People v Spahalski

[*1] People v Spahalski 2006 NY Slip Op 51622(U) [12 Misc 3d 1198(A)] Decided on August 22, 2006 County Court, Monroe County Marks, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 22, 2006
County Court, Monroe County

THE PEOPLE OF THE STATE OF NEW YORK

against

Robert B. Spahalski, Defendant.



05-0958



MICHAEL C. GREEN, ESQ., DISTRICT ATTORNEY

Kenneth C. Hyland, Esq., of counsel

Attorney for People

JOSEPH S. DAMELIO, ESQ.

Attorney for Defendant

Patricia D. Marks, J.

This is a decision on a suppression motion filed by defense counsel. Defendant is charged by indictment with five counts of Murder in the Second Degree related to four separate homicides that occurred between December 31, 1990 and November 8, 2005. The People provided the defendant notice of the multiple oral and written statements allegedly made by the defendant at different periods of time over a fifteen year time period and multiple identification proceedings. The court conducted a hearing and now makes the following findings of fact based upon the testimony elicited at the hearing.

On December 31, 1990 Investigator Campione became involved in the investigation of the death of Moraine Armstrong that occurred at 509 Lake Avenue in the City of Rochester. On January 1, 1991 Investigator Campione went with Investigators Terrance Coleman and Gordon Hall to 509 Lake Avenue. The investigators were going to conduct a neighborhood check and interview possible witnesses to the homicide. Investigator Campione was standing outside of 509 Lake Avenue when he encountered the defendant, Robert Spahalski. The defendant told Investigator Campione that he lived at 512 Lake Avenue and asked the investigator what was happening. Investigator Campione explained to the defendant that a woman named Moraine Armstrong had been found dead in her apartment, and then he asked the defendant if he knew her. The defendant responded that he did not know the victim (see People's exhibit 20-A).

On July 21, 1991 Investigator Barnes became involved in the investigation of the death of [*2]Adrian Berger at 85 Emerson Street in the City of Rochester. During the afternoon of July 22, 1991 Mr. Barnes went with Investigators Schultz and Borriello to 512 Lake Avenue to speak with the defendant, Robert Spahalski, who was the victim's boyfriend. Investigator Barnes found the defendant at 512 Lake Avenue and asked him if he would accompany the officers to the Public Safety Building so they could talk about the death of Ms. Berger, and the defendant agreed. None of the investigators made any threats or promises to the defendant to get the defendant to accompany them. The defendant was transported to the Public Safety Building in the investigator's police vehicle. An interview of the defendant concerning the death of Adrian Berger was conducted at the Public Safety Building (see People's exhibit 17) and, at the interview's conclusion, the defendant was returned to his home. The defendant was not handcuffed during any of the time spent with the investigators.

On July 22, 1991 Investigator Barnes went with Investigator Borriello of the Rochester Police Department to 76 Emerson Street in the City of Rochester to meet with a witness named David Hulslander. Upon meeting with Mr. Hulslander, Mr. Barnes conducted an identification procedure with him. Investigator Barnes presented to Mr. Hulslander a photographic array consisting of six photographs of different individuals with the same general physical characteristics. Investigator Barnes instructed Mr. Hulslander to look at the photographs and indicate whether or not he recognized anyone from the array as the person who he saw leaving the victim's house on the date. Mr. Hulslander looked at the photograph array. Neither of the investigators present during the identification procedure made any gestures or suggestions to Mr. Hulslander while he looked at the array. Mr. Hulslander identified the defendant, Robert Spahalski, as depicted in photograph number five in the photographic array. Mr. Barnes initialed the back of the array after the identification occurred.

On October 6, 1991 Investigator Sheridan was working as an investigator on a criminal impersonation case. On that date at approximately 1:25 p.m. Investigator Sheridan went with Investigator Tony Campione of the Rochester Police Department and Investigator Tim Partington of the Webster Police Department to 431 Lake Avenue to meet with a witness named Rosesianna Brooks. Investigator Sheridan conducted an identification procedure with Ms. Brooks. Investigator Sheridan presented to Ms. Brooks a photographic array consisting of six photographs of different individuals with the same general physical characteristics. Investigator Sheridan instructed Ms. Brooks to look at the photographs and indicate whether or not she recognized anyone. Ms. Brooks looked at the photograph array. None of the investigators present during the identification procedure made any gestures or suggestions to Ms. Brooks while she looked at the array. Ms. Brooks identified the defendant, Robert Spahalski, from a photograph included in the photographic array. Investigator Sheridan wrote the date, time, location, name of the witness, and the fact that she identified the defendant on the back of the array after the identification occurred.

