People v. Barham

KENNETH L. GARTNER, J. It has been long established that statements compelled from public employees under threat of loss of their employment are inadmissible in criminal proceedings, as "involuntary" within the meaning of the Constitution. It has similarly been long established that this constitutional protection is unavailable to private employees, since private employers, when making such a threat, are not acting as an arm of the State. Apparently for this reason, this court has not found any prior case applying to private employees the constitutional protection against the use of statements compelled by threatened job loss. However, because Criminal Procedure Law § 60.45 (2) statutorily extends the same protection to private employees that the Constitution provides to public employees, this court now determines that a hearing must be held in the instant case to determine whether a statement given by the defendant to store detectives retained by the defendant's private employer was compelled by a prohibited threat. Defendant seeks suppression of two statements made by the defendant. The defendant is charged with having participated with others in a criminal scheme to steal from his then-employer, Lowes Department Store. The defendant gave the first statement sought to be suppressed prior to his arrest, while being interrogated by private detectives retained by Lowes. Months later the defendant was stopped for alleged Vehicle and Traffic Law violations, and a computer check turned up two open warrants. One was for the larceny charge. The other was for an unrelated matter relative to a domestic incident (which has since been disposed of). The defendant was arrested, given Miranda warnings, and questioned regarding the domestic incident. Several hours went by. The defendant was then questioned again, regarding the larceny charge. He at that time gave the second statement. The defendant argues that the first statement should be suppressed because it was involuntary, having been given under Also to be potentially considered at the hearing will be whether the second statement is alternatively required to be suppressed pursuant to CPL 710.20 (4) as the "fruits" of the first statement, if the first statement is in fact shown to be involuntary. (See, Sorbo, supra, 170 Misc 2d at 395.)