Court of Appeals. State of New York THE PEOPLE OF THE STATE OF NEW YORK, against JERMAINE DUNBAR,

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 JERMAINE DUNBAR, Appellant, 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) LEILA HULL, ESQ. APPELLATE ADVOCATES TH 2 RECTOR STREET 10 FLOOR NEW YORK, NY (212) NOVEMBER 7, 2013 Queens County Indictment Number 1217/09

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 Arguments and Decision 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 June 23, A-19 People s Response to Defendant s Omnibus Motion, dated July 15, A-36 Judge Griffin s Order, dated July 27, A-68 Hearing Minutes, dated December 18, A-72 Defendant s Memorandum of Law, dated January 21, A-166 People s Memorandum of Law, dated February 8, A-176 Judge McGann s Order, dated February 23, A-189 Trial Transcript A-198 Sentence Minutes, dated May 10, A-447 DVD of CBQ Interview, dated April 24, A-457 Certificate Pursuant to 2105 of the C.P.L.R A-458 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) Collins v. Brierly, 492 F.2d 735 (3d Cir. 1974) n.10 Colorado v. Connelly, 479 U.S. 157 (1986) Colorado v. Spring, 479 U.S. 564 (1987) , 35, 37n.10 Duckworth v. Eagan, 492 U.S. 195 (1989) Fare v. Michael C., 442 U.S. 707 (1979) , 33 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) , 24n.8 Moran v. Burbine, 475 U.S. 412 (1986) , 35 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) iii

5 People v. Chapple, 38 N.Y.2d 112 (1975) , 24n.8 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) , 23 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) n.1 People v. Martz, 26 Misc.3d 1227(A), at ***3 (Dist. Ct., Nassau Co. 2010) People v. Paulman, 5 N.Y.3d 122 (2005) , 24n.8 People v. Perez, 37 Misc. 3d 272 (Queens Sup. Ct. 2012, Blumenfeld, J.) n.7, 30 People v. Polhill, 102 A.D.3d 988 (2d Dept. 2013), leave granted, 21 N.Y.3d 946 (2013) 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) , 33 iv

6 People v. Williams, 62 N.Y.2d 285 (1984) , 33 Statutes C.P.L C.P.L Penal Law Penal Law , 8 Penal Law / , 8 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 - : JERMAINE DUNBAR, : Defendant-Respondent. : x County). STATEMENT PURSUANT TO RULE 5531 CPLR 1. The Indictment Number of the case is 1217/09 (Queens 2. The full names of the parties are the People of the State of New York against Jermaine Dunbar. County. May 28, 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 May 10, 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, : : : JERMAINE DUNBAR, : 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 a May 10, 2010 judgment of the Supreme Court, Queens County (Camacho, J.), on the grounds that defendant s pre-arraignment statement, made after a Miranda waiver, should have been suppressed. By the May 10, 2010 judgment, defendant was convicted, after a jury trial, of Attempted Robbery in the Second Degree (Penal Law /160.10[1]) and Criminal Mischief in the Fourth Degree (Penal Law [1]) and was sentenced as a persistent violent felony offender to an indeterminate prison term of from seventeen years to life imprisonment. Defendant is currently incarcerated pursuant to this judgment.

9 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 persistent violent felony offender familiar with the criminal justice system, was read and waived his Miranda rights, strategically choosing to speak to detectives in an attempt to broker a cooperation agreement, 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. Dunbar, 104 A.D.3d 198, 207 (2d Dept. 2013) (A8-9). 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 defendant s waiver in this particular case was knowing, intelligent, and 1 See also People v. Polhill, 102 A.D.3d 988 (2d Dept. 2013), leave granted, 21 N.Y.3d 946 (2013); People v. Lloyd-Douglas, 102 A.D.3d 986 (2d Dept. 2013), leave granted, 2013 N.Y. LEXIS 1574 (2013). 4

12 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 ; A11-13) 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 ; A12-14). 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 to speak to investigators in a strategic attempt to broker a cooperation agreement, but it has staggering implications, changing the method by which the validity of a Miranda waiver is gauged, entirely eliminating defendant s burden of persuasion at a suppression hearing, potentially 5

