People v Rodriguez

[*1] People v Rodriguez 2012 NY Slip Op 50990(U) Decided on June 4, 2012 Supreme Court, Bronx County Duffy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 4, 2012
Supreme Court, Bronx County

The People of the State of New York,

against

Anthony Rodriguez, Defendant.



2488-09



Karen Smolar, Esq.

The Bronx Defenders

860 Courtlandt Avenue

Bronx, New York 10451

Patrick Seidel, Esq.

Assistant District Attorney

Domestic Violence Bureau

Office of Robert T. Johnson

198 East 161st Street

Bronx, New York 10451

Colleen D. Duffy, J.

On May 23, 2009, Defendant was arrested and charged with Rape in the First Degree, PL 130.35(1) and other related charges arising out of an incident that is alleged to have occurred on that same date. On June 5, 2009, Defendant was indicted on four counts of Rape in the First Degree, PL 130.35(1), as well as 27 other related charges arising out of the May 23, 2009 incident. Defendant also was indicted on nine additional charges, including Burglary in the First Degree, PL 140.30(2) and eight other related charges, arising out of an incident alleged to have occurred on April 18, 2009.

On September 9, 2009, Defendant filed an omnibus motion seeking (1) inspection of the Grand Jury minutes, release of those minutes to Defendant and dismissal of the Indictment; (2) suppression of statements made by Defendant, or, in the alternative, granting a hearing as to the admissibility of the statements; (3) suppression of any evidence and testimony relating to [*2]identifications of the Defendant, or, in the alternative, granting a hearing as to the admissibility of such identification; (4) severing counts 1-9 related to the April 18, 2009 incident from counts 10 through 41 relating to the May 23, 2009 incident.

The Defendant also sought to preclude the People from using at trial evidence of prior arrests or criminal convictions, bad acts, and prior uncharged criminal, vicious, or immoral conduct and sought to preclude the People from cross-examining him at trial on any prior arrests, convictions, or any uncharged criminal, vicious or immoral conduct of which the People may be aware. Finally, Defendant sought an order compelling the People to comply with Defendant's Request for a Bill of Particulars and Demand to Produce.[FN1]

On January 14, 2010, the People filed an affirmation in opposition to Defendant's motion.

On March 5, 2010, the Honorable Megan Tallmer, A.S.C.J., issued a written Decision and Order, granting in part and denying in part Defendant's motion. The Court granted Defendant's motion for inspection of the Grand Jury minutes and denied release of such minutes to Defendant.

The Court also granted Defendant's motion to the extent that it ordered Huntley and Wade hearings on the issues of suppression of statements and suppression of testimony and evidence pertaining to the identification of Defendant. The Court found no basis for a Dunaway hearing. The Court also denied Defendant's motion to sever the charges relating to the April 18, 2009 incident from those relating to the May 23, 2009 incident.

In June 2011, Defendant orally renewed the motion for severance of the April 18, 2009 charges and the May 23, 2009 charges.[FN2] Judge Tallmer thereafter granted the motion severing the charges pertaining to the April 18, 2009 incident from those charges pertaining to the May 23, 2009 incident.

On February 1, 2012, the trial of the April 18, 2009 charges commenced before Judge Tallmer. On February 3, 2012, Judge Tallmer declared a mistrial based upon juror misconduct. Thereafter, on March 2, 2012, the matter was transferred to this Court for trial of the April 18, 2009 charges.

On March 9, 2012, Defendant's trial on the charges pertaining to April 18, 2009 commenced; on April 5, 2012, the jury acquitted Defendant of all charges arising out of the April 18, 2009 incident.

On May 2, 2012, this Court held Huntley and Wade hearings in connection with the May 23, 2009 incident. Detective Donna Johnson, Shield No. 4622, of the Bronx Special Victims [*3]Unit, New York Police Department, testified on behalf of the People. Defendant did not call any witnesses for the hearing.

For the reasons set forth below, Defendant's motion to suppress statements and to suppress identification testimony and evidence is granted in part and denied in part.

