People v Laumeyer
Annotate this CaseDecided on November 3, 2005
Yates County Court
The People of the State of New York,
against
Patricia H. Laumeyer, Defendant.
05-18
Hon. Susan H. Lindenmuth
Yates County District Attorney
(Jason L. Cook, Esq., Chief Assistant District Attorney, of counsel)
Counsel for the People
Thomas A. Corletta, Esq.
Counsel for the Defendant
W. Patrick Falvey, J.
Defendant, Patricia H. Laumeyer, was indicted for one count of Welfare Fraud in the Third Degree, a class D felony, in violation of Penal Law §158.15 and six counts of Offering a False Instrument for Filing in the First Degree, a class E felony, in violation of Penal Law §175.35.
Defendant, moved for assorted forms of relief as requested in her Notice of Omnibus Motion dated June 8, 2005 and other supporting documents.
The Court subsequently ruled on the defendant's Omnibus Motion and granted her application for hearings regarding statements made by the defendant (People v. Huntley, 15 NY2d 72) and the audibility of certain tape recordings.
These hearings were conducted, in the defendant's presence, on September 28, 2005, and at the conclusion counsel were given an opportunity to make submissions.
The defendant claiming to be aggrieved by an unlawful and/or improper acquisition of evidence, has moved to suppress statements made by her to a member of law enforcement.
The defendant asserts that her statements were involuntarily made within the meaning of CPL §60.45.
Based upon all the submissions, arguments of counsel, the hearing and all the proceedings herein the Court makes the following findings of essential facts and conclusions of law.
FACTS[*2]
Investigator Todd Sotir was the only witness to testify. The Court gives full credence to his testimony.
On January 27, 2005, Investigator Todd Sotir of the Yates County Sheriff's Department was investigating a possible welfare fraud charge against the defendant, who had been receiving public assistance through the Yates County Department of Social Services [DSS] since she moved to the Dundee area in December of 2001.
Investigator Sotir's only prior contact with the defendant was in December of 2001 when she applied for public assistance and as part of that application a DSS caseworker requested an eligibility review under the Front End Detection System [FEDS]. In 2001, Investigator Sotir spoke to the defendant; visited her address to verify the factual representations that she listed on her initial and formal application for public assistance. Ultimately, the defendant's application for public assistance was approved by DSS, as were all subsequent applications.
When Investigator Sotir began this current investigation in 2005 he had not filed any complaint with any local court; nor had he sought an arrest warrant or search warrant for the defendant or her property, nor had any formal criminal proceedings been commenced against the defendant regarding the current charges.
The January 2005 investigation was prompted due to the defendant's previous arrest, by Yates County Sheriff's Investigator Reynolds, on a charge of petit larceny which was pending in the Town of Starkey, Yates County and for which she had retained counsel and was released on her own recognizance. The petit larceny allegations were factually unrelated, separate and distinct from the defendant's ongoing collection of public assistance benefits from DSS.
Investigator Sotir had no involvement in that case. In fact, he only became aware of it due to his customary practice of reviewing recent arrest reports when he came into work. In this case he noted that the defendant's arrest report contained information that raised some factual discrepancies in the defendant's DSS applications and case file. Therefore, as was his custom and without assistance from any other office or investigator, he began a review of the defendant's ongoing receipt of public assistance/welfare benefits from DSS in light of the information that was contained in the arrest report.
In this regard, Investigator Sotir sent the defendant a letter on January 26, 2005, in order to make her aware of his concerns and requested that she contact him to address these issues. The defendant telephoned Sotir the next day during which time he indicated that the primary issue was the defendant's household composition, that is, the names of all individuals living in the home, especially one Robert Plattner. This conversation was taped without defendant's knowledge (Exhibit 1 - audio tape and Exhibit 3 - transcript).
After a brief conversation about Plattner, the defendant specifically asked Investigator Sotir, "...other than that, is there anything else?" (Exhibit 3, p. 1). It was in response to that general inquiry by the defendant that Investigator Sotir raised the issue of the defendant's recent petit larceny arrest. However, after a short conversation on that issue, in which the defendant maintained her innocence and made reference to her lawyer on that charge, to wit "... anything about that has to go through my lawyer..." (Exhibit 3, p. 2), Sotir returned the conversation back to the issue of the defendant's household composition. (Exhibit 3, p. 2).
This phone conversation lasted less than five minutes and she never requested counsel. The defendant needed to obtain further information as to when Plattner moved back into the [*3]house. The defendant agreed to contact Investigator Sotir the following week in order to set a time for them to meet in person in order to discuss the issues set out in his January 26th letter and as they pertained to her public assistance case.
Approximately one week later the defendant attempted to contact Investigator Sotir by phone. He was not there but he called the defendant back. They then agreed to meet on February 3, 2005 at approximately 5:00 P.M. in the parking lot behind the Lown's building located on Main Street in Penn Yan as she had another unrelated appointment at approximately 5:20 P.M. (Exhibits 1 and 3).
