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STATEMENT MADE AFTER UNEQUIVOCAL REQUEST FOR COUNSEL SHOULD HAVE BEEN SUPPRESSED, NEW TRIAL ORDERED.

The Fourth Department reversed defendant’s conviction and ordered a new trial after concluding defendant’s statements to police should have been suppressed. After defendant told police she needed to talk to a lawyer, the police questioned her further during a “smoke break:”

After answering questions for approximately an hour and ten minutes, defendant said, “I think I need to talk to an attorney.” In response, the first investigator stated, “Would you like to talk to one? If you think that, that’s fine. That’s up to you.” Defendant replied, “I need to,” before going on to state that she would never have bad feelings toward the boy and genuinely cared about him. The questioning then ceased, and the first investigator allowed defendant to go outside with the second investigator and a female Child Protective Services worker to smoke a cigarette.

While defendant was smoking in the parking garage, the second investigator engaged her in a lengthy conversation. Unbeknownst to defendant, the conversation was being digitally recorded by the second investigator. During the conversation, defendant made numerous admissions, all but confessing that she had engaged in sexual activity with the boy. * * *

… [W]e conclude that, although defendant’s statement “I think I need to talk to an attorney” may not, standing alone, constitute an unequivocal invocation of the right to counsel … , her subsequent statement “I need to”—made in reply to the first investigator stating “Would you like to talk to one? If you think that, that’s fine. That’s up to you”—removed any ambiguity and made clear that defendant was requesting the assistance of counsel … . People v Kennard, 2015 NY Slip Op 09729, 4th Dept 12-31-15

 

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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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MARITAL PRIVILEGE DID NOT APPLY TO DEFENDANT’S STATEMENT THAT HE WAS GOING TO BURN THE HOUSE DOWN.

In an arson case, the Third Department determined County Court properly allowed defendant’s wife to testify defendant said he was going to burn the house down. The court explained the limits of marital privilege:

The privilege that precludes a spouse from disclosing a confidential communication made during marriage by the other spouse (see CPLR 4502 [b]; CPL 60.10) does not protect every remark between spouses during a marriage. Instead, “the privilege attaches only to those statements made in confidence and ‘that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship'” … . The wife testified that her marriage to defendant began to deteriorate during the months before the fire, in part because defendant wanted to relocate to Colorado while the wife wanted to remain in New York and continue living in the marital home with her children. She stated that, as the relationship worsened, defendant told her “many” times that he would burn the house down to prevent her from taking possession of it when they separated.

The privilege “was never designed to forbid inquiry into the personal wrongs committed by one spouse against the other” and, thus, does not apply here, as defendant’s statements were not prompted by trust or confidence in the marital relationship, but, instead, constituted threats of criminal activity directed at the wife … . Further, the privilege does not apply “when the substance of a communication . . . is revealed to third parties” … . Here, the wife testified that several of defendant’s threats were made in the presence of other people, including mutual friends and the couple’s children, and these statements were not privileged … . People v Howard, 2015 NY Slip Op 08870, 3rd Dept 12-3-15

CRIMINAL LAW (MARITAL PRIVILEGE)/EVIDENCE (MARITAL PRIVILEGE, CRIMINAL TRIAL)

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Defendant’s Statement Was Circumstantial Evidence of the Taking Element of Grand Larceny Because an Innocent Inference from the Statement Was Possible; Video Surveillance Was Direct Evidence of the Taking Element Despite Defendant’s “Innocent” Explanation of His Actions

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined video surveillance showing defendant first hiding and then rifling through the victim's purse was direct, not circumstantial, evidence of the taking element of grand larceny (despite the defendant's non-criminal explanation of his actions). The court also determined the defendant's statement “I don't have it, but I can get it” (made when asked about the purse) was circumstantial evidence of the taking element because an innocent explanation for having the purse could be inferred from the statement. Because both direct and circumstantial evidence of grand larceny was presented, the circumstantial-evidence jury instruction was not required:

It is well settled that a trial court must grant a defendant's request for a circumstantial evidence charge when the proof of the defendant's guilt rests solely on circumstantial evidence … . By contrast, where there is both direct and circumstantial evidence of the defendant's guilt, such a charge need not be given … .

We agree with defendant that his statement to the prosecution witness that he did not have the purse but could get it was not direct evidence of his guilt. A defendant's statement is direct evidence only “if it constitutes 'a relevant admission of guilt' ” … . * * *

Here, defendant's statement — that he did not have the purse but could get it — was not a direct admission of his guilt of larceny. Rather, defendant's statement was also consistent with an inference that although he did not steal the purse, he knew where the purse was located and thought he could obtain it. Inasmuch as his statement merely included inculpatory facts from which the jury may or may not have inferred guilt, his statement was circumstantial rather than direct evidence … .

