People v Tolson

[*1] People v Tolson 2007 NY Slip Op 51404(U) [16 Misc 3d 1113(A)] Decided on July 23, 2007 Nassau Dist Ct Engel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 23, 2007
Nassau Dist Ct

People of the State of New York,

against

Michael Tolson, Defendant.



2007NA002919



Attorneys for Plaintiff: Hon. Kathleen Rice, Nassau County District Attorney

David Arias, Esq., Assistant District Attorney

Attorneys for Defendant: James A. Pascarella, Esq. -The Pascarella Law Firm, PLLC

Andrew M. Engel, J.

The Defendant is charged with Menacing in the Third Degree, pursuant to Penal Law § 120.15.

Pursuant to stipulation of the parties, a Huntley hearing was held on June 14, 2007, limited to the issue of the voluntariness of a statement attributed to the Defendant at or about the time of his arrest and whether such statement was obtained in the setting of a custodial interrogation, in violation of the Defendant's Fifth Amendment rights.

It being alleged that the statement attributed to the Defendant is the result of a custodial interrogation, the People bear a heavy burden in demonstrating that the Defendant made a voluntary, knowing and intelligent waiver of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). See also: North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755 (1979); People v. Ramos, 40 NY2d 610, 389 NYS2d 299 (1976). In deciding whether or not this burden has been met, "the courts must indulge every reasonable presumption against waiver (citation omitted)." People v. Davis, 75 NY2d 517, 523, 554 NYS2d 460, 464 (1990); See also: Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019 (1938); People v. Ringer, 140 AD2d 642, 528 NYS2d 674 (2nd Dept. 1988) The People must also prove the voluntariness of the statement beyond a reasonable doubt before its admission into evidence before the jury on the People's case in chief at trial. People v. Huntely, 15 NY2d 72, 255 NYS2d 838 (1965); People v. Valeruis, 31 NY2d 51, 334 NYS2d 871 (1972); People v. Anderson, 42 NY2d 35, 396 NYS2d 625 (1977).

In an attempt to meet its burden, the People called Detective William Russ to testify. After listening to Detective Russ and observing his demeanor, the court finds his testimony to be credible. Detective Russ testified that he has been employed by the Nassau County Police Department for almost fifteen years. During this time, Detective Russ made more than one hundred arrests prior to the Defendant's arrest on January 31, 2007.

According to Detective Russ, on January 31, 2007 he was assigned to the Eighth Squad and his duties included investigating crimes that were committed in the Eighth Precinct in Nassau County. Detective Russ testified that he was on duty at approximately 1:50 a.m. when he had occasion to meet the Defendant, who had surrendered himself, at the Eighth Precinct and place him under arrest. Detective Russ indicated that his partner, Detective Fuina was with him at that time. Detective Russ was not in uniform and identified himself to the Defendant. After the [*2]Defendant was placed under arrest, Detective Russ and his partner took the Defendant upstairs to the Eighth Squad Room.

The room to which the Defendant was taken was a little larger than thirteen feet by ten feet and contained a bench and two desks. The Defendant had one hand handcuffed to a bench; Detective Russ most likely was sitting at one desk five feet away; and, his partner was sitting at the other desk. Detective Russ testified that he and his partner locked their weapons away in a locker.

According to Detective Russ, at approximately 2:05 a.m. he advised the Defendant of his Miranda rights. Detective Russ testified that, reading from a card, which was received in evidence as People's Exhibit 2, he advised the Defendant of the following:

Before asking you any questions, you should understand you have the right to remain silent and that any statement you make may be used against you in court.

Also, you have the right to talk to a lawyer before answering any questions or to have a lawyer present at any time. If you cannot afford to hire a lawyer, one will be furnished for you.

If you wish, you have the right to keep silent until you have the chance to talk to a lawyer.

