People v Johnson

[*1] People v Johnson 2009 NY Slip Op 51757(U) [24 Misc 3d 1235(A)] Decided on June 29, 2009 Supreme Court, Rockland County Kelly, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2009
Supreme Court, Rockland County

The People of the State of New York

against

Raul Johnson, Defendant.



09-91



THOMAS P. ZUGIBE, ESQ.

District Attorney of Rockland County

ALAN McGEORGE, ESQ.

William A. Kelly, J.

A hearing to determine the admissibility of statement evidence was held pursuant to a prior order of this Court. The relevant findings of fact and conclusions of law are as follows:

On December 16, 2005, several teenagers attacked the plaintiff, an elderly man, in the parking lot of the Shoprite Supermarket in West Nyack. The Clarkstown Police began an investigation into the attack. Det. Frank Romano was assigned as the lead detective. As of August 20, 2007, the investigation remained open.

On August 20, 2007, the defendant was arrested on a burglary charge by members of the Town of Clarkstown Police Department. The burglary charge concerned a residential burglary at the home of Sonny Bajwa, a friend of the defendant. At the time of his arrest, the defendant told Det. Robert Shine that he had information about a past stabbing at the West Nyack Shoprite. Det. Shine relayed the defendant's statement to Det. Frank Romano, the case detective investigating the stabbing.

On October 12, 2007, while the defendant was in custody on the pending burglary charge, a meeting between the defendant, his assigned attorney on the burglary case, John Schwarz, Clarkstown detectives and an Assistant District Attorney was held. Prior to speaking with the police, the defendant and his attorney executed what is commonly know as a "Queen for a Day" agreement. Under the agreement, the defendant agreed to truthfully respond to questions posed by the detectives concerning the stabbing incident. The People agreed to provided limited use immunity for the statements provided. By its terms, the agreement covered statements made that day. In return for providing cooperation to police, the defendant hoped to earn "credit" towards his pending burglary case.

During this meeting, the defendant first described the activities of the "guillifam" gang, of which defendant was a member. The defendant then told the detectives that Sonny Bajwa had told the defendant that he had stabbed a man at the West Nyack Shoprite. The defendant denied being present at or near the incident. However, following the meeting, the detectives harbored suspicions that the defendant may have participated insofar as the actual attackers reported to him in order to gain entry into the gang defendant belonged to. The detectives did not suspect that he was one of the attackers or otherwise criminally responsible.

Mr. Schwarz was assigned to represent the defendant on the pending burglary charge. Mr. Schwarz believed he only represented the defendant on the burglary charge. Subjectively, he [*2]believed he represented the defendant with respect to the stabbing if the defendant incriminated himself during the proffer meeting. Although he did not expect him to be questioned further, Mr. Schwarz knew that the defendant would meet with the detectives in the future to continue the investigation into the stabbing.

The detectives hoped to utilize the defendant as a confidential informant to gather information regarding the stabbing. They planned to equip the defendant with a recording device to gather admissions from the participants, particularly Sonny Bajwa. However, prior to utilizing the defendant as a confidential informant, the detectives testified that they needed to speak to the defendant regarding his role as an informant and to get a more complete statement concerning the information possessed by the defendant.Additionally, the detectives intended to complete a confidential informant checklist and to formulate a plan regarding the use of the defendant as an informant.

On April 18, 2008, Det. Lorraine McGrath called the defendant to arrange a meeting with him. Although the felony complaint charging him with the burglary was still pending, the defendant had been released from custody. The defendant agreed to meet with the detectivesand arranged to be picked up by the detectives the next day. On April 19, 2008, at approximately 9:00 a.m., the detectives picked up the defendant at a park in Haverstraw and drove him to the Clarkstown Police Station. After stopping to get the defendant something to eat, the detectives entered the station and took the defendant to an interview room. The defendant testified that at the time of the meeting he believed he was represented by Mr. Schwarz in connection with the stabbing incident.

Det. Romano asked the defendant to recount the information he possessed regarding the stabbing. The defendant initially told the same versions of events in which he was not present at the scene but was later told of the stabbing incident. However, the defendant revised this account, telling detectives he was across the street watching when the attack occurred. When the detectives questioned this account the defendant admitted being in the parking lot.

The defendant became visibly nervous. When asked what was bothering him, the defendant told the detectives that he was afraid he wasn't going to go home that day. He began to cry and told the interviewers that the incident was bothering him.

Det. Romano asked the defendant if he had struck the victim. The defendant admitted striking the defendant, but denied stabbing him. However, the defendant further described the events, admitting to having stabbed the victim. The detectives exited the room and sought advice from their supervisor and an Assistant District Attorney on how to proceed.