CONCLUSIONS OF LAW

A.Suppression of Testimony and/or Evidence

As to Identification is Denied

Defendant's motion to suppress evidence and testimony as to the identification of Defendant is denied. As an initial matter, Defendant already has conceded, in his September 9, 2009 Omnibus Motion, that, as to the May 23, 2009 incident, identification is not an issue.

Statements made in Defendant's moving papers constitute admissions as to those facts. People v. Brown, 98 NY2d 226, 232 (2002)(statements made by defense counsel in moving papers were admissions as to those facts and could be used to impeach defendant); People v. Bedell, 233 AD2d 518, 518 (2d Dept. 1996) (defendant's moving papers alleged facts that placed him at scene of crime and constituted an admission), app. denied, 89 NY2d 1088 (1997); People v. Castillo, 94 AD3d 678 (1st Dept. 2012)(statements made by counsel are considered admissions of defendant). See also Prince Richardson on Evidence § 8-219, at 530 (Farrell, 11th Ed.)(informal judicial admission is evidence of the fact or facts admitted).

Specifically, Defendant has admitted that:

"Mr. Rodriguez admits having met these women and joining them in consensual sexual activity."

* * *

" . . . one case comes down to a question of consent between individuals who spent time together and shared intimacies. Identity is not at issue in that case."

Defendant's Omnibus Motion, September 9, 2009, p. 10.

"Identity is not at issue in the May 23, 2009 incident. Mr. Rodriguez concedes that he was present with the two alleged victims on the night in question and that he did engage in sexual activity with both women, albeit consensually."

Defendant's Omnibus Motion, September 9, 2009, p. 14.

Where, as here, a Defendant admits that the parties are known to each other, no Wade issue exists. People v. Gissendanner, 48 NY2d 543, 552 (1979)(where parties known to one another, suggestiveness is not at issue, and CPL § 710.30 does not come into play).

Moreover, even if Defendant had not conceded that the parties were known to each other, Detective Johnson credibly testified that one of the complainants had independently identified Defendant as the person who had raped each of them in photographs that she and the other complainant had taken. Transcript of Hearing, May 2, 2012, pp. 47, 121-124.

Although Detective Johnson also testified that, thereafter, she had shown each of the [*4]complainants a photograph of Defendant contained on a "PRISONER MOVEMENT SLIP" which contained not only those words but also the words, "arrest number," "date of arrest" and "time," (Tr. at 136), such identification procedure was simply confirmatory since, as Defendant admits and Detective Johnson testified that one of the complainants told her, the parties were known to each another. Tr. at 123-124. People v. Sides, 265 AD2d 907, 907 (4th Dept.), app. denied, 94 NY2d 867 (1999); People v. Sykes, 181 AD2d 805, 805 (2d Dept.), app. denied, 79 NY2d 1054 (1992).

B.Suppression of Statement by Defendant to Detective is Granted;

Suppression of Video Statement by Defendant Denied

Defendant's motion to suppress statements he allegedly made to Detective Johnson in an interview room at the 43rd Precinct is granted; the motion to suppress the video statement made by Defendant is denied.

1.The People Failed to Establish that Defendant was not in

Custody When He Made His Statement to Police

Statements obtained by police from a suspect in custody are admissible only if the suspect has been advised of his constitutional rights and has knowingly and intelligently waived those rights. Miranda v. Arizona, 384 U.S. 436, 467-69 (1966); People v. Miller, 82 AD3d 1278, 1279 (3d Dept.), app. denied 16 NY3d 861 (2011); People v. Culver, 69 AD3d 976, 976-977 (3d Dept. 2010).

As an initial matter, there is no dispute that Defendant was not advised of his Miranda rights before Detective Johnson spoke with Defendant at the 43rd Precinct. Tr. at 9, 10, 115.

With respect to custody, although the People contend that Defendant was not in custody when he spoke with Detective Johnson, whether a suspect is in custody is determined by the particular circumstances of each case and requires an examination of the amount of time the person spent with the police, whether his freedom of movement was curtailed, the location of the questioning, the atmosphere under which it was conducted, and whether the person was informed of his constitutional rights. People v. McCoy, 89 AD2d 1218, 1219 (3d Dept. 2011); see also People v. Centano, 76 NY2d 837, 837 (1990).

