People v Salmon

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[*1] People v Salmon 2006 NY Slip Op 52338(U) [13 Misc 3d 1244(A)] Decided on November 30, 2006 Supreme Court, Kings County Collini, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 30, 2006
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Martin Salmon, Defendant.



6102-2005

Robert J. Collini, J.

The defendant is charged with one count of intentional murder (PL 125.25). A Huntley/Mapp hearing was held, on consent of the parties. Testimony was taken on April 7, 2006, and on May 24, 2006. Oral arguments were heard on November 8, 2006. This decision supplements the court's oral decision denying suppression.

At the hearing, the People presented only one witness, Detective Douglas Connors. I found his testimony to be credible and reliable.

FINDINGS OF FACT

Detective Connors has been employed by the New York City Police Department for twelve years, the last five as a detective. He currently works out of the 75th precinct.

On August 11th, 2005, shortly after 9:30 AM, Detective Connors and his partner, Detective Mullins, were driving on Atlantic Avenue when they received a radio transmission that an unconscious female had been discovered at 745 Blake Avenue, in Brooklyn. Detective Connors drove to the location, arriving at approximately 10:15 AM. The ground floor of 745 Blake Avenue contained two private apartments and a day care center.

Upon entering the first floor, Detective Connors observed the deceased lying in the fetal position under a stairway that was about five feet from the door to the day care center. Blood surrounded the victim's head and her pants and panties had been pulled down to the middle of her thighs. She had what appeared to be a woman's belt wrapped around her neck. There appeared to be massive head trauma, puncture wounds to her face and slashing-type wounds to her neck. Upon further examination, Detective Connors discovered a bloody, used condom in the courtyard of the building. The exit that led to the courtyard was next to the descendant's body.

At approximately 10:25 AM, Detective Connors spoke to witness one.[FN1] This witness had left for work that morning at approximately 4:45 AM. As she was walking east on Blake [*2]Avenue, she passed an alley just east of her building.[FN2] In the alley, she observed a dark-skinned male black, about 5'8" to 5'10", weighing about 250 pounds, wearing a light blue shirt over a light colored t-shirt and black shorts. He had a very short fade haircut. This man was walking towards witness one, carrying a plastic bag. Witness one continued to her car and drove away, unaware that someone had been killed nearby.

On August 15, 2005, Detective Connors re-interviewed witness one after she reported to the police that she had just seen the same dark-skinned male coming out of the day care center. At the time of her call, he was standing outside of her building, talking to another individual. Witness one reported that when she made eye contact with the male she had been observing, he began walking south-bound on Miller Avenue.[FN3]

Later that day, Detective Connors spoke with witness two. This witness told Detective Connors that he had come home from work around 7 PM and had noticed a heavy-set black male using a key to gain entry into the day care center. Witness two walked towards the day care center and engaged the heavy-set male in conversation after the latter exited the location.[FN4] Witness two described the heavy-set male as nervous and suspicious. Witness two went into his building to speak to witness one. Witness one then came outside of her building and made eye contact with the heavy-set male, who proceeded to run down Miller Street.

On August 16, 2005, Detectives Connors and McDonough were escorted into the day care center by Ms. Lomas, the head supervisor. Ms. Lomas told Detective Connors that only three people had keys to the day care center: Mr. Miller [FN5], the defendant, Martin Salmon, and herself.

Upon entering the building, Detective Connors saw blood splattered on the floor, walls, ceiling, file cabinets, inside the bathroom and on the fire extinguisher. He also saw faded paint where it appeared the walls had been scrubbed with a cleaning agent. On one of the walls, where children's artwork was displayed, Detective Connors discovered a note, dated August 10, 2005, at 8:30 PM. The note stated: "I'm sorry about the artworks. I was trying to kill 4bee." [FN6] The note was signed with the defendant's name and contained his telephone number. Ms. Lomas told Detective Connors that the defendant was the maintenance man for the day care center.

The following day, at approximately 2 PM, Detective Iulo called the defendant. The defendant stated that, at the request of Ms. Lomas, he was on his way to the police precinct to speak with the detectives. While Detective Iulo was still speaking with the defendant, Detective Connors went to the entrance to the precinct and saw the defendant walking towards the precinct.

