Police Trickery Prompts Concern From State's High Court

, New York Law Journal

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Judges of the New York Court of Appeals hear arguments about the potential of police deception to elicit a false confession in the cases of 'People v. Thomas' and 'People v. Aveni' in Albany on Tuesday.
Judges of the New York Court of Appeals hear arguments about the potential of police deception to elicit a false confession in the cases of 'People v. Thomas' and 'People v. Aveni' in Albany on Tuesday.

Judge Robert Smith (See Profile) immediately cut her off. "You're saying, 'We're going to scoop your wife up' is not a threat?" he asked incredulously.

Smith, who had granted leave in the case, pressed Egan on the detective's misrepresentation of the baby's condition.

"What about telling him falsely, 'Your child will die unless you talk to us.' Is there anything that can possibly overbear the will more than that?" Smith asked. "What were they trying to accomplish when they told him the child was still alive?"

Egan said police were hoping that Thomas would reveal what had happened.

"How can it not overbear your will if you think there's even a small chance of saving your child's life?" Smith asked.

Aveni is a Westchester County case involving the death of a woman who died in 2009 from a fatal combination of heroin, ecstasy and the anti-anxiety drug Xanax.

When police questioned Aveni, the victim's boyfriend, they knew the woman was dead but told the suspect she was alive and that doctors needed to know exactly what drugs she had taken to save her life. Police also suggested to Aveni that he would be charged with murder if he didn't provide the information and the woman died.

The Appellate Division, Second Department, unanimously reversed Aveni's conviction, finding that police "not only repeatedly deceived the defendant" but implicitly threatened to charge him with murder unless he confessed.

Assistant Westchester District Attorney Raffaelina Gianfrancesco argued that the Second Department erred in failing to consider the totality of the circumstances.

"This confession was voluntary and the deceptive practices used did not fall under circumstances" likely to induce a false confession, Gianfrancesco argued. "Clearly, this is not a false confession case."

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    What a terrible situation. Tell us what happened so your child can be saved ? That crosses the line. A police force from another era engaged in such tactics; they were called "Gestapo".

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