The burden is on the People to prove beyond a reasonable doubt that the statements were made by Defendant when he was not in custody. People v. Huntley, 15 NY2d 72, 78 (1965)(court must find voluntariness beyond a reasonable doubt before statement is submitted to jury; burden is on People); McCoy, 89 AD2d at 1219; see also People v. Baggett, 57 AD3d 1093, 1094 (3d Dept. 2008). Whether questioning will be deemed investigatory or not depends upon "whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave" at the time he or she was being questioned. People v. Paulman, 5 NY3d 122, 129 (2005); People v. Yukl, 25 NY2d 585, 589 (1969), cert. denied, 400 U.S. 851 (1970).

Here, the People have failed to sustain their burden of establishing, beyond a reasonable doubt, that Defendant was not in custody when Detective Johnson spoke to him at the 43rd Precinct. Huntley, at 78.

Detective Johnson testified that she went to the 43rd Precinct because she was notified that Defendant was there (Tr. at 19). Detective Johnson also testified that her usual procedure is to conduct an interview with a partner (Tr. at 90, 91); Detective Johnson testified that she was [*5]alone with Defendant when she conducted the interview with him at the 43rd Precinct. Tr. at 97.

Detective Johnson testified that Defendant was not handcuffed and that she did not have a gun during the interview (Tr. at 22); she contended that her interview with Defendant was investigatory and that Defendant was not in custody and was not under arrest. Tr. at 22-23. Detective Johnson also testified that the interview took place at approximately 4:30 p.m. (Tr. at 46, 101), on May 23, 2009, in a 12 x 12 foot room at the 43rd Precinct, in which the door was closed. Tr. at 20, 21-22, 96, 113.

Detective Johnson could not testify as to whether the door had a lock on it, only that it was not locked while she was in it. Tr. at 21, 96. Detective Johnson also was unable to recall how long her interview of Defendant lasted (Tr. at 117) or how long Defendant was at the precinct or in that interview room before she conducted her interview with him. Tr. at 96, 97. Detective Johnson also could not recall what questions she asked Defendant at the time of that interview. Tr. at 22, 114, 115.

Detective Johnson also did not recall whether other police officers had spoken to Defendant before she arrived at the 43rd precinct. Tr. at 94, 97. Detective Johnson also testified that she had not memorialized her interview with Defendant in any written form. Tr. at 24-25.

Moreover, at the time that Detective Johnson spoke to Defendant, she had already spoken to the two complainants who had told her what had happened earlier that day, the two complainants had provided a physical description of the perpetrator to her, Detective Johnson already had collected evidence - bed sheet, knife and camera -from the scene, and she had spoken to Defendant's cousin. Tr. at 11, 19, 95, 101, 111-113. Detective Johnson also testified that, at the time she interviewed the two complainants, she had no reason to doubt their story. Tr. at 113.

Although Detective Johnson contends that Defendant was not in custody or under arrest at the time of the interview, there simply is insufficient information about that interview and the circumstances under which it occurred to establish that a reasonable person innocent of wrongdoing would have believed that he or she would be free to leave when questioned. It is the People's burden to so establish. People v. Huntley, 15 NY2d at 78; McCoy, 89 AD2d at 1219.

In light of the paucity of evidence as to the circumstances surrounding the interview of Defendant at the 43rd Precinct, this Court finds that the People have not sustained their burden of establishing that Defendant was not in custody at the time of that interview.

Accordingly, as the People have failed to show Defendant was not in custody, and, as Defendant had not been advised of his Miranda rights prior to Defendant's statements to Detective Johnson, such statements must be, and hereby are, suppressed.

