People v. Desjardins

ROBERT GALLAMORE, OSWEGO, FOR DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., CARNI, CURRAN, WINSLOW, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated, that part of the omnibus motion seeking to suppress statements made to the Child Protective Services caseworker is granted, and the matter is remitted to Supreme Court, Oswego County, for further proceedings on the indictment.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of course of sexual conduct against a child in the second degree ( Penal Law § 130.80 [1] [b] ), rape in the second degree (§ 130.30 [1]), and sexual abuse in the third degree (§ 130.55) stemming from incidents that were investigated by both the Oswego County Sheriff's Office and Child Protective Services (CPS). As an initial matter, defendant's purported waiver of the right to appeal is invalid inasmuch as Supreme Court's colloquy did not sufficiently apprise defendant of the scope of the waiver or that certain rights would survive the waiver (see People v. Esquilin , 192 A.D.3d 1481, 1481, 140 N.Y.S.3d 796 [4th Dept. 2021], lv denied 37 N.Y.3d 955, 147 N.Y.S.3d 536, 170 N.E.3d 410 [2021] ; see also People v. Thomas , 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ) and the written waiver of the right to appeal executed by defendant did not cure the deficient colloquy (see People v. Davis , 188 A.D.3d 1731, 1732, 136 N.Y.S.3d 638 [4th Dept. 2020] ; People v. Harlee , 187 A.D.3d 1586, 1587, 131 N.Y.S.3d 760 [4th Dept. 2020], lv denied 36 N.Y.3d 929, 135 N.Y.S.3d 333, 159 N.E.3d 1100 [2020] ).

With respect to the merits, defendant contends that the CPS caseworker who interviewed him while he was in custody was acting as an agent of the police when she interviewed him and that the court thus erred in refusing to suppress the statements he made to her outside the presence of his counsel after his right to counsel had undisputedly attached (see People v. Velasquez , 68 N.Y.2d 533, 537, 510 N.Y.S.2d 833, 503 N.E.2d 481 [1986] ). Although social workers are not automatically considered agents of the police, they may be so considered under certain circumstances (see People v. Rodriguez , 135 A.D.3d 1181, 1184-1185, 23 N.Y.S.3d 692 [3d Dept. 2016], lv denied 28 N.Y.3d 936, 40 N.Y.S.3d 364, 63 N.E.3d 84 [2016] ). In determining whether there is an agency relationship, the existence of a joint task force involving CPS and law enforcement agencies is not itself dispositive (see People v. Wilcox , 192 A.D.3d 1540, 1541, 144 N.Y.S.3d 770 [4th Dept. 2021], lv denied 37 N.Y.3d 961, 147 N.Y.S.3d 518, 170 N.E.3d 392 [2021] ). Rather, it is the "degree of investigatory cooperation" between the two agencies that should be considered ( People v. Rodas , 145 A.D.3d 1452, 1453, 43 N.Y.S.3d 624 [4th Dept. 2016] ; see People v. Wilhelm , 34 A.D.3d 40, 48, 822 N.Y.S.2d 786 [3d Dept. 2006] ; People v. Greene , 306 A.D.2d 639, 640-641, 760 N.Y.S.2d 769 [3d Dept. 2003], lv denied 100 N.Y.2d 594, 766 N.Y.S.2d 170, 798 N.E.2d 354 [2003] ).

Here, the CPS caseworker testified at the Huntley hearing that, at the time she interviewed defendant, she was aware that defendant was being held on criminal charges and that he was represented by counsel. She further testified that she worked on a multidisciplinary task force composed of social services and law enforcement agencies, through which she received training on interviewing individuals accused of committing sexual offenses. Additionally, in keeping with task force protocol directing her to report to law enforcement any inculpatory statements made during CPS interviews, the CPS caseworker called the investigating officer immediately following the interview with defendant and promptly went to his office to report defendant's statements. Under the circumstances of this case as reflected at the hearing, although the police did not specifically direct the CPS caseworker to conduct the interview on a specific date or time or accompany her to the interview (cf. Wilcox , 192 A.D.3d at 1541, 144 N.Y.S.3d 770 ; Rodriguez , 135 A.D.3d at 1185, 23 N.Y.S.3d 692 ), we conclude that the CPS caseworker here had a "cooperative working arrangement" with police such that she was acting as an agent of the police when she interviewed defendant and relayed his incriminatory statements ( Wilhelm , 34 A.D.3d at 48, 822 N.Y.S.2d 786 [internal quotation marks omitted]; see Rodas , 145 A.D.3d at 1453, 43 N.Y.S.3d 624 ; Greene , 306 A.D.2d at 640-641, 760 N.Y.S.2d 769 ). The statements were thus obtained in violation of defendant's right to counsel, and the court erred in refusing to suppress them (see Rodas , 145 A.D.3d at 1454, 43 N.Y.S.3d 624 ; Wilhelm , 34 A.D.3d at 49-50, 822 N.Y.S.2d 786 ). Further, because defendant's statements to the CPS caseworker were the only statements in which he admitted to having sexual contact with the victim, we cannot say that there is "no reasonable possibility that the error contributed to the plea" ( People v. Clanton , 151 A.D.3d 1576, 1579, 57 N.Y.S.3d 775 [4th Dept. 2017] [internal quotation marks omitted]; see generally People v. Wells , 21 N.Y.3d 716, 718-720, 977 N.Y.S.2d 712, 999 N.E.2d 1157 [2013] ). We therefore reverse the judgment, vacate the plea, grant that part of the omnibus motion seeking to suppress the statements made to the CPS caseworker, and remit the matter to Supreme Court for further proceedings on the indictment (see Wells , 21 N.Y.3d at 720, 977 N.Y.S.2d 712, 999 N.E.2d 1157 ; People v. Holz , 184 A.D.3d 1156, 1157, 123 N.Y.S.3d 864 [4th Dept. 2020] ). In light of our determination, we do not address defendant's remaining contentions.