The defendant met Sotir at his unmarked police car. She voluntarily sat on the passenger's front side. She was not under arrest, handcuffed or in any other manner restrained. The investigator did not advise her of her so called Miranda warnings nor did she request counsel.
They spoke for approximately 20-25 minutes about various issues pertaining to her ongoing collection of public assistance benefits for the previous three years; specifically her household composition, including the presence of Robert Plattner, his status, address, her exact mailing and living address and the status of her craft business, and any household income derived from same. Sotir recorded this conversation without defendant's knowledge (Exhibit 2 - audio tape and Exhibit 4 - transcript). The conversation concluded at approximately 5:30 P.M.
At no time during this conversation was the pending petit larceny charge discussed or was the defendant told that she would loose her benefits.
At the conclusion of the conversation, the defendant was issued appearance tickets for the felony crimes of Offering a False Statement for Filing First Degree and Welfare Fraud Third Degree and she was directed to appear in Penn Yan Village Court at a later date. She then left and went to her previously scheduled appointment.
During their discussions the defendant gave Sotir a copy of his January 26, 2005 letter on which the defendant noted that she no longer wanted food stamps.
Investigator Sotir also testified that the Sheriff's Department had retained possession and control of both audio tapes (Exhibits 1 and 2) since they were made and there had been no alterations to either one.
The defendant was given the opportunity, but declined to prepare independent transcripts of the conversations. The People's transcripts [Exhibit 3 - re: Exhibit 1 and Exhibit 4 - re: Exhibit 2] were received and used for the purposes of the hearing.
LAW AND CONCLUSIONS
1.Audibility
Both audio tapes (Exhibits 1&2) were played in conjunction with the corresponding transcripts (Exhibits 3 and 4) during the hearing.
The audibility of tape recordings is a preliminary issue to be resolved in the trial court's discretion. People v. Mitchell, 220 AD2d 813, app. den. 87 NY2d 905. Prince-Richardson on Evidence, (11th Edition) §4-213.
"Tape recordings are generally admissible into evidence when the recording is sufficiently audible and distinct so that a jury need not speculate as to the contents thereof. (cite omitted)." Ability of a stenographer to transcribe the tape is evidence of audibility (cite omitted)..." People v. Weyant, 68 AD2d 608; see also People v. Morgan, 175 AD2d 930, app. [*4]den. 79 NY2d 861. Thus, to be admissible, a taped conversation should at least be sufficiently audible so that independent third parties can listen to it and produce a reasonable transcript. People v. Lubow, 29 NY2d 58,68.
Therefore, in order to determine audibility the Court must decide whether the tape is of poor or good quality and whether it can glean from the tape, the conversations.
The admissibility of tape-recorded conversations requires proof of the accuracy or authenticity of the tape by "clear and convincing evidence" establishing "that the offered evidence is genuine and that there has been no tampering with it". People v. Ely, 68 NY2d 520. Here each tape was kept at the Yates County Sheriff's Department, and the conversations involved were in the presence of Investigator Sotir.
There are a number of ways to provide the necessary foundation including, by testimony of a witness to the conversations or recording that the tape is unaltered and completely and accurately reproduces the conversation; or by establishing a "chain of custody". People v. Ely, 68 NY2d 520.
The District Attorney should, as he did in the case at bar, in advance of the trial, have transcripts of the recordings prepared. While a transcript is not essential, if there is none and if the court reporter does not transcribe the recording there is the danger that the record will not be adequate for review on appeal and the judgment will be reversed. See, People v. Columbo, 24 AD2d 505; contrast People v. Savino, 44 NY2d 669. And if accurate it may be used to understand the tape recorded conversations. People v. Tapia, 114 AD2d 983, app. den. 76 NY2d 951.
Here, the District Attorney presented transcripts for each audio tape to wit: Exhibits 3 and 4. Therefore, the issue is whether or not the contents of each tape will be intelligible to the jury and can the voices be identified properly. The defense did not request an opportunity to prepare transcripts and stipulated to the People's transcripts (Exhibits 3 and 4) for the purposes of the hearing.
In this regard, it is noted that even if a recording is partially inaudible or unintelligible, it is nevertheless admissible unless those portions are so substantial as to render the recording as a whole inadmissible. People v. Graham, 57 AD2d 478, affd 44 NY2d 768.
A recording must be excluded from evidence if it is so inaudible and indistinct that a jury must speculate as to its contents. People v. Morgan, 145 AD2d 442. However, insubstantial defects in the overall quality of a recording affect its weight, not its admissibility. People v. Morgan, 175 AD2d 930, lv. den. 79 NY2d 881. But if the tape is essentially inaudible, the use of a transcript prepared by the prosecutor compounds error in permitting the playing of an essentially inaudible tape. People v. Wilson, 182 AD2d 734.
