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DEFENDANT’S UNEQUIVOCAL REQUEST FOR COUNSEL NOT HONORED; CONVICTION REVERSED.

The Second Department determined defendant’s statements, made after an unequivocal request for counsel, should have been suppressed. Defendant’s conviction was reversed and a new trial ordered:

The issue is whether ” a reasonable police officer in the circumstances would understand the statement to be a request for an attorney'” … . Any indication by a police officer that he understood a defendant’s statement to be a request for counsel is a factor to be considered in evaluating whether there was an unequivocal request for counsel … .

Once a suspect in police custody unequivocally requests the assistance of counsel, the suspect may not be asked any more questions in the absence of counsel … . “A defendant’s unequivocal invocation of counsel while in custody results in the attachment of the right to counsel, indelibly so, meaning that, as a matter of state constitutional law, a defendant cannot subsequently waive the right to counsel unless the defendant is in the presence of an attorney representing that defendant” … . * * *

… [T]he defendant’s second statement, made approximately 25 minutes after his first mention of an attorney, stating that he “need[ed] to see private counsel” and that he “need[ed] an attorney,” was an unequivocal invocation of his right to counsel … . Shortly thereafter, the investigator evidenced his understanding that the defendant had requested counsel by querying the defendant about “the attorney thing.” People v Carrino, 2015 NY Slip Op 09295, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

CRIMINAL LAW (UNEQUIVOCAL REQUEST FOR COUNSEL)/SUPPRESSION (STATEMENTS, UNEQUIVOCAL REQUEST FOR COUNSEL)/COUNSEL (UNEQUIVOCAL REQUEST FOR)

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Two-Hour Interval Did Not Return Defendant to Status of One Who Was Not Under the Influence of Unwarned Questioning—Subsequent Mirandized Statement Should Have Been Suppressed—Harmless Error Here However

The Second Department determined the two-hour interval between defendant’s unwarned statement and a mirandized statement did not save the mirandized statement from suppression. During the unwarned statement defendant agreed to make a subsequent videotaped statement (which was mirandized). During the two hours between the unwarned statement and the videotaped statement defendant the defendant was never returned to the status of one who was not under questioning. The error here (admitting the videotaped statement) was, however, deemed harmless:

“[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a single continuous chain of events’, there is inadequate assurance that the Miranda warnings were effective in protecting a defendant’s rights, and the warned statement must also be suppressed” … . In determining whether a subsequent statement made after Miranda warnings were given was part of a “single continuous chain of events,” the court considers various factors including “whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; and whether, prior to the Miranda violation, defendant had indicated a willingness to speak to police” … . The purpose of the inquiry is to determine whether there was a “definite, pronounced break in questioning sufficient to return the defendant to the status of one who is not under the influence of questioning” … .

Here, the statement made by the defendant during the pre-9 a.m. questioning, which the Supreme Court suppressed, and the second videotaped statement were part of a single continuous chain of events inasmuch as during the pre-9 a.m. questioning, Detective Rodriguez asked the defendant to make a further videotaped statement when he interrogated the defendant in violation of his constitutional rights. Therefore, during the two-hour break, the defendant was never returned to the status of one who was not under the influence of questioning …, but was anticipating the arrival of the Assistant District Attorney to continue the interrogation. Moreover, Detective Rodriguez, who elicited the 10-to-15 minute statement the defendant made during the pre-9 a.m. questioning without having been again given his Miranda warnings, was present during the subsequent videotaped interrogation, and both interrogations were conducted in the same interview room … . Considering these factors and the nature and extent of the Miranda violation, we cannot conclude that there was a definite, pronounced break between the defendant’s first and second videotaped statements sufficient to return the defendant to the status of one who was not under the influence of questioning … . People v Rodriguez, 2015 NY Slip Op 07520, 2nd Dept 10-14-15

 

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Insufficient Break Between “Unwarned” Statement and Statement Made Subsequently After the Miranda Warnings Were Given—Entire Statement Should Have Been Suppressed

The Fourth Department determined there was an insufficient break (10 minutes) between an “unwarned” inculpatory statement made by the defendant and a subsequent statement made after the Miranda warnings were given.  The entire statement should have been suppressed:

“When, as part of a continuous chain of events, a defendant is subjected to custodial interrogation without Miranda warnings, any statements made in response as well as any additional statements made after the warnings are administered and questioning resumes must be suppressed” … . Where, however, “there is such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning,” his or her statements in response to renewed questioning after he or she has received Miranda warnings and waived his or her constitutional rights may be admitted … . Here, the initial questioning by the second officer, although brief, produced an inculpatory statement directly related to the instant crime… , and the second interrogation, which produced another inculpatory statement, occurred less than 10 minutes later and in the same location … . Moreover, contrary to the People’s contention, the record does not establish that “a reasonable suspect in defendant’s position would have perceived a marked change in the tenor of his engagement with [the] police” … . We thus conclude that “it cannot be said that there was such a definite, pronounced break’ in the interrogation that defendant was returned to the position of one who was not under the influence of the initial improper questioning” … . People v Walker, 2015 NY Slip Op 05313, 4th Dept 6-19-15

 

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Insufficient Break Between Unwarned Statement and Subsequent Warned Statement—All Statements Suppressed/Appellate Court Cannot Consider Argument Not Raised by the People at Trial and Not Considered by the Trial Court

The Second Department, over a dissent, determined that there was not a sufficient break between the unwarned portion of defendant’s statement and the subsequent warned statements to remove the taint of the initial failure to give the Miranda warnings.  The court noted that it was precluded from considering any theory supporting the admissibility of subsequent warned statements because the theory was not presented to the trial court by the People and was not considered by the trial court:

“[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a single continuous chain of events, there is inadequate assurance that the Miranda warnings were effective in protecting a defendant’s rights, and the warned statement must also be suppressed” … . On this record …, it is clear that defendant’s two written statements, although produced after she had been Mirandized, were “part of a single continuous chain of events” that included the detective’s initial pre-warning inquiries and statement, defendant’s pre-warning acknowledgment that she knew why she had been brought in, and her pre-warning statement that she and the other alleged perpetrator had asked to use the victim’s phone outside the latter’s house. There was no time differential between the Miranda violation and the Mirandized interview that immediately followed, giving rise to the two written statements; the same police personnel were involved before and after the warnings; there was no change in the location or nature of the interrogation; and defendant had never indicated a willingness to speak to the police before the Miranda violation. Further, although the pre-warning exchange was very brief and did not include any admission by defendant of criminal conduct, her unwarned statements plainly tended to incriminate her by acknowledging that she knew something about the murder of an elderly woman and by placing herself at the scene of the crime with the victim and the other alleged perpetrator … .

Under the foregoing circumstances established by the record, it cannot be said that there was, between the Miranda violation and the making of the subsequent Mirandized written statements, such a “definite, pronounced break in the interrogation to dissipate the taint from the Miranda violation” … by “return[ing] [defendant], in effect, to the status of one who is not under the influence of questioning” … . * * *

We note that we are precluded from considering whether the break of at least 2 hours and 45 minutes between the completion of defendant’s second written statement and the commencement of her videotaped statement (which began with renewed Miranda warnings administered by the assistant district attorney) sufficed to attenuate any taint from the commencement of the questioning before she was initially Mirandized and, therefore, to render the videotaped statement admissible. The hearing court’s decision denying suppression did not consider any such theory, which had not been raised by the People in opposition to the motion seeking suppression of all three recorded statements. Accordingly, under CPL 470.15(1), we are without power to affirm on the ground that the videotaped statement was admissible and that its admission rendered harmless the error in admitting the written statements … . People v Daniel, 2014 NY Slip Op 07568, 1st Dept 11-6-14

 

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People Failed to Prove Seizure of Cocaine at Police Station Was Not the Fruit of the Illegal Arrest—Attenuation Not Demonstrated

The Third Department determined the People failed to prove that the cocaine seized from the defendant at the police station after his arrest was not the product of the earlier illegal arrest of the defendant (fruit of the poisonous tree).  At the Dunaway hearing, the People presented no witnesses concerning the seizure at the police station.  County Court’s finding that the “attenuation” doctrine supported the legitimacy of the seizure at the station was therefore not supported by the record:

Under well-established exclusionary rule principles, where police have engaged in unlawful activity – here, by arresting defendant without probable cause – evidence which is a result of the “exploitation of that illegality” is subject to suppression as the “fruit of the poisonous tree” unless one of the recognized exceptions to the exclusionary rule is applicable … .  The exception at issue here, as specifically decided by County Court thereby preserving the issue for appeal (see CPL 470.05 [2]…), is attenuation, that is, whether the production of the cocaine evidence during defendant’s illegal detention resulted from the exploitation of that illegality, directly or derivatively … .  The focus of the attenuation exception is “on the presence or absence of ‘free will’ or voluntariness regarding a defendant’s . . . acts which follow illegal police conduct; thus, the attenuation inquiry resolves whether the causal connection between the police misconduct and the later discovery of the challenged evidence is so far removed as to dissipate the taint” … .  “That determination requires consideration of the temporal proximity of the arrest and [acquisition of evidence] . . ., the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct” … .

Given the complete lack of testimony at the Dunaway hearing regarding the post-illegal-arrest incident at the police station – including any intervening circumstances – in which cocaine evidence was reportedly seized from defendant’s person, we find that the People failed to satisfy their burden of proving the applicability of the attenuation exception.  That is, the People did not prove that the evidence was not acquired by exploiting the illegal arrest but, rather, came about by means “sufficiently distinguishable from [the illegality] to be purged of illegality” … . Thus, County Court’s finding of attenuation is not supported by the hearing record.   People v Small, 103485, 3rd Dept 10-17-13

 

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Illegal Arrest Did Not Taint Identification Procedure – Attentuation Doctrine Applied

Over a dissent, the Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that the defendant’s identification in a line-up, after an admittedly illegal arrest, was not tainted by the arrest under the doctrine of “attenuation.”  The operative legal principles were described as follows:

The sergeant’s initial arrest of defendant was without probable cause and therefore illegal. But evidence discovered subsequent to an illegal arrest is not indiscriminately subject to the exclusionary rule…. Instead, the People “must have ‘somehow exploited or benefitted from [the] illegal conduct’ such that ‘there is a connection between the violation of a constitutional right and the derivative evidence’ obtained by the police”….

Defendant claims that the lineup identification must be suppressed because it was the product of an illegal arrest. In order to counter that challenge, the People were required to demonstrate that the identification was “acquired by means sufficiently distinguishable from the arrest to be purged of the illegality” …, i.e., that the taint of the illegal arrest was “attenuated” …. In order to determine whether attenuation exists, the court must “consider the temporal proximity of the arrest and [the evidence at issue], the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct”…. *  *  *

By the time the sergeant effected the illegal arrest, the detective already had in his possession sufficient evidence to establish probable cause for defendant’s arrest. People v Jones, No 125, CtApp 6-25-13

 

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Statement Not Tainted by Unwarned Statement Made an Hour Before; Failure to Inform Defendant of Post Release Supervision Did Not Require Reversal

The Fourth Department determined County Court properly denied a motion to suppress a statement, finding that the statement was not tainted by an unwarned statement made an hour earlier.  In addition, over a two-justice dissent, the Fourth Department held that the failure to explain the five-year post release supervision (PRS) portion of the sentence when the plea was taken did not require reversal, in part because the error was not preserved:

Although defendant made an inculpatory statement after she was placed in a patrol vehicle and additional inculpatory statements after she was transported to the police station, the court granted suppression of the statement made in the patrol vehicle on the ground that her detention constituted an arrest for which the police officer lacked probable cause. The court refused, however, to suppress the subsequent statements at the police station based on its determination that they were “attenuated from the unlawful arrest.” We agree with the People that the record supports the court’s determination .. . Although there was a period of only one hour between the time of the illegal arrest and the time of defendant’s statements at the police station …, we note that defendant was given Miranda warnings before the stationhouse interview … Moreover, the victim’s identification of defendant as the perpetrator constitutes a significant intervening event … inasmuch as that identification provided the police with probable cause for defendant’s arrest…  Lastly, there was no flagrant misconduct or bad faith on the part of the police officer who took defendant into custody … . * * *

