this this question of the standard of review we operate with the presumption that the court identified no merits to the client isn't that right that's correct all right it may it did make a finding that the there was no evidence that the police used coercive tactics if i if i understood correctly right i think that's right right so why isn't implicit in that finding believe trial counsel was ineffective in the conduct of the suppression hearing but they omitted any reference to the voluntariness claim and i don't think one can imply that they didn't speak to the point the defendant are to petition or argue to the court of appeals in taking the review well you know what the appellate division failed to rule on my challenge to my miranda waiver i would have expected that if if his complaint was that he would have argued that to the court of appeals i didn't see that i don't think that that would counsel made that claim before the emotional disorders and prescribe medications which he was not taking at the time of the events in question and we go to the scientific studies that have shown pretty conclusively that an adolescent brain is not yet fully formed and the portion of the adolescent brain that has not fully formed what control is a higher capacity to make rational decisions and define that a person has knowingly and voluntarily his constitutional rights the court must determine that he fully understood the rights he was waiving here the state court gave no consideration to the appellant used and vulnerability in rejecting his motion to suppress his statements roll intents and purposes it was treated like a fully mature adult in determining that claim and i submit that when the appellate division reduced his sentence from twenty five years to life to prior criminal convictions and his mental health issues that was the basis for the courts were duction of the appellant sentence and whether intentional or not the police didn't gaze in tactics that left his mother at their house so that the appellant was isolated at the police station and then the investigators work as a team while interrogating him interrogation when all night it lasted over seven hours and i would add that even the assurance that initially the investigators made that he was not under arrest was itself a tactic designed to weaken his result in addition to that  used what's referred to as the minimisation tactic telling him that they believe that he didn't mean to hurt the child which thereby suggested to him that he had an excuse in effect for his offense and that he would be treated petitioner was savvy enough to game the system may he lied repeatedly bad how the child was injured he in some ways directed the examination asking to write out rather than bully respond to questions he looked as if he were appearing to cooperate and that can be considered in light of his subsequent statement to his mother that all he had to do to make people feel sorry for him was cry and act in a sympathetic way but in any event we do have the express finding that seem supported by the evidence that there was no officer misconduct or import tuning so together but what i'm suggesting is the way the police conducted these investigate these interrogations the length of the interrogations and all of the circumstances including involuntary in this of the statement one of the points and i think it's a very troubling point that there was no recording made of these interrogations and we know that at least half of our state mandate recording police interrogations particularly in homicide cases and the police officers in use for not recording the interrogations which they acknowledge that would normally be the practice they claim that they had been the snowstorm that night and they couldn't gain access to the recording equipment and you know the snowstorm did not stop any of the investigators from turning on a cell phone and recording the interrogations police as well as what to say in that statement where the products of a free not constrained choice and therefore statement was voluntary detectives treatment of the sixteen year old additional was exemplary the interrogation was tailored that he was relieved but that is actors reading his miranda warnings anyway and he was later reminded of those after a break in the interrogation he was given water breaks and bathroom breaks throughout the course of the when he said that it was too hard to talk about what he did which was cause the death of a two year old child detective graham allowed him to write out a statement he was given a chance to review the final typewritten statement and make any changes with which he the recording of the interrogation besides the fact that it wasn't required and that it was there was a valid excuse to record it recording an interrogation does not make it any the his initial encounter when he was very upset and didn't own actions they gave him plenty of time to calm down the interrogation itself was that seven hours a little over four hours and that's with the breaks he was in the presence of the police for about seven hours but he was he was not because the that whole time and he was not interrogated that entire time that i would take any questions from the court interrogation i would acknowledge that he was in custody because his final typewritten statement made reference to the practice under investigative detention but no it was he was told that only at the outset of the statement that he was not under and paraphrasing the statement that he made was that recording interrogations does not have any effect on the voluntariness of a suspect statement you know using that for concessions from being made so we courting help otherwise there'd be no reason for our state to require them to be made in the st place we know from experience that  that it is a requirement for a voluntary waiver of miranda rights to mean even united states want to force meant federal law enforcement officials don't automatically record it seems to be much more prevalent in the state than in federal investigations so how would we go back to saying on hey b s that the failure to record demonstrates into the in voluntariness of the miranda whatever i understand that you're saying that the fact that they could have recorded as you put it should weigh against their credibility but well is that is that testified to i didn't understand him to be saying you know they say they did a b and c and dad they were doing x y and z so i like their understand there'd be a dispute about that  an experience could have presented on his behalf so d this is a little st time it's happening i mean even without a take i didn't understand at the state court proceedings or anywhere