After having listened carefully to the conversations in question and applying these principals to Exhibits 1 and 2; the Court determines, with respect to defendant, Patricia Laumeyer, that both tapes are sufficiently audible and intelligible so as not to permit the jury to speculate concerning their content. Furthermore, each of the People's transcripts (Exhibits 3 and 4) are accurate enough regarding the crucial portions of the conversations. People v. Weyant, 68 AD2d 608. This is of course subject to the proper authentication of the identities of those speaking on a particular tape, People v. Weyant, supra, p. 613, at trial.
2.Statements
[*5]A confession or admission is admissible at trial in this state only if its voluntariness is established by the People beyond a reasonable doubt. People v. Witherspoon, 66 NY2d 973.
Then, if the prosecutor in the first instance establishes the legality of the police conduct in obtaining a statement the defendant has the burden of persuasion in seeking suppression. People v. Love, 85 AD2d 799, affd 57 NY2d 998.
In determining the voluntariness of a confession the Court must look to all relevant factors, and all facts and circumstances must be weighed and considered. People v. Carbonaro, 48 Misc 2d 115, affd 21 NY2d 271, remittitur amended 21 NY2d 971, reargument denied 20 NY2d 1040. In doing so, the Court is entitled to view the evidence in the light most favorable to the prosecution. People v. Huber, 144 AD2d 583, app. den. 73 NY2d 922.
Miranda (Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602) warnings must be given, with certain exceptions, to all people subjected to custodial interrogation "regardless of the nature or severity of the offense." Berkemer v. McCarty, 468 U.S. 420, 82 L. Ed. 2d 317, 104 S. Ct. 3138, 3148.
However, without both custody and interrogation the Miranda warnings are not required. Whether a person is in custody is determined by ascertaining whether a person in the defendant's position would have felt that he was not free to leave. People v. Yukl, 25 NY2d 585. However, the Court also stated that it is not the subjective beliefs of the defendant that are determinative, "but rather what a reasonable man innocent of any crime, would have thought had he been in the defendant's position."
On January 27, 2005, the defendant telephoned Investigator Sotir in response to his January 26, 2005 letter. She was not under arrest, restrained, coerced or under duress in any way. She initiated this short telephone conversation during which it was revealed that she had an attorney on an unrelated pending criminal matter. Again on February 3, 2005, the defendant and Sotir spoke on the telephone and they agreed to meet at a specified place and time which was prior to an unrelated appointment that the defendant had previously made with another. The defendant came on her own volition and sat in the front seat of the investigator's unmarked police vehicle. The defendant was not under arrest, detained or handcuffed nor did she request counsel. They spoke for approximately 20 minutes at the conclusion of which the defendant was issued appearance tickets for a future court appearance on the charges at bar. She then went on her way to her previously scheduled meeting.
The Miranda warnings were not given to the defendant on either occasion.
Under all the circumstances presented in the case at bar, the defendant was not in custody at either time even though she was being questioned. Therefore, the four-fold Miranda warnings were not required. Also, after having examined the totality of the circumstances as to voluntariness, the Court finds that neither of the defendant's statements should be suppressed, except for any reference to the pending petit larceny charge.
The defendant also raises the issue that the right to counsel attaches when formal charges are filed with a state court (People v. Samuels) 49 NY2d 218) or when an attorney has "entered" the proceedings. People v. Skinner, 52 NY2d 24. Here, the defendant argues that since Investigator Sotir knew that she had previously retained counsel after being arrested and arraigned on an unrelated charge of petit larceny; he could not speak with her without counsel or a proper waiver of same. Therefore, both of defendant's statements must be suppressed as a [*6]result of a violation of her Sixth Amendment Right to Counsel.
The question is, could Investigator Sotir discuss the welfare fraud investigation with the defendant who was not in custody, but he knew that she was "at liberty" and represented by counsel on an unrelated, pending criminal charge?
Clearly the proof shows that Sotir began his investigation only because he learned that the defendant had been arrested for petit larceny and after seeing the arrest report he noted information which caused him to review the defendant's previously reported information in her open public assistance case at the Yates County Department of Social Services.
However, these two cases are unrelated and not intertwined. The information from the petit larceny complaint merely raised issues prompting Sotir's review of the defendant's current household composition, including the presence of Robert Plattner, her household expenses and unreported household income from the defendant's craft business, to wit: D&L Crafts.
Sotir's inquiry related directly to defendant's receipt of welfare benefits over a period of years and not the petit larceny charge. In fact, other than the initial reference to the petit larceny charge over the telephone, no other mention was made of it.
Even though "at liberty" and represented on a pending criminal charge, the defendant's right to counsel did not attach when Sotir spoke with her, while not in custody, on the charges subject to this indictment. People v. Middlebrooks, 300 AD2d 1142; also see People v. Farruggia, 61 NY2d 775, People v. Hauswirth, 60 NY2d 904.
Therefore, for the reasons stated above, the defendant's statements are admissible at trial upon the People's case in chief. However, the People are precluded from any use or mention of the defendant's Town of Starkey petit larceny arrest or the underlying facts of that charge.
The foregoing constitutes the Opinion, Decision and Judgment of this Court.
SO ORDERED.
Dated: November 3, 2005______________________________
W. Patrick Falvey
Yates County Judge
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