Preview:

Argued September 15, 2010; decided October 26, 2010
Matter of Daniel H., 67 AD3d 527, appeal dismissed.
APPEARANCES OF COUNSEL
Legal Aid Society, New York City (Raymond E. Rogers, Tamara A. Steckler and Steven
Banks), for appellant.
Michael A. Cardozo, Corporation Counsel, New York City (Victoria Scalzo, Stephen J. McGrath and Leah Schmelzer of counsel), for respondent.
{**15 NY3d at 883} OPINION OF THE COURT Memorandum. The appeal should be dismissed, without costs, on the ground that the two-Justice dissent at the
Appellate Division was not on a question of law (see CPLR 5601 [a]).{**15 NY3d at 884}
Police arrested appellant Daniel H. at his school for the theft of credit cards after he had made an inculpatory statement without being advised of his Miranda rights. Appellant was transported to a precinct, left alone in an adult holding cell, and was again questioned by the [*2]same detectives in a sergeant's office rather than a designated juvenile room. A written inculpatory statement was made by appellant after he and his mother were advised of appellant's Miranda rights.
Following a hearing conducted on October 31, 2007, the Family Court precluded appellant's inculpatory oral statement and denied the suppression of his subsequent, inculpatory written statement. The court determined that the written statement was sufficiently attenuated from the
earlier oral statement.[FN*] Appellant was adjudicated a juvenile delinquent for committing acts, which, if committed by an adult, would constitute the crimes of burglary in the third degree, grand larceny in the fourth degree, and identity theft in the third degree.
By a 3-2 decision, the Appellate Division affirmed the Family Court order, finding that the written statement was sufficiently attenuated from the earlier un-Mirandized statement (67 AD3d 527 [1st Dept 2009]). The two-Justice dissent sought to remit the action to Family Court for a new fact-finding hearing. Appellant appeals to this Court pursuant to CPLR 5601 (a).
Jurisdiction for an appeal to this Court predicated upon CPLR 5601 (a) requires that, at the Appellate Division, there be a "dissent by at least two justices on a question of law in favor of the party taking such appeal." The issue of whether a defendant's inculpatory statement is attenuated from his prior un-Mirandized statement presents a mixed question of law and fact (see People v Paulman, 5 NY3d at 129; People v Ryan, 12 NY3d 28 [2009]; People v Conyers, 68 NY2d 982 [1986]). As the two-Justice dissent was not on a question of law, this Court is without jurisdiction to decide the appeal (see CPLR 5601 [a]; Merrill v Albany Med. Ctr. Hosp., 71 NY2d 990 [1988]; Guaspari v Gorsky, 29 NY2d 891 [1972]).
Ciparick, J. (dissenting). Because I believe that the two-Justice dissent in the Appellate Division was on a [*3]question of{**15 NY3d at 885} law, and therefore CPLR 5601 (a) permits our review as a matter of right, I would reach the question presented on this appeal, conclude that an incorrect legal standard was applied in this juvenile delinquency proceeding, and remit to Family Court for further consideration.
Whether the courts below applied the correct standard in determining that Daniel's statement was attenuated is a legal question firmly within our jurisdiction (see People v Borges, 69 NY2d 1031, 1033 [1987] ["While questions of attenuation generally present mixed questions of law and fact, where . . . the lower courts have applied an incorrect legal standard, an issue of law reviewable by this court is presented" (citations omitted)]). The Appellate Division dissent below explicitly took issue with the legal standard applied by the majority, not the application of that standard. In affirming Family Court's finding of attenuation, the Appellate Division majority held that "the issue of attenuation is not appreciably different for juveniles than for adults," and proceeded to conduct the attenuation analysis just as it would for an adult defendant (Matter of Daniel H., 67 AD3d 527, 529 [2009]). The dissent disagreed about whether Daniel's age should inform the analysis, noting that although the facts here "may constitute a pronounced break in the case of an adult accused[, they] have different bearing on the determination with regard to a juvenile" (id. at 535 [Moskowitz, J., dissenting] [citations omitted]). This is a straightforward disagreement regarding the legal standard

Download 2010_07575.pdf

New York Law