People v Ramirez

[*1] People v Ramirez 2006 NY Slip Op 50897(U) [12 Misc 3d 1154(A)] Decided on March 13, 2006 Supreme Court, Bronx County Marvin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 13, 2006
Supreme Court, Bronx County

The People of the State of New York

against

Eric Ramirez, Defendant.



45921C-2004

Seth Marvin, J.

This motion involves the consequences of applying People v. Chapple, 38 NY2d

112, 114 (1975) and its progeny, to a series of statements made by a defendant over a 20-

hour period.

Background

By a felony complaint sworn to on August 24, 2004, the defendant Eric Ramirez was charged with attempted arson in the third and fifth degrees and criminal mischief in the fourth degree. By an indictment filed December 13, 2004, defendant was charged with third-degree attempted arson. On March 28, 2005, the defense filed an omnibus motion. On June 6, 2005, Justice Barrett ordered that a Huntley/Mapp/Dunaway hearing be held.

That hearing was held on January 11 and January 17, 2006. At the hearing, the defense withdrew its motion to suppress the physical evidence recovered by the police. Two witnesses, Police Officers William H. Kearney and Paul J. Maldonado of the New York City Police Department ("NYPD"), testified for the People. The defendant testified on his own behalf. On January 24, 2006, the People submitted a 19-page affirmation in opposition; on February 8, 2008,

the defense filed a nine-page post-hearing memorandum. Except as set forth below, I found all three witnesses' testimony to be credible and render the following findings of fact and conclusions of law:

Findings of Fact

On August 24, 2004, Police Officer Kearney, a 13-year veteran of the NYPD, was on routine patrol in the area of Brush Avenue in The Bronx, a known auto stripping area. His partner was Police Officer Timothy I. Murphy and the officers were driving a marked van. As he drove southbound on Brush Avenue, the officer observed two male Hispanics working on a Nissan Maxima on the shoulder of the northbound lane. The hood of the car was raised and [*2]flashlights were visible. About ten minutes later, the officer made a u-turn and proceeded northbound on Brush Avenue but the Nissan was no longer there.

In the vicinity of 500 Brush Avenue, the co-defendant Rodriguez jumped out of a wooded area causing the officer to stop his vehicle. Officer Kearney recognized him as one of the men he had previously observed working on the car which was no longer on the shoulder of Brush Avenue. Exiting the van, Officer Kearney asked Rodriguez "...where is your friend?" (H 12).[FN1] Rodriguez did not reply and the officer noticed that Rodriguez "...had a strong odor of gas coming from his person." (H 16).

While Officer Murphy stayed with Rodriguez, Officer Kearney walked into an open field and observed the 21-year-old defendant (who "...also had a strong odor of gas coming from his person." [H 17]) standing on the passenger side of the Maxima the officer previously observed.

The front passenger door was open and the car "..appeared to be doused in gasoline." (H 17). Officer Kearney then directed his partner to handcuff Rodriguez, which Officer Murphy did.

At about 12:40 a.m., Officer Kearney asked defendant if he was the registered owner of the van and defendant stated that he was.[FN2] The officer directed defendant to walk over to the street and defendant complied. Officer Kearney thereupon handcuffed defendant in the rear. Defendant did not, at this point, believe that he was free to leave. Officer Kearney testified that the men were not being arrested but were handcuffed for the officers' safety.

While Officer Murphy stayed with the two handcuffed men, Officer Kearney proceeded to the wooded area to check if there were additional individuals in the area. The Maxima appeared to be doused with gasoline with the doors open. There was a strong odor of gasoline and the car seats were wet. When Officer Kearney returned to the street, Police Officer Maldonado was at the scene. Since it was the end of Officer Kearney's tour, Officer Maldonado became the arresting officer.

At approximately 12:44 a.m., Officer Maldonado received a radio transmission from another police officer that he needed assistance at 500 Brush Avenue. When he arrived at that location, Officer Maldonado observed defendant and Fernandez in handcuffs standing outside a police van with Officer Murphy outside. They both had a strong odor of gasoline on them. Without first talking to any of the police officers at the scene, Officer Maldonado "... went over to the two individuals, and I asked them their names and where they live and what they were doing in the neighborhood." (H 47). The defendant responded that "...he had a black Maxima he was trying to get rid of, he had some mechanical problems, and he was trying to burn it." (H 48).[FN3] Defendant was unaware that he had a right not to respond to Officer Maldonado's questions. Rodriguez stated that a second vehicle was nearby and was to be used after he and defendant completed their goal. Officer Maldonado then walked over to the fenced-in lot and observed the Maxima which had a strong odor of gasoline, open doors and a broken window. He returned [*3]from the lot and at 12:47 a.m., explained to defendant and Fernandez that they were being arrested. This was defendant's first arrest.