Detective Connors greeted the defendant and accompanied him upstairs to the detective squad.[FN7] The defendant was brought into an interview room. Detective Connors told the defendant that he was investigating what had happened at 745 Blake Avenue and advised him [*3]that, as part of his investigation, he was taking DNA swabs from every individual who worked in the building. The defendant agreed to providing an oral swab. He was then given a consent form to read and to sign.[FN8] Detective Connors read the consent form to the defendant and then gave the document to the defendant. The defendant signed the document, signifying his consent to the taking of an oral DNA sample.

After Detective Eggers took the oral swab, Detective Connors asked the defendant if he knew what had happened at 745 Blake Avenue.[FN9] The defendant initially stated he didn't know what happened. He stated that his boss had informed him that a female had been discovered in the stairwell. Detective Connors told the defendant that he believed that the defendant knew more about what happened than he had just disclosed.

The defendant then stated that he was walking home on Saratoga Avenue when he fumbled his keys and some money to the ground. The decedent picked up the money and stashed it into her pocketbook. The defendant and the decedent began to argue over the money. The decedent hailed a taxi and she and the defendant entered the cab and drove towards 745 Blake Avenue. The decedent told the defendant that she needed to use a bathroom. The defendant was initially hesitant to let her use the restroom at 745 Blake Avenue. Since the decedent persisted, the defendant ultimately relented and unlocked the door to the premises. The decedent remained in the day care center's bathroom for an inordinate amount of time. When the defendant went to check on her, he discovered that she was smoking crack cocaine. The defendant demanded his money back. In an effort to sooth the defendant's anger, the decedent placed a condom on his penis and performed oral sex. After she was finished, the defendant reiterated his demand for the return of his money. He and the decedent argued. The argument got physical. The defendant pulled out a knife. The decedent struggled to take the knife away. The defendant grabbed the decedent's arms and tied them tight to her body, using her belt. The decedent continued to struggle, eventually falling down. When she fell, the belt slipped up to her neck. By the time the defendant realized what had happened, the decedent was unconscious. The defendant became scared, so he locked the door to the outside and placed the decedent underneath the hallway stairs. He then went back inside the day care center and attempted to clean up the blood.

Immediately after the defendant made this statement,[FN10] Detective Connors read the defendant the Miranda warnings from a pre-printed document.[FN11] The defendant signed and dated the Miranda warnings and repeated the statement he had just made. During the course of this statement, Detective Connors asked some follow-up questions. This interrogation took approximately forty minutes.

At approximately 4:00 PM, about ten minutes after making his latest oral statement, the defendant was given a pen and paper and was asked to draft a written statement.[FN12] The defendant [*4]then wrote a written statement, which mirrored his previous oral statements. This process took approximately one hour.

At approximately 6:00 PM, Detective Connors noticed what appeared to be bloodstains on the defendant's work boots. The boots were vouchered and sent to the police lab for a blood analysis.[FN13]

At approximately 9:30 PM, the defendant made a videotaped statement in the presence of Assistant District Attorney Timothy Gouth.[FN14] The videotaped statement was consistent with the defendant's earlier statements. After his videotaped statement, at approximately 10:00 PM, the defendant was advised, for the first time, that he was under arrest.

While the defendant was at the 75th precinct, he ate a turkey hero and drank some orange juice. His wife also brought him some home cooked food, which he was allowed to eat. The defendant went to the bathroom three times during the length of his stay at the precinct. He never asked for a lawyer, nor did he refuse to answer any question.

CONCLUSIONS OF LAW

Defendant seeks suppression of his oral, written and videotaped statements, claiming his initial two oral statements (one of which was exculpatory) were made prior to being apprised of his rights under Miranda v Arizona (384 US 436). Since those initial statements were made without the benefit of Miranda warnings, defendant claims the subsequent, post-Miranda statements must also be suppressed because they were tainted by the prior, unwarned statements.

When a suspect in custody makes an inculpatory statement, in response to police interrogation, without having first been advised of his Miranda warnings, subsequent statements made after the issuing of Miranda warnings are admissible only if there is a definite, pronounced break in questioning sufficient to return the defendant to the status of one who is not under the influence of questioning (People v Paulman, 5 NY3d 122, 130; People v Berthea, 67 NY2d 364, 367; People v Chapple, 38 NY2d 112, 114; People v Celleriegas, 29 AD3d 707, 708, lv denied 7 NY3d 786; People v Morales, 25 AD3d 624, 625, lv denied 6 NY3d 815). The defendant before this court claims all of his inculpatory statements must be suppressed because his initial inculpatory statement was made prior to his having been advised of his Miranda rights.