We agree with the People, however, that the surveillance video constituted direct evidence of defendant's guilt of larceny. The “taking” element of larceny “is satisfied by a showing that the thief exercised dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner's continued rights” … . People v Hardy, 2015 NY Slip Op 08369, CtApp 11-18-15


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Statements Made by Defendant Indicating He Was On a First Name Basis with Police Officers and that He Had Been in Jail Should Not Have Been Admitted Because the Statements Were Not Relevant to a Material Issue in the Case, The Error Was Harmless However

Although the error was deemed harmless, the Second Department determined statements made by the defendant indicating he was on a first name basis with police officers and mentioning he had been in jail should not have been admitted in evidence:

Evidence of prior crimes or bad acts is not admissible to show a defendant’s predisposition to criminal conduct … . Such evidence, however, is admissible when it is relevant to a material issue in the case, and the probative value of the evidence outweighs the potential prejudice to the defendant … . We agree with the defendant that the County Court erred in allowing these statements to be admitted into evidence, as the prosecutor failed to establish that any of the comments were relevant to a material issue in the case … . People v McPhillips, 2015 NY Slip Op 08440, 2nd Dept 11-18-15

 

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People Were Not Required to Disclose (Prior to Trial) Confession Made by Defendant to Health Care Worker

The First Department noted the People were not required to disclose, prior to trial, a confession defendant made to a health care worker (because the health care worker was not connected to law enforcement):

… [M]idway through their case, the People introduced a previously undisclosed confession that defendant made to a health care worker at a hospital where he was being treated for a suicide attempt. This statement tended to corroborate a similar confession that defendant made to a detective shortly thereafter. It is undisputed that the People had no statutory duty to disclose this statement, because it was not made to anyone connected with law enforcement (see CPL 240.20[1][a]), and because no Rosario material was involved. Defendant nevertheless complains that his due process right to a fair trial was violated by the timing of the disclosure, because he would have formulated a different defense had he known the People intended to introduce a confession to a civilian witness. However, we find no evidence of deceit or trickery on the part of the People, and defendant’s claim of prejudice is unpersuasive. … [T]here was no misrepresentation that the undisclosed evidence did not exist, and the trial had not progressed to the point where defendant could not have adjusted his defense, or requested less drastic relief than a mistrial.

Defense counsel did not object to the health care worker’s testimony on the ground of physician-patient privilege, and we decline to review this unpreserved claim in the interest of justice. People v Tayo, 2015 NY Slip Op 08353, 1st Dept 11-17-15

 

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Pedigree Question “Where Do You Reside,” Under the Circumstances, Was Designed to Elicit an Incriminating Response, the Answer, Therefore, Should Have Been Suppressed; New Trial on Possessory Counts Ordered

The Fourth Department ordered a new trial on the drug possession and drug paraphernalia counts. Defendant was convicted based upon a “constructive possession” theory (i.e., possession of contraband based upon defendant’s dominion and control over the premises where the contraband is found). As police officers were conducting a search, and as defendant was handcuffed and lying on the floor, an officer asked defendant where he resided. Defendant answered “here.” The People relied heavily on defendant’s answer to prove constructive possession of contraband found on the premises. Under these circumstances, the pedigree question (where do you reside) was designed to elicit an incriminating response and, because the statement was “unwarned,” the answer should have been suppressed:

Generally, a defendant’s answer concerning his address, when “elicited through routine administrative questioning that [is] not designed to elicit an incriminating response” … , will be considered pedigree information not subject to CPL 710.30 notice requirements even if the statement later proves to be inculpatory … . That is “[b]ecause responses to routine booking questions—pedigree questions . . . —are not suppressible even when obtained in violation of Miranda [and, therefore, a] defendant lacks a constitutional basis upon which to challenge the voluntariness of his [or her] statement” … . “[W]here there is no question of voluntariness, the People are not required to serve defendant with notice” … .