After approximately thirty minutes, the detectives returned to the interview room. The detectives read the defendant his Miranda warnings verbatim from a departmental form. The defendant acknowledged understanding and waiving the rights orally and in writing. The detectives then obtained an oral statement from the defendant in which he implicated himself. Det. McGrath reduced the substance of that statement to a typewritten statement. The written statement was read to the defendant. The defendant was then given an opportunity to read the statement. He made a single correction and signed the statement. Following the statement, the defendant was driven back to Haverstraw and dropped off.

The defendant now seeks to suppress the statement, alleging that it was obtained in [*3]violation of his right to counsel, that it was in contravention of the limited use immunity agreement and that it was involuntary.

In this case, the defendant's statements were not obtained in violation of the defendant's right to counsel. Unquestionably, the defendant's indelible right to counsel had attached regarding the burglary case. People v. Samuels, 49 NY2d 218 (1980). However, it had not attached in relation to the stabbing incident.

The October 12, 2007 proffer meeting was requested by the defendant's lawyer on the pending burglary. The reason for the meeting was to achieve a benefit for the defendant on the burglary charge by providing information about an incident the police were investigating in which neither the police or counsel believed the defendant was a suspect. No criminal charges had been filed in connection with the stabbing. Id. In fact, the defendant was not considered a suspect, merely a witness.

"[T]he right to counsel attaches indelibly where an uncharged individual has actually retained a lawyer in the matter at issue or, while in custody, has requested a lawyer in that matter." People v. West, 81 NY2d 370, 373-374 (1993). See also People v. Ramos, 99 NY2d 27 (2002). Additionally, the right attaches when counsel actually enters on the matter. An attorney "enters" a matter, and triggers the right to counsel when the attorney informs the police that the defendant is represented.

The defendant's counsel was not retained or assigned to represent the defendant regarding the stabbing incident. The defendant while in custody did not request representation regarding the stabbing. Counsel did not state, and did not believe, that he represented the defendant with regard to the stabbing. His participation at the meeting, and thereafter, was in furtherance of his representation on the burglary charge.

Based upon what was known to the police and Mr. Schwarz, it could not be anticipated that representation would be desired or needed. There were no charges pending or immediately contemplated in connection with the stabbing, and the defendant was not a suspect in the investigation. In fact the only connection between the defendant and the stabbing was defendant's request to provide information as a witness. Therefore, the attorney cannot be said to have entered in the stabbing matter. West, supra . See also U.S. v. Doe, 671 F. Supp. 205, 209 (E.D.NY 1987). As far as all involved were concerned, there was no matter, other than the burglary, in which the defendant might be represented or desire representation.

The defendant relies in part on the "related matters" rule. Under that rule, questioning of a defendant, whether or not custodial, on matters "related" to a matter for which the indelible right to counsel has attached is impermissible. People v. Cohen, 90 NY2d 632 (1997). See also People v. Grant, 91 NY2d 989 (1998); People v. Ermo, 47 NY2d 863 (1979). Conversely, non-custodial questioning on a matter unrelated to matter for which the right to counsel has indelibly attached is permissible. People v. Bertolo, 65 NY2d 111 (1985); People v. Farruggia, 61 NY2d 775 (1984).

Related matters fall into two categories. "The first of these is where the two criminal matters are so closely related transactionally, or in space or time, that questioning on the unrepresented matter would all but inevitably elicit incriminating responses regarding the matter in which there had been an entry of counsel." Cohen, 90 NY2d at 638. The second category involves "interrogations concerning crimes less intimately connected, but where the police were [*4]aware that the defendant was actually represented by an attorney in one of the matters [and] the interrogation actually entailed an infringement of the suspect's State constitutional right to counsel by impermissible questioning on the represented crime." Id. at 640.

In this case, the second scenario clearly does not apply, as there was absolutely no intrusion upon the attorney client relationship in the burglary case through questioning regarding the burglary. However, counsel advances the first category as applicable to the instant matter.

Thus the question becomes whether the stabbing was "so closely related transactionally, or in space or time" such that questioning regarding the stabbing "would all but inevitably elicit incriminating responses regarding" the burglary. Id. To be sure, there is some relationship between the cases. However, the ties between the cases appears to be merely incidental.

The burglary concerned the entry into the home of Sonny Bajwa's parents. There is no evidence before the Court that the fact that the defendant is alleged to have committed the stabbing in concert with Sonny Bajwa is more than a coincidence. There is no evidence that one act precipitated, influenced or affected the other. Other than the common element of Sonny Bajwa, there is no connection between the matters. Under the prevailing case law, that connection is insufficient to meet the transactionally related standard.

