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IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST.

The Court of Appeals, in a full-fledged opinion by Judge Stein, over an extensive dissenting opinion by Judge Fahey, determined the defendant should have been allowed to submit evidence of third-party culpability and ordered a new trial in this felony murder/rape case. The majority acknowledged the evidence against defendant was overwhelming. However, the third-party culpability evidence—hearsay admissions about the crime allegedly made to the declarant's cellmate in prison—qualified as statements against penal interest. Applying a balancing test, the Court of Appeals concluded the probative value of the hearsay was such that it was an abuse of discretion, as a matter of law, to exclude it:

Where, as here, the defendant makes an offer of proof to the court explaining the basis for a third-party culpability defense and connecting the third-party to the crime, and the probative value of the evidence “plainly outweighs the dangers of delay, prejudice and confusion,” then it is “error as a matter of law” to preclude the defendant from presenting such proof to the jury… .People v DiPippo, 2016  NY Slip Op 02279, CtApp 3-29-16

CRIMINAL LAW (IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST)/EVIDENCE (CRIMINAL LAW, IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST)/HEARSAY (CRIMINAL LAW, IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST)/STATEMENT AGAINST PENAL INTEREST  (CRIMINAL LAW, IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST)/THIRD-PARTY CULPABILITY (CRIMINAL LAW, IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST)

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PEOPLE DID NOT DELIBERATELY CALL WITNESS FOR THE SOLE PURPOSE OF ELICITING THE ASSERTION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION; PEOPLE’S OWN WITNESS PROPERLY IMPEACHED WITH PRIOR STATEMENT; EXPERT TESTIMONY ON EFFECT OF EVENT STRESS ON IDENTIFICATION PROPERLY PRECLUDED.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined (1) the People did not improperly call an eyewitness to the shooting to invoke his privilege against self-incrimination in front of the jury; (2) the People were properly allowed to impeach the eyewitness with his statement made to police at the time of the incident; and (3) expert testimony offered by the defense on the effect of “event stress” on the identification of the defendant was properly precluded. A Frye hearing was not required before preclusion. The expert witness was allowed to testify about “weapon focus” and “witness confidence.” With respect to a witness' invocation of the privilege against self-incrimination in front of the jury, the court explained the analytical criteria:

The Fifth Amendment of the United States Constitution directs that no person “shall be compelled in any criminal case to be a witness against himself” (US Const Amend V). When a witness invokes the Fifth Amendment privilege in front of the jury, “the effect of the powerful but improper inference of what the witness might have said absent the claim of privilege can neither be quantified nor tested by cross-examination, imperiling the defendant's right to a fair trial” … . It is therefore reversible error for the trial court to permit the prosecutor to deliberately call a witness for the sole purpose of eliciting a claim of privilege … . The critical inquiry is whether the prosecution exploited the witness's invocation of the privilege, either by attempting “to build its case on inferences drawn from the witness's assertion of the privilege” or utilizing those inferences to “unfairly prejudice [the] defendant by adding 'critical weight' to the prosecution's case in a form not subject to cross-examination” … . People v Berry, 2016 NY Slip Op 02283, CtApp 3-29-16

CRIMINAL LAW (PEOPLE DID NOT DELIBERATELY CALL WITNESS FOR THE SOLE PURPOSE OF ELICITING THE ASSERTION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION)/CRIMINAL LAW (PEOPLE'S OWN WITNESS PROPERLY IMPEACHED WITH PRIOR STATEMENT)/CRIMINAL LAW (EXPERT TESTIMONY ON EFFECT OF EVENT STRESS ON IDENTIFICATION PROPERLY PRECLUDED)/EVIDENCE (CRIMINAL LAW, PEOPLE DID NOT DELIBERATELY CALL WITNESS FOR THE SOLE PURPOSE OF ELICITING THE ASSERTION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION)/EVIDENCE (CRIMINAL LAW, PEOPLE'S OWN WITNESS PROPERLY IMPEACHED WITH PRIOR STATEMENT)/EVIDENCE (CRIMINAL LAW, EXPERT TESTIMONY ON EFFECT OF EVENT STRESS ON IDENTIFICATION PROPERLY PRECLUDED)/IDENTIFICATION (CRIMINAL LAW, EXPERT TESTIMONY ON EFFECT OF EVENT STRESS ON IDENTIFICATION PROPERLY PRECLUDED)

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REDACTED STATEMENT OF CO-DEFENDANT IMPLICATED DEFENDANT IN VIOLATION OF BRUTON RULE, CONVICTION REVERSED.