Do you understand? (Hearing Transcript, P. 11, L. 14-23)

It is noted that this is the exact language contained on the top half of the card received as People's Exhibit 2, appearing under a heading "NOTIFICATION OF RIGHTS PRIOR TO CUSTODIAL INTERROGATION." (bold in original)

Detective Russ testified that he had placed an "X" following the question, "Do you understand," as well as other questions on the card to be discussed hereinafter, and that after this question was read to the Defendant, the Defendant placed his initials on the card. Detective Russ further testified that he then asked the Defendant if he wanted to answer any questions (Hearing Transcript, P. 12 L. 7) and had him sign the rest of the card. The top half of the card, which was read to the Defendant, (Hearing Transcript, P. 18 L. 18), also contained the question, "Now that I have advised you of your rights, are you willing to answer questions?" Next to that question there appears an "X," which Detective Russ stated he placed there, the word "YES," which Detective Russ testified was placed there by the Defendant, and the Defendant's initials, which were placed there by the Defendant as well.Below this question there appears on the card admitted as People's Exhibit 2, commencing in the middle of the card, the following pre-printed language:

NOTIFICATION OF RIGHTS

ACKNOWLEDGMENT AND WAIVER

CUSTODIAL INTERROGATION - WRITTEN STATEMENTS

I have been told by the (Detective - Police Officer) that I have the right to remain silent and that any statements I make may be used against me in court. I have been told that I have the right [*3]to talk with a lawyer before answering any questions or to have a lawyer present at any time. Further, I have been advised that if I cannot afford to hire a lawyer, one will be furnished me and I have the right to keep silent until I have had the chance to talk with a lawyer.

I understand my rights and make the following statement freely and voluntarily. I am willing to give this statement without talking with a lawyer or having one present.

Detective Russ testified that he did not read this portion of the card to the Defendant, but explained it to him and handed the card to the Defendant, who read both the top and bottom portions and wrote "NO," signing his name thereafter, following the last question. The card was also signed by Detective Russ and his partner.

Detective Russ testified that he understood the bottom half of the card to relate to written statements only, but acknowledged that the bottom portion of the card could be taken to mean that the Defendant did not wish to speak to the Detective without an attorney present. Detective Russ further testified that "[he] asked [the Defendant] Do you want to say anything about what happened that night,' and he said, Yes.' Do you want to give a written statement?' He says, No.'" (Hearing Transcript, P. 21 L 2) Detective Russ also offered the following testimony on re-direct examination:

QDid he [the Defendant] then - - did he read the whole card at one time?

AI read the top part to him, and I asked him to sign it, and then after he read it, I said, You want to make a statement?' that's when he told me, I don't want to make any statements, written statements.'

QDid you ask him - - did you clarify written statement?

AYes, I did. (Hearing Transcript, P. 26 L. 10 - 19)

and the following testimony on re-cross examination:

QIs it your testimony that he agreed not to give a written statement but just agreed to speak with you about it?

AYes.

QYou did not, Detective, clarify that - - withdrawn. Did you have a conversation with the defendant about his "No" answer"

AI asked him if he wanted to make a written statement.

QPlease answer the question. Did you have a conversation - -

AYes, I did. [*4]

QWhat did the conversation consist of?

AI asked him, Do you want to make a written statement, put this on paper, what you did?' He said, No." (Hearing Transcript, P. 27 L. 19-25 and P. 28 L. 2 - 11)

According to Detective Russ, following these exchanges, he then asked the Defendant, "what happened that night[;]" (Hearing Transcript, P. 12 L. 23) to which the Defendant responded, "I just gave her a little slap in the face. I shouldn't have done it." This statement was made at about 2:15 a.m., approximately ten minutes after the Defendant was read his Miranda rights. Detective Russ further testified that he was satisfied the Defendant could understand English; that neither he nor his partner made any threats towards the Defendant, made any promises to the Defendant or used any force against the Defendant; and that, at no time, did the Defendant ask to speak to an attorney.