On October 6, 1991 at 2:15 p.m. Investigator Sheridan went with Investigator Tony Campione of the Rochester Police Department and Investigator Tim Partington of the Webster Police Department to 1963 North Clinton Avenue in the City of Rochester to meet with Officer John Pinkitis of the Rochester Police Department to present to him the same photographic array shown to Ms. Brooks. Officer Pinkitis was a potential witness for the criminal impersonation crime that Investigator Sheridan was investigating. Upon meeting with Officer Pinkitis, [*3]Investigator Sheridan conducted an identification procedure with him. Investigator Sheridan presented to Officer Pinkitis the same photographic array shown to Ms. Brooks. Investigator Sheridan did not allow Officer Pinkitis to view the back of the array. Mr. Sheridan instructed Officer Pinkitis to look at the photographs and indicate whether or not he recognized anyone. Officer Pinkitis viewed the photographic array. None of the investigators present during the identification procedure made any gestures or suggestions to Officer Pinkitis while he looked at the array. Officer Pinkitis identified the defendant, Robert Spahalski, from a photograph included in the photographic array. The facts at the hearing also include a transcript of proceedings before the Rochester City Court wherein the following witnesses testified and the original photographic array was received (see People's exhibit 23).

Investigator Partington was investigating the death of Charles Grande in early October of 1991. On October 7, 1991 at approximately 10:00 a.m. Investigator Partington met a witness named Allan Streeter at the Public Safety Building in the City of Rochester. Upon meeting with Mr. Streeter, Investigator Partington conducted an identification procedure with him. Using the Edicon system ,a computer system that allows the police to present photographic arrays on a computer screen, Investigator Partington presented to Mr. Streeter a photographic array consisting of six photographs of different individuals with the same general physical characteristics. The photographs were color pictures. Mr. Partington instructed Mr. Streeter to look at the photographs and indicate whether or not he recognized anyone, and if he did recognize anyone, then he should say how he knew the person recognized. Mr. Streeter was also told to take his time and that the possibility exists that the person involved in the investigation may or may not be depicted in the photographic array. Mr. Streeter looked at the photograph array. No gestures or suggestions were made to Mr. Streeter during the identification procedure. Mr. Streeter stated that the neck of the person positioned in photograph number five looked similar to the neck of the person he saw driving the victim's car. Mr. Streeter explained that the neck seemed similar because it is a skinny neck. The person positioned in photograph number five is the defendant, Robert Spahalski. A deposition was then taken from Mr. Streeter.

Richard Marchese, Esq. is an attorney who has been licensed to practice law in New York State for twenty-two years. For the past ten years Mr. Marchese has been employed by the Monroe County Law Department. Mr. Marchese was previously employed by the County of Monroe as an Assistant Public Defender for nine years and so employed on October 9, 1991. On that date Mr. Marchese represented the defendant on a Criminal Impersonation in the Second Degree charge. On that date Mr. Marchese was informed by Monroe County Public Defender Edward Nowak, Esq. that the defendant was being questioned by Homicide detectives at the Public Safety Building. Mr. Marchese immediately went to the Public Safety Building and spoke with Investigator William Barnes. Mr. Marchese told Investigator Barnes that he represented the defendant and that he did not want the defendant questioned any further. Mr. Marchese was permitted to meet with the defendant alone. After conversing with the defendant, Mr. Marchese reiterated to Rochester Police investigators that he did not want the defendant questioned any further. Mr. Marchese then left the Public Safety Building. On October 9, 1991, after leaving the Public Safety Building, Mr. Marchese drafted a letter stating that he represented the defendant and that he did not want the defendant questioned regarding the charges pending against the defendant and with regard to a murder investigation involving the death of Charles [*4]Grande. This letter was hand delivered on October 9, 1991 to someone in the Rochester Police Department. Investigator William Barnes does not recall speaking with anyone from the Monroe County Public Defender's Office concerning the defendant's representation. Investigator Barnes also does not recall receiving any letter from Mr. Marchese concerning the defendant's representation and the request to not question the defendant.

On October 10, 1991 Mr. Marchese sent a letter to the Webster Chief of Police stating that he represented the defendant and that he did not want his client questioned about a homicide investigation or any other crime. This letter was sent by mail to the Webster Police Department. At no time during the representation of the defendant on these charges did a judge officially assign the public defender's office to represent the defendant. At no time did the public defender's office open an official file for the defendant about the investigation of the death of Charles Grande.

On November 9, 1991 at approximately 4:25 p.m. Robert Spahalski was in an interview room at the Public Safety Building. The defendant had been arrested and was going to be charged with Criminal Impersonation and Criminal Mischief. Investigators Campione and Coleman met the defendant at interview room number two on the second floor of the Public Safety Building and took the defendant to intake at the Monroe County Jail. The defendant made statements to Investigator Campione during the walk from the interview room to intake. The statements were not in response to any questioning by Investigators Campione or Coleman, nor were any threats or promises made to the defendant to get him to speak.

Investigator Sheridan retired from the Rochester Police Department in 1991. Investigator Barnes retired from the Rochester Police Department in 1994. Investigator Campione retired from the Rochester Police Department in 2004. Investigator Partington retired from the Webster Police Department in 2004.

On July 13, 1992 at approximately 10:22 p.m. Sergeant Wukitsch and Officer Bruce Lockhardt were on patrol in the downtown section and observed the defendant sitting on the Andrews Street Bridge. The officers engaged in conversation with the defendant. The defendant appeared annoyed and was semi-hostile towards the officers. He made comments regarding murder and robbery. The defendant was temporarily detained in the officers' police car. A record check was run by the officers. After conclusion of the conversation, the defendant and the officers separately left the area. A field information report was filled out detailing the officers' contact with the defendant.