In People v. Marin, the Appellate Division held that an incident where the defendant slashed a victim was not related to an earlier case involving the same victim. People v. Marin, 215 AD2d 267 (2nd Dep't 1995). In Marin, the defendant was arrested for slashing a victim with a razor. Three and a half months earlier, the defendant was arrested for attempted assault and harassment of the same victim at the same location. Id. The defendant was charged and actually represented by counsel on the attempted assault charge at the time of his arrest for the slashing. Id.

Despite those facts. The Court held that the two matters were not related for the purposes of "assuming continuing representation by counsel." Id. at 268. Although the cases had common elements, the Court held that " similarity" does not satisfy the test of relatedness.'" Id.

Similarly in People v. Gehy, the defendant was arrested and charged with a robbery three days before he was arrested for a homicide. People v. Gehy, 238 AD2d 354 (2nd Dep't 1997). The Court held that despite the fact that the robbery case may have been the motive for the homicide, the cases were not "related" such that the indelible right to counsel attached to the homicide case. Id.

In People v. Rivera, the defendant was arrested for murder. People v. Rivera, 277 AD2d 470 (2nd Dep't 2000). At the time of the murder, the defendant was charged with the robbery of the same victim. Id. The victim was murdered shortly before she was to testify at the defendant's robbery trial. Id. Nevertheless, the Appellate Division held that the matters were not so interwoven as to make them related. Id. See also People v. Madison, 22 AD3d 684 (2nd Dep't 2005).

Further, it is not evident how questioning the defendant about the stabbing would elicit incriminating responses regarding the burglary. There is no evidence that the questions posed to the defendant concerned the burglary or that the conversation invited comment on the burglary. People v. Rivera, 277 AD2d 470 (2nd Dep't 2000). The questioning regarding the stabbing was discrete and fairly separable from the burglary. Id.

As the stabbing was not "so closely related transactionally, or in space or time" such that [*5]questioning regarding the stabbing "would all but inevitably elicit incriminating responses regarding" the burglary, the instant case does not fall under the related matters rule. Therefore, a derivative indelible right to counsel has not attached. Neither the defendants' nor Mr. Schwarz' subjective belief alters this conclusion.

Even assuming arguendo such right had attached, it nevertheless was waived by the defendant. At the time of the proffer meeting, the defendant, in the presence of his counsel, tacitly waived the right with regard to the stabbing incident by agreeing to continue to provide information to the police after the conclusion of the meeting. See U.S. v. Doe, 671 F. Supp. 205, 209 (E.D.NY 1987).

The statements made to the detectives on April 19th were not immunized by the October proffer agreement. A proffer occurs when a defendant is interviewed directly by the prosecutor or its agents pursuant to a proffer agreement known colloquially as a "Queen for a Day" agreement. Such agreements are designed to provide protection to a witness and encourage the witness to come forward and be candid with the government. Although proffer agreements limit the ability of the government to make use of statements made in furtherance of the agreement, the agreement itself may limit the protections afforded the witness.

In this case, the proffer agreement was a limited use immunity agreement. The agreement provided that the defendant was to respond "fully and truthfully to questions posed to him by the Clarkstown Police Department and that statements made in response may not be used against him in any prosecution, except one for perjury or contempt. The agreement provided that the agreement would be voided if there was a breach of the agreement by the defendant.

An agreement, such as the instant agreement, providing limited use immunity is in the nature of a contract. U.S. v. Pelletier, 898 F.2d 297, 301 (2nd Cir. 1990). See also U.S. v. Aleman, 286 F.3d 86 (2nd Cir. 2002). The acts constituting a breach, and the remedies available are governed by the terms of the agreement. Id.

In Pelletier, the agreement expressly limited the remedy for untruthful statements to use of the statements in a perjury prosecution. Id. Accordingly, the Court strictly enforced the terms of the agreement and held that the false statements given by the defendants subsequent to the agreement did not vitiate the agreement and could be used only in a perjury case. Id. at 303.

Implicit in the Pelletier decision is the understanding that the immunity may properly be conditioned on the defendant's truthfulness. See U.S. v. Aleman, 286 F.3d 86 (2nd Cir. 2002). In Aleman, the Court held that a determination of whether the agreement was violated by the defendant's truthfulness could be made after a hearing established that the defendant was untruthful. Id. The Aleman Court reversed the District Court because such a hearing was not held. Id.

