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UNDER THE CIRCUMSTANCES OF THIS CASE, PRE-MIRANDA QUESTIONING OF THE DEFENDANT ABOUT HIS EMPLOYMENT CONSTITUTED CUSTODIAL INTERROGATION; ALL OF DEFENDANT’S STATEMENTS, PRE- AND POST-MIRANDA, MUST BE SUPPRESSED; JURY SHOULD HAVE BEEN TOLD OUT-OF-COURT STATEMENTS ADMITTED FOR A NONHEARSAY PURPOSE SHOULD NOT BE CONSIDERED FOR THEIR TRUTH (SECOND DEPT).

The Second Department, reversing defendant’s conviction, suppressing defendant’s statements and ordering a new trial, determined the initial questioning of the defendant, which was not preceded by the Miranda warnings, constituted interrogation. Therefore, those statements and the entire post-Miranda videotaped interrogation, should have been suppressed. The court further noted that statements made by an accomplice in a controlled phone call were admitted for a nonhearsay purpose. Therefore the jury should have been instructed not to rely on those statements for their truth:

… [T]he pre-Miranda questioning was not mere “small talk,” but, rather, interrogation … . In particular, the detective was aware, when he questioned the defendant about his employment, that Espinal [an accomplice] claimed to know the defendant from previously working with him at a bar. Indeed, when the questioning resumed after administration of Miranda warnings, it concerned the defendant’s work history at bars at or around the time of the incident. Notably, the People assert that they are not claiming that the pedigree exception to the Miranda rule is applicable, and, in any event, the detective admitted at the suppression hearing that, at the time of the interview, he had already recorded the defendant’s pedigree information and that such information does not include an individual’s employment … . Under these circumstances, the defendant was improperly subjected to custodial interrogation without being advised of his Miranda rights, requiring suppression of those statements … . People v Dorvil, 2019 NY Slip Op 06409, Second Dept 8-28-19

 

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DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO SUPPRESS TANGIBLE EVIDENCE... WARRANTLESS SEARCH OF DEFENDANT’S BACKPACK WAS NOT A VALID SEARCH INCIDENT...