Bradford Goater is an investigator with the Rochester Police Department. Investigator Goater has worked for the Rochester Police Department for over nineteen years. On July 23, 1998 Investigator Goater and Officer Dennis Wilson were investigating a report that a person was attempting to sell a camera at a local bar on East Avenue. At approximately 8:40 p.m. Investigator Goater and Officer Wilson encountered the defendant in the area of 175 North Clinton Avenue in the City of Rochester. The officers pulled their patrol vehicle up to the defendant, exited the vehicle, and approached the on foot defendant as part of their investigation into the sale of the camera. The officers asked about the camera and the defendant indicated that he was in drug rehabilitation and was not into hurting people. The officers asked no other questions. After speaking with the defendant, the officers left the defendant. The defendant left on foot. The officers made no threats or promises to the defendant. A field information form [*5]was filled out detailing the officers' contact with the defendant.

On November 8, 2005 Officer Maria Graves of the Rochester Police Department was at the headquarters reception counter at the Rochester Police Department, Public Safety Building. At approximately 10:40 a.m., Robert Spahalski, entered the building, approached the reception counter and engaged Officer Graves in conversation. Officer Graves was the only person at the counter at this time. The defendant asked Officer Graves if he could speak with a homicide detective. The defendant identified himself to the officer as Robert Spahalski. Officer Graves asked the defendant if he had an appointment. The defendant replied that he did not. He insisted at least three times on speaking with a homicide detective. Officer Graves inquired why he must speak with a homicide detective. The defendant responded that he had killed someone. Officer Graves asked who he killed, to which the defendant replied that it was someone with whom he had done drugs at 202 Spencer Street. The officer was not aware of a homicide at the location stated by the defendant. Officer Graves then requested for Officer Lordes Baez to come to the front counter. The defendant remained on the public side of that counter with Officer Graves on the other side of the counter.

Officer Baez emerged from the door behind the front counter and asked Officer Graves what was the problem. Officer Graves explained to Officer Baez that the defendant, who was still standing at the counter, told her that he had killed someone. Officer Baez then spoke with the defendant. She asked the defendant where and when did he kill someone. The defendant replied that he killed Vivian Irrizary at his home located at 202 Spencer Street, and that her body was still at that location. Officer Baez asked the defendant why and how he killed the victim. The defendant stated he did not remember, and that he was high when the killing occurred. Officer Baez relayed the information provided by the defendant to the 911 dispatcher and told the dispatcher to send a car to Spencer Street. Officer Baez continued to speak with the defendant after giving directions to the dispatcher.

On November 8, 2005 Investigator Glenn Weathers of the Rochester Police Department entered police headquarters and observed the defendant speaking with Officer Baez at the reception counter. He recognized the defendant as Robert Spahalski. The investigator heard part of the conversation and went up to the defendant and Officer Baez. The investigator introduced himself to the defendant and told Officer Baez that he would speak with the defendant. Investigator Weathers asked the defendant if he was willing to speak with him. The defendant agreed to speak with the investigator and accompanied Investigator Weathers to his office on the fourth floor of the Public Safety Building. The defendant thanked the investigator for not handcuffing him when walking to the office. At the time that they went up to the fourth floor the police had not discovered the body

After they arrived at the office and outside of the presence of the defendant, Investigator Weather asked Investigator Cassidy to sit with the defendant in the witness area of the office. At approximately 10:47 a.m. Investigator Weather introduced Investigator Thomas Cassidy to the defendant and they sat together in the waiting area. The defendant spent his time by standing and pacing around the room. During this time, Investigator Cassidy sat quietly as the defendant made statements to him. The statements made by the defendant were not in response to any questions asked by Investigator Cassidy.

While Investigator Cassidy and the defendant were waiting for Investigator Weathers, [*6]Investigator C. J. Dominick entered the room and introduced himself. The defendant asked Investigator Dominick whether the victim's body was found. The investigator asked the defendant what he was talking about. Investigator Dominick then had a conversation with the defendant. Investigator Dominick asked the defendant whether he would consent to a search of the premises at 202 Spencer Street. The defendant said he would and at 10:48 a.m. signed a consent to search form provided by the investigator. The defendant stated that he did not want to be present during the search. The investigators provided the defendant with a drink of soda.

At approximately 11:00 a.m. the defendant was moved from the waiting room to an interview room. From 11:00 a.m. to 11:13 a.m. Investigator Cassidy remained outside the interview room and the defendant was inside the interview room. He was not asked any questions.