In U.S. v. Doe, the cooperation agreement providing derivative use immunity was held to be conditioned on inter alia, the truthfulness of defendant in providing the cooperation. U.S. v. Doe, 671 F. Supp. 205 (E.D.NY 1987). The Court held that under the clear terms of the agreement the falsehoods told by the defendant violated the agreement and rendered it void, allowing the use of all statements made by the defendant. Id.

Similarly, in U.S. v. Castelbuono, the Court held that the terms of the cooperation agreement were to be interpreted like a contract. U.S. v. Castelbuono, 643 F. Supp. 965 (E.D.NY [*6]1986). The defendant's material falsehoods were violations of the clear terms of the agreement. Id. According to the agreement, the remedy for such a breach was to render the agreement void. Id.Several years later that same Court held that an agreement was void based upon the defendant's breach of the condition that he provide truthful information. U.S. v. Macchia, 861 F. Supp. 182 (E.D.NY 1994). The Court held the agreement to be void even though the agreement did not expressly provide for that remedy. Id.

Case law in New York is sparse on the issue. However, the few relevant cases follow the principles set forth above. In People v. Schaefer, 136 AD2d 661 (2nd Dep't 1998), the Court held that the trial court properly interpreted the existence and terms of the contract and further held that the defendant's single misstatement did not constitute a material misrepresentation such that it would have voided the agreement. In People v. Deboue, 299 AD2d 422 (2nd Dep't 2002), the defendant changed his account of events and thereby violated the terms of the agreement. Accordingly, the remedy for breach, in this case a greater sentence, was properly given effect. Id.

Guided by the above principles, its clear that the defendant breached the terms of the agreement and that the remedy for breach, to wit, withdrawal of the use immunity, should be given effect.

By its unambiguous terms, the agreement was limited to statements made on October 12, 2007, the date of the proffer. The agreement was intended to prevent the incrimination of the defendant at that meeting. In his proffer, the defendant did not incriminate himself with respect to the burglary or any other crime. Therefore, there was no request, nor any obvious need to enlarge the scope of the limited use immunity agreement.

Additionally, the immunity under the agreement was expressly conditioned on the truthfulness of the defendant. See Pelletier, supra . By his own further admissions, the defendant was not truthful during his initial proffer. People v. Hester, 20 Misc 3d 231 (Sup. Ct. Kings 2008). Accordingly the immunity agreement was vitiated ab initio. Id. See e.g., U.S. v. Castelbuono, 643 F. Supp. 965 (E.D.NY 1986).

The defendant was not subjected to custodial interrogation at the time he made his statement to the police on April 19th. The test of whether an individual is in custody is determined not by what the defendant thought but what a reasonable person, innocent of any crime, would have thought in the defendant's position. People v. Yukl, 25 NY2d 585, 589 (1969). The issue of custody is an issue of fact for the trial court to be made after an evaluation of the totality of the circumstances. People v. Centano, 76 NY2d 837, 838 (1990). See also People v. Brown, 295 AD2d 442 (2nd Dep't 2002); People v. Mosley, 196 AD2d 893 (2nd Dep't 1993). The test of whether an individual is in custody is determined not by the defendant's subjective belief, but what a reasonable person, innocent of any crime, would have believed in the defendant's position. Yukl, 25 NY2d at 589.

The factors to be utilized in determining whether an individual is in custody include: (1) the amount of time spent with the police, (2) whether the person's freedom of action was restricted, (3) the location and atmosphere under which the questioning took place, (4) the degree of cooperation exhibited, (5) whether constitutional rights were administered, and (6) whether the questioning was investigatory or accusatory in nature. People v. Parsad, 243 AD2d 510 (2nd Dep't 1997); People v. King, 222 AD2d 699 (2nd Dep't 1995); People v. Mosley, 196 AD2d 893 [*7](2nd Dep't 1993); People v. Forbes, 182 AD2d 829 (2nd Dep't 1992). Other factors that may be considered are: whether the defendant was handcuffed; whether the questioning was continuous or frequently interrupted; whether the defendant was fed and allowed to relax. People v. Centano, 76 NY2d 837, 838 (1990).

An application of these standards leads to the inescapable conclusion that the defendant was not in custody when he made his incriminating statements Id.

The fact that the interview took place over several hours in a police station is not dispositive. Court's have routinely held that interrogation to be non-custodial despite lengthy periods of station house questioning. People v. Wright, 188 AD2d 272 (2nd Dep't 1992)(interrogation was non-custodial despite defendant's presence at police station for nearly two days); People v. Hall, 142 AD2d 735 (2nd Dep't 1988)(six and one half hours in investigative room questioning was non-custodial); People v. Bailey, 140 AD2d 356 (2nd Dep't 1988)(eight or nine hours of questioning at police station non-custodial).

