How The Two-Part Test For Garrity Applies To Field Interviews

Courts rarely change their minds in the middle of a case. But so it was in the criminal prosecution of New York City corrections officer Gregory Grabowski, who had been indicted for assault in the third degree, offering a false instrument for filing in the first and second degree, falsifying business records in the first and second degree, official misconduct and related charges. In a decision in 2014, the Court rejected Grabowski’s motion under Garrity v. New Jersey to suppress a statement he made to the City’s Department of Investigation. In a decision just released, the Court uttered the judicial equivalent of “oops,” recalled its earlier opinion and granted Grabowski’s motion to suppress.

The Court opened its latest opinion by noting “there are two tests utilized to determine what constitutes a compelled statement: (1) a defendant must establish that he was explicitly made aware that he would be fired for refusing to answer questions posed by investigators; or (2) a defendant must establish that he subjectively believed that termination would follow an assertion of his Fifth Amendment privilege and that that belief was objectively reasonable under the circumstances.” It is by now axiomatic that a State or municipality cannot present an employee with the Hobson’s choice of either making an unimmunized statement implicating criminal conduct or suffering a severe penalty such as termination. Stated another way, under both the State and Federal Constitutions, a statement made under the threat of dismissal is deemed compelled; it is protected by the privilege against self-incrimination and automatically immunized from use in a subsequent criminal prosecution.

“In New York City these constitutional principles have been codified in MEO-16, which affords an officer or employee of New York City use immunity for any statements he or she makes during the course of an investigative interview that satisfies the formal procedural criteria of MEO-16, and particularly whenever he or she is threatened with dismissal for refusing to answer the investigator’s questions at such a proceeding. Based on the testimony at the reopened hearing regarding the varied settings that a MEO-16 hearing could take place and the possibility that use immunity could be conferred during a field interview, the Court is now persuaded that the line between MEO-16 interviews and field interviews, in fact, is not bright, but rather is blurred.

“Therefore, when a correction officer is questioned by an investigator about his official duties, his or her knowledge as to whether the interview is a compelled MEO-16 interview versus a voluntary field interview cannot be presumed or imputed. Thus, in each case where a correction officer makes a statement ‘in the field’ (i.e., outside the circumstances of a formalized MEO-16 hearing) and where he has not been explicitly threatened with termination for a refusal to answer, the dispositive question is whether that correction officer had a subjective belief that the statement was compelled and whether any such belief was objectively reasonable. This requires a case-specific factual analysis.

“Here, it is undisputed that defendant voluntarily agreed to speak with the investigators and that he was not explicitly threatened with termination of his employment as a correction officer or that he faced some other severe sanction if he refused to speak with the investigators. However, the record now supports defendant’s contention that he believed he was presented with a situation where he would be terminated if he asserted his constitutional privilege and that this subjective belief was objectively reasonable under the particular circumstances of this case.

“Specifically, the Court finds credible defendant’s testimony that he believed he would be fired if he refused to speak with the investigators and that he believed that the interview was a MEO-16 interview in which he would receive use immunity for his statements. It is uncontested that defendant was never told by any of the investigators that he was free to leave and that he would face no consequences if he refused to speak to the investigators. Further, defendant’s demeanor of extreme nervousness during the course of the interview was that of an inexperienced interviewee who believed his job was at stake should he fail to cooperate. The fact that defendant spoke freely to investigators for over an hour and did not attempt to consult with an attorney or union representative is also indicative that he believed his statements could not be used against him in any subsequent criminal prosecution.

“Defendant’s testimony regarding his subjective beliefs was objectively reasonable under the particular circumstances of this interview. A captain was present and alone with defendant when the three DOI investigators entered the trailer and began the interrogation. One of the questioners was a DOC captain, and in a paramilitary organization such as DOC, where cooperation with superiors is expected, defendant would reasonably believe he had no choice but to answer or be severely disciplined. In addition, the signage at Rikers directing correction officers to report corruption as well as the fact that DOC (as distinct from DOI), when investigating administrative violations, always conducts MEO-16 interviews and confers use immunity, could lead a correction officer, when approached in the field by investigators, to believe that he had to either talk or be fired. Finally, the fact that the interview of defendant was recorded and that it was at first characterized by DOC as a MEO-16 interview stand in support of the reasonableness of defendant’s belief that the interview was a compelled MEO-16 interview at which his statement would be afforded use immunity.”

People v. Grabowski, 16 N.Y.S. 3d 434 (N.Y. Sup. 2015).