At 11:13 a.m. Investigators Weather and Benjamin entered into the interview room and introduced themselves. The investigators first began asking the defendant some pedigree information. The defendant suddenly appeared to have some anxiety and stood up. He explained to the investigators that he was claustrophobic and asked to be moved to a different room. The investigators agreed to move and took the defendant across the hall to a larger conference room. The defendant sat at the head of the table in the room while the investigators sat on each side of the table. The defendant was provided some cigarettes. Investigator Weather then began advising the defendant of his rights. The defendant interrupted the investigator and told him not to bother reading him his rights because he knew what his rights were. Investigator Weather explained to the defendant that reading him his rights is a formality that must be completed. The investigator then read the defendant his rights verbatim from a preprinted rights card. (Exhibit No. 4) After reading the rights, the investigator asked the defendant whether he understood his rights. The defendant responded, "Yes, I do." The investigator then asked the defendant whether he was willing to give up his rights and speak with them. The defendant responded, "Yes, that is why I came down here."

The investigators then asked the defendant about his educational background. The defendant informed the investigators that he graduated from Elmira Free Academy and also attended college for two years. The defendant communicated that he could read and write. A discussion followed concerning the defendant's personal issues including that he suffers from post-traumatic stress, that he takes medications for illness, and that he hears voices at times. The investigators began talking to the defendant about the death of Vivian Irrizarry. The defendant agreed to give a statement concerning the Vivian Irrizarry murder. At approximately 11:34 a.m. an interview began with a question and answer format between the investigators and the defendant. The defendant's statements were recorded by Investigator Weather in handwriting on paper. When the written statement concerning the death of Vivian Irrizarry was completed the defendant was allowed to review the statement. The defendant told Investigator Weather to read the statement aloud and he would follow along. Investigator Weather read the statement aloud. When Investigator Weather finished, the defendant complimented the investigator on the accuracy of the statement. The defendant was given the opportunity to make any changes to the statement, but he declined. The defendant signed the statement at approximately 12:18 p.m. Investigators Weather and Benjamin witnessed his signature by signing the statement..

After completing the Vivian Irizarry statement the investigators offered the defendant [*7]some food. The defendant stated that he did not want any food. The investigators left the defendant alone in the conference room for approximately forty-five minutes. The investigators returned and began speaking to the defendant about a 1991 open case involving the homicide of Charles Grande in Webster, New York. At approximately 1:15 p.m. the defendant admitted that he had committed the Charles Grande murder. The defendant agreed to give a written statement concerning the Charles Grande murder. At approximately 1:40 p.m. Investigator Weather began recording the defendant's statement by handwriting the statement on paper. The defendant was allowed to review the statement once it was completed. Investigator Weather read the statement aloud and the defendant appeared to follow along. When Investigator Weather finished reading the defendant was given the opportunity to make changes to the statement. The defendant made two grammatical changes to the statement. Once the corrections were made the defendant signed the statement at approximately 2:30 p.m. Investigators Weather and Benjamin witnessed his signature by signing the statement.

Some food was offered to the defendant following the completion of the defendant's statement regarding the Charles Grande homicide. The defendant accepted and had a cheeseburger and a Mountain Dew.

The defendant requested certain medication that he needed. Investigator Weather told him that there were police searching his house and they would be happy to bring the medicine. The defendant received the requested medications later. The defendant was then left alone for approximately one hour.

Investigators Weather and Benjamin returned at approximately 3:15 p.m. and began to ask the defendant about the killing of Moraine Armstrong. The defendant responded by asking whether that was the woman on Emerson Street. Investigator Weather stated that it was not, but asked the defendant about "the woman on Emerson Street." A discussion followed in which the defendant admitted to killing Adrian Burger. The defendant agreed to give a written statement concerning the death of Adrian Burger. At approximately 4:20 p.m. Investigator Weather began recording the defendant's statement by handwriting the statement on paper. The defendant was allowed to review the statement once it was completed. Investigator Weather read the statement aloud and the defendant appeared to follow along. When Investigator Weather finished reading the defendant was given the opportunity to make changes to the statement. The defendant declined to make any changes to the statement. The defendant signed the statement at approximately 4:45 p.m. Investigators Weather and Benjamin witnessed his signature by signing the statement..

Investigators Weather and Benjamin returned to the subject of Moraine Armstrong after the Adrian Burger statement was complete. They asked the defendant if he had any involvement in the death of Moraine Armstrong. The defendant denied any involvement and told the investigators that he did not want to be known as a serial killer. The investigators continued to ask about Moraine Armstrong and showed pictures of Ms. Armstrong to the defendant. The defendant again denied any involvement and stated that he did not recognize Ms. Armstrong. The investigators questioned the defendant until 5:21 p.m. At that time the investigators took a break. The defendant was left alone in the conference room and was not questioned.

At 6:40 p.m. Investigators Weather and Benjamin reentered the conference room. They spoke with the defendant for approximately twenty minutes. The defendant appeared sullen and [*8]was not as communicative as he was earlier in the day. The investigators asked the defendant if he was willing to speak with other investigators. The defendant agreed to do so.

