Opinion
9179/07.
Decided January 14, 2011.
Charles J. Hynes, District Attorney, Kings County, Brooklyn, NY, by ADA Cynthia Lynch, ADA Sandra Roberts, Attorney for the People.
Clinton Hughes, Esq., Raoul Saltzberg, Esq., Legal Aid Society, Brooklyn, NY, Attorneys for the Defendant.
The defendant is alleged to have intentionally set fire in the apartment of his girlfriend and charged with arson. A combined Dunaway, Huntley and Mapp hearing was held before the court.
FINDINGS OF FACT
On September 17, 2007, Fire Marshall Robert Cristadoro was assigned to investigate a fire at 744 Lafayette Avenue. As a result of his investigation at the scene, he determined that the fire had been set. He also learned that the tenant in the apartment told his supervisor that her boyfriend, the defendant, caused the fire during an argument by pouring gasoline on her kitchen floor and striking a match to it. Her son also confirmed that he heard the two arguing and his mother scream "fire."
The fire marshall got a description of the defendant and, armed with additional information, went to his wife's home. While there, the defendant called and the marshall was able to trace the call to another address where he went with police emergency service officers.
The owner of the premises arrived and told them Mr. Norbert was there. She gave them permission to enter. They knocked and Mr. Norbert opened the door with severe burns to his feet. At this point, Marshall Cristadoro asked him why he did not go to the hospital. The defendant stated it was because he did not want to get caught.
An ambulance was called and Mr. Norbert was taken to Staten Island University Hospital. In the burn unit he stated "I can't believe I did this. I saw black," and then asked about damage to his belongings.
While in the emergency room, a treating physician started asking questions about his injuries, which defendant answered by admitting he was injured when his legs came into contact with the fire that was started with gasoline.
The next day, Miranda rights were read to the defendant. He refused to answer any questions and asked for a lawyer.
After the defendant was admitted to the hospital on September 17, 2007, Marshall Cristadoro would from time to time be assigned to guard him before his arraignment. He testified that conversations would often take place about life in general. On September 27th, however, the marshall testified that the defendant told him that he poured gasoline and lit a match in the apartment, but that his girlfriend slapped his hand and the match fell. The marshall said this just came out and was not in response to any questions.
Marshall Cristadoro also testified that he recovered defendant's clothes from hospital administrators in response to a subpoena, although they requested a warrant.
CONCLUSIONS OF LAW
Dunaway
At the time of his arrest, the fire marshalls had concluded the fire had been set and was not the result of an accident. They also had an eyewitness account from the victim of the crime who said that the defendant poured gasoline out and lit it with a match. This constitutes reasonable cause for the arrest.
Mapp
The fire department was not required to obtain a search warrant for the recovery of the defendant's clothes. They were secured after defendant's arrest and properly received as evidence.
Huntley
There are four statements at issue here. The first made to Marshall Cristadoro at the time of the arrest, the second to the marshalls at Staten Island Hospital upon arrival, the third to his doctor and the fourth in his hospital room on September 27th.
Respecting the first, it is clear that the defendant was in custody and thus no interrogation is allowed without a valid waiver of his Miranda rights. Although the question "why didn't you go to the hospital?" was, indeed, a reflective response by the marshall to the defendant's serious injuries, it resulted in an incriminating answer. It was not a question needed to clarify a developing situation or necessary for police housekeeping purposes ( People v Fernandez, 207 AD2d 663; People v Brown , 24 Misc 3d 892 ); nor can it be described as a threshold-type inquiry ( People v Huffman, 41 NY2d 29).
Instead, although the question is fairly innocuous, from the defendant's perspective, an arson suspect being asked about untreated burns, it is likely to, and did elicit an incriminating response. For the court must view the question from the viewpoint of the respondent, not the questioner. The statement must, therefore, be suppressed ( US v Guess, ___ F.Supp.2d ___, 2010 WL 5260998; US v Henley, 984 F.2d 1040; US v Monzon, 869 F.2d 338; People v Vachet , 5 AD3d 700 ; People v Bastian, 294 AD2d 882).
On the other hand, since Fire Marshall Cristadoro's question was the result of a certain shock at the sight of defendant's injuries, it cannot be looked at as an interrogation that poisons every subsequent statement. For this reason, Mr. Norbert's statements at Staten Island University Hospital are not tainted by the initial question; nor are his statements made in his hospital room ten days later, on September 27th. These are spontaneous statements made by the defendant without prompting and are admissible ( People v Rivers, 56 NY2d 476; People v Ziegler, 78 AD3d 545; People v Norman , 77 AD3d 497 ).
Defendant contends that his answers to the doctor's questions in the emergency room are inadmissible because defendant's answers are confidential under the physician-patient privilege (CPLR 4504). The contention is misplaced since the conversation took place in a bustling emergency room in such a manner as to render it unlikely that the defendant would have expected it to have been confidential. Defendant has failed to meet his burden of showing the conversation was intended to be confidential ( People v Decina, 2 NY2d 133; Bernstein v Lore, 59 AD2d 650) and the fire marshall can testify as to the conversation.
This constitutes the Decision and Order of the court.