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Right to Counsel Did Not Attach When Community Activist Told Police Defendant’s Attorney Was On His Way to the Station

The Fourth Department determined that the right to counsel attaches only when the defendant or his attorney invokes it, not when someone informs the police defendant’s attorney is on his way to the station:

We reject defendant’s contention that his right to counsel indelibly attached when the community activist told the arresting police officers at the television station that defendant had an attorney who was on his way. “It is well settled that the right to counsel is personal’ to the accused… and thus cannot be invoked by a third party on behalf of an adult defendant” … . Thus, where, as here, a third party not affiliated with a lawyer or law firm indicates that defendant may have an attorney, “it would be unreasonable to require the police to cease a criminal investigation and begin a separate inquiry to verify whether the defendant is actually represented by counsel. Direct communication by an attorney or a professional associate of the attorney to the police assures that the suspect has actually retained a lawyer in the matter at issue’ ” … . Absent such direct communication, the police herein had no duty to investigate whether defendant was represented by counsel, and defendant’s right to counsel did not indelibly attach until an attorney later called the police directly. Inasmuch as all questioning ceased at that time, we conclude that the court properly refused to suppress the statements defendant made before that time.  People v McCray, 2014 NY Slip Op 06720, 4th Dept 10-3-14

 

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Successive Photo Arrays Okay/Statement Made Voluntarily After Refusing to Waive Miranda Rights Admissible for Impeachment Purposes

The Fourth Department dismissed an attempted murder charge because “the jury may have convicted defendant of an unindicted [attempted murder], resulting in the usurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine the charges”… . [The indictment charged one shooting but proof at trial alleged two shootings which were considered by the jury.] In the course of the decision, which also discussed the criteria for severance of defendants and the admissibility for impeachment purposes of a statement made voluntarily after a refusal to waive Miranda rights, the Fourth Department determined that the submission of multiple photo arrays with the defendant in them did not require suppression of the identification evidence:

Contrary to defendant’s … contention, Supreme Court did not err in refusing to suppress identification evidence. ” Multiple photo identification procedures are not inherently suggestive’ ” … . “While the inclusion of a single suspect’s photograph in successive arrays is not a practice to be encouraged, it does not per se invalidate the identification procedures’ ” … . Here, although there was not a significant lapse of time between the presentation of the arrays …, the record establishes that different photographs of defendant were used, that the photographs of defendant appeared in a different location in each photo array … .

We … conclude that the court did not err in determining that defendant’s statements to the police during a brief exchange, made by defendant after he refused to waive his Miranda rights, were voluntary and thus were admissible for impeachment purposes … . Here, the People met their initial “burden at the Huntley hearing of establishing that defendant’s . . . statements were not the product of improper police conduct’ ” … , and “[d]efendant presented no bona fide factual predicate in support of his conclusory speculation that his statement[s were] coerced”…. .  People v Wilson, 2014 NY Slip Op 06394, 4th Dept 9-26-14

 

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Pulling Defendant from Inside His Home for Warrantless Arrest Violated the Fourth Amendment

The Second Department determined that a new trial was required because defendant’s statement should have been suppressed.  The police pulled the defendant from inside his home to arrest him without a warrant, a violation of the Fourth Amendment.  The Second Department noted, however, that the trial court did not err in refusing the suppress evidence of a post-arrest lineup identification:

Here, the police knocked on the defendant’s door at approximately 6:50 a.m. When the defendant answered the door he appeared to be “half asleep,” and was naked from the waist down. He only partially opened the door, was never in full view of the police, and never crossed the threshold of his apartment. When the police directed the defendant to step fully into view, the defendant instead attempted to shut the door, trapping a detective’s arm as the detective tried to keep the door from closing. After law enforcement officials successfully pushed the door open, they pulled the defendant from the area behind the door into the public hallway, where he was then arrested.

Under the discrete circumstances of this case, where the police officers crossed the threshold into the defendant’s apartment, pulled him into the hallway, and arrested him without a warrant, the defendant’s Fourth Amendment rights were violated … . People v Riffas, 2014 NY Slip Op 06333, 2nd Dept 9-24-14

 

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Record Did Not Demonstrate Defendant Understood His Miranda Rights—Statement Should Have Been Suppressed

The Second Department determined defendant’s statement should have been suppressed.  The People failed to demonstrate defendant understood his right to remain silent:

Contrary to the hearing court’s determination, the evidence adduced at the suppression hearing was insufficient to establish that the defendant’s statements to law enforcement officials were made after he knowingly, voluntarily, and intelligently waived his Miranda rights (see Miranda v Arizona, 384 US 436). Although the defendant’s refusal to sign the Miranda card did not, in itself, preclude the finding of a valid waiver …, the record was devoid of any indication that the defendant clearly understood his Miranda rights as read to him … . People v Barnes, 2014 NY Slip Op 06209, 2nd Dept 9-17-14

