were involved in the Tower of
Pizza murder (A-51). Cole denied any involvement!
Now Cole, while exonerating himself, relays multiple
hearsay information that ‘‘BaBa’’ Adams and Irving
were involved (A-52-53). The source of Cole’s infor-
mation (Hubert Adams) was incarcerated and avail-
able, yet the police made no effort to contact him. It
is more than reasonable to assume that an individual
involved in a homicide would try to exonerate himself
and point the guilty finger at someone else. But in
this case the police did not seek to substantiate Cole’s
information. They choose to apprehend Irving and to
interrogate him.
Petitioner finds it hard to believe that such infor-
mation constitutes ‘‘reasonable suspicion.” In view of
the fact that neither of the informers here were ever
31
even met by the police before they obtained the infor-
mation and where the information given was an at-
tempt by the provider to exculpate himself, it defies
reasonableness to allow a seizure, such as the one in
the case at bar. Terry v. Ohio, supra, at 21. Further,
it is significant to note that no effort was made to
establish the fact that other practical, alternative in-
vestigative techniques were exhausted. The ‘“‘sei-
zure, ‘‘detention” and “‘interrogation”’ of a citizen
should not be tolerated on such pitiful information.
This Court has appropriately noted, ‘‘Some tips, com-
pletely lacking in indicia of reliability, would either
warrant no police response or require further investi-
gation before a forcible stop of a suspect would be
authorized.’’ Adams v. Williams, supra, at 147. The
information in the case at bar clearly falls within that
description.
C: RATIONALE FOR TERRY DECISION
In Terry, this Court was faced with the very serious
task of balancing the rights of our citizens to be secure
in their persons agianst the power of the police to
‘“‘stop and frisk’’ suspicious persons on the streets.
Faced with this vexatious task, this Court developed
a “very narrow’ exception to the Fourth Amend-
ment’s requirement of probable cause (See, Adams v.
Williams, supra, at 161-162, Marshall, J., dissenting)
and, in so doing, developed a ‘“‘reasonableness stand-
ard.’’ As the Court stated, ‘... the central inquiry
under the Fourth Amendment [is] the reasonableness
32
in all the circumstances of the particular governmen-
tal invasion of a citizen’s personal security.”’ Terry v.
Ohio, supra, at 19. This special standard had to be
developed to accommodate the ‘‘on-the-spot observa-
tions of the officer on the beat’’ who “‘as a practical
matter could not be subject to the warrant proce-
dure.’’ The factual context of Terry is obviously not
present in the case of bar. The police here had ample
opportunity to obtain a warrant. The reason they
failed to obtain one was the fact they knew they did
not have sufficient information to approach a court
and obtain one (A-60). Clearly, that conduct has not
been condoned by this Court which stated, ‘‘We do
not retreat from our holdings that the police must,
whenever practicable, obtain advance judicial approv-
al of searches and seizures through the warrant pro-
cedure (citations omitted).’’ Terry v. Ohio, at 20; em-
phasis added.
The police action in Terry was found to have been
reasonable because (1) the information obtained by
the police was gathered while making observations
‘“‘on the beat’”’ (i.e. the information was fresh), (2)
which needed to be acted upon immediately in view
of the exigencies of the situation. (3) The ‘‘seizure’”’ or
confrontation took place on the street (4) for a reason-
ably brief period of time.
D: APPLICATION OF TERRY “REASONABLENESS
STANDARD” TO THE FACTS OF THIS CASE.
None of the factors which existed in Terry to justify
the application of a ‘‘reasonableness standard”’ are
33
present in this case. First, the information obtained
by the police was more than two months old and it
was obtained more than four months after the inci-
dent. It was, therefore, stale. See, Sgro v. United
States, 387 U.S. 206 (1932). Secondly, there was no
immediate need for the police to ‘‘seize’’ Dunaway.
They were not expecting him to flee nor was there
any indication he might be leaving the area. Plainly
stated, there was absolutely no exigent circumstance
which justified obviating the warrant procedure.
Third, the ‘‘seizure’’ of petitioner was to take place at
his home, a place that has been highly protected by
this Court (See, Coolidge v. New Hampshire, 403 U.S.
443, 474-478 (1971); United States v. Watson, 423
U.S. 411, 433, Stewart, J., concurring (1974); Dorman
v. United States, 435 F2d 384, 390-391 (D.C. Cir.
1970) ). This case does not present an ‘“‘on the street”’
confrontation which would require immediate action.
The police had ample opportunity to plan the method
of petitioner’s seizure as evidenced by Detective Lu-
ciano’s actions of standing watch in petitioner’s drive-
way in case someone tried to leave by the side door.
Further, to apply a reasonableness standard to sta-
tionhouse detention for purposes of interrogation
would be to overlook the “inherently intimidating”
environment associated therewith. Miranda v. Arizo-
na, supra, at 445-448. The officers’ actions here speak
only for one rational inference—they wanted the pe-
titioner in their exclusive control, incommunicado, for
purposes of interrogation. (See, People v. Anderson,
46 A.D.2d 140 (Fourth Department, 1974) affd. 42
34
N.Y.2d 35 (1977), where a Rochester youth was ques-
tioned by Rochester police for 19 hours until he con-
fessd to a homicide and there was no probable cause
for that detention). Lastly, petitioner respectfully sub-
mits that petitioner’s detention was not “‘reasonably
brief’’ under the standard developed in Terry. Here
the petitioner was taken from a private dwelling,
placed in a police car, driven downtown and interro-
gated. This confrontation lasted more than an hour
and one-half. In Terry, the confrontation was found to
be reasonable in that it lasted only minutes. It also
appears that the original confrontation in Davis v.
Mississippi, supra, was brief since it involved finger-
printing and apparently brief questioning.‘ Nonethe-
less, that ‘‘seizure’’ as well was found to have violated
the Fourth Amendment.
Clearly, the police action in this case was not rea-
sonable when viewed “‘in light of all the exigencies of
the case”’ which is ‘‘a central element in the analysis
of reasonableness,” (See, Terry v. Ohio, supra, at 17-
18 Footnote 15) since none existed.
In conclusion, the petitioner respectfully submits
that in situations where the police ‘‘seize,’’ “‘detain”’
and “‘interrogate’’ an individual at police headquar-
ters, probable cause is required. Even if this Court
was to determine otherwise, the police action must be
reasonable in light of the factors enunciated by this
* See Davis v. Mississippi, supra, at 722, 728.
35
Court in Terry. Clearly, the police action in this case
of ‘‘seizing and detaining”’ petitioner at police head-
quarters for interrogation on such a dearth of infor-
mation should not be found to be reasonable, espe-
cially, in view of the other factors affecting reasona-
bleness heretofore discussed.
CONCLUSION
Wherefore, for the foregoing reasons, petitioner re-
spectfully requests that the judgment below be re-
versed.
Respectfully submitted,
EDWARD J. NOWAK
Monroe County Public Defender
36 West Main Street
Rochester, New York 14614
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