In opposing the defendant's motion to suppress, the People claim the defendant was not in custody at the time he made his initial, inculpatory statement, thereby bypassing the requirement that he be issued Miranda warnings. Since the later statements were made after the issuing of Miranda warnings and since the initial statements were made prior to the defendant being placed in custody, the People argue that suppression is not required.

The Miranda rule was recently summarized by our Court of Appeals:

The Miranda rule protects the privilege against self-incrimination and "because the privilege applies only when an accused is 'compelled' to testify, the safeguards required by Miranda are not triggered unless the suspect is subject to 'custodial interrogation'" (People v Berg, 92 NY2d 701, 704). The standard for assessing a suspect's custodial status is whether a reasonable person, innocent of any wrongdoing would have believed that he or she was not free to leave (see People v Harris, 48 NY2d 208, 215; People v Yukl, 25 NY2d 585, 589, cert denied 400 US 851). [*5]

(Paulman, 5 NY3d at129)(see also People v Tankleff, 84 NY2d 992, 994).

The factors to be considered to determine whether a suspect is in custody include: (1) the amount of time spent with the police; (2) whether the suspect's freedom of action was restricted; (3) the location and atmosphere under which the questioning took place; (4) the suspect's degree of cooperation; (5) whether constitutional rights were administered; and (6) whether the questioning was investigatory or accusatory in nature (People v Centano, 76 NY2d 837, 838; People v Hardy, 223 AD2d 839, 840; People v Macklin, 202 AD2d 445, 446, lv denied 83 NY2d 912; People v Bailey, 140 AD2d 356, 358). These factors are all to be considered but none are, in and of themselves, dispositive. The court must look to the totality of the circumstances (Stansbury v Caliornia, 511 US 318, 322; People v Coggins, 234 AD2d 469, 470).

"The burden of proving custody for Miranda purposes rests with the defendant, at least where the defendant is not already incarcerated at the time of the interrogation" (People v Colon, 5 Misc 3d 365, 376 [Sup Ct, NY County 2004]).

In applying the relevant factors to the facts before this court, the defendant has failed to establish that he was in custody prior to the administration of Miranda warnings. The defendant came to the precinct voluntarily, at the request of his employer. The defendant was already within sight of the precinct when Detective Iulo contacted him via telephone. During the initial questioning, there was no intrusive police conduct that would lead a reasonable person, innocent of any crime, from believing that he was not free to leave. The defendant was with the police for less than an hour before he had made his first incriminating statement and was then promptly read his Miranda warnings. The initial interview was comprised of merely investigatory questioning. Although the police never told the defendant that he was free to leave the precinct, the defendant never inquired about the possibility of doing so (People v Woroncow, 191 AD2d 530, 531, lv denied 81 NY2d 1082, cert denied 510 US 970). During the entire investigation, the defendant was never placed in handcuffs, nor restrained or searched.[FN15] The questioning took place in an interview room, not in a jail cell or holding pen. The defendant was informed that the police were questioning everybody who worked at the day care center and was advised of his right to refuse providing a DNA sample. Apart from his initial statement claiming a lack of personal knowledge about what had happened at 745 Blake Avenue, the defendant was cooperative and appeared anxious to tell his side of the story. The defendant was given sufficient breaks to go to the bathroom, was provided food to eat and was even permitted to eat a meal prepared by his wife.[FN16]

It is undisputed that the defendant was subjected to police interrogation. However, since he was not in custody during his initial pre-Miranda statements, Miranda warnings were not required. Since Miranda warnings were not required for the initial statements, defendant's subsequent post-Miranda statements were not tainted by any impropriety during defendant's initial pre-Miranda admissions (People v Harris, 77 NY2d 434, 437; Bethea, 67 NY2d at 367-368; People v Tanner, 30 NY2d 102, 106-107).