In this case the prosecutor informed the court,“ ‘before the imposition of sentence’ ” (…see generally CPL 220.60 [3]), that he could not recall whether PRS had been discussed at the time of the plea. The prosecutor noted that they “should probably make a record of that . . . so it is clear.” At that point, the court informed defendant that it “intend[ed] to make a five year period of [PRS].” Defendant was then asked if she had a chance to talk about that with her attorney, and defendant answered, “[y]es.” Defendant was also asked if she understood that the PRS was a “part of [her] plea” and that she would be on parole supervision for five years at the end of her prison sentence. Defendant answered, “[c]orrect.”  When asked if she “still wish[ed] to go through with sentencing today,” defendant again answered, “[y]es.” In our view, the record is clear that “defendant could have sought relief from the sentencing court in advance of the sentence’s imposition…”… .  People v Turner, 529, 4th Dept, 6-14-13

 

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8-Hour Break in 49 ½ Hour Interrogation Did Not Render Confession Voluntary

In a full-fledged opinion by Chief Judge Lippman, the Court of Appeals determined an 8-hour break and the presence of counsel, after a 491/2-hour custodial interrogation, did not render his confession to murder voluntary and reversed his conviction:

We are unwilling to draw the inference, which the People would have us make, that the eight-hour “break” between interrogation and arraignment attenuated the taint of the wrongful interrogation. Defendant’s pre- and post-arraignment statements were, despite their temporal separation, in all other ways seamlessly linked. At the end of the marathon session, the utterly spent defendant, in exchange for a lawyer to which he was absolutely entitled, agreed in a statement ultimately suppressed as coerced, to “give everybody what they want,” and when he returned to the Blue Room on the morning of the same day and faced the same interrogator across the same table, that is exactly what he did. We do not accept the hypothesis that his intervening stay in a holding pen and arraignment on the charge of murder sufficed to transform his coerced capitulation into a voluntary disclosure. By the time of defendant’s post-arraignment statements, his options would have seemed so constricted, by what he had already divulged during the earlier portion of the interrogation, as to render the intervening temporal buffer practically irrelevant. …

…[W]e reject the contention that the entry of counsel guaranteed the voluntariness of defendant’s subsequent statements …. This contention misconstrues the statement in Miranda v Arizona (384 US 436 [1966]) that “[t]he presence of counsel, in all the cases before us today, would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege [against self incrimination]. His presence would insure that statements made in the government-established atmosphere are not the product of compulsion” (id. at 466 [emphasis supplied]). Plainly, this language, expressly limited in its reference, was not intended to stand for the proposition that the presence of counsel will invariably be adequate as an assurance of voluntariness.  People v Guilford, No 103, CtApp, 6-4-13

SUPPRESSION

 

 

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DeBour Criteria Met in Street Encounter Leading to Arrest; Statements Tainted by Miranda Violations Did Not Preclude Admission of Statement Made Seven Hours Later

In a full-fledged opinion by Justice Renwick, the First Department upheld the denial of defendant’s suppression motions.  After hearing gun shots police officers approached the defendant. After defendant answered a couple of questions he “began to place his hand in his back pocket.”  At that point, the officer grabbed defendant’s arm and told defendant he wanted to frisk the defendant before allowing him to reach in his pockets.  As the officer began to frisk the defendant, the defendant ran and was brought the ground.  A firearm, still warm, was taken from the defendant’s back pocket.   Written statements subsequently given by the defendant were suppressed by the trial court because of a Miranda violation.  A videotaped statement, made seven hours after the tainted written statements, was deemed admissible:

Prior to pleading guilty, defendant moved to suppress a gun, recovered from his pocket, and videotaped statements he made to the prosecution as fruits of an unlawful seizure. He also moved to suppress the statements as obtained in violation of his Miranda rights. We conclude that the facts disclosed in the record were such as to warrant a person of reasonable caution to believe that defendant was reaching for a weapon when the arresting officer grabbed his arm. We also find that defendant’s videotaped statements were not suppressible, notwithstanding the suppression of prior written statements made more than seven hours earlier to police officers, because the videotaped statements were attenuated by a “definite, pronounced break in the interrogation” … .  People v Davis, 2012 NY Slip Op 02337, 6129, 9270, 1st Dept 4-4-13

 

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