While the detectives may have had their suspicions regarding the defendant, those suspicions did not become manifest. People v. Tankleef, 199 AD2d 550, 552 (2nd Dep't 1993). Until the time the defendant indicated his active participation in the assault, the defendant was not accused of participating and did not in any way admit involvement. The questioning was merely investigatory to that point.

The fact the police reminded defendant that he may face jail time if he didn't cooperate is of no moment. It was merely a statement of the obvious. The defendant's sole reason for being there was to lessen any sentence he may receive in the burglary case.

The defendant was clearly cooperative. The defendant's participation in the investigation was at his insistence. Likewise, his presence at the station that day was with his assent. The atmosphere was not police dominated. The defendant was never handcuffed, and there is no evidence that his freedom of movement was curtailed. The defendant was fed prior to the interview.

Once the defendant incriminated himself, there was a pronounced break in the interview. When the interview was continued, the defendant was adequately informed of his Miranda rights. See generally, People v. Hutchinson, 59 NY2d 923 (1983); People v. Burton, 191 AD2d 703 (2nd Dep't 1993). The evidence further demonstrates that the defendant knowingly and voluntarily waived his rights. People v. Sirno, 76 NY2d 967 (1990); People v. Davis, 55 NY2d 731 (1981).

There is no evidence that the defendant lacked the intelligence to waive his rights. The defendant testified that he completed the eleventh grade. He further stated, without elaboration, that for much of the time, he was a "special ed" student. Other than his attorney's opinion that he was a little "slow" there is no evidence that the defendant was lacked the intelligence to make an effective waiver of his rights. People v. Williams, 62 NY2d 285 (1984).

"An effective waiver of Miranda rights may be made by an accused of subnormal intelligence so long as it is established that he or she understood the immediate meaning of the warnings." Id. See also People v. Hernandez, 46 AD3d 574 (2nd Dep't 2007). In this case, the evidence established that the defendant was capable of comprehending the "immediate import" of the warnings

Williams, 62 NY2d at 289. [*8]

Additionally, the statements, under the totality of the circumstances, were not involuntarily made. People v. Anderson, 42 NY2d 35 (1977); People v. Werner, 284 AD2d 419 (2nd Dep't 2001); People v. Johnson, 269 AD2d 405 (2nd Dep't 2000). C.P.L. §60.45(1) provides that "[e]vidence of a written or oral confession, admission, or other statement made by a defendant with respect to his participation or lack of participation in the offense charged, may not be received in evidence against him in a criminal proceeding if such statement was involuntarily made." C.P.L. §60.45(2) provides that a "confession, admission or other statement is involuntarily made' by a defendant when it is obtained from him:(a) By any person by the use or threatened use of physical force upon the

defendant or another person, or by means of any other improper conduct or undue pressure which impaired the defendant's physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement; or

(b) By a public servant engaged in law enforcement activity or by a person then acting under his direction or in cooperation with him:

(i) by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself."The critical question that must be resolved by the Court is whether the defendant's will was overborne. See People v. Ross, 134 AD2d 298 (2nd Dep't 1987); People v. Leonard, 59 AD2d 1 (2nd Dep't 1977). To do so, the Court must examine the totality of the circumstances surrounding the statement. People v. Patterson, 59 NY2d 794 (1983)(adopting Appellate Division opinion, 88 AD2d 694 (3rd Dep't 1982); People v. Anderson, 42 NY2d 35 (1977); People v. Sakadinsky, 239 AD2d 443 (2nd Dep't 1997); People v. Reynolds, 240 AD2d 517 (2nd Dep't 1997); People v. Leonard, 59 AD2d 1 (2nd Dep't 1977).

The defendant contends that the police reminded defendant that he may face jail time if he didn't cooperate rendered the statement involuntary. However, it was merely a statement of the facts as the parties knew it. The defendant's sole reason for being there was to lessen any sentence he may receive in the burglary case. Under no interpretation could that statement be considered a promise or threat that could induce a false confession. See People v. Tarsia, 50 NY2d 1 (1980); People v. Giangrosso, 109 AD2d 750 (2nd Dep't 1985).

Accordingly, the defendant's motion to suppress statement evidence is denied.

This Decision shall constitute the Order of the Court.

ENTER

Dated:New City, New York

June 29, 2009

WILLIAM A. KELLY

J.S.C. [*9]

TO:

THOMAS P. ZUGIBE, ESQ.

District Attorney of Rockland County

ALAN McGEORGE, ESQ.