People v Farr

[*1] People v Farr 2006 NY Slip Op 51620(U) [12 Misc 3d 1198(A)] Decided on July 28, 2006 Supreme Court, Lewis County McGuire, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 28, 2006
Supreme Court, Lewis County

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,

against

Eugene R. Farr, Defendant.



2006-006



HON. MICHAEL F. YOUNG

District Attorney

DONALD R. GERACE, ESQ.

Attorney for Defendant

Joseph D. McGuire, J.

Defendant is accused by Indictment of one count of Attempted Kidnaping in the 2nd Degree; one count of Assault in the 2nd Degree; and one count of Attempted Assault in the 2nd Degree. The criminal incidents are said to have occurred on December 26, 2005, when the Defendant struck the victim with his automobile and then allegedly attempted to force her into the automobile.

Defendant filed a Notice of Motion pursuant to Criminal Procedure Law Article 255, seeking Grand Jury Minute inspection, dismissal, discovery, and other relief, to which the District Attorney responded with an Affirmation in Opposition. The District Attorney also provided a Notice of Statements, pursuant to CPL §710.30, allegedly made by the Defendant; and, pursuant to Defendant's Motion, a Huntley Hearing was held to determine the admissibility of those statements (People v. Huntley, 15 NY2d 72).

Defendant has also argued in-Court identification of him by the victim should be denied upon the grounds that the District Attorney never served a CPL 710.30 notice on the photograph identification. The Court granted a Wade hearing on the issue of the photographic identification(Wade v United States, 388 U.S. 218[1967]; People v. Rodriguez, 79 NY2d 445). The two hearings were combined.

PHOTOGRAPHIC IDENTIFICATION

Despite the absence of a CPL 710.30 notice, the Defendant was granted a hearing following his motion to suppress the victim's in-Court identification. The Defendant argued the victim did not identify him until one [*2]and one-half hours after the alleged attack, and only did so because she was provided with Defendant's driver's license. Defendant claimed the identification was unduly suggestive. The District Attorney argued no CPL 710.30 notice was required, since the victim clearly viewed the Defendant at the scene of the attack, and the photograph merely confirmed the Defendant's identity after the attack; and, thus, the victim should be allowed to make an in-Court identification based upon her recollection.

The Court has not been provided any facts to support the claim of mis-identification. The incident occurred in a rural area with only the victim and the Defendant involved in the initial incident. The incident occurred during daylight hours, and the victim was in close physical contact with the Defendant during the event. The victim ran to a nearby house, and a neighbor then drove down to the accident scene, saw the Defendant by the vehicle, engaged the Defendant in conversation, and gave the Defendant a ride in his Blazer.

State Police Officer Myers testified the Defendant arrived back at the scene in the Blazer with the neighbor. Trooper Myers testified as to her identification of the Defendant at the scene of the incident matching the Defendant with the photographs Defendant provided her with. Trooper Myers also testified that the Defendant admitted the automobile was his, and that he had struck the victim with his automobile.

The victim told Trooper Myers she did not recall meeting the Defendant previously, but she could describe him, and thereafter identified the Defendant from his driver's license photograph.

State Police Investigator Hathaway also testified that the Defendant admitted the automobile was his, and that he had struck the victim with his automobile. Defendant has never denied his involvement in the incident or claimed mis-identification by the victim. Importantly, the Defendant has never denied the underlying fact he was the driver of the vehicle and that he struck the victim. The Defendant disputes exactly how the accident occurred, and what the victim claims happened after the accident.

The District Attorney argues the victim's viewing of Defendant's driver's license was simply to put a name to the face she had identified (see People v. Cherny, 179 AD2d 938 app den 79 NY2d 998). The photographic identification of the Defendant by the victim was not conducted in the best available manner. However, there has been no demonstration that the circumstances surrounding Defendant's identification were so unduly suggestive as to render the identification unreliable, and procedures that are less than ideal are tolerable in the interest of prompt identification (People v. Frederickson, 122 AD2d 580). Such crime scene identification is permissible if a suspect is captured at or near the crime scene and can be viewed by the witness immediately (People v. Riley, 70 NY2d 523). There also exists an [*3]independent source of identification of the Defendant by the facts surrounding the event (People v. Ashe, 297 AD2d 287). While some facts were established via hearsay, such evidence is admissible in suppression hearings (CPL 710.60; People v. Pimentel, 140 AD2d 270). Therefore any suggestiveness as to the photographic identification by the victim is in this case harmless. The Defendant's request to suppress the victim's in-Court identification is Denied.

