Court of Appeals. State of New York THE PEOPLE OF THE STATE OF NEW YORK, against COLLIN L F. LLOYD-DOUGLAS,

Transcription

1 To be argued by DONNA ALDEA (TIME REQUESTED: 25 MINUTES) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, against Appellant, COLLIN L F. LLOYD-DOUGLAS, Defendant-Respondent. W BRIEF FOR APPELLANT W RICHARD A. BROWN District Attorney Queens County Attorney for Appellant JOHN M. RYAN JAMES C. QUINN ROBERT J. MASTERS Assistant District Attorneys Of Counsel Queens Boulevard Kew Gardens, New York (718) DONNA ALDEA, ESQ. SPECIAL COUNSEL, PRO BONO, FOR APPELLANT BARKET, MARION, EPSTEIN & KEARON, LLP 666 OLD COUNTRY ROAD SUITE 700 GARDEN CITY, NY (516) ALLEGRA GLASHAUSSER, ESQ. APPELLATE ADVOCATES TH 2 RECTOR STREET 10 FLOOR NEW YORK, NY (212) NOVEMBER 7, 2013 Queens County Indictment Number 2490/08

2 TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES iii STATEMENT PURSUANT TO RULE 5531 CPLR vi PRELIMINARY STATEMENT THE JURISDICTION OF THIS COURT QUESTIONS PRESENTED SUMMARY OF THE ARGUMENT FACTUAL AND LEGAL BACKGROUND THE SUPPRESSION HEARING The Trial and Sentence The Appeal to the Appellate Division ARGUMENT THE APPELLATE DIVISION ERRED IN APPLYING AN UNPRECEDENTED PER SE RULE TO AUTOMATICALLY REQUIRE S U P P R E S S I O N O F D E F E N D A N T S VOLUNTARY VIDEOTAPED STATEMENT WITHOUT ANY REGARD TO WHETHER THE INTERVIEWERS PRE-MIRANDA REMARKS IMPACTED THE KNOWING, INTELLIGENT, AND VOLUNTARY NATURE OF THIS PARTICULAR DEFENDANT S WAIVER IN THIS PARTICULAR CASE A. The Appellate Division s Methodology Was Wrong B. Under the Correct Analysis, the Record Fully Supported the Hearing Court s Conclusion That Defendant s Waiver Was Knowing, Intelligent, and Voluntary CONCLUSION

3 APPENDIX Corrected Certificate Granting Leave, dated May 20, A-1 Appellate Division s Decision and Order Reversing Judgment, dated January 30, A-2 Defendant s Omnibus Motion, dated February 16, A-4 People s Response to Defendant s Omnibus Motion, dated March 11, A-11 Judge Erlbaum s Order, dated April 2, A-16 Hearing Minutes, dated July 1, A-18 Judge Erlbaum s Order, dated September 17, A-109 Trial Transcript A-120 Sentence Minutes, dated April 6, A-583 DVD of CBQ Interview, dated April 24, A-595 Certificate Pursuant to 2105 of the C.P.L.R A-596 ii

4 TABLE OF AUTHORITIES Page No. Cases Arizona v. Fulminante, 499 U.S. 279 (1991) n.6 Brown v. Blumenfeld, 103 A.D.3d 45 (2d Dept. 2012) n.7 California v. Prysock, 453 U.S. 355 (1981) Colorado v. Connelly, 479 U.S. 157 (1986) Colorado v. Spring, 479 U.S. 564 (1987) , 33 Duckworth v. Eagan, 492 U.S. 195 (1989) Fare v. Michael C., 442 U.S. 707 (1979) , 31 Florida v. Powell, 559 U.S. 50 (2010) st In re Cy R., 43 A.D.3d 267 (1 Dept. 2007) Maryland v. Shatzer, 559 U.S. 98 (2010) McNeil v. Wisconsin, 501 U.S. 171 ( Miranda v. Arizona, 384 U.S. 412 (1966) Missouri v. Seibert, 542 U.S. 600 (2004) , 22n.8 Moran v. Burbine, 475 U.S. 412 (1986) , 33 People v. Anderson, 42 N.Y.2d 35 (1977) People v. Bailey, 24 A.D.3d 684 (2d Dept. 2005) st People v. Barrow, 284 A.D.2d 145 (1 Dept. 2000) People v. Berrios, 28 N.Y.2d 361 (1971) People v. Chapple, 38 N.Y.2d 112 (1975) , 22n.8 iii

5 People v. Chavis, 147 A.D.2d 582 (2d Dept. 1989) People v. Chipp, 75 N.Y.2d 327 (1990) People v. Dunbar, 104 A.D.3d 198 (2d Dept. 2013) passim People v. Gonzalez, 55 N.Y.2d 720 (1981) n.11 th People v. Grady, 6 A.D.3d 1149 (4 Dept. 2004) People v. Huntley, 15 N.Y.2d 72 (1965) People v. Hutchinson, 59 N.Y.2d 923 (1983) th People v. Keene, 148 A.D.2d 977 (4 Dept. 1989) People v. Love, 57 N.Y.2d 998 (1982) People v. Lloyd-Douglas, 102 A.D.3d 986 (2d Dept. 2013), leave granted, 2013 N.Y. LEXIS 1574 (2013) , 14 People v. Martz, 26 Misc.3d 1227(A), at ***3 (Dist. Ct., Nassau Co. 2010) , 39n.12 People v. Paulman, 5 N.Y.3d 122 (2005) , 22n.8 People v. Perez, 37 Misc. 3d 272 (Queens Sup. Ct. 2012, Blumenfeld, J.) n.7, 28 People v. Polhill, 102 A.D.3d 988 (2d Dept. 2013), leave granted, 21 N.Y.3d 946 (2013) n.1 People v. Prochillo, 41 N.Y.2d 759 (1977) People v. Smith, 220 A.D.2d 704 (2d Dept. 1995) st People v. Soto, 253 A.D.2d 359 (1 Dept. 1998) People v. Valerius, 31 N.Y.2d 51 (1972) People v. Vasquez, 90 N.Y.2d 972 (1997) , 31 People v. Williams, 62 N.Y.2d 285 (1984) , 31 iv