 

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Confusing Jury Instruction Re: the Justification Defense Required Reversal of Murder Conviction in the Interest of Justice/Defendant’s Attorney Should Have Been Allowed to Testify at the Suppression Hearing—There Was a Question of Fact Whether the Attorney Called and Told the Police He Represented the Defendant and Defendant Should Not Be Questioned

The First Department reversed defendant's murder conviction in the interests of justice because of a confusing jury instruction.  The trial court did not make it clear to the jurors that the use of deadly force can be justified in defense of a robbery.   The First Department also noted that defendant's lawyer should have been allowed to testify at the suppression hearing because it was alleged the lawyer called the police station, informed officer Risorto he was representing defendant, and told officer Risorto the defendant should not be questioned:

In its main charge, the court instructed the jury that “[t]he only difference between the law of self-defense to repel a robbery as opposed to assault [is that] in repelling the robbery, the person has no duty to retreat.” This is an incorrect statement of the law because it ignores an additional critical difference between the two grounds for justification, namely, that deadly physical force may be permissible to defend against a robbery even if the alleged robber is using only physical force, and not deadly physical force (see People v Fuller, 74 AD2d at 879 [“a person is justified in using deadly physical force if he reasonably believed it necessary to use such force in order to resist his victim's imminent use of [mere] physical force against himself, in the course of a robbery attempt”]; People v Davis, 74 AD2d 607, 609 [2d Dept 1980] [jury should have been told that the defendant was justified in using deadly physical force if he reasonably believed it necessary to do so to resist the imminent use of physical force against him in the course of a robbery attempt]). The court's error was exacerbated when it repeated this erroneous statement in response to a jury note requesting further instructions on the defense of justification. * * *

The Court of Appeals has held that “an attorney enters a criminal matter and triggers the indelible right to counsel when the attorney . . . notifies the police that the suspect is represented by counsel” … . Once the police have reason to know that the suspect is represented by counsel in the case under investigation, the right to counsel cannot be waived unless the suspect does so in the presence of counsel … . An attorney does not need to enter the case in person, but can communicate his representation to the police by phone, “at which point the police are required to cease all questioning” … .

Here, the court erred in precluding defense counsel from testifying about the critical conversation with Risorto. The police testimony, along with defense counsel's affirmation, raised questions as to what defense counsel actually said to Risorto and, in particular, whether defense counsel told Risorto that he “represented” defendant in the case for which defendant was to be questioned. The court should not have made a factual finding that implicitly accepted Risorto's account, without giving defendant the opportunity to challenge that account. People v McTiernan, 2014 NY Slip Op 05363, 1st Dept 7-17-14

 

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Claimant’s Inculpatory Statement Demonstrated to Be Product of Police Misconduct

Fourth Department affirmed the judgment against the state for wrongfull conviction and imprisonment.  After nine years of imprisonment for attempted murder, another came forward and credibly confessed to the crime.  The claimant was released and sued the state.  The state argued on appeal that, because the claimant made an inculpatory statement, the proof that he did not bring about his own conviction was insufficient.  In rejecting that argument, the court explained:

Claimant consistently maintained his innocence and contended that his inculpatory statement was coerced. “[A] coerced false confession does not bar recovery under section 8-b because it is not the claimant’s own conduct’ within the meaning of the statute” … . It is well settled that “[t]he voluntariness of a confession can only be determined through an examination of the totality of the circumstances surrounding the confession” … . “Relevant criteria include the duration and conditions of detention, the manifest attitude of the police toward the detainee, the existence of threat or inducement, and the age, physical state and mental state of the detainee” … . The use or misuse of a polygraph examination is also a factor to be considered in determining whether there was impermissible coercion … .

Here, we conclude that the record fully supports the court’s determination that claimant’s inculpatory statement was the product of police misconduct … . Claimant was awake for 34 hours before making his only inculpatory statement, which was the second statement he made. He had been interrogated for 15 hours in a six- by eight-foot windowless room. He ate nothing and drank only one can of soda and, although he was a heavy smoker, he had no cigarettes in the prior four or five hours. He remained under the severe emotional trauma of having seen his wife in a horrible bloodied and battered condition. Claimant was advised that, if he took a polygraph exam and passed, he would be permitted to go home.