As the Court of Appeals recognized, however, “the People may not rely on the pedigree exception if the questions, though facially appropriate, are likely to elicit incriminating admissions because of the circumstances of the particular case” (id.). Although the question concerning defendant’s address appears to have been a facially appropriate question, we conclude that, under the circumstances of this case and, more specifically, under the circumstances in which the question was asked, the question was likely to elicit an incriminating admission and had a “necessary connection to an essential element of [the possessory] crimes charged” under Penal Law §§ 220.16 and 220.50 (2) … . We agree with defendant that the error in admitting that statement cannot be considered harmless insofar as it relates to the possessory counts of the indictment inasmuch as the People relied heavily on that statement to establish defendant’s constructive possession of the drugs and drug paraphernalia … . People v Slade, 2015 NY Slip Op 08252, 4th Dept 11-13-15

 

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Questioning by Police and Caseworker Violated Defendant’s Right to Counsel, Failure to Suppress Statements Was Not Harmless Error

The Third Department reversed defendant’s conviction (for murder of mother, stepfather and stepbrother) because defendant’s “yeah probably” response to the question whether he wanted a lawyer was deemed an unequivocal request for a lawyer. A public defender, who represented defendant in a prior case, had sent a letter to the district attorney indicating he was aware of the murders and that he didn’t want defendant questioned in his absence. The police who questioned defendant did not tell defendant about the letter. The court determined that the letter did not cause the right to counsel to attach because it did not state the public defender was representing defendant on the murders. However, given the interrogating officers’ knowledge of the letter, they should have asked defendant directly whether he wanted the public defender’s representation. In addition, a child protective caseworker’s (MacNeil’s) subsequent questioning of the defendant violated his right to counsel because the caseworker was deemed an agent of the police:

… [T]he People contend that defendant’s statement — namely, “Yeah, probably” — did not unequivocally invoke his right to counsel. We disagree. The word “probably” is defined as “very likely” or “almost certainly” (Merriam—Webster Online Dictionary, http://www.MerriamWebster.com/dictionary/probably). It is difficult to conceive of circumstances where “probably” would mean “no,” particularly here, where the police knew that defendant was currently represented, albeit on unrelated charges, and also knew that counsel was so clearly attempting to protect his current client’s constitutional rights. Defendant’s demeanor and tone when saying “Yeah, probably” was his simple expression, in everyday language, that he was not competent or capable to deal with the officers’ questioning. Thus, based on the particular circumstances herein, a reasonable police officer would have understood that defendant’s statement was a request for counsel, requiring questioning without representation to cease .. . * * *

As it cannot be said that there is no reasonable possibility that the admission of defendant’s statements at trial affected the jury’s verdict, County Court committed reversible error in failing to suppress defendant’s statements to the officers… . * * *

MacNeil acknowledged that she works closely with the police in these types of investigations and that, to the best of her recollection, Hamilton [a police officer who had questioned defendant] was present in the room as she was speaking with defendant. Based on the foregoing, we find that MacNeil was acting as an agent of law enforcement and, therefore, her questioning also infringed upon defendant’s right to counsel. Thus, as the product of interrogation by a public servant engaged in law enforcement activity, defendant’s statements to MacNeil were involuntary and should have been suppressed … . People v Slocum, 2015 NY Slip Op 08203, 3rd Dept 11-12-15

 

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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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Absence of Corroboration of Confession to Attempted Robbery Required Dismissal of Attempted Robbery Count—However Dismissal of the First Degree Murder and Felony Murder Counts, Both of Which Were Based Upon the Attempted Robbery, Was Not Required—The Death Itself Provided the Requisite Corroboration

The Fourth Department, in a detailed decision addressing several substantive issues not summarized here, found there was no proof of the attempted robbery count except defendant’s confession. The absence of corroboration required reversal of the attempted robbery count. However, with respect to the first degree murder and felony murder counts (for which attempted robbery was the underlying felony) the death itself provided sufficient corroboration:

“A person may not be convicted of any offense solely upon evidence of a confession or admission made by him [or her] without additional proof that the offense charged has been committed” (CPL 60.50…). With respect to the counts of murder in the first degree and felony murder, it is well settled that “CPL 60.50 does not require corroboration of defendant’s confession to the underlying predicate felony” to sustain a conviction of murder in the first degree or felony murder, when the charge is based on a murder committed in the course of and in furtherance of one of many enumerated felonies … . “The effect of the confession corroboration statute is to require proof of the corpus delicti” … . With felony murder and murder in the first degree, the corpus delicti is a death resulting from someone’s criminality, i.e., a death that did not occur by suicide, disease or accident … . The fact that the victim was found dead as the result of a gunshot wound is sufficient corroboration … .

The same analysis does not apply to the underlying felony itself. Where, as here, there is no corroboration of a defendant’s confession with respect to the underlying felony, that count of the indictment charging the defendant with the underlying felony must be dismissed … . People v Harper, 2015 NY Slip Op 07064, 4th Dept 10-2-15

 

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