6 Statutes C.P.L n.6 C.P.L Penal Law 110/ Penal Law Penal Law Penal Law , 8 Penal Law Penal Law Penal Law Penal Law Penal Law Other Authorities Commentary to New York Criminal Jury Instructions st First Edition (CJI 1 ) 11.00, pp John Brunetti, NY Confessions, at 9.01 et.seq. [LexisNexis 2011 edition] n.7 v

7 COURT OF APPEALS STATE OF NEW YORK x THE PEOPLE OF THE STATE OF NEW YORK, : Appellant, : -against - : COLLIN F. LLOYD DOUGLAS, : Defendant-Respondent. : x County). STATEMENT PURSUANT TO RULE 5531 CPLR 1. The Indictment Number of the case is 2490/08 (Queens 2. The full names of the parties are the People of the State of New York against Collin F. Lloyd Douglas. County. November 6, This action was commenced in the Supreme Court, Queens 4. The action was commenced by the filing of an indictment on 5. This is an appeal from a January 30, 2013 order of the Appellate Division, Second Department, reversing defendant s April 7, 2010 judgment of conviction. 6. The appendix method of appeal is being used. vi

8 COURT OF APPEALS STATE OF NEW YORK x THE PEOPLE OF THE STATE OF NEW YORK, : - against - Appellant, : : : COLLIN F. LLOYD DOUGLAS, : Defendant-Respondent. : x BRIEF FOR APPELLANT PRELIMINARY STATEMENT By permission of the Honorable Robert S. Smith, Associate Judge of the New York Court of Appeals, the People appeal from a January 30, 2013 opinion and order of the Appellate Division, Second Department, reversing an April 7, 2010 judgment of the Supreme Court, Queens County (Buchter, J.), on the grounds that defendant s pre-arraignment statement, made after a Miranda waiver, should have been suppressed. By April 7, 2010 judgment, defendant was convicted, after a jury trial, of Attempted Murder in the Second Degree (Penal Law [1]), Assault in the First Degree (Penal Law [1]), Unlawful Imprisonment in the First Degree (Penal Law ), and Criminal Possession of a Weapon in the Third Degree (Penal Law [1]). He was sentenced to concurrent terms of imprisonment of fifteen years followed by five years post-release supervision for attempted murder and assault, and one

9 year for each of the other counts. Defendant is currently incarcerated pursuant to this judgment. THE JURISDICTION OF THIS COURT This appeal is authorized by Criminal Procedure Law Section (1) because the Appellate Division's order reversed the judgment of the trial court on the law, and was adverse to the People of the State of New York. The appeal is taken upon a certificate granting leave to appeal, dated May 20, 2013, issued pursuant to Section of the Criminal Procedure Law (Smith, J.). QUESTIONS PRESENTED (1) Did the Appellate Division err in finding that a short statement made to a suspect prior to Miranda warnings, that does not constitute interrogation or its functional equivalent, should automatically require suppression in every case, irrespective of its impact on an individual suspect and the voluntariness of his waiver? (2) Where defendant, a middle-aged predicate felon familiar with the criminal justice system, was read and waived his Miranda rights, strategically choosing to speak to detectives in an attempt to attack the credibility of the victim and her daughter as illegal aliens involved in criminal activity, did the Appellate Division err in automatically suppressing his videotaped statement, without considering his individual background and the circumstances of his waiver? 2

10 SUMMARY OF THE ARGUMENT The latitude afforded law enforcement to seek and obtain a suspect s voluntary and reliable confession prior to arraignment, before the right to counsel indelibly attaches and bars further interrogation, is not a necessary evil, as the tenor of the Appellate Division s decision suggests, but, rather, an unmitigated good, essential to society s compelling interest in finding, convicting, and punishing those who violate the law. See Maryland v. Shatzer, 559 U.S. 98, 108 (2010) (internal quotations omitted). The Queens District Attorney s Central Booking Interview Program, launched as a pilotprogram in 2007 in response to the call for videotaped interrogations, and since used in almost 14,000 cases, has obtained hundreds of such voluntary and reliable confessions along with thousands of other statements from suspects about the details and circumstances of the crime, and also hundreds of credible statements from suspects denying their involvement and providing alibis or other information that resulted in immediate investigation and dismissal of those cases prior to arraignment, and before the filing of any charges. The program has thus proved invaluable not because of the number of exonerations or convictions it has helped to secure but because it has helped the District Attorney to get it right: to fulfill his dual responsibility to aggressively prosecute as many of the guilty as possible and none of the innocent; to ensure that the charges about to be filed at the arraignment are appropriate to the offense and that appropriate bail is recommended; to allow 3