The Defendant acknowledges that the heading above that section of the Miranda card displayed to him, which is followed by his refusal to give a statement without talking to a lawyer or having one present, refers to "WRITTEN STATEMENTS." The Defendant argues, however, that there is not evidence he ever read that heading. Additionally, the Defendant argues that the last statement on the card, to which the Defendant responded "NO," does not differentiate between oral or written statements, referring only to "statements," and could be interpreted as an indication by the Defendant that he did not wish to even speak to the detective without an attorney present. Finally, the Defendant posits that his assent to answer questions on the top of the card notwithstanding, he has the right to withdraw that consent at any time, and did so after reading the last paragraph on the card and indicating that he did not wish to make a "statement" without consulting a lawyer or having one present.

The People do not contest that the statement in question was elicited as the result of a custodial interrogation. They argue, however, that the Defendant was properly read his Miranda rights and knowingly, intelligently and voluntarily waived those rights before he was questioned. While the People concede that there is a certain amount of ambiguity in the Miranda card used, given the fact that the last question on the card, under the heading of "WRITTEN STATEMENTS," only asks the Defendant if he is willing to make a "statement without talking with a lawyer or having one present," without making any specific reference to a "written statement," they argue that the ambiguity between the Defendant's negative response to this question and his positive response to the inquiry on the top of the card concerning his willingness to speak was resolved by the Defendant's verbal statement that he was willing to talk to the police but was not willing to put anything in writing without consulting an attorney or having one present.

"In this State, the right of a criminal defendant to interpose an attorney between himself and the sometimes awesome power of the sovereign has long been a cherished principle[,]" People v. Settles, 46 NY2d 154,160, 412 NYS2d 874, 877 (1978); People v. West, 81 NY2d 370, 599 NYS2d 484 (1993); People v. Jones, 2 NY3d 235, 778 NYS2d 133 (2004), requiring "the highest degree of vigilance." People v. Cunningham, 49 NY2d 203, 207, 424 NYS2d 421, 423 (1980); People v. Harris, 77 NY2d 434, 568 NYS2d 702 (1991); People v. Ramos, 99 NY2d 27, 473 NYS2d 139 (2002). If a defendant "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." Miranda v. Arizona, supra . at p. 444-445, 86 S.Ct. at p. 1612; People v. Buxton, 44 NY2d 33, 403 NYS2d 487 (1978). [*5]Similarly, once an individual "exercises his right to remain silent, the police must scrupulously honor that decision and questioning must cease." People v. Kinnard, 62 NY2d 910, 912, 479 NYS2d 2, 3 (1984); People v. Ferro, 63 NY2d 316, 482 NYS2d 237 (1984) cert den. 472 U.S. 1007, 105 S. Ct. 2700 (1985)

Before a defendant's right to counsel will attach, he must request counsel in a clear and unequivocal manner. People v. Hicks, 69 NY2d 969, 516 NYS2d 648 (1987); People v. Rowell, 59 NY2d 727, 463 NYS2d 426 (1983); People v. Dallio, 256 AD2d 417, 682 NYS2d 233 (2nd Dept. 1998). So too for his invocation of his right to remain silent. People v. Felton, 264 AD2d 632, 696 NYS2d 11 (1st Dept. 1999) lv. den. 94 NY2d 822, 702 NYS2d 592 (1999); People v. Logan, 19 AD3d 939, 797 N.Y.S.2d 634 (3rd Dept. 2005) lv. den. 5 NY3d 830, 804 NYS2d 44 (2005); People v. Lowin, 36 AD3d 1153, 827 NYS2d 782 (3rd Dept. 2007) Whether or not a defendant's request is clear and unequivocal is a mixed question of law and fact, People v. Glover, 87 NY2d 838, 637 NYS2d 683 (1995); People v. Jones, 21 AD3d 429, 799 NYS2d 783 (2nd Dept. 2005), to be determined on the particular facts and circumstances presented, taking into consideration the defendant's background, experience, conduct, demeanor, manner of expression and the particular words used by the defendant. North Carolina v. Butler, supra .; Johnson v. Zerbst, supra .; People v. Glover, supra .; People v. Griffin, 186 AD2d 820, 589 NYS2d 501 (2nd Dept. 1992); People v. Rose, 204 AD2d 745, 614 NYS2d 258 (2nd Dept. 1994)