DEFENDANT'S STATEMENT TO TROOPER MYERS

The burden of proof regarding voluntariness of statements of a Defendant rests with the People, and the legal standard for admissibility is proof beyond a reasonable doubt (People v. Huntley, 15 NY2d 72; CPL §710.70(3)).

The Defendant's statements to Trooper Myers at the scene of the incident were made in response to her initial inquiries as to pedigree information and are admissible even in the absence of formal warnings (People v. Perez, 198 AD2d 540 appeal denied 82 NY2d 929).

Trooper Myers' initial additional questions to Defendant as to "what happened" were made in an attempt to clarify the situation (People v. Stroman, 118 AD2d 1006). Such questions are permissible, and answers provided are also admissible, even in the absence of Miranda warnings (People v. Johnson, 59 NY2d 1014).

Based upon the facts presented at the hearing, the questioning of the Defendant at the scene and at the neighbor's home were investigatory in nature and not custodial (People v. Stackhouse, 160 AD2d 822). The Defendant was not in custody at the time of his initial statements to Trooper Myers at the incident scene, and the questions were as to pedigree and to clarify the situation. As stated earlier, the Defendant has never denied his involvement in the incident as to his driving and striking the victim, which was the gist of his statements to Trooper Myers.

The Defendant made additional statements to Trooper Myers after he was handcuffed and had been given his Miranda rights. The Defendant has claimed his handcuffing pre-Miranda turned the situation into a custodial one. The use of handcuffs is not dispositive sign of coercion, and their use are acceptable for safety concerns of law enforcement (see People v. Allen, 73 NY2d 378). The Court has been presented with no evidence that the Defendant did not understand his rights, or that the questions to the Defendant or his answers were improper or in violation of his rights. Defendant's Motion to suppress his statements made to Trooper Myers is Denied.

DEFENDANT'S STATEMENT TO TROOPER BOEK

The Defendant was in custody and being transported to the Watertown State Police Barracks when there was a conversation between Defendant and [*4]the other only occupant, Trooper Boek. Trooper Boek testified the Defendant told him he slid through the intersection and hit a girl and then he blacked out.

The District Attorney has not provided any CPL 710.30 notice as to the statement, or any other statements, allegedly made to Trooper Boek, nor has there been any request for a late filing by the District Attorney. Trooper Boek testified that he never advised the Defendant of his Miranda rights, though Trooper Myers had done so previously. The nature and the extent of the questioning of Defendant by Trooper Boek during the transport is not clear. Even in the absence of a CPL 710.30 notice, the Defendant has been provided the opportunity to have his alleged statements to Trooper Boek suppressed, pre-trial (People v. Hall, 181 AD2d 1008 appeal denied 79 NY2d 948). In light of the unanswered questions as to the nature of the interrogation of the Defendant, and the lack of evidentiary development as to any such statements, the Court holds any statements made by the Defendant to Trooper Boek should be, and are hereby, suppressed.

DEFENDANT'S STATEMENTS AT WATERTOWN BARRACKS BEFORE REQUESTING COUNSEL

When the Defendant arrived at the Watertown State Police Barracks, State Police Investigator Hathaway advised the Defendant again of his Miranda rights. Investigator Hathaway testified he explained the Miranda rights to Defendant while maintaining eye contact, and that the Defendant acknowledged he understood his rights, and agreed to speak with the Investigator. Investigator Hathaway asked some pedigree questions and then asked the Defendant what happened "this morning prior to being picked up by the Troopers?" The Defendant repeated his earlier statements that he had lost control of his car and struck the victim, who he had said was jogging. The Defendant stated he had seen the victim jogging earlier when he had driven by but he lost control after turning and speeding up. The Defendant then responded that after he struck her he blacked out and did not remember what else happened. The questioning continued, and the Defendant then stated that after striking her he had grabbed the victim and tried to get her into his car, but he let her go when she started fighting him. The Defendant's last response was that "I knew what I was doing was wrong." At that point the Defendant "requested to speak to an attorney and the questioning stopped."