11 for thorough investigation of the case by quickly identifying investigative leads before they grow cold or disappear altogether; in short, to get to the truth, irrespective of whether it implicates or exonerates any individual defendant. For nothing is more relevant or probative one way or another than a videotape taken mere hours after the crime, showing not just the suspect s final statement in isolation, divorced from the hours of interrogation that preceded and led to it, as has been commonly done for decades in homicide cases, but, rather, the entire interrogation with nothing said to the suspect before, and nothing left off of the tape. In this case, which was part of a trilogy of cases argued together 1 and decided on the same date, the Appellate Division, Second Department, reversed defendant s felony conviction, holding that his videotaped Central Booking statement made prior to the filing of an accusatory instrument, and after the waiver of Miranda rights should have been suppressed because the Miranda warnings had been muddled by the standard introductory remarks read by the investigator immediately before the Miranda warnings. People v. Lloyd-Douglas, 102 A.D.3d 986 (2d Dept. 2013) (A2), (relying on reasoning in People v. Dunbar, 104 A.D.3d 198, 207[2d Dept. 2013]). In so holding, the Appellate Division refused to engage in traditional voluntariness analysis, which had been properly applied by the suppression court to find that 1 See also People v. Polhill, 102 A.D.3d 988 (2d Dept. 2013), leave granted, 21 N.Y.3d 946 (2013); People v. Dunbar, 104 A.D.3d 198, 207 (2d Dept. 2013), leave granted, 2013 N.Y. LEXIS 1487 (2013). 4

12 defendant s waiver in this particular case was knowing, intelligent, and voluntary given the defendant s background and the totality of the circumstances surrounding his waiver. Instead, the Appellate Division applied a per se rule, reasoning that voluntariness analysis was inapplicable because the District Attorney s pre-miranda remarks compromised the clarity of the Miranda warnings themselves making it as though Miranda warnings were never read at all (Id. at ) and because the introductory remarks were not offhand remarks by an individual interviewer, but, rather, used systematically in Queens County in thousands of cases (Id. at ). The per se rule enunciated by the Appellate Division in this case is directly contrary to the case-by-case analysis mandated by both this Court and the United States Supreme Court to determine the validity of a Miranda waiver in cases where, as here, Miranda warnings were fully read and acknowledged. Its secondary rationale that the validity of a suspect s waiver can be impacted by the subjective intent of the investigator or by whether the investigator s comments are standardized or ad hoc is logically untenable. Its holding not only effects an inequitable and incorrect result in this case -- where the defendant s waiver was clearly the product of a knowing and voluntary choice, made by a mature predicate felon, who frequently took control during the interview, and clearly wanted to speak to investigators in a strategy attempt attack the credibility of the victim and her daughter but it has staggering implications, changing the method by which the validity of a 5

13 Miranda waiver is gauged, entirely eliminating defendant s burden of persuasion at a suppression hearing, potentially requiring suppression of statements obtained in thousands of cases, and jeopardizing similar prearraignment interview programs used by District Attorney s Offices and Police Departments throughout the state in response to the ever-increasing demand for videotaped interrogations. In short, the Appellate Division s decision was wrong in both methodology and result and will have far-reaching consequences that reverberate throughout the state. Its order should be reversed. FACTUAL AND LEGAL BACKGROUND 2 On the morning of September 7, 2005, as P.D. was preparing to leave her apartment to go to work, defendant, angry with P.D. from a flight the night before, hit her repeatedly in the head with a hammer, fracturing her skull, tearing through her dura, and penetrating her brain (P.D.: 266, 269, A383-86; Venukrishnan: ; A302-03). After she fell to the floor, defendant got on top of her, put her in a choke hold and told her he would kill her (P.D.: 270, , A387, ). For the next couple of hours, defendant kept P.D. on the floor as she bled and leaked cerebrospinal fluid from her head injury and passed in and out of consciousness (P.D.: , A ; Venukrishnan: 182, 185; A 300, 303). P.D. begged defendant to call an ambulance, but he did not, and when she tried to use her cell phone, he took it from her (P.D.: , 2 The trial evidence is briefly summarized in this section. Further references to the trial evidence and pre-trial motions appear in the points of argument where relevant to the legal issues before this Court. 6

14 A391-92). At around 11:00 a.m., defendant left the apartment, leaving P.D. on the floor bleeding and unable to walk, and took P.D. s cell phone, money, and identification with him (P.D.: 277, , A393, ). After defendant left, P.D. crawled to her bedroom and called 911 (P.D.: 278, A394). At the hospital, P.D. had emergency surgery to remove bone fragments and damaged parts of her brain (Venukrishnan: , A305-07). As a result of her injuries, she had difficultly talking, understanding, balancing, standing, and walking, and required additional surgery and extensive physical therapy (P.D.: ; A ; Venukrishnan: , A308-10; Hu: , A326-33). Defendant was apprehended approximately three years later, on June 12, 2008 (Picone: 330, A447). While he was being processed in Queens Central Booking ( CBQ ), and prior to the filing of the felony complaint and his arraignment, defendant was questioned by an Assistant District Attorney and a Detective Investigator from the Queens District Attorney s Office (Picone: , A443-47). After waiving his Miranda rights, defendant gave a videotaped statement acknowledging that he fought with P.D. on the day of the incident, but claiming that she had attacked him with the hammer and that her injuries were self-inflicted during the struggle. Defendant also acknowledged that he stayed with P.D. after the incident and refused to call an ambulance, but he denied taking the victim s wallet or cell phone (CBQ Interview, Trial Exhibit 6, A595). Defendant was subsequently indicted by a 7

