# Appendix — Dunaway v. New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0418%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1979 - **Citation:** 442 U.S. 200 ## Text ' wee oS VOUT, UU, de> FILED |; #AN 20 979 APPENDIX | cams mice = : Zi vet ie itp win. ih 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] . 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] 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 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 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]