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DEFENDANT WAS ENTITLED TO NOTICE THE PEOPLE WERE GOING TO PRESENT EVIDENCE SHE TYPED IN THE COMBINATION TO A SAFE IN RESPONSE TO A REQUEST FROM A DETECTIVE, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, in a full-fledged opinion by Justice Chambers, determined defendant was entitled to notice that the People were going to introduce evidence that she typed in the combination of a safe in response to a request from a detective:

Here, the Supreme Court erred in determining that the defendant’s act of typing in the combination to the safe, which was made in direct response to Detective Theodore’s request that the safe “needed to be opened,” did not amount to a statement made to a law enforcement officer which, “if involuntarily made would render the evidence thereof suppressible upon motion pursuant to [CPL 710.20(3)]” … .

It is well settled that “any pertinent communication, whether made by statement or conduct,” may be suppressed if made in violation of the defendant’s right against self-incrimination … . Our view is that the defendant physically entering the combination to open the safe, rather than verbally communicating that combination to the police … , does not make her response any less communicative or testimonial in nature, since the act unquestionably expressed the contents of the defendant’s mind … . To the extent our decision in People v Morales (248 AD2d 731) suggests a different conclusion, it should no longer be followed.

Moreover, since the defendant’s knowledge of the safe’s combination was the only evidence establishing her dominion and control over its contents, the act of unlocking the safe was undoubtedly incriminating … . In addition, the fact that the defendant was still in handcuffs and had not yet been advised of her Miranda rights when Detective Theodore made his request raises questions as to whether her act of unlocking the safe was voluntary … . Thus, this is not a situation where the requirement of a CPL 710.30 notice was obviated because there was no question of the voluntariness of the challenged statement. People v Porter, 2020 NY Slip Op 08122, Second Dept 12-30-20

 

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