15 Grand Jury for Attempted Murder in the Second Degree (Penal Law 110/ ); Assault in the First Degree (Penal Law ); Burglary in the First Degree (Penal Law ); Robbery in the First Degree (Penal Law ); Unlawful Imprisonment in the First Degree (Penal Law ); Grand Larceny in the Fourth Degree (Penal Law ); Criminal Possession of a Weapon in the Fourth Degree (Penal Law ) (Queens County Indictment No. 2490/08). The Suppression Hearing Prior to trial, defendant moved to suppress his videotaped 3 statement he made in Central Booking. A hearing was held before Judicial Hearing Officer Joan O Dwyer. At the hearing, Sgt. Mary Picone testified that she conducted a videotaped interview of defendant on June 13, 2008 from 12:10 to 12:47 p.m. in an interview room located in Queens Central Booking (Picone: H35, 38, A52, 55). Sgt. Picone testified that she did not engage in any off-camera discussion with defendant; that defendant waived his Miranda rights prior to being questioned, as seen on the video; that defendant had access to a bathroom and three meals a day for the less-than-24 hours he spent in Central Booking; and that defendant did not ask her for any food or water during the interview (Picone: H36, 40-43, 50, A53, 57-60, 67). A DVD of defendant s Central Booking interview was admitted into evidence at the 3 Defendant also contended that there was no probable cause for this arrest, and much of the hearing testimony and argument related to that issue. However, as that issue is not raised on appeal, the People limit the discussion in this section to the testimony and argument relevant to the voluntariness of defendant s CBQ statement. 8

16 4 hearing (Hearing Exhibit 1, A595). As shown on the video which was a complete recording of all interaction between defendant and the interviewers, from the moment defendant entered the room until the moment he left defendant was read a very brief introductory statement, containing no questions, which was immediately followed by Miranda warnings. Specifically, the interviewers began by seating defendant in the room, telling him that he was in the Queens District Attorney s interview room in Central Booking, and introducing themselves as a Detective with the Queens District Attorney s Office and an Assistant District Attorney (DVD at 12:10:26-12:10:58, A 595). They then informed defendant of the charges he will be facing when he goes to court, the date and time of the incident at issue, and that he would be read his rights in a few moments, after which he would be given an opportunity to explain what you did and what happened at that date, time, and place. (DVD at 12:10:58-12:11:26, A595). The interviewers specified the type of information they would want him to provide if he decided to speak with them, and again highlighted that he did not have to decide if he wanted to speak with them until after he heard his rights: 4 A copy of this DVD, which is relevant to the resolution of defendant s claims on appeal, is attached at A595. 9

17 If you have an alibi, give me as much information as you can, including the names of any people you were with. If your version of the events of that day is different from what we ve heard, this is your opportunity to tell us your story. If there is something you d like us to investigate about this incident, you have to tell us now so we can look into it. Even if you ve already spoken to someone else you do not have to talk to me. This will be the only opportunity you do have to talk to me before your arraignment on these charges. This entire interview is being recorded with both video and sound. I m going to read you your rights now, and then you can talk to me if you d like, okay? (DVD at 12:11:26-12:12:03, A595). Defendant was then immediately advised of his rights including his right to a prompt arraignment, at which he would have an attorney appointed was asked if he understood each right individually, and replied that he did. He was also asked if, having heard his rights, he wished to answer questions, and he replied that he did: DETECTIVE: You have the right to be arraigned without undue delay. That is, to be brought before a judge, to be advised of the charges against you, to have an attorney assigned to or appointed for you, and to have the question of bail decided by the court. Do you understand? DEFENDANT: Um Hm. 10

18 DETECTIVE: You have the right to remain silent and refuse to answer questions. Do you understand? DEFENDANT: Yes. DETECTIVE: Anything you do say may be used against you in a court of law. Do you understand? DEFENDANT: Yeah. DETECTIVE: You have the right to consult an attorney before speaking to me or to the police and have an attorney present during any questioning now or in the future. Do you understand? DEFENDANT: Yeah. DETECTIVE: If you cannot afford an attorney, one will be provided to you without cost. Do you understand? DEFENDANT: Yup. DETECTIVE: If you do not have an attorney available, you have the right to remain silent until you have had an opportunity to consult with one. Do you understand? DEFENDANT: Yeah. DETECTIVE: Now that I have advised you of your rights are you willing to answer questions? DEFENDANT: Yeah, I ll answer a few questions. (DVD at 12:12:04-12:13:00, A595). At the conclusion of the hearing, defendant argued, inter alia, that his CBQ statement was involuntarily made because he had been held in Central Booking for approximately 22 hours and had not been specifically asked by 11

19 Sgt. Picone if he wanted food or water, if he needed to go to the bathroom, or if he was on medication (Proceedings: H78-79, A98-99). In response, the People argued that defendant s CBQ statement was voluntarily made after a valid Miranda waiver. More specifically, the People highlighted that defendant was arraigned in less than 24 hours, had access to a toilet, food, and water during his stay in Central Booking, and was interviewed for less than 30 minutes (Proceedings: H85-86, A105-06). Additionally, the People argued that the voluntariness of defendant s Miranda waiver and statement and the lack of any coercion or force could be seen on the DVD itself, which showed that defendant takes control of that interview. He s standing up, he s demonstrating, he s showing what his th version of the events that took place on September 7 of 2005" (Proceedings: H85, A105). In a written decision, which was subsequently confirmed by Justice William M. Erlbaum on September 17, 2009, Judge O Dwyer denied defendant s suppression motion, holding that the People have proved, beyond a reasonable doubt, that the defendant s statements were made pursuant to his knowing, intelligent, and voluntary waiver of his constitutional rights (Suppression Decision at 7, A116). Specifically, the court credited Sgt. Picone s testimony and found that there was nothing in the record t indicate that the defendant was threatened to make a statement or that his will was overborne and that no evidence was adduced to indicate that the defendant 12