At approximately 7:00 p.m. Investigators Cassidy and Dominick arrived at the conference room. Investigators Cassidy and Dominick spoke with Investigator Benjamin prior to entering the conference room and then entered into the room to speak with the defendant. Investigators Weather and Benjamin left the room. Investigators Cassidy and Dominick told the defendant that they had just returned from the defendant's house at 202 Spencer Street and that they found the body of Vivian Irizarry inside. Investigators Cassidy and Dominic first asked about some items found inside of 202 Spencer Street and then shifted the subject to Moraine Armstrong. The defendant stated that he did not remember anything. The investigators showed the defendant some photos of Ms. Armstrong. After viewing the photos the defendant stated that Ms. Armstrong looked familiar. The defendant was cooperative, but appeared to have nervous energy. He walked back and forth. He would pause and then ask if it was okay for him to walk back and forth.

Some time after 7:00 in the evening the investigators gave two sodas and two bags of chips to the defendant The defendant also received the requested medications. Investigator Dominick displayed to the defendant the medications that were retrieved from his home. The defendant identified each of the medications and their purpose.

The defendant was responsive to the questions that were asked. The defendant told the investigators that he may be able to remember better if he was allowed to meditate. Investigators Cassidy and Dominick stopped speaking with the defendant at approximately 8:50 p.m. and then left the room and consulted with Investigator Weather. The defendant was alone in the room.

At approximately 9:05 p.m. Investigator Weather and Benjamin returned to the conference room in which the defendant was seated. The investigator began revisiting the subject of Moraine Armstrong. The defendant stated to Investigator Weather that he had a difficult time remembering. The investigator suggested that the defendant close his eyes and try to remember. The defendant asked about an iron being involved in the death of Moraine Armstrong. The investigator replied that the defendant was correct. The defendant then confessed to the killing of Moraine Armstrong. The written statement was recorded in the same fashion as the previous statements. At approximately 9:50 p.m. Investigator Weather began recording the defendant's statement by writing the statement on paper. The defendant was allowed to review the statement once it was completed. Investigator Weather read the statement aloud and the defendant appeared to follow along. When Investigator Weather finished reading, the defendant was given the opportunity to make changes to the statement. The defendant declined to make any changes to the statement. The defendant signed the statement at approximately 10:20 p.m. Investigator Weather witnessed his signature by signing the statement.

Guy T. Storrs is an investigator who has been employed by the Town of Webster Police Department for nineteen years. On October 12, 2005 Investigator Storrs reviewed part of a "cold" case open investigation file concerning the death of Charles Grande that occurred in October of 1991 in the Town of Webster. He had not been involved in any previous questioning of Robert Spahalski in 1991. On November 8, 2005 Investigator Storrs was not aware that a letter had been written by Richard Marchese, Esq. to the Webster Police Department on October 10, 1991 which requested that the defendant not be questioned or put in a line-up concerning the [*9]death of Charles Grande. Investigator Storrs did discover the letter sent by Mr. Marchese to the Webster Police when he was preparing the case file to be presented to the Monroe County District Attorney's Office on or about November 15, 2005.

On November 8, 2005 Lieutenant Salvatore Simonetti of the Webster Police Department contacted Investigator Storrs at approximately 1:50 p.m. Lieutenant Simonetti informed the investigator that the defendant was at the Rochester Police Department headquarters, that he turned himself in, that he was being questioned by criminal investigators of the Rochester Police Department, and that he may have confessed to the murder of Charles Grande. Investigator Storrs went to the fourth floor of the Public Safety Building after learning this information. Upon arriving at the Public Safety Building, Investigator Storrs spoke with Captain Lynde Johnston of the Rochester Police Department at approximately 2:09 p.m. Captain Johnston told Ivestigator Storrs that investigators were talking with the defendant and that the defendant confessed to his involvement in the Charles Grande homicide. Investigator Storrs also met with Investigator Weathers and Benjamin. The Rochester Police Department investigators showed Investigator Storrs a four page written statement completed by the defendant. Investigator Storrs reviewed the statement shortly after 2:35 p.m. Investigator Storrs then left the Public Safety Building and returned to the Webster Police Department.

At approximately 7:30 p.m. on November 8, 2005 Investigator Weather contacted Investigator Storrs. Investigator Weather informed the Webster investigator that they had finished interrogating the defendant and that the defendant could be picked up for processing and arraignment in the Town of Webster. Investigator Storrs drove immediately to the Public Safety Building. The Rochester Police Department investigators were still interviewing the defendant. Investigator Storrs waited until 9:00 p.m. and then decided to return to the Webster Police Department. Investigator Weather called again at approximately 10:30 p.m. and told Investigator Storrs that they had completed the interview of the defendant. Investigator Storrs and Officer Fosdick of the Webster Police drove to the Public Safety Building. They took the defendant in custody and then drove to the Webster Police Department. The defendant was arraigned on November 9, 2005 at approximately 12:19 a.m. before Judge Corretore in Webster Town Court for the murder of Charles Grande. Investigator Storrs was present during the arraignment. When Judge Corretore entered a not guilty plea on the defendant's behalf, the defendant stated in open court "I'm guilty. I just want to get this over with." The defendant's statement was not made in response to any question by the court or by any of the officers in court during the arraignment.The court makes the following conclusions of law:

The above facts present an array of information integral to the court's suppression decision on the admissibility of identifications and statements by defendant to law enforcement officers over a span of fifteen yearsThe court will first address the legal issues related to identifications by the following witnesses: Ms. Rosesianna Brooks, Officer John Pinkitis, Mr. David Hulslander, and Mr. Allan Streeter. Each of the identification procedures employed by law enforcement officials related to this case were photographic array presentations. The law provides that in court identifications are admissible where a witness has viewed a police arranged photographic identification procedure only in situations where a court has heard the facts and determined that the People have satisfied the initial burden of lack of suggestiveness and the defendant has not demonstrated that the procedure utilized was unduly suggestive (see People v [*10]Chipps, 75 NY2d 327 [1990]). Identification procedures are not subject to suppression when the original photographic array could not be produced if the evidence at the hearing was sufficient to reconstruct the events concerning the photographic array identification, and the court makes a valid determination of the lack of suggestiveness (see People v Cordilione 154 AD2d 864 [3rd Dept 1990]). The court concludes as a matter of law that the People have proven that the photographic procedures in which each witness identified the defendant were not unduly suggestive. There was nothing inherently suggestive in any of the photographic arrays observed by the witnesses, nor was there anything inherently suggestive in the manner in which the photographic arrays were shown to the witnesses. There was no influence or suggestion on the part of any of the officers conducting the identification procedure. The procedure followed by each officer was neither tainted nor so conducive to create an irreparable harm of misidentification (see People v. Love, 57 NY2nd 1023 [1982]). Therefore, the court denies suppression of the identification of the defendant by any of the witnesses.

The defendant also challenges the voluntariness of multiple statements made by the defendant under a variety of circumstances. The law related to confessions and admissions is framed by the provisions of the United States and New York State Constitutions as interpreted by the federal and state courts. This standard is embodied in New York State Criminal Procedure Law that provides: 1. Evidence 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.2. 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; or (ii) in violation of such rights as the defendant may derive from the constitution of this state or of the United States."

(Criminal Procedure Law 60.45)

The defendant's primary challenge to the admissibility of his statements made to the police rests on his contention that his indelible right to counsel was violated when he was interrogated in the absence of an attorney. The Court of Appeals has found in the New York [*11]Constitution an expanded right to counsel that affords protections beyond the requirements of its federal counterpart (see, e.g., People v. Davis, 75 NY2d 517 [1990]). If the expanded right indelibly attaches, then any subsequent waiver of counsel elicited in the absence of an attorney is rendered ineffective (see People v. Settles, 46 NY2d 154 [1978]). New York's expanded right to counsel indelibly attaches when an accusatory instrument is filed against the suspect, initiating formal proceedings and converting any inquiry from investigative to accusatorial (Id at 162-163). If a felony complaint or an indictment is filed, a defendant, whether actually represented or not, may not effectively waive counsel or be questioned except in the presence of an attorney (see People v. Samuels, 49 NY2d 218 [1980]). New York's expanded right to counsel can also indelibly attach, whether a formal charge has or has not been filed, when an attorney representing a suspect enters the case in connection with the charges under investigation (see, e.g., People v. Grice, 100 NY2d 318 [2003]; People v. West, 81 NY2d 370 [1993]; People v. Hobson, 39 NY2d 481 [1967]), or if a suspect in custody requests a lawyer (see People v. Ramos, 99 NY2d 27 [2002]; People v. Cunningham, 49 NY2d 203 [1980]).

In the case before this court the defendant contends that his right to counsel indelibly attached based upon the unique set of facts relating to the submission of a letter by an assistant public defender to two police agencies concerning the representation of the defendant, Robert Spahalski, on an investigation of the murder of Charles Grande. While defense counsel asserts that the broad based language in the letter would prohibit the police from questioning the defendant regarding any murder investigations, there is little support for that in the record or in law. There is nothing in the record to indicate whether the defendant requested counsel or the attorney interposed himself into the situation when the defendant was questioned in 1991 regarding the death of Charles Grande. There is no evidence that the court assigned the Public Defender's Office to the case. Clearly, this contention is without merit as it relates to investigation of homicides unknown to the attorney or his client at the time and especially as it relates to the homicide committed subsequent to the assertion of representation by the attorney (see e.g. People v Campbell, 275 AD2d 984 [4th Dept 2000]).