Examining the facts and circumstances presently before the court, there is no question that the Defendant was properly read his Miranda rights and initially offered a clear and unequivocal waiver of his right to counsel and to remain silent. The rights were not only read to him, but he was given the opportunity to read the card himself and thereafter initialed that he understood his rights and affirmatively indicated that he was willing to answer questions. See: People v. Barksdale, 140 AD2d 531, 528 NYS2d 419 (2nd Dept. 1988) lv. den. 72 NY2d 915, 532 NYS2d 849 (1988); People v. Valverde, 13 AD3d 658, 789 NYS2d 62 (2004) lv. den. 4 NY3d 836, 796 NYS2d 591 (2nd Dept. 2005) If this were all that had transpired the voluntariness of the Defendant's statement following a waiver of his rights would not require any further inquiry. As previously indicated, however, the Defendant also, very clearly, asserted his right to refuse to make any "statement,"after being given the opportunity to review the Miranda card in its entirety.

The ambiguity or apparent inconsistency in the Defendant's responses were not of the Defendant's making, as he answered rather emphatically, "YES" he was willing to answer questions and "NO" he was not willing to give a "statement without talking with a lawyer or having one present[,]" as those questions were posed to him. The ambiguity or apparent inconsistency was created by the language used on the Miranda card employed by Detective Russ. The top half of the card, which was read to the Defendant clearly refers to "any statements." Similarly, the bottom half of the card, which the Defendant read to himself [FN1], also refers to "any statements," although it is preceded by a heading referring to "WRITTEN STATEMENTS."[FN2] There is no indication on its face, [*6]as argued by the Defendant, as to whether after the Defendant read the card he, at the last opportunity, invoked his right to remain silent and to counsel. If that was the case, once invoked, the right to counsel could not be waived in the absence of counsel, People v. Esposito, 68 NY2d 961, 510 NYS2d 542 (1986); People v. Cunningham, supra ., and the right to remain silent should have been honored. People v. Kinnard, supra .; People v. Ferro, supra . This notwithstanding, the ambiguity and apparent inconsistency on the face of the card remains.

In Davis v. U.S., 512 U.S. 452, 461, 114 S. Ct. 2350, 2356 (1994) the court noted "when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to ask clarifying questions." The court in People v. Woodard, 64 AD2d 517, 406 NYS2d 790 (1st Dept. 1978) went even further, particularly where the ambiguity, as herein, was created by the law enforcement authorities, holding that the People have the obligation to protect the defendant's rights and clearly explain those rights to the defendant, clearing up any ambiguity they created. It is the opinion of this court that this is precisely what done by Detective Russ.

While Detective Russ did not read the bottom half of the card to the Defendant, he did explain it to him. (Hearing Transcript, P. 22 L. 23 - P. 23 L. 2) Moreover, before any questioning began, as clearly indicated by Detective Russ' testimony, he clarified with the Defendant that by his written responses on the Miranda card the Defendant was willing to speak with him but would not give a written statement. See: Connecticut v. Barrett, 479 U.S. 523, 529 107 S. Ct. 828, 832 (1987):

But we know of no constitutional objective that would be served by suppression in this case. It is undisputed that Barrett desired the presence of counsel before making a written statement. Had the police obtained such a statement without meeting the waiver standards of Edwards, it would clearly be inadmissible. Barrett's limited requests for counsel, however, were accompanied by affirmative announcements of his willingness to speak with the authorities. The fact that officials took the opportunity provided by Barrett to obtain an oral confession is quite consistent with the Fifth Amendment. Miranda gives the defendant a right to choose between speech and silence, and Barrett chose to speak.