20 was irrational or in any way incapable of appreciating the consequences of his statements, nor that he was subjected to overbearing interrogation (Suppression Decision at 8, A117). 5 The Trial and Sentence Thereafter, defendant proceeded to trial before Justice Richard L. Buchter, Supreme Court, Queens County, and a jury. At the trial, P.D. testified about the details of the assault and identified defendant as her assailant (P.D.: 264, , A381, ), and medical testimony established the nature and extent of the victim s injuries (Venukrishnan: , A ; Hu: 20815, A326-33). Additionally, defendant s CBQ video was admitted into evidence and played for the jury (Picone: 332, A595). Defendant testified on his own behalf, acknowledging that he fought with the victim and that she was hit in the head with a hammer, but claiming, as he had in CBQ, that the victim had attacked him, and that her injury was self-inflicted during the struggle (Douglas: , , A458-60, ). Defendant also admitted staying with the victim after the incident and refusing to call for help, but claimed that she seemed okay (Douglas: , , A460-61, ). Nevertheless, after defendant changed his 5 After deeming defendant s statement voluntary and admissible in evidence, the court went on to opine in dicta that the preferable procedure in questioning defendants would be to first advise them of their Miranda rights, then advise them that if he wanted something investigated, they should let the authorities know about it (Suppression Decision at 8, A117) (emphasis in original). The court mused that this procedure would eliminate any danger of the prefatory remarks being construed as the functional equivalent of questioning as prohibited in People v. White, 10 N.Y.3d 286 (2008) (Suppression Decision at 8, A117). But the court did not so construe the pre-miranda remarks, which were, the court noted, very brief (Suppression Decision at 9, A 118). 13

21 bloody shirt and left the apartment that morning, he never returned, abandoning all of his possessions (Douglas: , A480-87). Following the trial, defendant was found guilty of all the counts presented to the jury. He was sentenced on April 7, 2010, as noted above. The Appeal to the Appellate Division On appeal, defendant raised five claims, challenging the admissibility of his CBQ statement, alleging prosecutorial misconduct on opening and summation, claiming error in the court s charge on intent, and contending that his assault and weapon conviction should be dismissed as inclusory concurrent counts of attempted murder. The People argued that defendant s claims were both unpreserved for appellate review and without merit. In a decision dated January 30, 2013, the Appellate Division, Second Department, held that, for the reasons stated in the companion case of People v. Dunbar, 104 A.D.3d at 198, and without regard to the facts of defendant s particular case or his individual circumstances, the pre-miranda remarks made by the interviewers in CBQ deprived defendant of an adequate advisement of Miranda warnings as a matter of law, and was not effective to secure the defendant s constitutional privilege against self-incrimination and right to counsel. People v. Lloyd-Douglas, 102 A.D.3d at , A2. The Appellate Division further reasoned that the error was not harmless beyond a reasonable doubt, because defendant s statement provided 14

22 damaging evidence against him and corroborated the victim s testimony. Id. at 987, A3. And, in light of this determination, the court did not reach any of defendant s remaining four claims. Id. The impact of the Appellate Division s decision is tremendous. It removes voluntariness from the equation, and thereby eliminates defendant s burden of persuasion at a suppression hearing. It allows for suppression as a matter of law based on the possible impact of a pre-miranda remark on a hypothetical suspect, rather than on the defendant standing before the court. It literally changes a half-century of precedent defining the rules governing suppression of statements made during custodial interrogation and preceded by a Miranda waiver. It is wrong in both analysis and result, and it must be reversed. 15

23 ARGUMENT THE APPELLATE DIVISION ERRED IN APPLYING AN UNPRECEDENTED PER SE RULE TO AUTOMATICALLY REQUIRE S U P P R E S S I O N O F D E F E N D A N T S VOLUNTARY VIDEOTAPED STATEMENT WITHOUT ANY REGARD TO WHETHER THE INTERVIEWERS PRE-MIRANDA REMARKS IMPACTED THE KNOWING, INTELLIGENT, AND VOLUNTARY NATURE OF THIS PARTICULAR DEFENDANT S WAIVER IN THIS PARTICULAR CASE. The hearing court properly denied defendant s motion to suppress his videotaped CBQ statement, reasoning that, under the totality of the circumstances attendant to the interrogation, his statement was voluntarily made, after a valid Miranda waiver, and before his right to counsel had attached under New York law. The court, thus, correctly concluded that there was no ground for suppression. Nevertheless, without affording any deference to the hearing court s findings of fact, and without any regard to the individual circumstances of defendant s case or the totality of the circumstances surrounding the waiver, which the hearing court had carefully considered, the Appellate Division held that defendant s Miranda waiver was invalid because the brief set of remarks by the interviewers muddled Miranda, and, thus, had the legal effect of making it as though Miranda had never been read at all. The Appellate Division was wrong in both its analysis and its result. Its decision should be reversed. 16