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a two-judge dissenting opinion, determined the redacted statement of a co-defendant (Villanueva), in its written form, left no doubt that the statement implicated defendant in this gang-assault murder case.  The error was not harmless and defendant's conviction was therefore reversed:

… [T]he written statement was not “effectively redacted so that the jury would not interpret its admissions as incriminating the nonconfessing defendant[s]” … . Rather, the statement, with large, “blank [spaces] prominent on its face, . . . 'facially incriminat[ed]'” a codefendant because it “involve[d] inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial” … . Any juror “wonder[ing] to whom the blank might refer need[ed] only lift his [or her] eyes to [Villanueva's codefendants], sitting at counsel table, to find what [would] seem the obvious answer” … . In our view, the replacement of the identifying descriptors of defendant with blank spaces did not leave “the slightest doubt as to whose name[] had been blacked out, but even if there had been, that blacking out itself would have not only laid the doubt but underscored the answer” … , particularly after the court instructed the jury that it was not to speculate about the redactions in any way. The redacted statement both “indicat[ed] to the jury that the original statement contained actual names” or clearly identifying descriptors and, “even if the very first item introduced at trial[,] [it] would immediately inculpate [a codefendant] in the charged crime”  … . Therefore, we conclude that its admission violated the Bruton rule. People v Cedeno, 2016 NY Slip Op 02281, CtApp 3-29-16

Similar issue and result in a full-fledged opinion by Judge Rivera, over a three-judge dissenting opinion— People v Johnson, 2016 NY Slip Op 02282, CtApp 3-29-16

CRIMINAL LAW (REDACTED STATEMENT OF CO-DEFENDANT IMPLICATED DEFENDANT IN VIOLATION OF BRUTON RULE, CONVICTION REVERSED)/EVIDENCE (CRIMINAL LAW, REDACTED STATEMENT OF CO-DEFENDANT IMPLICATED DEFENDANT IN VIOLATION OF BRUTON RULE, CONVICTION REVERSED)/EVIDENCE (CRIMINAL LAW, REDACTED STATEMENT OF CO-DEFENDANT IMPLICATED DEFENDANT IN VIOLATION OF BRUTON RULE, CONVICTION REVERSED)/BRUTON RULE (CRIMINAL LAW, REDACTED STATEMENT OF CO-DEFENDANT IMPLICATED DEFENDANT IN VIOLATION OF BRUTON RULE, CONVICTION REVERSED)

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PROCEDURE USED TO EXCUSE PROSPECTIVE JURORS ON HARDSHIP GROUNDS WAS NOT A MODE OF PROCEEDINGS ERROR; FAILURE TO OBJECT TO PROSECUTOR’S APPEAL TO GENDER BIAS DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over an extensive dissenting opinion by Judge Rivera, determined the procedure used by the trial judge to excuse prospective jurors on hardship grounds was not a mode of proceedings error warranting reversal in the absence of preservation. At the outset of jury selection, the judge told the prospective jurors the trial might take five days. Anyone who felt they could not sit for five days was then allowed to leave the courtroom with the clerk who would evaluate the extent of the hardship.  The Court of Appeals held the hardship questioning occurred prior to formal voir dire and did not concern a prospective juror's fitness to serve, thereby distinguishing cases where the judge was absent during formal voir dire. The Court of Appeals further determined defense counsel's failure to object to the prosecutor's remarks in summation which appealed to gender bias did not constitute ineffective assistance of counsel. The defendant in this assault /burglary case was a woman, as was the victim. The victim's boyfriend was the father of defendant's children. To counter the defendant's argument that the attacker was a male, the prosecutor told the jury the case was about “jealousy” and “obsession” and “only a woman” would inflict “this kind of injury.” With respect to the juror-hardship issue, the court explained:

Preservation is particularly important in a case like this because the defense, faced with the prospect that certain prospective jurors were claiming that they were unable to serve due to hardship, may very well have made a strategic decision not to challenge the procedure because he did not want to risk having those prospective jurors end up on the jury when it became apparent that they did not wish to serve. If defense counsel had an objection to the procedure employed by the trial court, he should have voiced it so that the court could have corrected any alleged error. People v King, 2016 NY Slip Op 02278, CtApp 3-29-16

CRIMINAL LAW (ALLOWING CLERK TO EVALUATE JURORS' REQUESTS TO BE EXCUSED ON HARDSHIP GROUNDS WAS NOT A MODE OF PROCEEDINGS ERROR)/APPEALS (CRIMINAL LAW, ALLOWING CLERK TO EVALUATE JURORS' REQUEST TO BE EXCUSED FROM SITTING ON HARDSHIP GROUNDS WAS NOT A MODE OF PROCEEDINGS ERROR)/ATTORNEYS (FAILURE TO OBJECT TO PROSECUTOR'S APPEAL TO GENDER BIAS DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE OF COUNSEL (FAILURE TO OBJECT TO PROSECUTOR'S APPEAL TO GENDER BIAS DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)

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PROPERTY DEVELOPMENT BASED UPON AN INVALID PERMIT DOES NOT GIVE RISE TO A VESTED RIGHT IN THE DEVELOPED PROPERTY.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined petitioner did not acquire a vested right to an advertising sign erected pursuant to an invalid permit which was later revoked by the city (NYC). The court further determined the proper procedure for seeking approval for the sign is an application for a variance. Whether petitioner relied in good faith on the invalid permit could be considered in the variance proceeding:

“[A]n owner of real property can acquire a common law vested right to develop property in accordance with prior zoning regulations when, in reliance on a 'legally issued permit,' the landowner 'effect[s] substantial changes and incur[s] substantial expenses to further the development' and '[t]he landowner's actions relying on [the] valid permit [are] so substantial that the municipal action results in serious loss rendering the improvements essentially valueless'” … .

Vested rights cannot be acquired, however, where there is reliance on an invalid permit … . When a permit is wrongfully issued in the first instance, the vested rights doctrine does not prevent the municipality from revoking the permit to correct its error. Because the 2008 permit was unlawfully issued, petitioner could not rely on it to acquire vested rights. Matter of Perlbinder Holdings, LLC v Srinivasan, 2016 NY Slip Op 02122, CtApp 3-24-16

ZONING (PROPERTY DEVELOPMENT BASED UPON AN INVALID PERMIT DOES NOT GIVE RISE TO A VESTED RIGHT IN THE DEVELOPED PROPERTY)

EXIGENT CIRCUMSTANCES JUSTIFIED WARRANTLESS SEARCH OF A BACKPACK.

The Court of Appeals determined the warrantless search of appellant's backpack when appellant was handcuffed and seated in the police car was justified by exigent circumstances. Prior to searching the backpack, the officer had determined the presence of a weapon by feel. It is not clear from the facts described how “exigent circumstances”—stemming from a legitimate concern for officer safety—arose after the appellant was handcuffed:

When the touching revealed the shape of a gun in the bag, appellant was arrested. Appellant became agitated and upset, and resisted being handcuffed, such that two officers were required to handcuff him. Notably, the officers knew that on the occasion of appellant's prior arrest he had started to walk away while being handcuffed. By this time, a crowd had gathered, yelling at the officers, who placed appellant in their police vehicle. Once in the vehicle, one of the officers opened and searched the backpack. He found what was later confirmed to be an air pistol. Significantly, the unmarked police vehicle had no partition, and the officer who searched the bag was seated next to appellant on the back seat.