The testimony at the Hearing revealed that the Defendant was handcuffed while at the Watertown Barracks and was seated near Investigator Hathaway's desk during the questioning. There is no question the Defendant was in custody at that time. The Hearing evidence revealed the Defendant was properly advised of his Miranda rights twice, earlier by Trooper Myers, and later by Investigator Hathaway. The evidence also [*5]revealed that the Defendant acknowledged his understanding of those rights, and waived his right to remain silent both times. Once a showing of waiver is made, the burden then shifts to defendant to show that the waiver of rights was not intelligent or knowing, and it is necessary to review the totality of the circumstances surrounding the waiver to determine if the People have met their burden in proving the issue beyond a reasonable doubt (People v. Woods, 89 AD2d 1022). "Suppression should be granted only when it appears that a defendant was unable to appreciate the nature and consequences of his statement" (People v. Alaire, 148 AD2d 731 ). There has been no demonstration that the Defendant did not understand his rights, or that his waiver and answers were anything other than voluntary at that point (People v. Sirno, 76 NY2d 967). Defendant's Motion to suppress his statements to Investigator Hathaway up to the point he requested to speak with an attorney is therefore Denied.

DEFENDANT'S STATEMENTS AT WATERTOWN BARRACKS AFTER REQUESTING COUNSEL

Evidence presented at the Hearing was that, once the Defendant requested to speak with counsel, Investigator Hathaway provided him with a telephone and a telephone book. Because it was December 26th, the day after Christmas, it took the Defendant several calls to reach an attorney working that day. The Defendant eventually spoke with a Jefferson County Attorney, Lionel Lee Hector, who testified at the Hearing. The testimony of Attorney Hector, and Investigator Marvin, who also testified at the Hearing, differed on several points. What was not in dispute is that the Defendant did not retain Mr. Hector on December 26th, as Mr. Hector "didn't believe Mr. Farr could afford to retain me..." (T. 248), and that Mr. Hector advised Investigator Marvin of that fact. Mr. Hector testified that he and "the police officer agreed, clearly, that Mr. Farr was entitled to have an attorney present and he shouldn't be questioned further." (T. 249). Mr. Hector also testified that he explained to the policeman "that [the Defendant] would need a public defender..." (T. 248). Mr. Hector testified that he advised the Defendant he should formally request a public defender (T. 257), and that he should not talk further with the police (T. 250). Mr. Hector testified the Defendant told him "he was looking for an attorney" but admitted that the Defendant never told him he was invoking his right to an attorney, and that Mr. Hector "assumed" that was what he was doing. Mr. Hector also testified that he never advised the Police he was representing the Defendant (T. 264). Mr. Hector's testimony was his telephone conversation took about several minutes, that he was unaware of exactly where the Defendant was, who the policeman was he was talking to, why the Defendant was under arrest, or who actually telephoned him. Investigator Marvin also testified that Attorney Hector "never advised me to have Mr. Farr make an application [*6]for a public defender.' (T. 267). Investigator Marvin testified that "the only time the public defender was brought up was at arraignment in the Town of Turin Court." (T. 267).

State Police Investigator Marvin testified that Attorney Hector "...actually advised me that he was not going to represent Mr. Farr." (T. 186). According to Investigator Marvin after the Defendant ended his telephone call with Attorney Hector they proceeded with the booking procedures. Investigator Marvin testified "there was a point when Mr. Farr [Defendant] wished to speak to Investigator Hathaway and asked him if he could." (T. 188). Investigator Hathaway then Mirandized the Defendant again, the Defendant acknowledged he understood his rights, and the Defendant then made several statements to the Investigators.

The Court has seen no evidence that law enforcement employed either physical or mental coercion on the Defendant during the questioning on December 26th. The only evidence to any discomfort on the part of the Defendant was testimony from Trooper Boek that the Defendant complained his handcuffs were uncomfortable during transport. The Hearing evidence was that the Defendant's handcuffs were removed during the first questioning, and the Defendant was allowed bathroom breaks and provided drinking water.