24 A. The Appellate Division s Methodology Was Wrong. There is no question that Miranda warnings must be given before custodial interrogation, and a statement obtained in the absence of Miranda warnings or as a result of pre-miranda interrogation must be suppressed, without regard to the individual circumstances of the suspect. Miranda v. Arizona, 384 U.S. 412, 444, 446 (1966) ( The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given ); People v. Hutchinson, 59 N.Y.2d 923 (1983); see also Missouri v. Seibert, 542 U.S. 600, 611 (2004) (Miranda warnings cannot be adequate where suspect is interrogated and confesses before warnings are given; and subsequent advisement of Miranda rights and reelicitation of statement does not cure the defect); People v. Chapple, 38 N.Y.2d 112, 115 (1975) (Miranda warnings given in the midst of continuous interrogation are insufficient to protect the defendant s rights); People v. Paulman, 5 N.Y.3d 122, 130 (2005) (same). But where no interrogation precedes a suspect s Miranda waiver, and where Miranda rights are fully administered, acknowledged, and waived, any issue regarding law enforcement s statements or conduct prior to the suspect s Miranda waiver bears only on the question of whether the waiver was knowing, intelligent, and voluntary under the totality of the circumstances 17

25 surrounding it. See Colorado v. Spring, 479 U.S. 564 (1987); Moran v. Burbine, 475 U.S. 412 (1986). This inquiry is, as this Court has recognized, essentially a factual issue that must be determined according to the circumstances of each case. People v. Williams, 62 N.Y.2d 285, 288 (1984). And while, as the Appellate Division noted, the intelligence and voluntariness of a Miranda waiver is a separate inquiry from the question of whether the 6 suspect s statement was voluntarily made (Dunbar at 213), it is an analysis that similarly depends on an evaluation of the totality of the circumstances. See, generally, C.P.L ; see also Fare v. Michael C., 442 U.S. 707 (1979) (courts must look to the totality of the circumstances surrounding the interrogation to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have counsel ); st Commentary to New York Criminal Jury Instructions First Edition (CJI 1 ) 11.00, pp (... each and every circumstance which entered into the determination of involuntariness under the inherently coercive test and the totality of circumstances test, is presently a circumstance to be considered in determining whether... the defendant knowingly and intelligently waived his 6 For example, there are situations where suspects are interrogated but are not in custody for purposes of Miranda. Miranda rights need not be read and waived before such noncustodial interrogation, but coercive and improper interrogation tactics can still render a confession involuntarily made and, thus, unreliable and inadmissible as a matter of due process. See CPL 60.45; see also, Arizona v. Fulminante, 499 U.S. 279 (1991) (paid informant, acting as agent of government, coerced defendant s confession to crime for which he was not in custody by using threat of violence that overcame defendant s will). 18

26 privilege against self-incrimination and his right to retained or appointed counsel ). The Appellate Division missed this key point. It refused to engage in the case-by-case voluntariness analysis mandated by the law, urged by the People, applied for half-a-century by every court reviewing the validity of a Miranda waiver, and properly applied by every suppression court that has ever reviewed the admissibility of a suspect s CBQ statement since the program s 7 inception in Instead, it concluded that it could avoid such analysis by couching its decision as a finding of a defect in the content of the Miranda warnings themselves, and not on a finding that the suspects waiver was not knowingly, intelligently, and voluntarily made. Thus, while the Appellate Division acknowledged that ordinarily, the question of whether a defendant 7 Indeed, while some Queens judges have criticized the program over the years on various grounds, no court has ever applied a per se rule to invalidate the Miranda waiver and suppress the statements. Even the program s harshest critics have recognized that suppression necessarily depends on an evaluation of the voluntariness of each individual suspect s Miranda waiver under the totality of the circumstances; and, beyond this, that in view of the shifting burdens of production and persuasion at a Huntley hearing (see, generally, John Brunetti, NY Confessions, at 9.01 et.seq. [LexisNexis 2011 edition]), any finding that the pre-miranda remarks might have impacted the knowing, intelligent, or voluntary nature of a suspect s waiver would require the defendant to testify at the hearing that, notwithstanding his videotaped acknowledgment that he understood each warning, he was actually confused or misled by the pre-miranda remarks. See People v. Perez, 37 Misc. 3d 272, 291 (Queens Sup. Ct. 2012, Blumenfeld, J.) (reasoning that because defendant never testified at the suppression hearing it is impossible to determine whether the standard pre-miranda remarks read to him as part of the Queens Central Booking Interview Program undermined defendant s ability to make a knowing, intelligent, and voluntary waiver); see also People v. Perez, 8/9/10 proceedings at pp.19-20, submitted as Exhibit 11 to Petition for Article 78 in Brown v. Blumenfeld, 103 A.D.3d 45 (2d Dept. 2012) (available at NYLJ.com) ( THE COURT:...every one of the cases so far they have one thing in common. Not a single defendant got on the stand and said what he thought what he was being told or she was being told. I don t know if that s ever going to happen. It may be counsel wisely chose not to. I don t know the answer to that. But if the standard is totality of the circumstances and they all chose not to testify, then you may have an unbeaten strength... ). 19

