In re Cy R.

Order of disposition, Family Court, Bronx County (Alma Cordova, J.), entered on or about October 11, 2006, which adjudicated appellant a juvenile delinquent upon his admission that he committed an act which, if committed by an adult, would constitute the crime of criminal possession of stolen property in the fourth degree, and placed him with the Office of Children and Family Services in a limited secure facility for a period of 18 months, affirmed, without costs. On August 3, 2006, the complainant, a retired New York City detective, discovered that four handguns and some 1,000 rounds of ammunition were missing from his apartment on Commonwealth Avenue in Bronx County. Sergeant Yalcin Kiyar responded to the report of the burglary and was immediately informed by the complainant of his suspicion that appellant, his cousin, had taken the weapons. While being driven around the neighborhood by the sergeant, the complainant spotted appellant walking along the sidewalk. The complainant approached appellant, threw him up against a fence and demanded to know the location of his guns. After much yelling, cursing and threatening on the complainant’s part, appellant stated that his involvement in the theft was in secreting the weapons. Even after appellant was taken into custody and placed in Sergeant Kiyar’s vehicle, the complainant continued to berate him, demanding to know the whereabouts of the handguns. Appellant agreed to lead the men to the hiding place, where two of the weapons were recovered. [268] In denying appellant’s motion to suppress his statements and the recovered guns, Family Court ruled that the statements “were voluntarily made,” finding that the complainant, despite his law-enforcement background, “had acted in a purely private capacity, not as an agent of the State.” There is no evidence suggesting that the complainant was in contact with the police at any time prior to his call to report the theft of his firearms; nor is there any indication that police communicated with, or directed, him concerning how to approach appellant. Rather, it is apparent that it was the complainant who identified appellant to Sergeant Kiyar and who berated his cousin while the sergeant merely looked on. At issue is whether appellant revealed the location of the weapons to the complainant as a result of “the use or threatened use of physical force” so as to render his statement involuntary (Family Ct Act § 344.2 [2] [a]). It should be noted that Family Court Act § 344.2 (2) (a) is virtually identical to CPL 60.45 (2) (a). While a statement may be involuntary, and thus excludable, even if made to a private person (CPL 60.45 [2] [a]; People v Grillo, 176 AD2d 346, 347 [1991]), voluntariness is a question of fact (People v Pagan, 211 AD2d 532, 533 [1995], lv denied 85 NY2d 978 [1995]); thus, “much weight must be accorded the determination of the suppression court with its peculiar advantages of having seen and heard the witnesses” (People v Prochilo, 41 NY2d 759, 761 [1977]). A statement is voluntary even in the face of duress if the “[defendant’s] will has [not] been overborne and his capacity for self-determination critically impaired” (Culombe v Connecticut, 367 US 568, 602 [1961]; see also People v Williams, 180 AD2d 423, 424 [1992], lv denied 79 NY2d 954 [1992]). We cannot agree with the dissenter’s view that the use of minor force and threatening language renders a suspect’s statement involuntary as a matter of law. Particularly as to statements made to a relative, a distinction must be drawn between a true threat of violence and mere hyperbole, as reflected by such common remarks as, “I’ll kill you,” or “I’ll break your neck [face, legs].” The crucial inquiry is whether the defendant was intimidated into making an inculpatory statement or simply regarded the purported threat as so much rhetoric. The complainant, while confronting appellant, was cursing and yelling at him, reflecting his concern as to the whereabouts of the stolen weapons. He testified that Sergeant Kiyar helped him apprehend appellant and sat him in the car. After being placed in the police car, while the complainant continued to yell and curse at him, appellant stated, “Relax, I’ll tell you where they are.” [269] Sergeant Kiyar testified that the complainant was “very angry,” and held appellant by his upper forearm but did not shake him. Sergeant Kiyar further testified that appellant acknowledged “his own involvement in the taking of the weapons was to help conceal them. That he was not involved in the initial theft.” Appellant admitted, “I took them into the woods and I hid them in the wooded area in the woods over there by a rock.” At that time, appellant was placed under arrest, handcuffed and put into the police car, but no Miranda warnings were administered. Guided by appellant, the sergeant retrieved two handguns wrapped in a towel. The other two weapons were never recovered. The testimony of the witnesses was not contradictory, as urged by the dissent. The complainant testified that Sergeant Kiyar was helping him to apprehend appellant: “I had, you know, one arm, he had the other arm. Sat him in the car.” This portion of the complainant’s testimony clearly refers to Sergeant Kiyar holding appellant’s arm as he was being placed in the police vehicle after his arrest. Sergeant Kiyar stated that appellant’s arrest was effected after he admitted his role in hiding the handguns. The record supports the conclusion that appellant first admitted his involvement in the theft, precipitating his arrest, and only later, after he was in custody and seated in the police car, agreed to lead the sergeant to the hiding place in the wooded area. Similarly, Sergeant Kiyar’s statement that appellant was not free to leave and go about his business, when examined in the context in which it was made, does not render the interrogation leading up to appellant’s arrest custodial, as suggested by the dissenter. On cross-examination, the sergeant was describing how the complainant was holding appellant by the arm when counsel asked, “And while he was doing this, was Cy free to leave?” The sergeant responded, “No, he wasn’t free to leave.” It would appear that the witness was simply stating the obvious—that appellant was not then free to go because he was being restrained by the complainant. There was no evidence to show that appellant was restrained, in any manner, by Sergeant Kiyar before his arrest. Furthermore, whether the statement might be taken to mean that appellant was under any official restriction imposed upon his freedom by the sergeant merely presents a question of fact, and this Court must defer to the suppression court’s findings. Whether appellant’s agreement to disclose the location of the weapons was voluntary likewise presents a question of fact. At this time, he was in custody in Sergeant Kiyar’s police vehicle, [270] and the complainant was standing outside the car demanding to know where the weapons were hidden. We find no basis in the record to disturb the suppression court’s conclusion that at the time appellant calmly “made the statement, ‘Relax, I’ll tell you where the guns are,’ he was not instilled with such fear and insecurity that he was induced or compelled to make that statement.” Finally, the lack of Miranda warnings does not require suppression of either the weapons or appellant’s statements leading to their recovery. Sergeant Kiyar’s questions were directed at locating the stolen weapons, one of which was loaded, and his inquiry falls within the public safety exception to Miranda (New York v Quarles, 467 US 649 [1984]). This matter raises the same concerns this Court identified in People v Oquendo (252 AD2d 312, 315 [1999], lv denied 93 NY2d 901 [1999]), “namely a missing (possibly loaded) gun, which was left in a publicly accessible place but could not be found readily without the suspect’s cooperation.” That the gun was hidden does not obviate public safety concerns (Quarles, 467 US at 652 [gun secreted in supermarket carton]); nor does any “subjective motivation of the arresting officer” to obtain incriminating evidence (id. at 656). Concur—Tom, J.P., Sullivan, Williams and Gonzalez, JJ.