2.Defendant's Motion to Suppress his Video Statement

Is Denied as the Statement was Sufficiently Attenuated

From the Police Interview so as not to be Tainted by it

Defendant's motion to suppress the statements he made in a videotaped interview conducted by Assistant District Attorney Alexandra Militano is denied as the videotaped statement was not part of a single, continuous chain of events emanating from Defendant's interview by Detective Johnson.

Instead, as set forth below, the Court has viewed the videotape and finds that [*6]Defendant was properly advised of his Miranda rights prior to the commencement of such interview, and that Defendant understood those rights and knowingly waived them prior to making the video statement. The Court also finds that the videotaped statement was sufficiently attenuated from that earlier police interview by time, location and personnel such that the Miranda warnings administered orally to Defendant on the videotape immediately before questioning commenced were sufficient to adequately protect his rights.

The Court notes that when an "un-Mirandized" first statement gives rise to a second "Mirandized" statement as part of a "single continuous chain of events," such second statement must also be suppressed as there is inadequate assurance that the advisement of such Miranda rights even though administered prior to the second statement — can be effective in protecting a defendant's rights. People v Chapple, 38 NY2d 112, 114 (1975); People v. Paulman, 5 NY3d at 130-31.

The Court has considered the factors set forth by the Court of Appeals in Chapple in concluding that there was not a "single continuous chain of events" between the first and second interviews at issue in this case. Chapple, 38 NY2d at 114. Indeed, here, the Court finds that the second "Mirandized" statement was sufficiently attenuated from the "un-Mirandized" police interview by time, location and person, that it was not part of a single, continuous chain of events.

Specifically, the Court has considered the 24 hour lapse of time between the "un-Mirandized" statement and Defendant's videotaped statement, and notes that although Detective Johnson was present for both interviews, Detective Johnson played no role in eliciting information from Defendant during the videotaped statement; the videotaped statement was conducted by Assistant District Attorney Militano.

Moreover, although the People have not established their burden to show that the first statement was non-custodial, Defendant had not been handcuffed during the first statement and Detective Johnson did not have her gun during that interview.

The Court also notes that, during the videotaped statement, Defendant's statements and body language both evidence that he is willingly and voluntarily speaking with Assistant District Attorney Militano. Chapple, 38 NY2d at 114; Paulman, 5 NY3d at 130-31. On the videotape, Defendant does not appear coerced or threatened; indeed, Defendant appeared quite willing to speak to Assistant District Attorney Militano after he was orally advised of his Miranda rights. Defendant acknowledged that he understood such rights and knowingly and voluntarily waived those rights on videotape.

Here, as the two statements occurred more than 24 hours apart, they took place at different locations — the first at the 43rd Precinct, the second at the office of the District Attorney, and they were conducted by different law enforcement personnel, the first was conducted by Detective Johnson, the second by Assistant District Attorney Militano, they did not constitute a single continuous chain of events that would warrant suppression of the second statement.

Accordingly, Defendant's motion to suppress his video statement is denied. Miranda v. Arizona, 384 U.S. 436 (1966).

This constitutes the Decision and Order of this Court. The matter is scheduled for [*7]trial, starting with jury selection, on July 9, 2012.

Dated: Bronx, New York

June 4, 2012

ENTER

_________________________

COLLEEN D. DUFFY

Justice of the Supreme Court Footnotes

Footnote 1: On August 9, 2010, Defendant filed a motion, pursuant to CPL § 30.30, seeking dismissal of the indictment on speedy trial grounds. On October 6, 2010, the People filed an affirmation in opposition.On January 19, 2010, Judge Tallmer denied the motion in a written decision.

Footnote 2: Although there is no record in the Court's file of such oral motion, this Court is informed by the parties and by Judge Tallmer that Defendant made an ex parte offer of proof to the Court as to why severance should be granted. (The Court has been unable, as of yet , to obtain copies of the minutes of those proceedings as the court reporter who transcribed those court proceedings no longer is employed in Bronx Supreme Court.)

After such ex parte application, Judge Tallmer granted severance. This Court is informed that, In February 2012, after a mistrial was declared in the trial regarding the April 18, 2009 charges, the People sought reconsideration of that decision granting severance. That application was denied.