In these circumstances, there is record support for the conclusion that the officers reasonably believed that appellant might gain possession of a weapon, so that exigent circumstances — a legitimate concern about the safety of the arresting officers — justified the warrantless search of appellant's backpack. Matter of Kenneth S., 2016 NY Slip Op 02123, CtApp 3-24-16

CRIMINAL LAW (EXIGENT CIRCUMSTANCES, A CONCERN FOR OFFICER SAFETY, JUSTIFIED WARRANTLESS SEARCH OF BACKPACK)/SEARCHES AND SEIZURES (EXIGENT CIRCUMSTANCES, A CONCERN FOR OFFICER SAFETY, JUSTIFIED WARRANTLESS SEARCH OF BACKPACK)

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QUESTIONS OF FACT HAD BEEN RAISED IN PLAINTIFF’S MALICIOUS PROSECUTION AND FALSE ARREST ACTIONS AGAINST POLICE OFFICERS, DEFENSE SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, reversing (modifying) the Appellate Division, determined questions of fact precluded summary judgment dismissing the complaint against police officers alleging, inter alia, false arrest and malicious prosecution. Plaintiff had been arrested and indicted for murder after signing a confession. The charges were eventually dismissed by the prosecutor. In her civil suit, plaintiff alleged the confession was essentially written by the police and she signed it only after she was subjected to hours of intense interrogation. The Court of Appeals concluded a question of fact had been raised whether the police had probable cause to arrest. The court noted that if the police pass false information on to the prosecutor, the “commencement or continuation of a criminal proceeding” element of malicious prosecution has been satisfied (with respect to the police officers). The absence of probable cause also bears on the “actual malice” element of malicious prosecution:

 

We have “never elaborated on how a plaintiff in a malicious prosecution case demonstrates that the defendant commenced or continued the underlying criminal proceeding” … . But, by suggesting that a defendant other than a public prosecutor may be liable for supplying false information to the prosecutor in substantial furtherance of a criminal action against the plaintiff, we have implicitly recognized that such conduct may, depending on the circumstances, constitute the commencement or continuation of the prosecution … . * * *

Just as in the false arrest context, the plaintiff in a malicious prosecution action must also establish at trial the absence of probable cause to believe that he or she committed the charged crimes, but this element operates differently in the malicious prosecution context because “[o]nce a suspect has been indicted, [ ] the law holds that the Grand Jury action creates a presumption of probable cause” … . Generally, the plaintiff cannot rebut the presumption of probable cause with evidence merely indicating that the authorities acquired information that, depending on the inferences one might choose to draw, might have fallen somewhat shy of establishing probable cause … . And, even if the plaintiff shows a sufficiently serious lack of cause for the prosecution and rebuts the presumption at trial, he or she still must prove to the satisfaction of the jury that the defendant acted with malice, i.e., that the defendant “must have commenced the prior criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served” … .

… [I]n some instances, the plaintiff can simultaneously rebut the presumption of probable cause and satisfy the malice element by demonstrating that the evidence of guilt relied upon by the defendant was so scant that the prosecution was entirely baseless and maliciously instituted. In that sense, “[w]hile lack of probable cause to institute a criminal proceeding and proof of actual malice are independent and indispensable elements of a malicious prosecution action, the absence of probable cause does bear on the malice issue,” and “probable cause to initiate a criminal proceeding may be so totally lacking as to reasonably permit an inference that the proceeding was maliciously instituted” … . Moreover, in the alternative, the plaintiff may show malice and overcome the presumption of probable cause with proof that the defendant falsified evidence in bad faith and that, without the falsified evidence, the authorities’ suspicion of the plaintiff would not have fully ripened into probable cause … . Thus, we have observed that, in the context of a malicious prosecution suit against the police, the presumption may be overcome “by evidence establishing that the police witnesses have not made a complete and full statement of facts . . . to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith” … . De Lourdes Torres v Jones, 2016 NY Slip Op 01254, CtApp 2-23-16