13 requiring suppression of statements obtained in thousands of cases, and jeopardizing similar pre-arraignment 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 April 23, 2009, at approximately 12:40 p.m., defendant entered Rapid Multi Service, a money wiring and office services store where Anunciacion Betancourt was employed as a cashier. Defendant made some copies, briefly spoke to Betancourt, paid, and then left (Betancourt: , 144, A339-40, 342). Approximately five minutes later, defendant returned to the store and knocked on the door. Suspicious, Betancourt, who was alone in the store, waved him away and told him the store was closed. But defendant told her that he forgot some documents in the copier (Betancourt: 146, A344). As defendant waited outside, Betancourt left her office, which was locked and enclosed in plexiglass, and checked the copier, finding a piece of paper. Still hesitant to open the door, Betancourt tried to slip the paper under the front door, but it would not fit. So, she returned to her office, locked the door, and 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 then buzzed defendant into the shop (Betancourt: 147, A345). She slipped the paper through the money slot of her plexiglass enclosure, as defendant approached, looked towards the street, and then pulled out a gun, saying, Damn, Bitch, give me the money or I ll kill you (Betancourt: 148, A346) Betancourt threw herself to the ground, called 911, and frantically pressed the office s distress button to signal for help, as defendant kicked and pounded on the plexiglass door, and then crouched down, looking at Betancourt through the glass door and threatening her with the weapon (Betancourt: , A346-48). Unable to get into the office, defendant ultimately fled in a black livery car with New Jersey plates that was waiting outside for him (Lanning: 111, A309; Videotaped Statement, Trial Exhibit 5, A457). He was apprehended less than five minutes later, when police spotted the getaway car, and was subsequently identified by Betancourt in a show-up almost immediately thereafter (Lanning: , A309-10; Betancourt: 152, A350). From the floor in the backseat of the car, police recovered the hat and striped shirt that defendant wore during the crime, and the imitation pistol he had wielded (Lanning: , A312-13; Betancourt: , A350-51). Subsequently, police recovered the video surveillance tapes from Rapid Multi Service, which showed defendant and Betancourt during the crime (Betancourt: 153, A351; Trial Exhibit 4). 7

15 Defendant was arrested and brought to Central Booking, Queens ( CBQ ). While he was being processed in 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: 193, A391). After waiving his Miranda rights, defendant gave a videotaped statement acknowledging that he had attempted to rob the Rapid Multi Services store by threatening the cashier with an imitation pistol, but claiming that he was acting with others, including the getaway driver, and that he had been forced to do it (Trial Exhibit 5, A457). Defendant was subsequently indicted by a Queens County Grand Jury for Attempted Robbery in the Second Degree (Penal Law /160.10[1]), Criminal Mischief in the Fourth Degree (Penal Law [1]), Menacing in the Third Degree (Penal Law ), and Unlawful Sale or Possession of an Imitation Pistol (AC G) (Queens County Indictment No. 1217/09). The Suppression Hearing Prior to trial, defendant moved to suppress his videotaped CBQ statement on the grounds that it was not voluntarily made and was obtained without defendant adequately receiving or understanding his Miranda rights (Defendant s Omnibus Motion, A19). A hearing was ordered (7/27/09 Order, 8

16 Griffin, J., A68) and held on December 18, 2009 and January 5, 2010, before 3 the Honorable Robert C. McGann of the Supreme Court, Queens County. The testimony at the hearing established that after defendant s arrest and processing, he was brought to Queens Central Booking. While there, on April 24, 2009, at 12:03 p.m., prior to the filing of the felony complaint, defendant waived his Miranda rights and agreed to participate in a videotaped interview conducted by ADA Tina Grillo and Sgt. Mary Picone of the Queens County District Attorney s Office (Grillo: H 75-77, A146-47). A DVD of defendant s Central Booking interview was admitted into evidence at the hearing (Hearing Exhibit 1, A457). 4 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 3 Although the suppression hearing was also concerned with issues relating to probable cause for the arrest, the recovery of the gun and shirt defendant was wearing during the robbery, the propriety of the show-up identification, and the admissibility of defendant s statements to police at the precinct, none of these issues are currently before this Court. Accordingly, the People limit this discussion to those portions of the suppression hearing that relate to defendant s videotaped CBQ statement and are relevant to this appeal. 4 A copy of this DVD, which is relevant to the resolution of defendant s claims on appeal, is provided to this Court in the People s Appendix at A457. 9

17 themselves as a Detective with the Queens District Attorney s Office and an Assistant District Attorney (DVD at 12:03:12-12:03:50, A457). 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 will be given an opportunity to explain what [he] did and what happened at that date, time, and place (DVD at 12:04:00-12:04:33, A457). 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: 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 what happened is different from what we ve been told, this is your opportunity to tell us your story. If there is something you need us to investigate about this case, you have to tell us now so we can look into it. Even if you have already spoken to someone else you do not have to talk to us. This will be your only opportunity to speak to us before you go to court 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 decide if you want to speak to us. 10