The more difficult question before this court is whether the letter delivered to the police in October, 1991, constituted an indelible attachment of right to counsel as it relates to questioning regarding the homicide of Charles Grande some fourteen years later. Actual or constructive knowledge by interrogating police officers suffices to perpetuate the indelible right to counsel once attached. In assessing whether the police can be charged with knowledge that is, whether they reasonably should have known of counsel's entry a number of factors should be considered: the length of the passage of time; whether a record of the earlier communication exists in the files of the police agency conducting the questioning; whether the failure of such record to exist was the result of any bad faith on the part of police; whether any of the same officers were involved in the earlier and later investigations; whether any action was taken against the suspect in the aftermath of the original investigation; and whether the entering lawyer continued to have any contact with prosecuting authorities on the matter after the initial communication. (People v Bourgarzone-Suarrcy 6NY3d 787 [2007]) "Where a police officer does not know and cannot be charged with knowledge that the suspect has a lawyer, the officer has no obligation to refrain from asking questions" (People v Carranza, 3 NY3d 729, 730, 819 NE2d 997, 786 NYS2d 381 [2004]). [*12]

The record is devoid of any assertion by the defendant of his right to counsel either when questioned in 1991 or 2005. The assignment of counsel was not made or approved by a court. There is no evidence that the officers who spoke with the defendant had any knowledge of the letter wherein counsel asserted that he represented the defendant and asked that the police not question him. There is no reason to believe that the police should have otherwise been charged with the knowledge of representation especially after the passage of fourteen years since the letter was sent. The Rochester Police Department did not maintain a file on the Grande homicide case. In fact the homicide did not occur in the jurisdiction of the Rochester Police Department. In November 2005, the investigation of the Grande homicide no longer involved any of the original officers who had worked on the case in 1991. It is apparent, taking into account all of these factors, that the right to counsel was not violated in the context of the statements by the defendant to the police about the Grande homicide.

The defendant also argues that with respect to statements made prior to the administration of his rights he was in custody each time he gave a statement to an officer or investigator, and thus, in each instance, his statements were obtained by authorities in violation of his rights. When the issue of whether a person is in custody is in dispute, the resolution of that issue is measured by "what a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant's position" (People v Yukl, 25 NY2d 585, 589 [1969]; rearg denied 26 NY2d 883, cert denied 400 US 851; see also, People v Spina, 275 AD2d 902, 903 [4th Dept. 2000], lv denied 95 NY2d 969). Applying this standard after considering all of the circumstances, this court determines that an innocent person in the defendant's position could not have reasonably considered himself or herself in custody when the defendant gave statements to Investigator Campione on December 31, 1990, Investigator Barnes on July 21, 1991, Sergeant Wukitsch and Officer Lockhardt on July 13, 1992, Investigator Goater and Officer Wilson on July 23, 1998, and Officer Graves and Officer Baez on November 8, 2005. This court also determines an innocent person in the defendant's position could not have reasonably considered himself or herself in custody when the defendant gave statements to Investigators Weather, Cassidy and Dominick prior to being read his Miranda rights on November 8, 2005.

The facts support a finding that an innocent person in the defendant's position could not have reasonably considered himself or herself in custody when giving statements to Investigator Campione on January 1,1991, Sergeant Wukitsch and Officer Lockhardt on July 13, 1992, and Investigator Goater and Officer Wilson on July 23, 1998. The defendant's statements made on each of the dates occurred during police initiated stops. The statements were made in the context of a non-custodial investigatory inquiry by the officers. The interaction between the defendant and the officers in each instance was brief, and the defendant was free to leave each time.

An innocent person in the defendant's position could not have reasonably considered himself or herself in custody when the defendant made statements to Investigator Barnes on July 21, 1991 regarding the death of Adrian Berger. The defendant voluntarily accompanied the police to the Public Safety Building. The defendant was not handcuffed. He was not subjected to lengthy, coercive or accusatory questioning, and he was released after conclusion of the interview (see People v Rivera 285 AD2d 385 [1st Dept 2001]). Mere presence in a police station does not require a finding that the defendant was in custody (People v Dross 146 AD2d 783 [1st Dept [*13]1989]).

An innocent person in the defendant's position could not have reasonably considered himself or herself in custody when the defendant made statements to Officer Maria Graves and Officer Lourds Baez on November 8, 2005. In most cases, when a person confesses to a crime, that person could reasonably be considered in custody (see People v. Cleveland, 257 AD2d 689 [3rd Dept 1999]). However, the circumstances in this case warrant a different conclusion (see People v. Bongarzone-Suarrcy, 13 AD3d 385 [2nd Dept 2004] affd 6NY3d 787 [2007]). In this case the defendant clearly went to the police station on his own volition, made statements at his own insistence, and was not in custody or under arrest at any time before he made inculpatory statements. Miranda rights were not required to be given at this time (see Miranda v Arizona, 384 US 436 [1966]; People v Schompert, 19 NY2d 300 [1967]; People v Brown, 119 AD2d 684 [2nd Dept 1986]). The defendant's arguments that he was in custody and that he should have been read his Miranda rights once he confessed are without merit. The questioning by Officer Maria Graves and Officer Lourds Baez which followed the defendant's initial statements was not coercive or illegal, but rather investigatory. Neither officer knew if the defendant's statements were trustworthy. The officers were not investigating the subject murder, and did not know whether the murder had even occurred. Further, during the brief questioning that followed his admission, the defendant was not handcuffed and did not request to have an attorney or to leave the police station. Since the defendant was not in custody, his statements to Officer Maria Graves and Officer Lourds Baez are admissible.