CIVIL PROCEDURE (STATUTE OF LIMITATIONS DEFENSE MAY BE RAISED FOR THE FIRST TIME IN AN ANSWER TO AN AMENDED COMPLAINT)/CIVIL PROCEDURE (RELATION-BACK DOCTRINE NOT APPLICABLE TO ORAL CONTRACT WHERE ORIGINAL COMPLAINT CONCERNED A WRITTEN CONTRACT)/STATUTE OF LIMITATIONS (DEFENSE MAY BE RAISED FOR THE FIRST TIME IN ANSWER TO AN AMENDED COMPLAINT)/RELATION-BACK DOCTRINE (RELATION-BACK DOCTRINE NOT APPLICABLE TO ORAL CONTRACT WHERE ORIGINAL COMPLAINT CONCERNED A WRITTEN CONTRACT)

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PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREMENT DID NOT APPLY, SUPPRESSION SHOULD HAVE BEEN GRANTED.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, determined the plain view exception to the warrant requirement did not apply and defendant’s suppression motion should have been granted. Defendant walked in to a hospital with a gun shot wound and the police were notified. When the police officer arrived, defendant’s clothes were in a clear plastic bag on the floor. The officer examined the clothes and concluded defendant had shot himself with a gun which had been in his waistband. The defendant was convicted of criminal possession of a weapon. The Court of Appeals concluded one of the conditions of the plain-view warrant-exception had not been met by the evidence in the record, i.e., there was no showing the incriminating nature of the clothes was immediately apparent to the officer:

 

“Under the plain view doctrine, if the sight of an object gives the police probable cause to believe that it is the instrumentality of a crime, the object may be seized without a warrant if three conditions are met: (1) the police are lawfully in the position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object’s incriminating nature is immediately apparent” … .

Against this backdrop we conclude that the hearing court erred in denying defendant’s motion to suppress the clothes seized by police. There was evidence adduced at the suppression hearing that the officer who seized the clothes knew defendant to have been shot, and that defendant awaited treatment at the hospital while dressed in clothes different from those he wore at the time of the shooting. More important, however, is what the evidence presented at the suppression hearing does not establish. That evidence does not show that, before the seizure, the testifying officer knew that entry and exit wounds were located on an area of defendant’s body that would have been covered by the clothes defendant wore at the time of the shooting. Similarly, the record of that proceeding contains no other indicium that could have given rise to a reasonable belief that the shooting had affected defendant’s clothes. To that end, there is no record support for the lower courts’ conclusion that the investigating officer had probable cause to believe that defendant’s clothes were the instrumentality of a crime … . People v Sanders, 2016 NY Slip Op 01255, CtApp 2-23-16

 

CRIMINAL LAW (PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREMENT DID NOT APPLY)/SUPPRESSION (PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREDMENT DID NOT APPLY)/PLAIN VIEW (EXCEPTION TO THE WARRANT REQUIREMENT DID NOT APPLY)/SEARCHES AND SEIZURES (PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREMENT DID NOT APPLY)

AN ADEQUATE WAIVER OF APPELLATE RIGHTS AT SENTENCING DOES NOT REMEDY AN INADEQUATE WAIVER AT THE TIME OF THE PLEA.

The Court of Appeals, in a concurring opinion by Judge Rivera, explained that an inadequate waiver of appeal at the time of a guilty plea cannot be remedied by an adequate explanation of the waived appellate rights at sentencing:

 

“It is the trial court’s responsibility ‘in the first instance,’ to determine ‘whether a particular [appellate] waiver satisfies [the] requirements’ ” … . In order for a trial court’s inquiry to be meaningful, by logic and reason, it must be part of the colloquy in which a court engages prior to accepting a defendant’s plea … . It would make little sense, and serve only to encourage the filing of a motion to vacate the plea on the ground that defendant did not appreciate the consequences of the waiver, if a court confirmed, after-the-fact, whether the defendant understood the nature of the rights relinquished. Thus, a court complies with its obligation to ensure that the waiver is knowing, intelligent, and voluntary, when a court adequately explains to defendant the “separate and distinct” right to appeal … , and “at least prior to the completion of the plea proceeding, [the court] assure[s] itself that defendant adequately understood the right that [defendant] was forgoing” … . Here, the court’s explanation at sentencing came too late to satisfy the court’s obligations. While the content of the court’s advisement was correct, its timing deprived defendant of the right to know and consider all the terms of the plea bargain prior to his decision to plead guilty. People v Leach, 2016 NY Slip Op 01253, CtApp 2-23-16