18 (DVD at 12:04:33-12:05:03, A457). 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: Yes. DETECTIVE: You have the right to remain silent and refuse to answer questions. Do you understand? DEFENDANT: Yup. DETECTIVE: Anything you do say may be used against you in a court of law. Do you understand? DEFENDANT: Yes. 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: Yes. DETECTIVE: If you cannot afford an attorney, one will be provided to you without cost. Do you understand? DEFENDANT: Yes. DETECTIVE: If you do not have an attorney available, you have the right to remain silent until 11

19 you have had an opportunity to consult with one. Do you understand? DEFENDANT: Yes. DETECTIVE: Now that I have advised you of your rights are you willing to answer questions? DEFENDANT: Yes. (DVD at 12:05:03-12:05:50, A457). In his statement, defendant admitted that he had attempted to rob the Rapid Multi Services store by threatening the cashier with an imitation pistol, but claimed that he was acting with others, including the getaway driver, and that he felt he had been forced to do it by a man named Pete who had told him about the job. Several times throughout the interview, defendant indicated that he was speaking to the interviewers because he wanted to work out a deal, whereby he would offer the People evidence implicating others in this and unrelated crimes (DVD at 05:37-06:25; 08:45; 09:56, A457). But the interviewers repeatedly rejected his attempts to do this, telling him that he could broach this subject with his attorney after arraignment, and that this was not the purpose of the interview (DVD at 06:00, A457). Frustrated by this rebuff, defendant asked how, then, the interview was helping him, and was told that it could be beneficial to him if he had an alibi or something he wanted the interviewers to investigate (DVD at 06:25, A457). Defendant acknowledged that he could not say it wasn t him, and then continued answering questions (Id. at 07:50, A457). As the interview began to wrap up, defendant, apparently 12

20 still pressing the attempt to arrange a deal as a cooperator, asked if he would be talking to the DA after he was done with the interview, but was told that the next person he would be speaking to was his lawyer (Id. at 08:14, A457). Significantly, defendant did not ask the interviewers to investigate anything during the interview, and did not testify at the suppression hearing. Arguments and Decision At the conclusion of the hearing, defendant argued, inter alia, that his CBQ statement should be suppressed because the brief pre-miranda remarks invalidated his waiver by leading defendant to believe that the CBQ interview would be his only opportunity to tell his story and that he had no choice but to do so now (Defendant s Memorandum of Law at Pt. III, A171-74). Additionally, defendant argued that the ADA had acted improperly during the interview by providing defendant with legal advice, and that his arraignment had been unnecessarily delayed (Id.). The People argued that the prefatory remarks in CBQ, when read in context, were not misleading and did not render defendant s statement involuntary under the totality of the circumstances (People s Memorandum of Law at 5-1, A180-85), and that when viewed in context, it is clear that the ADA never offered defendant any legal advice during the course of the interview (People s Memorandum of Law at 10-11, A85-86). In a written decision dated February 23, 2010, Justice McGann denied defendant s motion to suppress his CBQ statement (Decision, A189). 13

21 Specifically, the court rejected defendant s claim that his arraignment was unnecessarily delayed for the sole purpose of extracting a confession; to the contrary, the court found that the interviewers remarks in CBQ focusing defendant on his side of the story and expressing the need to investigate prior to the imminent arraignment supported the opposite conclusion (Decision at 7, A195). Additionally, the court rejected as unsupported by the record defendant s contention that the phrase if there is anything you want us to investigate you must tell us now misled the defendant into believing that this would be his only opportunity to tell his story and that he had no choice but to do it now (Decision at 7, A195). Specifically, the court highlighted that many times during the interview, defendant was told that certain subjects would be properly addressed at a later time (Decision at 8, A196). The court also noted that even if Sgt. Picone s statement is untrue, because, while not frequent, there are occasions where the District Attorney investigates claims by the defendant while an indictment is pending, this would not rise to the level of deception... so fundamentally unfair as to deny due process under the totality of the circumstances, where defendant was informed that the entire interview would be videotaped, the length of the interview was a mere eleven minutes, defendant was informed why he was being questioned at that time, and defendant clearly understood the warnings and questions put to him by the interviewers. Thus, under all the facts and circumstances of this case, the Court concluded that defendant had knowingly and voluntarily waived his 14

