# Opposition Brief — New York v. Ferro

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1896%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1985
- **Citation:** 472 U.S. 1007

## Text

.
<tegktn | ILED
84-1007

APR 18 1985

ALEZXANVEH L STEVAG,
CLER
No. — a

In The
Supreme Court of the United States
October Term, 1984
STATE OF NEW YORK,
Petitioner,
vs.
ALFIO FERRO,
Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CER-
TIORARI TO THE COURT OF APPEALS OF THE STATE OF
NEW YORE

;

ANTHONY V. LOMBARDINO
Attorney for Respondent
125-10 Queens Boulevard
Kew Gardens, N.Y. 11415
(718) 275-0200

Dick Bailey Printers, 208 Richmond Avenue u Staten Island, New York 10902

Tel. (212) 608-7666 — (718) 447-6358 — (616) 222-2470 — (914) 682-0848

BEST AVAILABLE COPY

*

Wc

i
QUESTIONS PRESENTED

1. Whether the placement of the furs in front of
the respondent’s cell was the functional equivalent of
illegal questioning thereby violating the Constitution.

2. Whether a fresh set of Miranda Warnings must
be given when questioning resumes assuming, arguen-
do, that all questioning must not permanently cease
once the respondent has exercised his right to counsel.

il
TABLE OF CONTENTS
Page
e i
— OE BI Reiniicsstcscoossveccsosserencccccosossovoncosooee 1

POINT ONE-Respondent’s Constitutional right
secured by the Fifth Amendment was violated by
the use of a statement made by him to law en-
is dc cadacimanaseinnose 3

POINT TWO-A fresh set of Miranda Warnings
must be given when questioning resumes assum-
ing, arguendo, that all questioning must not per-
manently cease once the respondent has exercised
e ̃ͤ ˙iu 6

TABLE OF AUTHORITIES

Cases

Leyra v. Denno, 347 U.S. 556 (1954). . . . . 5
Michigan v. Mosley, 423 U.S. 96 (1979). . . . 3
Miranda v. Arizona, 384 U. S. 436 (1966)... . 3
People v. Bodner, 74 A. D. 2d 440. . . . . . . 4
People v. Faison, 78 Il. App 3d 911 (1979). . . . 4

People v. Punch, 70 A.D. 2d 664 (2d Dept.,
aii —— —— — —— —

iii
People v. Bryant, 59 NY 2d 786... . . . .. 7
State v. Emory, 131 Ariz 493... . . . . . . . . 5
State v. Godfrey, 131 Super 168... ... . ... 5
Rhode Island v. Innis, 446 U.S. 291 (1980)............. 7

1

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1984

STATE OF NEW YORK
Petitioner,
-against-
ALFIO FERRO,
Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A
WRIT OF CERTIORARI TO THE COURT OF
APPEALS OF THE STATE OF NEW YORK

Statement of Facts

Lillian Sher was murdered on December 5, 1975 in
the course of a robbery. One week later respondent
was arrested for causing the death. Respondent had
no obvious connection to Sher and there was no direct
evidence linking respondent to the crime. Respondent
was taken to the 106th Precinct in Queens County and
was read his Miranda Warnings. Respondent refused
to speak to Detective Robert Hudson, who was
assigned to the Sher investigation. Later in the day,
respondent stated he wanted to speak to the District
Attorney. The detective asked why and respondent
- resumed his silence. Detective Hudson left the 106th
Precinct and returned with a handful of furs he had
recovered. The furs were placed a foot from the cell
where they remained for some period of time. Respon-
dent then asked if there was a District Attorney who
could do something for him. Approximately fifteen
minutes later, after being told that neither he nor the

2.

District Attorney could do anything for him, he asked
to speak with a ‘“‘Pisano’’. Detective Walter Cassi was
brought before respondent; I am Italian, do you
want to say something. Respondent continued with a
discusssion he had with Sher’s neighbor, Florence
Freeman, saying she wanted her robbed. Respondent
said he was not interested and Freeman asked if he
could get somebody. According to respondent, he said
he would think about it. Subsequently, these
statements were used against him at trial.

A motion to supress the statement made after
respondent’s viewing of the furs was denied and
respondent was convicted of Murder in the Second
Degree and was sentenced to a term of imprisonment
of 15 years to life.

On appeal to the Appellate Division of the
Supreme Court of the State of New York, Second
Judicial Department, by respondent, the lower
Court’s decision was affirmed, with opinion, by a 3 to
2 decision. Respondent subsequently appealed to the
Court of Appeals of the State of New York and the
Appellate Division, Second Judicial Department was
reversed by a 5 to 1 decision and the motion to supress
granted.

3
POINT ONE

RESPONDENT'S CONSTITUTIONAL RIGHT
SECURED BY THE FIFTH AMENDMENT
WAS VIOLATED BY THE USE OF A STATE-
MENT MADE BY HIM TO LAW ENFORCE-
MENT OFFICERS.

Respondent had been given his Miranda Warn-
ings by Detective Hudson and respondent chose and
elected to exercise his constitutional privilege to re-
main silent. The furs were intentially put in front of
his cell admittedly to intimidate and provoke respon-
dent into making a statement. A frightened and coerc-
ed respondent then, and only then, asked to talk to an
Italian Detective. He was brought before the Detec-
tive hours after being given his original Miranda War-
nings and then was interrogated without being given
new warnings. “‘Admissibly all statements obtained
after the person in custody has decided to remain
silent depends, under Miranda, whether his right to
cut off questioning was scrupulously honored.”
Michigan v. Mosely, 423 U.S. 96 (1979). In the case at
bar, it can hardly be said that the request of respon-
dent was scrupulously honored, instead, psychological
ploys were illegally used to improperly induce the
defendant’s statement. Detective Hudson did not
adhere to respondent’s request, but used pressure and
psychlogical coercion to get him to waive his Fifth
Amendment right to counsel which he already had in-
dicated. People v. Puch, 70 A.D. 2d 644 (2nd Dept.,
1979).

