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Case Sent Back to Suppression Court for Hearing to Determine Admissibility of Statements

The Fourth Department sent the case back to the suppression court for a hearing to determine the admissibility of statements that had not been included in the initial 710.30 notice provided in connection with a prior indictment that had been dismissed. The statements were included in the 710.30 notice provided in connection with the superseding indictment. The Fourth Department determined the defendant was entitled to a hearing on the admissibility of the statements:

…[W]e conclude that the court properly refused to preclude the additional statements included in the CPL 710.30 notice served by the People after the superseding indictment was filed … .  “Those [statements] were not referenced in the CPL 710.30 notice that was served in connection with the original indictment, but the record establishes that the People filed the superseding indictment out of necessity after the court dismissed . . . the original indictment” … .  We agree with defendant, however, that the court erred in determining the admissibility of the additional statements without reopening the Huntley hearing and affording defendant a further opportunity to contest their admissibility.  The court concluded that the statements were spontaneously made and therefore not subject to suppression.  At the time of the Huntley hearing conducted in conjunction with the initial indictment, however, the only issue before the court with respect to the additional statements was whether they should be precluded on the ground that they had not been included in the first CPL 710.30 notice.  Consequently, inasmuch as the voluntariness of the additional statements was not at issue at that time, defendant had no reason or opportunity to explore the issues of spontaneity or the effect of the previously-given Miranda warnings, or to raise any other issues regarding the admissibility of those statements.  Thus, “the hearing must be reopened” to afford him that opportunity… . People v Roberts, 945, 4th Dept 10-4-13

 

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Burden Upon Police to Determine Whether Defendant Represented by Counsel Explained

In affirming the denial of a motion to vacate a conviction after a hearing (over a substantial dissent), the Third Department explained the burden upon the police to determine whether a defendant is represented by counsel before questioning him. In this case the question was whether defendant’s attorney, who represented defendant in a robbery case resolved by a cooperation agreement and who initially was involved a homicide case in 2003, was still representing the defendant in the homicide case when the defendant was questioned about it in 2006:

Although [defendant’s attorney] clearly participated in the homicide investigation in 2003 and the police were well aware that he had entered into it as defendant’s counsel, the parties agree that there was a genuine lack of clarity …surrounding the question of whether that representation was limited to the cooperation agreement and had terminated once defendant was sentenced in the robbery case.

It is well settled that where, as here, there is any ambiguity as to whether the defendant is represented by counsel, the burden rests squarely on the police to resolve that ambiguity prior to questioning … .  Here, before questioning defendant in 2006, [the police] met with [defendant’s attorney], who told them unequivocally that he no longer represented defendant.  Inasmuch as the police fulfilled their obligation to resolve the ambiguity by determining that [the attorney’s] representation of defendant had terminated prior to questioning him, County Court did not err in concluding that defendant’s right to counsel had not been violated … .  People v McLean, 104691, 3rd Dept, 8-8-13

 

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County Court’s Suppression of Statements and Fruits of Search Reversed

The Third Department reversed County Court’s suppression of defendant’s statements and County Court’s finding that defendant had not voluntarily consented to the search of his car (both based on the absence of Miranda warnings).   The Third Department determined a reasonable person innocent of a crime would still have felt he was free to leave (i.e., that he was not in custody) after his failure of field sobriety tests and a negative alcosensor test.  The Third Department further noted that the failure to provide Miranda warnings would not necessarily render a consent to search involuntary:

The court ….overlooked the settled proposition that “[a] temporary roadside detention pursuant to a routine traffic stop is not custodial within the meaning of Miranda” … .The facts here reveal a reasonable initial interrogation attendant to a roadside detention that was merely investigatory…. The Troopers’ inquiries, the mixed results of the field sobriety tests and a negative alcosensor test would not have caused a reasonable person innocent of any wrongdoing to believe that he or she was in custody….   In our view, the Troopers’ observations of defendant’s condition justified the further  detention  for the  limited  purpose  of  investigating whether  he  was  operating his motor  vehicle in an  impaired condition… .  People v Brown, 105134, 3rd Dept 6-27-13

 

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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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Questioning at Home Did Not Trigger Need for Miranda Warnings

The Third Department determined the questioning of defendant by police at defendant’s home did not constitute custodial interrogation requiring Miranda warnings:

At  the  Huntley  hearing, the  two  officers testified that they  informed  defendant  of  the  reason  for  their  visit, were invited into his home, sat around a dining room table and engaged in small talk about  various topics. Defendant was not restrained, he was cooperative and the conversation was cordial, including when discussing the victim’s allegations. The questions regarding the victim were investigatory and not accusatory in tone. After about 30 minutes to an hour and defendant’s acknowledgment of the veracity of some of the  victim’s claims, he  was  asked  to  accompany  the  officers to  the Sheriff’s Department,  he  agreed  to  go  in the  officers’ unmarked vehicle and he was not at any time placed in handcuffs.  People v Vieou, 104521, 3rd Dept, 6-6-13