22 rights in CBQ and made a voluntary statement. Thus, the court denied the motion to suppress the videotaped CBQ statement (Decision 8-9, A196-97). The Trial and Sentence Defendant proceeded to trial before the Honorable Fernando Camacho, Supreme Court, Queens County, and a jury. At the trial, Anunciacion Betancourt identified defendant as her assailant (Betancourt: 151, A349). Additionally, a surveillance video of the interior of Rapid Multi Service was put into evidence, showing Betancourt buzz-in defendant, who was wearing a striped shirt and hat, and who then pulled out a gun, pointed it at Betancourt, and kicked at the plexiglass enclosure as Betancourt crouched down on the floor (Betancourt: , A352-53; People s Trial Exhibit 4). Further, police testimony established that within minutes of the robbery, officers received and responded to a radio run of a gunpoint robbery involving a black livery cab with New Jersey plates and a black man with a striped shirt (Lanning: , A305-10; Linke: 182, A350). Upon stopping the livery cab six blocks from the scene, police recovered an air pistol and the striped shirt and hat matching those seen on the surveillance video from the floor of the car, in front of defendant s seat (Id.). Then, at the precinct, defendant said he was cold, asked for his shirt back, and was given the striped 5 shirt recovered from the cab (Linke: , A383-84). 5 The proof against defendant was, thus, overwhelming even without the CBQ interview, contrary to the Appellate Division s conclusion.. 15

23 Finally, the DVD of defendant s CBQ interview was admitted into evidence and played for the jury (People s Trial Exhibit 5). At the conclusion of the trial, defendant was found guilty of attempted robbery and criminal mischief. He was sentenced on May 10, 2010, as noted above. The Appeal to the Appellate Division On December 29, 2011, defendant perfected his brief to the Appellate Division, Second Department. In his brief, he argued, inter alia, that the prosecutor s standard prefatory remarks just prior to the reading of the Miranda rights in CBQ were misleading and unethical, rendering defendant s waiver and videotaped statement involuntary. The People filed an opposing brief on March 30, 2012, arguing that defendant s claim was partially unpreserved for appellate review, and, in any event, meritless, as defendant s Miranda waiver and statement were both voluntarily made, as clearly seen on the videotape admitted into evidence at trial. On January 30, 2013, the Appellate Division reversed defendant s judgment of conviction, holding that the brief remarks made by interviewers prior to administering Miranda warnings muddled Miranda and, thus, rendered the warnings ineffective as a matter of law (Dunbar at 207, A8-9). In this regard, the court rejected the People s contentions that the impact of the pre-miranda remarks had to be assessed on a case-by-case basis, taking into 16

24 account the individual experience and circumstances of each suspect. According to the court, such case-by-case determination, while relevant to the voluntariness of the waiver, was not relevant to the question of whether Miranda warnings were properly administered in the first place (Dunbar at 201, A3-4). In so holding, the Appellate Division announced an unprecedented rule of law: that words said prior to Miranda warnings, which do not themselves constitute interrogation or its functional equivalent, can operate to erase the Miranda warnings altogether as though they were never read at all without any regard to the question of whether the waiver was knowing, intelligent, and voluntary under the unique circumstances of each suspect and each case. 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. 17

25 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 his statement was voluntarily made, after a valid Miranda waiver, and before his right to counsel had attached under New York law. With regard to the Miranda waiver, the hearing court factored into its analysis the fact that the interviewers had read defendant a brief set of introductory remarks, informing defendant that this was his opportunity to present alibis and that if he wanted anything investigated he would have to tell them now, but reasoned that, under the facts of this case, these remarks did not vitiate the knowing, intelligent, and voluntary nature of defendant s waiver. 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, 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 18

26 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. 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, 19

27 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 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 , A-xx), 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 ); Commentary to New York Criminal Jury Instructions First st Edition (CJI 1 ) 11.00, pp (... each and every circumstance which entered into the determination of involuntariness under the inherently coercive 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). 20

28 test and the totality of circumstances test, is presently a circumstance to be considered in determining whether... the defendant knowingly and intelligently waived his 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 waivers were not 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... ). 21

29 knowingly, intelligently, and voluntarily made. Thus, while the Appellate Division acknowledged that ordinarily, the question of whether a defendant 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... Dunbar at 210 (A11-12); see also id. at 213 (A14-15) ( 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 22

30 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 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, 23

31 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 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 to 8 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 sea- 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, A10-11). 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, A13-14), and agreed with the People that Miranda warnings need not be the first words uttered by law enforcement (Dunbar at 211, A12-13). 24

32 change 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 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 25

33 by potential suspects, and the potential impact upon their decisions to waive their rights (see Dunbar at , A8-10). 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, A9). 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, A9), 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, A457). 26

34 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, 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. 27