27 knowingly and intelligently waived his or her rights... is determined upon an inquiry into the totality of the circumstances, it deemed this irrelevant here, because we are not faced with the question of whether the defendant was a person capable of understanding his rights and making a knowing and intelligent waiver... Rather, the problem is that defendant never received a clear and unequivocal advisement of his rights... Id. at 210; see also id. at 213 ( The question upon which we pass in the instant matter is not one of the voluntariness of the defendant s inculpatory statement as a matter of due process. Rather, Miranda established a bright-line rule separate and apart from the question of voluntariness. The failure to adequately advise a suspect of his or her rights as required by Miranda requires suppression of even voluntary statements ) (internal quotations omitted). The Appellate Division s use of an automatic per se rule in this circumstance was unprecedented and incorrect. 1. The Appellate Division s Analysis Was Inapplicable Where Miranda Was Fully, Accurately, and Completely Read Prior to Any Interrogation. Fundamentally, the Appellate Division s central justification for applying a per se rule is flawed because, unlike in the cases it cited, where there was some deviation from Miranda, here there is no question that defendant did receive a clear and unequivocal advisement of his rights before any interrogation commenced and any statements were made: he was read the standard Miranda rights used in New York City for decades, and repeatedly approved by this Court, from a pre-printed form, verbatim, with no deviation 20

28 whatsoever, and he expressly acknowledged and waived those rights. Cf., Duckworth v. Eagan, 492 U.S. 195, 203 (1989) (where there is deviation from Miranda, courts must inquire whether the warnings reasonably conve[yed] to [a suspect] his rights ), quoting California v. Prysock, 453 U.S. 355, 361 (1981); Florida v. Powell, 559 U.S. 50, 60 (2010) (suspect not told that he had right to presence of lawyer during questioning); People v. Hutchinson, 59 N.Y.2d 923, 924 (1983) (defendant not told he was entitled to counsel during questioning by officer). Contrary to the Appellate Division s decision, the automatic suppression required for a failure to give some or all of the Miranda warnings, is simply not applicable and has never been applied to a circumstance like this one, where the warnings were completely, carefully, and clearly read to defendant while he listened attentively, and which were fully acknowledged and waived by the defendant before he decided to make any statements at all. The Miranda warnings cannot simply be erased or ignored, as though they were never uttered at all, which is precisely what the Appellate Division did to achieve its result. Simply stated, this is not a case where Miranda was not properly read before custodial interrogation; it is a case where something was said prior to Miranda that might have impacted the knowing, intelligent, and voluntary nature of the waiver. And this is precisely why the ordinary and traditional case-by-case totality-of-the-circumstances analysis, which the Appellate Division refused to apply, should have been applied to 21

29 determine whether, under the unique circumstances of this particular case, law enforcement s statements and conduct prior to administration of proper Miranda warnings vitiated the validity of this individual defendant s waiver. The Appellate Division s failure to engage in this mandatory analysis was flatly wrong and requires correction. Indeed, neither this Court nor the Supreme Court has ever eschewed a case-by-case voluntariness analysis in any other situation where a complete set of Miranda warnings were actually read prior 8 to any custodial interrogation such holding is entirely unprecedented and unsupported. But, more importantly, the Appellate Division s fundamental failure in this regard was not a mere oversight; it was an intentional, reasoned, and central premise of its decision, which, if allowed to stand, will effect a seachange in the law. Under the Appellate Division s holding, any statement uttered to a suspect prior to Miranda can be characterized as changing the meaning, or muddling the warning that follows. Thus, other than non-verbal 8 In this regard, and as the Appellate Division recognized, continuous interrogation cases like Missouri v. Seibert, 542 U.S. 600 (2004), People v. Chapple, 38 N.Y.2d 112 (1975), and People v. Paulman, 5 N.Y.3d 122 (2005), are inapposite, for they all involved situations where custodial interrogation preceded the suspects Miranda waivers, and, in each of those cases, the suspects made statements prior to Miranda, thus letting the cat out of the bag before being advised of their rights (Dunbar at 209). Here, by contrast, there was no pre- Miranda interrogation, as nothing in the pre-miranda remarks was reasonably likely to elicit an incriminating response or, indeed, any response at all; no questions were asked by the interviewers and no statements were made by the suspects prior to the waiver (see Respondent s Appellate Division Brief at for full discussion). Indeed, the Appellate Division correctly declined to adopt defendants arguments that the pre-miranda remarks were, themselves, the functional equivalent of interrogation and had to be preceded by Miranda warnings (Dunbar at 212 n. 2), and agreed with the People that Miranda warnings need not be the first words uttered by law enforcement (Dunbar at 211). 22

30 conduct preceding Miranda like actual physical deprivations or violence any other conduct by law enforcement, which is necessarily verbal in nature, can easily be couched by a clever defense attorney as a failure to properly and effectively administer Miranda warnings, and, thus, can, under the Appellate Division s precedent, be deemed to require suppression, per se, without any need for a hearing or a case-by-case evaluation of the impact on an individual suspect under the circumstances of his individual case. And the fallacy of this approach is particularly pronounced when the court s conclusions about the impact of the pre-miranda language is, itself, not the result of any testimony at a suppression hearing about the individual defendant before the court from which a concrete finding of fact can be made, but, rather, is based only on the court s own speculation about how a theoretical suspect might have interpreted the language, or might have misunderstood it. Indeed, while the Appellate Division purported to base its decision on a finding of a clear facial deficiency in the content of the Miranda warnings themselves, so as to justify rejection of a traditional case-by-case analysis, even a cursory review of its decision exposes that its holding does not follow from the actual words uttered or omitted by law enforcement, but, rather, depends on layers upon layers of speculation about the potential meaning that might be gleaned by potential suspects, and the potential impact upon their decisions to waive their rights (see Dunbar at ). 23