An innocent person in the defendant's position could not have reasonably considered himself or herself in custody when the defendant made statements to Investigator Weather prior to the administration of Miranda warnings on November 8, 2005. The questioning by Investigator Weather following the defendant's admission was not coercive or illegal, but rather investigatory. The investigator did not know whether the defendant's statements were trustworthy. The investigator was not investigating the subject murder, and did not know whether the murder had even occurred. Further, during the brief questioning that followed his admission, the defendant was not handcuffed and did not request to have an attorney or to leave the police station. The investigator asked the defendant to accompany him to the fourth floor of the Public Safety Building. The defendant agreed to the request. The statements made by the defendant were not coerced.

An innocent person in the defendant's position could not have reasonably considered himself or herself in custody when the defendant made statements to Investigators Cassidy and Dominick in the waiting room on the fourth floor of the Public Safety Building prior to the administration of Miranda warnings on November 8, 2005. It is clear from the testimony at the hearing that most of the statements made during this time period were made voluntarily and spontaneously, and the conduct of the investigators was not reasonably likely to elicit an incriminating response. Some of the statements were made in response to Investigator Dominick who asked the defendant if he would sign a consent to search form. The court determines that the defendant's statements given in response to Investigator Dominick's request were statements obtained in a non-custodial investigatory setting. The information learned from the statements was freely provided by the defendant to the investigators. The defendant did not refuse to speak to the investigators and made no request for an attorney at any time during his time spent in the [*14]waiting room. Neither Investigator Cassidy or Investigator Dominick made any threats or promises to the defendant.

The court concludes as a matter of law that the People have proven beyond a reasonable doubt the voluntariness of the defendant's oral and written statements made to Investigators Weather, Benjamin, Cassidy, and Dominick on November 8, 2005 after the administration of the defendant's Miranda rights. The defendant was fully advised of his Miranda rights. The defendant indicated that he understood his rights and was willing to give up his rights and speak with the police. The voluntariness of the oral and written statements is apparent as demonstrated by the testimony of the investigators. The information contained in the statement was freely provided by the defendant who was cooperative during the interview and who was provided food and drink throughout the interview. The court, therefore, concludes that suppression of the defendant's oral and written statements made to the investigators is not warranted (CPL § 60.45).

On November 9, 1991 the defendant made a statement in the presence of Investigators Campione and Coleman as the investigators walked him to the booking office. Volunteered statements are admissible provided the defendant's statement was genuinely spontaneous, and not due to inducement, provocation, encouragement or acquiescence (see People v. Maerling, 46 NY2d 289 [1978]). The court must objectively determine whether defendant's statement can be said to have been triggered by police conduct that should reasonably have been anticipated to evoke a statement from defendant (see People v. Lynes, 49 NY2d 286 [1980]). The court determines the statement made by the defendant to Investigators Campione and Coleman was made voluntarily and spontaneously, and the conduct of the investigators was not reasonably likely to elicit an incriminating response. There was no evidence that the statement was in response to an police inquiry or the functional equivalent of police interrogation. The court concludes that the defendant's statement made while he was with the investigators on his way to the booking office was spontaneous (see People v Harris, 57 NY2d 335 [1982]; People v Plater, 235 AD2d 597 [3rd Dept 1997]; People v River, 83 AD2d 35 [3rd Dept 1981]).

Another issue raised by the defendant concerns the in-court statement made by the defendant after being arraigned in Webster Town Court on the charge of Murder in the Second Degree. A person's right to counsel attaches at his arraignment, and statements made by a person after his or her right to counsel has attached are inadmissible at trial unless the right to counsel has been waived in the presence of counsel (see People v. Samuels, 49 NY2d 218 [1980]). This rule does not apply to statements that are genuinely, spontaneously volunteered, and not due to inducement, provocation, encouragement or acquiescence (see People v. Gonzales, 75 NY2d 938 [1990]; People v. Maerling, 46 NY2d 289 [1978]). Spontaneous, inculpatory statements can be determined admissible after the indelible right to counsel has attached (see People v. Lynes; People v. Roucchio, 52 NY2d 759; People v. Rivers, 56 NY2d 476; People v. Ellis, 58 NY2d 748) This court determines that the statements made by the defendant in open court were clearly spontaneous, voluntary, and initiated by the defendant. The conduct of Webster Town Court and the police detaining the defendant during his arraignment was not reasonably likely to elicit an incriminating response from the defendant. Therefore, this court determines that the statements made by the defendant in open court before Webster Town Court are admissible.

In summary ,the court concludes after a careful analysis of the evidence and facts in this [*15]case that all of the identification procedures employed by the police were performed in accordance with the law and were not suggestive. After reviewing each of the statements given by the defendant to the police, and taking into consideration all of the circumstances relating to the defendant giving each statement, this court determines that defendant's statements made to police authorities in each instance were voluntary in the sense that the police made no threats or promises to defendant, and did not use physical force or intimidation against him to obtain any of the statements given to the police (see CPL § 60.45).

Therefore, the defendant's motion for suppression of evidence is denied in all

respects.

This shall constitute the decision and order of the court.

Dated this 22nd day of August, 2006 at Rochester, New York.

________________________________

PATRICIA D. MARKS

COUNTY COURT JUDGE