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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 81
In the Matter of Delroy S.,
a Person Alleged to be a Juvenile
Delinquent,
               Appellant.




          Raymond E. Rogers, for appellant.
          Michael J. Pastor, for respondent presentment agency.




MEMORANDUM:
     The order of the Appellate Division, insofar as appealed
from, should be reversed, without costs, and the matter remitted
to Family Court for further proceedings in accordance with this
memorandum.
     In this juvenile delinquency proceeding, 11 year-old Delroy
was charged in Family Court with the commission of acts that, if

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done by an adult, would constitute, among other things, assault
in the first degree and third degree, and attempted assault in
the first, second and third degrees.    The charges arose out of an
altercation that Delroy had with the 12 year-old complainant,
during which the complainant was stabbed.   Delroy moved to
suppress a statement that he had made to the police officers who
responded to the scene, as well as a knife recovered from
Delroy's apartment.   According to the testimony at the
suppression hearing, when the officers responded to the location
of the incident, they saw the complainant and a crowd of people,
including Delroy's adult sister.   Delroy's sister stated that her
brother had been bullied by the complainant, that the two boys
had fought and that Delroy had stabbed the complainant.
     Delroy's sister took the officers to Delroy's apartment.
Once inside, the officers saw Delroy.   Without administering
Miranda warnings, one of the officers asked Delroy "what
happened?" and Delroy responded, in sum and substance, that he
got into a fight with the complainant, who was bothering him,
that he went to go find his brother, that he could not find his
brother, and that he came back with a knife and stabbed the
complainant.
     Family Court denied the suppression motion, noting that
Delroy's adult sister invited the police into the home, and took
the lead with respect to recovery of the knife.   After the fact-
finding hearing, at which Delroy interposed a justification


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defense, Family Court concluded that Delroy had committed the
delinquent acts of second-degree assault, fourth-degree criminal
possession of a weapon, petit larceny and fifth-degree criminal
possession of stolen property.    The court adjudicated him a
juvenile delinquent and placed him on probation for a period of
eighteen months.
     The Appellate Division held that Delroy's statement should
have been suppressed on the ground that it was the product of a
custodial interrogation without Miranda warnings because, under
the circumstances, "a reasonable 11 year old would not have felt
free to leave" (113 AD3d 448 [2014]).    However, it concluded that
admission of the statement was "harmless beyond a reasonable
doubt" in that "there was overwhelming evidence that both
established [Delroy's] guilt of the assault and weapon charges
and disproved his justification defense"(id.).    The Appellate
Division modified the order of disposition only to the extent of
vacating the findings as to petit larceny and criminal possession
of stolen property as unsupported by the evidence and dismissing
those counts.
     There is no basis to disturb the Appellate Division's
holding that this was a custodial interrogation, and that the
statement should have been suppressed.
     We disagree with the Appellate Division's conclusion that
the error was harmless.   A trial court's error involving a
constitutionally protected right is harmless beyond a reasonable


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doubt only if "there is no reasonable possibility that the error
might have contributed to defendant's conviction" (People v
Crimmins, 36 NY2d 230, 237 [1975]).    "The People must show that
any error was harmless beyond a reasonable doubt [and] [i]n
deciding whether the People have met this burden, we consider
both the overall strength of the case against defendant and the
importance to that case of the improperly admitted evidence"
(People v Goldstein, 6 NY3d 119, 129 [2005], cert. denied 547 US
1159 [2006][internal citations omitted]).
     The record shows that while there was no doubt that Delroy
had stabbed the complainant, there was evidence supporting
Delroy's justification defense.   "The defense of justification
. . . permits one to use deadly physical force on another when
one reasonably believes that deadly physical force is being used
or imminently will be used by such other person" (People v Watts,
57 NY2d 299, 301 [1982], citing Penal Law 35.15[2][a]), and that
"defense is qualified by a duty to retreat" (id.).    The People
bear the burden of disproving the defense of justification beyond
a reasonable doubt (see Matter of Y.K., 87 NY2d 430, 433 [1996]).
     The complainant testified that on the day of the incident,
he entered Delroy's building and seized a scooter from Delroy
that he thought was his.   The two boys engaged in a "tug-of-war
fight" over the scooter.   The complainant was older, taller,
heavier and stronger than Delroy.   The complainant left Delroy's
building, but then returned to Delroy's home with his twin


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brother and nine or ten friends and engaged in a fight with
Delroy.   The complainant admitted that he started the second
fight by yelling at Delroy, and that his friends were cheering
him on.   The complainant's brother testified that while the
complainant had his hands above Delroy's chest on his neck, the
group was yelling "get him."    Delroy did not use the knife until
after this potentially deadly force was used on him.   While the
People argue that the complainant's brother testified that Delroy
was able to get out of the choke hold and step back five or six
feet before pulling out the knife, and the complainant testified
that Delroy might have been twelve feet away when he took out the
knife, we note that the complainant also testified that he didn't
know if Delroy was underneath him when he felt the knife stabbing
him.   Moreover, even if Delroy had in fact stepped some feet away
from the complainant, that would not prove that the complainant
was done with beating on the much smaller Delroy, especially
given the crowd that had gathered around to cheer on the
combating boys.   Contrary to the Appellate Division's conclusion,
there was not overwhelming evidence that Delroy knew that, with
complete personal safety, he could have retreated (see Penal Law
§ 35.15 [2] [a]).
       Furthermore, the People have not demonstrated that
there is no reasonable possibility that the wrongly admitted
evidence might have contributed to the guilty finding.      Given the
uncontroverted testimony that there were two fights (the first


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when the complainant took the scooter from Delroy, and the second
when the complainant was stabbed), the police officer's summary
of Delroy's statement appears to conflate the two separate
fights, and creates the impression that Delroy paused in the
course of one fight to secure a knife with which to stab the
complainant.      Regardless of whether the police officer accurately
recounted the statement, or did indeed conflate the two fights,
the improper admission of Delroy's statement undermined, if not
eviscerated, Delroy's justification defense.
        Accordingly, the failure to suppress the statement was not
harmless.
*   *     *   *    *   *   *   *    *      *   *   *   *   *   *   *   *
Order, insofar as appealed from, reversed, without costs, and
matter remitted to Family Court, Bronx County, for further
proceedings in accordance with the memorandum herein. Chief
Judge Lippman and Judges Read, Pigott, Rivera, Abdus-Salaam,
Stein and Fahey concur.

Decided June 4, 2015




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