Defendant and Rodriguez were thereupon transported to the 45th precinct by Officer Maldonado and arrived there at 1:10 a.m. During an inventory search, a yellow lighter and a match were recovered from defendant's right pants pocket; along with the Maxima (which was owned by defendant's mother), these three items were vouchered. At 1:45 a.m., Officer Maldonado read the defendants their Miranda rights from a card. (People's Exh. 1). Specifically, defendant was advised that: (i) "You have the right to remain silent and refuse to anser questions."; (ii) "Anything you do say may be used against you in a court of law."; (iii) "You have the right to consult an attorney before speaking to the police and to have an attorney present during any questioning now or in the future."; (iv) "If you cannot afford an attorney, one will be provided for you without cost." (v) "If you do not have an attorney available, you have the right to remain silent until you have an opportunity to consult with one." (People's Exh. 1). Defendant answered that he understood his rights as read to him (the last sentence after each of these five warnings was "Do you understand?) and he signed the card acknowledging that he had been given his rights. After defendant responded affirmatively to the first five questions, Officer Maldonado wrote Yes down next to each question. The last question, however, was "Now that I have advised you of your rights, are you willing to answer questions?" (People's Exh. 1). The line next to this question was blank, but defendant signed his name directly underneath. Officer Maldonado also said to defendant, "...'I already know everything that happened, you might as well just give me a full statement now that I've read you your rights[.]" (H 75).

Defendant stated, in sum and substance, that he was having mechanical problems with his vehicle which "...he wanted to get rid of...." (H 54). He had purchased some gasoline earlier in the day and met up with Rodriguez, doused the car with gasoline and intended to burn it. Defendant admitted he intended to make an insurance claim on the car. (H 54) [FN4] Defendant then fell asleep in the cell.

Defendant was transferred to central booking at 3:50 p.m. Subsequently, Officer Maldonado was asked to speak to defendant to see if he is willing to make a video statement with an Assistant District Attorney. "I remember saying to him [defendant] that the A.D.A would like to interview him on video and if he was willing to cooperate and he said " yes.'" (H 85).When asked "..did you explain to him they are looking to get the same information he's previously given to you?", Officer Maldonado responded, "yes." (H 85)

Officer Maldonado escorted defendant to a small interview room and then sat in the room close by. Defendant was given a complete set of Miranda warnings [FN5] and agreed to speak with [*4]A.D.A. Shireen Plaseied at 8:40 p.m. The five-minute videotape constitutes defendant's fourth noticed statement.

Conclusions of Law

Statement No.1

Defendant does not contest the admissibility of his statement to Officer Kearney that he was the registered owner of the vehicle. Defendant was clearly not in custody at the time the statement was made and the officer's question was attempting to clarify the situation and not seeking incriminating information. See People v. Huffman, 41 NY2d 29, 33-34 (1976); People v. Nunez, 21 AD3d 814 (1st Dept.), lv. denied, 5 NY3d 850 & 855 (2005). Miranda warnings were not required, therefore, and the People established beyond a reasonable doubt that the statement was knowingly and voluntarily made.

Statement #

2

The statement made by defendant at 12:45 a.m. to Officer Maldonado at the scene on Brush Avenue constitutes the second noticed statement. It is uncontested that defendant was not read the Miranda warnings prior to questioning by Officer Maldonado. Therefore, the statement [*5]is admissible only if it was not the result of custodial interrogation. "The standard for analyzing whether a statement made prior to the administration of Miranda warnings was the product of custodial interrogation is whether a reasonable person, innocent of any crime, would have thought that he or she was free to leave the presence of the police." People v. Morales, 807 NYS2d 142 {25 AD3d 624} (2nd Dept. 2006) (citing People v. Yukl, 25 NY2d 585, 589 (1969), cert. denied, 400 U.S. 851 (1970)). See People v. Paulman, 5 NY3d 122, 129 (2005).

At the time of the police questioning, defendant had been handcuffed behind his back. Officer Kearney testified that defendant had not been arrested but was handcuffed for the officers' safety. On the other hand, defendant testified that he did not believe that he was free to leave the scene at that time. Applying the above standard, I find that a reasonable person, in defendant's position, would not have thought he was free to leave at the time Officer Maldonado questioned him.

The questions posed to defendant were not merely designed to clarify the situation since the criminal conduct had concluded and the police were aware of the nature of such conduct. Accordingly, the custodial questioning constituted interrogation. People v. Huffman, 41 NY2d at 34; People v. Rifkin, 289 AD2d 262, 263 (2nd Dept. 2001).

The second statement was the result of custodial interrogation without the administration of Miranda warnings. It is, therefore, suppressed.

