U.S. District Court, Western District of N.Y. dismisses plaintiff's

Daily Record (Rochester, NY), Apr 13, 2005 by Kevin M. Momot

Where the plaintiff brought an action alleging defendant police officers violated his rights under the Americans With Disabilities Act and the U.S. Constitution by failing to provide a sign language interpreter to advise him of his Miranda rights, and by failing to provide a hearing assisted phone call to contact his attorney at the time of the arrest, there was no evidence the plaintiff was deprived of any service, because of his disability or for any other reason.

Reviewing the facts, applicable provisions and case law in Jon J. Duquin v. Mark Dyl and John Skonecki, U.S. District Court, Western District of New York Judge William M. Skretny granted the defendants' motion for summary judgment dismissing the complaint.

The Facts

On Sept. 20, 2003, the plaintiff, Jon J. Duquin, was arrested for petit larceny at a Tops Market in the Town of Cheektowaga. During a police investigation following the arrest, it was revealed Duquin had an active warrant for his arrest stemming from a burglary on May 3, 2003. He was assigned an attorney and arraigned on the charges in the Town of Cheektowaga Justice Court.

Duquin, who is deaf, communicated with his attorney in writing and via fax, waiving his right to a felony hearing before a grand jury and pleading not guilty to the criminal charges. The Cheektowaga Justice Court determined Duquin would be re-arraigned when an interpreter was available. In the meantime, he was charged with Burglary in the Second Degree and Grand Larceny in the Fourth Degree.

Duquin then commenced a civil action alleging the defendants, Police Officers Mark Dyl and John Skonecki, violated his rights under the U.S. Constitution and the Americans With Disabilities Act (ADA) by failing to provide a sign language interpreter to advise him of his Miranda rights, and by failing to provide a hearing assisted phone call to contact his attorney at the time of the arrest.

In January 2004, Duquin appeared in court with his attorney and a court-appointed sign language interpreter, pleading guilty to Attempted Robbery in the Second Degree. As a result of his plea, he was sentenced as a second violent felony offender to an indeterminate sentence of five years.

Discussion

ADA Claim

Judge Skretny first focused on Title II of the ADA, which states that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, 42 USC Section 12123.

To state a claim under the ADA, a plaintiff must demonstrate that: (1) he or she is a qualified individual with a disability; (2) he or she was denied the opportunity to participate in or benefit from a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability, Henrietta D. v. Bloomberg, 331 F3d 261, 272 (2d Cir. 2003).

Although Duquin, as a deaf person, was a qualified individual under the ADA, Judge Skretny determined he was not discriminated against by a public entity and that such discrimination was not because of his disability.

On the facts of this case, no reasonable trier of fact could conclude that plaintiff was arrested and arraigned, or treated differently because of his disability, the judge wrote. Plaintiff's arrest and arraignment were predicated on the presence of probable cause and the existence of an outstanding warrant for his arrest.

The court noted an attorney was appointed for Duquin, he communicated with the attorney in writing and via fax, the attorney represented him at his arraignment and he was provided with a court- appointed sign language interpreter at the time of his plea.

As there is no evidence that plaintiff was deprived of any service, because of his disability or for any other reason, his ADA claim must be dismissed, Judge Skretny concluded.

Fifth Amendment Claim

Turning to Duquin's constitutional claim under the self- incrimination clause, the court stated as a general rule, a violation of the Fifth Amendment for failure to administer Miranda warnings arose when a confession obtained in the absence of the warning is admitted into evidence at a defendant's criminal trial, New York v. Quarles, 467 US 649 (1984).

Here, the court determined there was no evidence Duquin was subject to interrogation or that any statement was obtained from him in the absence of Miranda warnings. Also, there was no evidence any statement was ever used against Duquin in his criminal proceeding.

In the absence of such evidence, no reasonable trier of fact could conclude that he was compelled to be a witness against himself, Judge Skretny concluded. Accordingly, plaintiff's Fifth Amendment claim based on defendants' failure to provide a sign language interpreter during the administration of Miranda warnings must fail.

Sixth Amendment Claim

Moving to Duquin's Sixth Amendment claim alleging a violation of his right to assistance of counsel, Judge Skretny determined Duquin was provided with an attorney at all critical stages of his criminal prosecution, United States v. Wade, 388 US 218 (1967). According to the court, Duquin failed to set forth any evidence that he was denied access to an attorney, or how he was prejudiced by such denial in his criminal action.