 

CRIMINAL LAW (AN ADEQUATE WAIVER OF APPEAL AT THE TIME OF SENTENCING DOES NOT REMEDY AN INADEQUATE WAIVER AT THE TIME OF THE PLEA)/APPEALS (CRIMINAL LAW, AN ADEQUATE WAIVER OF APPEAL AT THE TIME OF SENTENCING DOES NOT REMEDY AN INADEQUATE WAIVER AT THE TIME OF THE PLEA)WAIVER OF APPEAL (CRIMINAL LAW, AN ADEQUATE WAIVER OF APPEAL AT THE TIME OF SENTENCING DOES NOT REMEDY AN INADEQUATE WAIVER AT THE TIME OF THE PLEA)

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THERE WAS AN INEXCUSABLE 28-HOUR DELAY BETWEEN DEFENDANT’S ARREST AND ARRAIGNMENT, BUT THE DELAY DID NOT RENDER THE CONFESSION INVOLUNTARILY GIVEN.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, in a double-murder case, determined defendant’s motion to suppress his confession was properly denied.  The central issue was whether the delay between defendant’s arrest and his arraignment (28 hours) rendered the confession involuntary. The Court of Appeals determined there was inexcusable delay, but that the delay was only one factor in an analysis of whether the confession was voluntarily given:

 

Given the inordinate length of time between defendant’s arrest and arraignment and the unsupported claims of an investigatory need to continue the questioning following his arrest, we have no difficulty concluding that the record lacks support for a finding that the delay was necessary. Here, defendant was arrested at 9:00 p.m. on May 14th, after 10 hours of intermittent questioning at the precinct. Over 12 hours later, he made an oral confession, at approximately 9:30 p.m. on May 15th, and completed a signed written confession 4 1/2 hours later, at 2:00 a.m. He was then arraigned more than 28 hours after his arrest, in excess of the 24-hour delay this Court determined to be presumptively unnecessary in People ex rel. Maxian [77 NY2d 422}]. * * *

Although defendant was detained for over 24 hours, and spent most of the time in a windowless room, his basic human needs were provided for because he was able to eat, drink, and take bathroom breaks. He was even allowed to smoke cigarettes. … [T]he interrogations were not done in continuous rotations, but rather were intermittent, and provided breaks during which defendant was able to rest and sleep, as well as remain silent and consider his situation. Defendant was not placed in the untenable position of bargaining his rights … , as he was neither induced to confess in order to speak with a lawyer, nor dissuaded from exercising his rights to counsel or to remain silent. Instead, as the detectives testified and the Miranda form indicates, defendant was informed of his rights early during the interrogation process. The record establishes defendant confessed only once he was faced with evidence of his guilt, not because he was exhausted and desperate to escape his interrogators. Thus, the totality of the circumstances here do not “bespeak such a serious disregard of defendant’s rights, and were so conducive to unreliable and involuntary statements, that the prosecutor has not demonstrated beyond a reasonable doubt that the defendant’s will was not overborne” … . People v Jin Cheng Lin, 2016 NY Slip Op 01205, CtApp 2-18-16

CRIMINAL LAW (UNDUE DELAY BETWEEN ARREST AND ARRAIGNMENT DID NOT RENDER CONFESSION INVOLUNTARILY GIVEN)/CONFESSION (UNDUE DELAY BETWEEN ARREST AND ARRAIGNMENT DID NOT RENDER CONFESSION INVOLUNTARILY GIVEN)/SUPPRESSION (UNDUE DELAY BETWEEN ARREST AND ARRAIGNMENT DID NOT RENDER CONFESSION INVOLUNTARILY GIVEN)/EVIDENCE (CONFESSION, UNDUE DELAY BETWEEN ARREST AND ARRAIGNMENT DID NOT RENDER CONFESSION INVOLUNTARILY GIVEN)

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