People v Johnson

[*1] People v Johnson 2010 NY Slip Op 50281(U) [26 Misc 3d 1227(A)] Decided on February 5, 2010 Supreme Court, Bronx County Marvin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 5, 2010
Supreme Court, Bronx County

The People of the State of New York,

against

Lawrence Johnson, Defendant.



4615-06



For the defendant

Lewis E. Alperin, Alperin & Hufjoy, Mount Vernon, New York

For the People

Alexandra Militano

Assistant District Attorney

Bronx County District Attorney

Seth L. Marvin, J.

On September 23, 2009 and on September 29, 2009, a Huntley hearing was held in which there was testimony as to ten separate statements made by the defendant Lawrence Johnson. In a decision dated November 17, 2009 [FN1], the defendant's motion was granted to the extent of suppressing one written and one oral statement made by defendant to Detective Maysonet (statements 8 and 9) and otherwise denying defendant's motion. The suppressed statements were found to have been made while defendant was subject to custodial interrogation without the benefit of Miranda warnings. The subsequent video taped statement made by defendant to A.D.A. Takantzas was held to be sufficiently attenuated from the suppressed statements to justify its admission in evidence.

Subsequently, on December 18, 2009, the People filed a motion to reargue the Court's decision as to the two suppressed statements. In addition, at the request of the defense, the Court agreed to re-open the hearing to take additional testimony on the issue of the attenuation of the taped statement which the defense claims was not fully explored at the original hearing. The People's motion for re-argument is granted and upon re-argument, the Court adheres to its

original decision suppressing statements 8 and 9. After reviewing the additional testimony on [*2]attenuation, which was taken on January 25, 2010, the Court adheres to its decision denying defendant's motion to suppress this statement.

Re-argument

At the conclusion of the Huntley hearing, the court suppressed statements 8 and 9 on the ground that they were the result of custodial interrogation without the benefit of Miranda warnings. The People move to re-argue the suppression of the two statements arguing that the police were not required to administer the Miranda warnings because defendant was not in custody at the time the statements were made. I disagree.

A person is considered in custody when a reasonable person in defendant's position, innocent of any crime, would not have believed he was in custody at that time. People v. Yukl, 25 NY2d 585, 589 (1969) cert. denied 500 U.S. 851 (1970). See People v. Pouliot, 64 AD3d 1043 (3d Dept.) lv. denied 13 NY3d 838 (2009); People v. Page, 63 AD3d 506 (1st Dept.) lv. denied. 13 NY3d 837 (2009). Although defendant voluntarily accompanied the police to the 48th precinct and was not handcuffed, he was never left alone. He remained in a locked room while at the precinct and was taken by a detective to the bathroom. Defendant arrived at the precinct at about 11:00 a.m. and was questioned by Detectives Maysonet and McSloy frequently between 11:00 a.m. and the time of the suppressed written statement at 3:55 p.m. The detectives told defendant that his theories on how his daughter became injured were inconsistent with the findings of the medical examiner. Finally, after defendant had been in the precinct for nearly five hours, the questioning became accusatory. Detective Maysonet told the defendant "...if he knew who killed his daughter, he needed to tell me the truth." (H 56)[FN2] At this point, a reasonable person in defendant's position would have believed that he was in custody. People v. Duncan, 295 AD2d 533, 534 (2nd Dept.), lv. denied 98 NY2d 767 (2002) (where police told defendant that it was "time to stop the bull junk" and alleged they had evidence incriminating defendant, Court found defendant was in custody); People v. Robbins, 236 AD2d 823, 825 (4th Dept.) lv. denied 90 NY2d 863 (1997). Accordingly, the questioning that resulted in Statement No. 8 was custodial interrogation. Since defendant had not yet received Miranda warnings at this point, Statement No. 8 is required to be suppressed. Although Detective Maysonet thereupon read defendant the Miranda warnings prior to the written statement, the written Statement No. 9 must also be suppressed. "[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a single continuous chain of events,' there is inadequate assurance that the Miranda warnings were effective in protecting a defendant's rights, and the warned statement must be suppressed." People v. Paulman, 5 NY3d 122, 130 (1995) citing People v. Chapple, 38 NY2d 112, 114-15 (1975).