31 For example, though defendant in this case was accurately told, This will be your only opportunity to speak with us before you go to court on these charges, the Appellate Division condemned this language, concluding that it is not reasonable to expect an individual with no legal training to appreciate the subtle distinction that there may be other opportunities to tell his or her story after arraignment (Dunbar at 208 n. 1). But, of course, in the absence of a case-by-case analysis, and given the Appellate Division s steadfast refusal to consider the defendant s background in determining the impact of the pre-miranda remarks, there is simply no basis to conclude that defendant had 9 no legal experience in the first place. Similarly, though the court found it problematic that suspects were told, If there is anything you need us to investigate about this case you have to tell us now so we can look into it, as this could compel a suspect to waive his right to remain silent to avoid the adverse, and irrevocable consequences of losing his only chance to have his case investigated (Dunbar at 208), such concern could only possibly apply to a case where the suspect did, in fact, ask the People to investigate something concerning his case which, ironically, 9 Indeed, although defendant was not a lawyer, as discussed in section B below, his lengthy criminal record dispelled any concern that he lacked legal experience and eliminated any possibility that he did not understand precisely what would happen after arraignment, and the various opportunities he would subsequently be afforded. So, too, did the additional warning read by the investigators in this case, but omitted from the Appellate Division s analysis, advising defendant that he had a right to be arraigned without undue delay, that is, to be brought before a judge, to be advised of the charges against you, to have an attorney assigned to or appointed for you, and to have the question of bail decided by the court. Notably, defendant was asked if he understood these rights, and answered, yes. (see DVD, A595). 24

32 defendant in this case did not do (see discussion infra in section B). And, of course, this is an individual circumstance one of the totality of the circumstances surrounding the waiver and necessarily requires reference to the facts of each individual case. Thus, the Appellate Division s own reasoning exposes the fiction of the analytical construct it has created: its decision is not based simply on a facial deficiency in the Miranda warnings that might justify suppression per se, but, rather, requires reference to speculative deficiencies in the defendant s background and experience and an evaluation of how, based on these presumed unique circumstances, the pre-miranda remarks impacted his understanding of the rights and his decision to waive them. By simply substituting its own theoretical defendant into the equation instead of looking at the one standing before it, the Appellate Division has stripped the suppression hearing of all meaning as a forum in which findings of fact can be made and weighed, has deprived the People of any opportunity to satisfy their burden of showing the voluntariness of an individual defendant s waiver by pointing to his unique background and circumstances, and, most alarmingly, has based its legal holding on a set of facts that are based entirely on speculation rather than on any testimony in the record before it. 25

33 2. The Appellate Division s Decision Afforded no Deference to the Hearing Court s Findings of Fact and Disregarded the Burdens of Proof at a Suppression Hearing. Beyond improperly applying a per se rule as though Miranda warnings were never read at all, instead of looking at the individual circumstances of the case before it to determine the impact of the pre-miranda comments on the validity of this defendant s waiver under the totality of the circumstances, the Appellate Division s decision was also wrong because it afforded no deference whatsoever to the hearing court s factual determinations based on the record before it (see People v. Prochillo, 41 N.Y.2d 759 [1977]), and because it was based on a fundamental misapprehension of the burdens of proof at a suppression hearing. While it is true, as the Appellate Division said, that the People have a heavy burden to prove that defendant s Miranda waiver was knowing, intelligent, and voluntary (Dunbar at 206, citing Miranda at 475), it is clearly established that this ultimate burden at the suppression hearing is satisfied by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168 (1986). Thus, the Appellate Division s finding that when the warnings are combined with the preamble, it cannot be said with assurance that the suspects clearly understood their rights and its ultimate conclusion that it cannot be said with reasonable certainty that suspects subjected to the Program understand their rights and the consequences of foregoing them (Dunbar at 207, 214) did not justify reversal; for assurance is not required, and the People need not prove the validity of a Miranda waiver 26

34 at a suppression hearing with reasonable certainty only by a preponderance of the evidence. And, more fundamentally, the burdens of proof at any suppression hearing are not stagnant; but, rather, shift from party to party. See, e.g., People v. Berrios, 28 N.Y.2d 361 (1971) (re: suppression of physical evidence); People v. Chipp, 75 N.Y.2d 327 (1990) (re: identification). With respect to the validity of a Miranda waiver, it is well settled that the prosecution has the burden of production to prove, beyond a reasonable doubt, that Miranda warnings were fully administered and waived by the defendant (People v. Huntley, 15 N.Y.2d 72 [1965]; People v. Valerius, 31 N.Y.2d 51 [1972]); but, once this is done, as it clearly was here, the defendant has the burden of persuasion to show that his state of mind at the time of his waiver whether impacted by the investigators conduct or other internal or external influences nonetheless vitiated his understanding of the rights or rendered his seemingly explicit waiver invalid. See People v. Love, 57 N.Y.2d 998, 999 (1982) (defendant s psychiatric institutionalization at the time of his waiver is not sufficient to meet defendant s burden of persuasion, the People having shown the legality of the police conduct in the first instance ); People v. Grady, 6 A.D.3d 1149, 1150 (4 th Dept. 2004) ( People met their initial burden of establishing the legality of the police conduct and defendant s waiver of rights, and defendant failed to establish that he did not waive those rights, or that the waiver was not knowing, voluntary, and intelligent )(internal quotations omitted); People v. Smith,