The warnings required under Miranda v. Arizona,
384 U.S. 436 (1966), are an asolute prerequisite to in-
terrogation. As pointed out in Rhode Island v. Innis,

446 U.S. 291 (1980):

“The term ‘interrogation’ under Miranda refers not
only to express questioning, but also to any words or
actions on the part of the police (other than those nor-
mally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an in-
criminating response from the suspect.“

Placing the furs in front of the cell clearly
demonstrates an act of coercion by the detective to in-
duce the respondent to waive his constitutional
rights. These maneuvers are nothing short of the
functional equivalent of illegal questioning which
the Supreme Court interpreted as applicable to Miran-
da (Supra, p. 301).

Encircled in the functional equivalent of question-
ing are ‘‘any remarks, psychological tactics or patient
maneuvering designed to elicit a response or to under-
mine the suspect’s will to resist People v. Faison, 78
Ill App 3d 911, 913 (1979). In the instant case, there
was an obvious violation of the respondent’s rights
and to allow such interplay of interrogation would
‘subjugate the individual to the will of his examiner”
and thereby undermine the privilege; the privilege
against compulsory self-incrimination (384 U.S. at
457). It is obvious these techniques of persuasion used
by the police officers can not be permitted to undo the
“safeguard’’ of the Fifth Amendment established in
Miranda.

There are several cases that are illustrative of the
functional equivalent of questioning and found the
evidence inadmissible due to the fact that there had
been no warnings. In People v. Bodner, (75 AD 2d 440)
a detective confronted the defendant by talking of the

5

incapability of his cousin as the arsonist by checking
and confirming his alibi. The court held this to be the
same as telling the defendant he was guilty and lying.
In addition, the disclosing of polygraph results to the
suspect in State v. Godfrey, (131 N. J. Super 168) and a
conversation regarding the death penalty as defen-
dant’s fate, (State v. Emory, 131 Ariz 493) are encom-
passed within the functional equivalence of question-
ing.

The state is not privileged to use psychological
coercion to induce a defendant to make a statement
Leyra v. Denno, 347 U.S. 566 (1954). Once an in-
dividual has exercised his rights to remain silent, all
express questioning and its functional equivalent
must cease (446 U.S. 291). Petitioners use of narrow-
ing the holding of Innis is simply applying articulable
fact in the place of established law. The functional
equivalent of questioning to inciude psychological
ploys has been overwhelmingly upheld. To hold that
the placing of the furs in front of the cell was anything
other than the functional equivalent of questioning
would limit the scope of Miranda and place a
premium on the ingenuity of the police to devise
methods of indirect interrogation, rather than to im-
plement the plain mandate of Miranda.” Henceforth,
then, it is quite evident that the streamline of cases
relied on by the People of the State of New York do
not raise a constitutional question at all, but are simp-
ly attempting to take another bite of the apple.
This, in essence, would lead to a severe erosion of our
fundamental rights and guarantees under the Fifth

Amendment, and signal permission to the police to

engage in a myriad of tactics in contridiction to the
privileges protected and guaranteed by the Fifth
Amendment of the Constitution.

6
POINT TWO

A FRESH SET OF MIRANDA WARNINGS
MUST BE GIVEN WHEN QUESTIONING
RESUMES ASSUMING, ARGUENDO, THAT
ALL QUESTIONING MUST NOT PER-
MANENTLY CEASE ONCE THE RESPON-
DENT HAS EXERCISED HIS RIGHT TO
COUNSEL.

All statements obtained after the person in
custody has decided to remain silent depends on
whether his right to cut off questioning was
scrupulously honored. One may not, within a short
period of time thereafter, continue his interrogation to
overcome his silence without a fresh set of warnings,
Michigan v. Mosley, 423 U.S. 96 (1979).

By placing the furs in front of respondent’s cell as
a psychological weapon to persuade respondent to
waive his constitutional rights tainted the admission.
The least to which respondent was entitled was a new
set of Miranda Warnings in order to afford the respon-
dent an opportunity to make a free willed intelligent
waiver once Detective Cassi began interrogation. The
fact that respondent was taken to an Italian Detective
at his own request did not give the latter the privilege
to interrogate without fresh Miranda Warnings. In
the case at hand, the play of the police could never
have produced an intelligent weiver.

A statement volunteered or spontaneously made
will not be suppressible unless it is about the same
crime and results from express questioning or the
functional equivalent under circumstances which do
not include fresh warnings and do not scrupulously

7

honor the suspects right to cut off questioning; Rhode
Island v. Innis, 446 U.S. 290, 300-301, Michigan v.

Mosley, Supra, People v. Brant, 59 N.Y. 2d 785). In
the case at bar, respondent made no spontaneous
declarations to the Detective, but responded to his
questions only as a result of the police coercion.

Under the circumstances, respondent's statement
was improperly induced and procurred and was cor-
rectly suppressed. Within the unequivocal law of
Mosley the psyhological coercion used to overcome
respondent’s silence without a fresh set of warnings is
plainly erroneous, and constitutionally malignant.

Conclusion

For the foregoing reasons stated above, the peti-
tion for a writ of certiorari should be denied.

submitted,
ANTHONY V. LOMBARDINO
Attorney for Respondent
125-10 Queens Boulevard
Kew Gardens, N.Y. 11415
(718) 275-0200

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