Statement #

3

Defendant's third statement was made at 1:45 a.m. inside the 45th precinct. It is uncontroverted that Officer Maldonado administered a complete reading of the Miranda warnings prior to the questioning and that defendant voluntarily waived his rights to remain silent and to counsel. However, "the testimony of the arresting officer established the close sequence between the unwarned custodial statement ...and its repetition soon after defendant arrived at the precinct." People v. Bethea, 67 NY2d 364, 368 (1986). The questioning of defendant at the scene and at the precinct were "in reality, a single continuous chain of events." People v. Chapple, 38 NY2d at 114.

As recognized in People v. Paulman, 5 NY3d at 130, "To determine whether there is a single continuous chain of events' under Chapple , New York courts have considered a number of factors, including the time differential between the Miranda violation and the subsequent admission; whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation[.]" Without a

"definite pronounced break" in the interrogation, the statement made in the precinct must also be suppressed. People v. Vachet, 5 AD3d 700 (2nd Dept. 2004); People v. Rifkin, 289 AD2d at 263.

Judged by these standards, this statement, made one hour after the previously-suppressed statement, following interrogation by the same police officer, clearly runs afoul of Chapple and Bethea. [*6]

Defendant's motion to suppress the third statement is granted.

Statement #

4

The video statement was taken at about 8:40 p.m., nearly 18 hours after the previous, suppressed statement. Defendant was escorted to an interview room by Officer Maldonado and given a "scrupulous" (p. 17 affirmation of B.A. Reese) reading of the Miranda rights by A.D.A.Plaseied. Officer Maldonado was seated close to the defendant, but did participate in the questioning.

A statement made by a defendant following a suppressed statement is tainted "unless there is such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning." People v. Chapple, 38 NY2d at 114.

A statement is attenuated from the previous taint where there has been a pronounced break in the interrogation, waiver of Miranda warnings and where the questioning is conducted by a new interrogator. People v. Rodriguez, 231 AD2d 477, 478 (1st Dept. 1996)("In light of this one and one-half hour break in the questioning, the introduction of a new interrogator, the re-administration of new Miranda warnings and the fact that the prosecutor made no mention of the prior statements during the videotaping, we find suppression was properly denied." (citations omitted); Indeed, in People v. Delacruz, 804 AD2d 739 (1st Dept. 2005), the Appellate Division, First Department, held that "[t]he hearing court, which suppressed defendant's initial statement to police for lack of Miranda warnings, correctly found attenuation with regard to all of defendant's subsequent post-Miranda statements, given the passage of time, and the changes in location, interrogators, and type and content of questioning." And in People v. Santos, 3 AD3d 317 (1st Dept. 2004), the same court held that, "[t]he videotaped statement to an Assistant District Attorney was taken about six hours after the [warrantless] arrest [made in violation of Payton v. New York, 445 U.S. 573 (1980)] and was made after Miranda warnings and waivers. There was a substantial break of more than three hours between an earlier statement to a detective, which the court suppressed, and the videotaped statement which was conducted before a different interrogator [.]"

Here the videotape was conducted 20 hours after the second statement and 19 hours after the third statement. And while Officer Maldonado was present in the room during the videotape interview, he did not participate in the interview at all, and defendant was apprised fully of his rights by the ADA. Thus, there was a clear break from the unwarned statement at the scene to the questioning of defendant by A.D.A. Plasseied.[FN6]

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

Conclusion [*7]

Defendant's motion to suppress four statements made by him to a public servant is granted with respect to statements #

2 and #

3 and denied with respect to statements #

1 and #

4.

The defendant's Mapp motion is denied on consent.

This constitutes the amended decision and order of the court.

Dated: Bronx , New York

March 13, 2006

________________________

SETH L. MARVIN, A.J.S.C. Footnotes

Footnote 1:Numerical references preceded by "H" are to the minutes of the suppression hearing.

Footnote 2:This is the first noticed statement made by defendant.

Footnote 3:This is the second noticed statement made by the defendant.

Footnote 4:This is the third noticed statement made by the defendant.

Footnote 5:At the beginning of the videotape, the following colloquy occurred: ADA: You have the right to remain silent and to refuse to answer any questions. Do you understand that right? Defendant: Yes. ADA: Anything that you do or say may be used against you in a court of law. Do you understand that right? Defendant: Yes. ADA:You have the right to consult an attorney before speaking to the police or to me and to have an attorney present during any questioning now or in the future. Do you understand? Defendant:Yes. ADA:If you cannot afford an attorney, one will be provided to you without cost. Do you understand? Defendant: Yes. ADA:If you do not have an attorney available, you have the right to remain silent until you have the opportunity to consult with an attorney. Do you understand? Defendant:Yes. ADA:Now that I have advised you of your rights, are you willing to answer questions? Defendant:Yes.

Footnote 6:The court also adopts the five factors argued on p. 17 of ADA Reese's affirmation.