Accordingly, the defendant's motion to suppress his oral, written and videotaped statements is hereby denied. [*6]

When a defendant seeking suppression of physical evidence has put forward sufficient factual allegations to warrant a pre-trial Mapp hearing, such defendant "bears the ultimate burden of proving that the evidence should not be used against him" (People v. Berrios, 28 NY2d 361, 367). Although a defendant carries the burden of proof at a suppression hearing, "the People are nevertheless put to the burden of going forward to show the legality of the police conduct in the first instance'" (Berrios, 28 NY2d at 367, citing People v Malinsky, 15 NY2d 86, 91, n 2; People v Whitehurst, 25 NY2d 389, 391)(emphasis in original).

A Mapp hearing was granted with respect to the boots that were vouchered. The defendant contends the police did not have probable cause to voucher his boots.

Probable cause requires the existence of facts and circumstances which, when viewed as a whole, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense has been or is being committed, and that the defendant committed or is committing that offense (People v Bigelow, 66 NY2d 417, 423; People v McRay, 51 NY2d 594, 602; People v Hicks, 287 AD2d 649, 649; People v Guo Fai Liu, 271 AD2d 695, 696, lv denied 95 NY2d 866). A finding of probable cause does not, however, require the same quantum of proof necessary to sustain a conviction, or to establish a prima facie case (Bigelow, 66 NY2d at 423; McRay, 51 NY2d at 602). Rather "it need merely appear more probable than not that a crime has taken place and that the one arrested is its perpetrator" (People v Hill, 146 AD2d 823,824, lv denied 73 NY2d 1016; see also People v Attebery, 223 AD2d 714,715, lv denied 88 NY2d 844). Moreover, in determining whether a police officer has probable cause for an arrest, "the emphasis should not be narrowly focused on ... any ... single factor, but on an evaluation of the totality of circumstances, which takes into account the realities of everyday life unfolding before a trained officer who has to confront, on a daily basis similar incidents'" (People v Bothwell, 261 AD2d 232,234, lv denied 93 NY2d 1026, quoting People v Graham, 211 AD2d 55,58, lv denied 86 NY2d 795).

After the defendant made his written statement, the police clearly had probable cause to arrest him. The vouchering of the boots, after Detective Connors noticed what appeared to be bloodstains, was legal as a search incident to a lawful arrest (Chimel v California, 395 US 752, 762-763; People v Gokey, 60 NY2d 309, 312; People v Belton, 55 NY2d 454, 458) and because the boots contained evidence that was in plain view (Coolidge v New Hampshire, 403 US 443, 465-471; People v Spinelli, 35 NY2d 77, 80-81).

Accordingly, the defendant's motion to suppress the recovery of his boots is denied.

For the reasons stated herein, the defendant's motions to suppress both the physical evidence recovered on his person and the statements he made during the course of the police investigation are hereby denied.

This constitutes the decision, opinion and order of the court.

________________________ [*7]

JSC

Dated: November 30, 2006

Brooklyn, New York Footnotes

Footnote 1:Names were omitted in order to protect the identity of each civilian witness.

Footnote 2:The alley led to the rear courtyard and side entrance to the day care center at 745 Blake Avenue.

Footnote 3:A canvas of the area, with witness one, proved unsuccessful.

Footnote 4:During this conversation, the heavy-set male stated that this wasn't the first time that something strange had happened at an Urban Strategies building.

Footnote 5:Mr. Miller was described as a black male, approximately 6', weighing 200 pounds.

Footnote 6:Although grammatically incorrect, this was how the note read.

Footnote 7:The defendant was not handcuffed, nor restrained.

Footnote 8:Introduced into evidence as People's exhibit 2.

Footnote 9: Detective McDonough was also present during the initial questioning of the defendant.

Footnote 10:After making this inculpatory statement, Detective Connors would no longer have allowed the defendant to leave the precinct, if he sought to do so. He did not communicate this to the defendant in any way, however.

Footnote 11:People's exhibit 3.

Footnote 12:People's exhibit 4.

Footnote 13:The results were positive for human blood.

Footnote 14: People's exhibit 5.

Footnote 15:Defendant's boots were ultimately vouchered as evidence prior to the videotaped statement.

Footnote 16:The defendant did not testify at the hearing and presented no witnesses to controvert the testimony of Detective Connors.



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