In his concurring opinion, Mr. Justice Brennan noted that the defendant "understood his Miranda rights, i.e., he knew that he need not talk to the police without a lawyer present and that anytning he said could be used against him. Under these circumstances, the waiver of the right to silence and the limited invocation of the right to counsel were valid." id. at p. 531, 107 S.Ct. p. 833.[FN3] See also: People v. Hendricks, 90 NY2d 956, 665 NYS2d 45 (1997) wherein, as here, the defendant wrote "yes" on the Miranda card after being asked if he was willing to answer questions, but indicated that he would not provide a written statement. The court found, "At best, when viewed in context, the defendant merely conditioned the kind of statement that he was willing to give."

Significant in the court's determination in Hendricks, that the defendant waive his right to remain silent, with regard to answering the officer's questions, is the fact that "he freely talked." id. [*7]at p. 79, 646 NYS2d at p. 848. In the case sub judice, after Detective Russ confirmed that the Defendant was willing to answer questions but would not provide a written statement and asked the Defendant, "What happened that night[,]" the Defendant freely responded, without hesitation, "I just gave her a little slap in the face. I shouldn't have done it." The uncontroverted testimony demonstrates that the Defendant was not threatened, coerced, tricked or promised anything to elicit a response. Having been informed of his Miranda rights and indicating his understanding of them, his explicit waiver of those rights notwithstanding, by continuing to voluntarily speak to Detective Russ, the Defendant implicitly waived his rights. North Carolina v. Butler, supra .; People v. Hastings, 282 AD2d 545, 722 NYS2d 759 (2nd Dept. 2001); People v. Brand, 13 AD3d 820, 787 NYS2d 169 (3rd Dept. 2004); People v. Carrion, 277 AD2d 480, 715 NYS2d 257 (3rd Dept. 2000)

The People having demonstrated the legality of the police conduct in this matter and having established to the court's satisfaction, beyond a reasonable doubt, that the Defendant voluntarily waived his rights before making the statement attributed to him, it is the Defendant who bears the burden of persuasion concerning his state of mind, his lack of capacity to understand or his failure to intelligently waive his rights. People v. Jenkins, 34 AD3d 833, 824 NYS2d 676 (2nd Dept. 2006); People v. Flamenco, 259 AD2d 559, 684 NYS2d 911 (2nd Dept. 1999); People v. Smith, 220 AD2d 704, 633 NYS2d 71 (1995); People v. Chavis, 147 AD2d 582, 537 NYS2d 875 (2nd Dept. 1989). People v. Love, 85 AD2d 799, 445 NYS2d 607 (3rd Dept. 1981) aff'd 57 NY2d 998 (1982) ["We not also that the defendant herein never took the stand or offered any evidence at the hearing to refute his demonstrated intelligent waiver."] Having failed to present any evidence refuting Detective Russ's testimony concerning the explanation of his rights and the Detective's clarification of the extent to which the Defendant asserted these rights, the Defendant has failed to rebut the limited and intelligent waiver established by the Detective's testimony.

Accordingly, the Defendant's motion to suppress the statement in question is denied and the statement shall be admissible on the People's direct case at the time of trial.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

July 23, 2007

___________________________

ANDREW M. ENGEL

J.D.C. Footnotes

Footnote 1: There can be no question that the Defendant read the bottom portion of the card because he answered the question posed therein.

Footnote 2: All ambiguity would be erased if the Nassau County Police Department used a Miranda card which employed the phrase "written statement" in lieu of the word "statement" on the bottom half of the card.

Footnote 3: Although the defendant in Barrett testified that he understood his rights and the Defendant herein did not, the credible testimony offered at the suppression hearing clearly established the Defendant's affirmative acknowledgment of his understanding of his rights