Attenuation

The Facts

At the continued hearing, Detective Angel Maysonet and Assistant District Attorney C. Leah Takantzas testified for the People. I found them to be credible and issue the following findings of fact. [*3]

On December 2, 2006, at approximately 11:00 a.m., defendant was placed in the interview room at the 48th precinct and was questioned by Detectives Maysonet and McSloy regarding the death of his three-month old daughter. During the course of the day, defendant made 10 separate statements. At approximately 3:55 p.m., defendant made a written statement admitting that he had struck his daughter three times on the night prior to her death. At the conclusion of the hearing, this statement, as well as the oral statement which immediately preceded it were suppressed on the grounds that it was the result of custodial interrogation without the benefit of Miranda warnings.

After defendant finished writing his statement, Detective Maysonet advised defendant that he was going to get a district attorney to appear in the precinct in order to obtain a video taped statement from defendant, who agreed to make such a statement. At some point, defendant was taken from the interview room and placed in the holding cell so that the interview room could be prepared for the video statement. Subsequently, defendant was escorted back into the interview room where he was interviewed by A.D.A. Takantzas, in the presence of

Detective Maysonet and the video technician.

At approximately 4:30 p.m., on May 2, 2006, A.D.A. Takantzas received a call to appear in the 48 th precinct for a video statement. When she arrived at the precinct, she read defendant's written statement and gathered information regarding the case against the defendant. She was situated in the interview when defendant was brought into the room. The interview began at 5:35 p.m. by A.D.A. Takantzas reading the defendant the Miranda [FN3] warnings. Defendant subsequently made an incriminating statement.

The Law

The admissibility of the video statement, obtained one hour and forty minutes after the suppressed written statement and after a complete reading and waiver of the Miranda warnings, depends on whether there was "...such a definite, pronounced break in the interrogation that the

defendant may be said to have returned, in effect, to the status of one who is not under the

influence of questioning." People v. Chapple, 38 NY2d at 115. Where, however, "an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a single continuous chain of events', there is inadequate assurance that the Miranda warnings were effective in protecting a defendant's rights, and the warned statement must also be suppressed." People v. Paulman, 5 NY3d at 130.

The testimony by A.D.A. Takantzas establishes that the video taping commenced at 5:35 p.m., one hour and forty minutes after the completion of the suppressed written statement and immediately following the reading and waiving of the Miranda warnings. Defendant was not questioned between 3:55 p.m. and 5:35 p.m.

The video statement was made after defendant knowingly, intelligently and voluntarily waived his Miranda rights and after a definite and pronounced break in the interrogation sufficient to remove any taint from the suppressed written statement. See People v. White, 10 NY3d 286, 291, cert. denied, 129 S. Ct. 221 (2008)(time differential of 15-20 minutes were [*4]sufficiently pronounced to dissipate the taint); In Re Daniel H., 67 AD3d 527, 535 (1st Dept. 2009) (an interim of one hour or less may constitute a pronounced break); People v. Gray, 51

AD3d 63, 64 (1st Dept.), lv. denied, 10 NY3d 863 (2008) (45 minute break sufficient); People v. Samuels, 11 AD3d 372 (1st Dept. 2004) lv. denied 4 NY3d 802 (2005) (45 minute break sufficient); People v. Davis, 287 AD2d 376 (1st Dept.), lv. denied 97 NY2d 680 (2001).

In addition to the pronounced break in the interrogation, there was no evidence that the A.D.A. used the suppressed statements to induce the video statement. People v. Samuels, 11 AD3d at 372. Accordingly, the video statement is attenuated from the suppressed statements and is admissible at trial.

Conclusion

The parties shall be ready for trial at 9:30 a.m. on March 10, 2009, when this case is called in Part 70.

This constitutes the decision and order of the Court.

Date: February 5, 2010

Bronx, New York

________________________________

Seth L. Marvin, A.J.S.C.Footnotes

Footnote 1:Familiarity with the Court's decision is presumed.

Footnote 2:Numerical references preceded by "H" are to the minutes from the suppression hearing.

Footnote 3:See fn. 4, p. 9 and fn. 6, p. 14 of November 17, 2009 decision and order.