SUPPRESSION

 

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Gang Affiliation and Prior Drug Offenses Admissible Under Molineux in Murder Case/Motion to Suppress Statement Made When Questioning Continued After Defendant Stated He Did Not Want to Answer Any More Questions Should Have Been Granted

The Third Department determined evidence of defendant’s gang affiliation and uncharged drug offenses were admissible in defendant’s murder trial under Molineux.  In addition, the Third Department determined defendant’s statements made after he said he didn’t want to answer any more questions should have been suppressed.  [The Third Department rejected the People’s argument that the suppression issue was decided in a prior prosecution and the doctrine of collateral estoppel should apply.] With respect to the Molineux and “right to remain silent” issues, the Court wrote:

“Generally speaking, evidence of uncharged  crimes or prior bad acts may be admitted where they fall within the recognized Molineux exceptions – motive, intent, absence of mistake, common plan or scheme and identity – or where such proof is inextricably interwoven with the charged crimes, provide[s] necessary background or complete[s] a witness’s narrative” … . Here, defendant’s drug-related activities and purported gang membership provided necessary background information, explained how [the other parties] and defendant knew one another (as well as why defendant’s acquaintances went along with his plan to rob the weed spot[where the murder took place]) and, viewed in the context of the activities that occurred prior to the shooting, established both defendant’s awareness of the weed spot and a motive for the shooting; thus, such “evidence was highly probative of several relevant and material issues at trial and genuinely interwoven with the facts surrounding the shooting” … .

The case law makes clear that “[a] defendant’s invocation of the right to remain silent must be scrupulously honored” … once the right is asserted in an “unequivocal and unqualified” fashion … Whether  a defendant’s  request in this regard is “unequivocal is a mixed question of law and fact that must be determined with reference to  the  circumstances surrounding  the  request[,] including the defendant’s demeanor, manner of expression and the particular words found to have been used by the defendant” … .  People v Johnson, 104081, 3rd Dept, 5-16-13

SUPPRESSION, SUPPRESS

 

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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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Miranda Violations Mandate Suppression.

A police officer approached defendant who was in a parked car. The officer smelled a “strong odor of unburnt marijuana coming from the defendant’s vehicle’s open window.”  The officer asked if the occupants of the vehicle had “anything illegal.”  The defendant produced a small bag of marijuana.  The officer then told the defendant to get out of the vehicle “as he was now under arrest for unlawful possession of marijuana.”  The officer searched the vehicle and found two bags of marijuana under the driver’s seat.  When he asked the defendant if the bags of marijuana were his, he said “yes.”  A gun was also recovered in the search.  The defendant was taken to the police station where he was read his Miranda rights for the first time and he declined to speak with the detective. Two hours later the arresting officer told the defendant that if no one confessed to owning the gun, everyone in the vehicle would be “equally charged.”  The defendant then asked to speak to the detective.  He was read his Miranda rights again and confessed to owning the gun.  The Second Department suppressed the marijuana and the gun—the marijuana because the defendant was in custody and had not been read his rights at the time he was asked about it—and the gun because defendant had initially refused to speak with the police thereby asserting his right to remain silent.  Subsequent questioning was not proper.  People vs. Jackson, 2011-05745, Ind. No. 10-00130 Second Dept. 2-20-13

DeBour, street stops

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Queens County District Attorney’s Standard “Preamble” to the Miranda Warnings Struck Down.

In a full-fledged opinion by Justice Skelos, the Second Department struck down a so-called “program” which had been put in place by the Queens County District Attorney’s Office.  Pursuant to the “program,” a “preamble” was read to the defendant just before the Miranda warnings were given.  The Second Department determined the preamble rendered the Miranda warnings ineffective.  The Court noted that the defendant was told of his privilege against self-incrimination only after being told (in the preamble) that this was his “only opportunity” to refute what others have said, to correct any misperceptions, and to try to help himself.  The preamble suggested that the prosecutor would not investigate his version of events if he declined to speak with the prosecutor at that time.  Conversely the preamble suggested that, if the defendant agreed to be interviewed, the prosecutor would assist him with such an investigation.  This suggestion, the Second Department held, “is contrary to the very purpose of the warning that anything a suspect says can be used against him … . In essence, the preamble suggests that invoking [the right to remain silent] will bear adverse, and irrevocable, consequences.”  People v Dunbar, 2010-04786, Ind. No. 1217/09 Second Dept. 1-30-13

 

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