Notably, the polygraph operator expressed significant concern to fellow officers about the reliability of the polygraph exam because claimant was “somewhat physiologically unresponsive to the polygraph.” Gristwood v State of New York, 2014 NY Slip Op 05259, 4th Dept 7-11-14

 

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Hearsay Evidence of Another’s Admission to the Crime Warranted a Hearing Pursuant to Defendant’s Motion to Set Aside the Conviction

The Third Department determined newly discovered evidence, including hearsay evidence of the admission of another (Melton) to the commission of the crime, warranted a hearing pursuant to the defendant’s motion to set aside his conviction:

“[A] defendant has a fundamental right to offer into evidence the admission of another to the crime with which he or she is charged” … . “Depriving a defendant of the opportunity to offer into evidence another person’s admission to the crime with which he or she has been charged, even though that admission may only be offered as a hearsay statement, may deny a defendant his or her fundamental right to present a defense” … . The People’s claims regarding Melton’s unwillingness to testify were themselves hearsay, and simply created issues of fact as to whether he was available and, if not, whether his posttrial statements were admissible as declarations against his penal interest … . A statement is admissible under this hearsay exception if (1) the declarant is unavailable because of death, absence or a refusal to testify on constitutional grounds, (2) the declarant knew when making the declaration that it was contrary to his or her penal interest, (3) he or she had competent knowledge of the facts, and (4) other independent evidence supports the reliability and trustworthiness of the declaration … . Where, as here, the statement at issue tends to exculpate a criminal defendant, a more lenient standard of reliability is applied than to inculpatory statements; an exculpatory declaration is admissible if competent independent evidence “establishes a reasonable possibility that the statement might be true” .. . .  People v Sheppard, 2014 NY Slip Op 04982, 3rd Dept 7-3-14

 

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Past Domestic Violence Admissible to Show Intent in Rape Case—Victim’s Statements in Hospital Report Admissible under Business Records Exception/Confrontation Clause Not Implicated Because Statements Were Not Testimonial—Victim’s Statements Shortly After the Rape Admissible as Excited Utterances

In a case where the defendant was charged with raping his ex-girlfriend, the Third Department determined past incidents of domestic violence were properly allowed in evidence to demonstrate intent, statements made by the victim (who died before trial from an unrelated cause) included in a hospital report were admissible under the business records exception to the hearsay rule, and statements made by the victim shortly after the rape were admissible as excited utterances.  With respect to the hospital records, the court wrote:

County Court properly allowed admission of statements that the victim made during her medical examination. “Hospital records fall within the business records exception to the hearsay rule as long as the information relates to diagnosis, prognosis or treatment” … . Details of the abuse, even including the perpetrator’s identity, may be relevant to diagnosis and treatment when the assault occurs within a domestic violence relationship because the medical provider must consider the victim’s safety when creating a discharge plan and gauging the patient’s psychological needs … . The physician who examined the victim testified that all of the information in the medical records was relevant to and gathered for purposes of diagnosis or treatment, and the primary purpose of the examination was to care for the patient’s health and safety, although a secondary purpose of the forensic examination was to gather evidence that could be used in the future for purposes of prosecution. Considering this information, although the victim was unavailable to testify because she died before trial (from causes unrelated to defendant’s crimes), defendant’s Confrontation Clause rights were not violated because the statements were not testimonial… . People v Pham, 2014 NY Slip Op 04276, 3rd Dept 6-12-14

 

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Statement About Gang Affiliation Should Have Been Suppressed—Not Merely “Pedigree” Information

The Second Department determined that defendant’s statement about his gang affiliation should have been suppressed. The defendant had not yet been read his Miranda rights.  The People’s argument that the statement was simply part of so-called “pedigree” information (like “address” and “phone number”) was rejected.  The error was deemed harmless however.  People v Hiraeta, 2014 NY Slip Op 03698, 2nd Dept 5-21-14

 

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Codefendant’s Statement Was Admissible—the Fact that the Statement Implicated the Defendant in the Light of Other Trial Evidence Did Not Violate Defendant’s Right of Confrontation

The Third Department determined a co-defendant’s statement, which had been redacted to exclude references to the defendant, was admissible.  The defendant’s argument that the statement implicated him in the light of the trial evidence was rejected:

A defendant’s right to confront witnesses is violated by the admission of “the facially incriminating confession of a nontestifying codefendant” …; however, no such violation occurs where, as here, the codefendant’s statement incriminates the defendant only in light of other evidence produced at trial … . Nor did the use of plural pronouns such as “we” and “they” in the statement necessarily indicate any involvement by defendant … . Accordingly, the statement was admissible, and defendant’s rights under the Confrontation Clause were not violated by the People’s arguments that drew inferences about his participation by linking the statement with other trial evidence … . People v Maschio, 2014 NY Slip Op 03551, 3rd Dept 5-15-14

 

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