There is no issue that during questioning the Defendant requested to speak with counsel, and the police honored that request. The evidence at the Hearing was that Attorney Hector was not legally representing the Defendant, and that fact was made clear to Investigator Marvin. Had Attorney Hector agreed to represent the Defendant, then the Defendant could no longer waive his right to speak without counsel being present for that waiver (People v. Marrero, 51 NY2d 56).

"Once an attorney has appeared on the defendant's behalf we have refused to allow the police to rely on arguable ambiguities in the attorney-client relationship in order to justify police questioning of the defendant without the attorney being present (internal cites omitted). We have indicated that if the police are uncertain as to the scope of the attorney's representation, the defendant should not be questioned...". (People v. Marrero, 51 NY2d 56).

Additionally, if the Police were uncertain whether Attorney Hector was or was not representing the Defendant, there could be no waiver of counsel and questioning by the Police without counsel being present (People v. Marrero, 51 NY2d 56).

"A request for the aid of counsel by an individual in custody imports clearly that the individual considers himself or herself incompetent to face the power of the State without an attorney's advice ( internal cites omitted). Once an individual expresses the need for counsel, he or she stands in the [*7]same position as one who has obtained the aid of an attorney, and the State may not thereafter seek a waiver in the absence of counsel (internal cites omitted)." (People v. Skinner, 52 NY2d 24).

It appears Attorney Hector's basis for non-representation was financial, a factor made clear to the Police. "[O]nce the police know or have been apprised of the fact that the defendant is represented by counsel or that an attorney has communicated with the police for the purpose of representing the defendant, the accused's right to counsel attaches (People v Arthur, 22 NY2d 325; People v. Carranza, 3 NY3d 729).

Defendant's statements, after invoking his right to counsel when he was in custody, are admissible only if the People establish beyond a reasonable doubt that such statements were spontaneous, or volunteered (People v. Roberts, 12 AD3d 835; People v Burns, 281 AD2d 704, lv denied 96 NY2d 826). "In order for such statements to be characterized as spontaneous, it must "be shown that they were in no way the product of an 'interrogation environment', the result of 'express questioning or its functional equivalent'" (People v. Harris, 57 NY2d 335), and "... 'not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed" (People v. Rivers, 56 NY2d 476).

The Hearing evidence was that the Defendant asked the Investigators if he could talk some more. Investigator Hathaway re-Mirandized the Defendant and told him he would listen to what he had to say. The Defendant repeated that he had "grabbed the girl". Investigator Hathaway asked the Defendant: "What were you thinking?" The Defendant then said "I was going to put her in the trunk." "No case has been found where a court has held that a police officer must take affirmative steps, by gag or otherwise, to prevent a talkative person in custody from making an incriminatory statement within his hearing." (People v. Kaye, 25 NY2d 139). Defendant's statement about the trunk was not a spontaneous one blurted out without any external pressures. It was made in response to Investigator Hathaway's question. The Court disagrees with the District Attorney that the statement has no relation to the question posed. Defendant's response, "I was going to put her in the trunk" is a consistent response to the question posed by Investigator Hathaway, and is not so disjointed in time or relevance as to be spontaneous.

The People have the highest burden of proof for admissibility in this situation, that is: "beyond a reasonable doubt". In light of the differences between the witnesses testimony, and the time from the Defendant's conversation with Attorney Hector, and his later alleged statements, the Court finds The People have not carried their burden here and the Defendant's Motion to suppress his statements to the police after speaking with Attorney Hector is Granted. [*8]

However, the People's request that, if the Defendant's statements are ruled inadmissible in the Prosecution's case as evidence-in-chief by virtue of a violation of a defendant's Miranda rights, such statements be allowed to impeach a defendant whose trial testimony is inconsistent with the illegally obtained statements is granted (see People v. Cruz, 258 AD2d 823 appeal denied 93 NY2d 1002).

The foregoing shall constitute the Decision and Order of this Court.

ENTER

Dated: July 28, 2006

Lowville, NYJoseph D. McGuire, J.S.C.