People v Lopez

[*1] People v Lopez 2015 NY Slip Op 51174(U) Decided on August 10, 2015 County Court, Rockland County Thorsen, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2015
County Court, Rockland County

The People of the State of New York,

against

Angel Lopez, Defendant.



2014-283



Alan McGeorge, Esq.

Attorney for Defendant

Thomas P. Zugibe, Esq.

District Attorney, Rockland County

Attn: Anthony R. Dellicarri, Superv. ADA
Rolf M. Thorsen, J.

By Indictment Number 2014-283, a Rockland County Grand Jury charged defendant with one count each of Grand Larceny in the Third Degree (P.L. §155.35[1])(Count I), Auto Stripping in the Second Degree (P.L. §165.10[2])(Count II), and Criminal Trespass in the Third Degree (P.L. §140.10[a])(Count IV), and two counts of Criminal Mischief in the Second Degree (P.L. §145.10)(Counts III and V). The charges arise out of two separate incidents in the Town of Clarkstown ("Clarkstown"), New York. Counts I through IV pertain to an incident that took place on May 12-13, 2013 whereby defendant is alleged to have broken through a fence at a Tarrytown Honda new car storage lot in Clarkstown and stole rims, tires and wheels from more than 13 cars. Count V pertains to an incident that took place on October 6-7, 2013, at the same car lot whereby defendant is accused of damaging the security system.

In accordance with a Decision and Order dated January 12, 2015, this Court conducted a Huntley hearing which took place on [*2]March 9, April 15, April 16, June 1, and August 6, 2015.[FN1] The People called numerous witnesses, all of whom are law enforcement officers from various departments, to testify at the hearing on their direct case.

Pursuant to Criminal Procedure Law Section 710.60(6), the Court makes the following findings of fact and conclusions of law:

Findings of Fact:

On the evening of November 24, 2013, Police Officer John Paul Lara of the Town of Greenburgh Police Department was dispatched to a new car storage lot at 450 Saw Mill River Road in the Town of Greenburgh. Upon his arrival, Lara spoke with the lot security officer, Adnan Chaudhry, who advised him that a vehicle that was positioned in a specific spot — to prevent other cars from entering the lot — had been moved. Lara looked at the moved vehicle, observed minor damage on its side, and then walked further into the lot. While canvassing the lot, Lara saw a white minivan parked in between some Acuras. Lara looked into the minivan and, although he did not see any occupants, he saw approximately ten rims and tires in the minivan. As he walked around, Lara noticed numerous Acuras with their rims and tires removed perched on milk crates. One of the Acuras had a floor jack lifting it up and in close proximity, Lara saw a drill laying on the trunk of another car. Lara contacted the dispatcher and requested that additional units respond in order to guard the perimeter of the lot. As Lara continued his canvass, he discovered an individual later identified as the defendant hiding behind a vehicle. Lara approached defendant, handcuffed him, and told him he was being detained. Lara then asked defendant why he was in the lot. In response, defendant told Lara he was "taking rims" (Statement No. 1). Defendant was subsequently taken to the Town of Greenburgh Police Department.

At the police station, at approximately 2:30 a.m. on November 25, 2013, Detective Perie Miranda met with defendant, who was no longer handcuffed, in the interview room. Prior to speaking with him, Miranda offered defendant something to eat and drink and gave him the opportunity to use the bathroom. Miranda then, using a pre-printed form, advised defendant of his Miranda rights. See, People's Exhibits 3 and 4. Specifically, Miranda read all of the five "rights" to defendant and defendant placed his initials after each "right," except the warning stating that he had the right to remain silent, indicating that he understood each right. Miranda read the "waiver" near the bottom of the form where defendant signed his name, again indicating that he understood his rights, waived them, and agreed to speak to Detective Miranda. Once defendant signed the Miranda form, Miranda interviewed defendant. The entire interview and administration of Miranda warnings, which lasted for about 30 to 45 minutes, was audio and video recorded (Statement No. 2). See, People's Exhibit 4.

Later on that morning, on November 25, 2013 at approximately 10:45 a.m., defendant was interviewed a second time in the interview room at the Greenburgh Police Department, which was also audio and video recorded (Statement No. 3). See, People's Exhibit 5. Aside from defendant, [*3]members of several law enforcement agencies attended: Detective Rudy Uhlitzsch, a detective with the Town of Greenburgh Police Department who was assigned to investigate the crime that occurred the night before; Investigator Daniel Green, an investigator with the Auto Theft Unit of the New York State Police who had been investigating stolen rim and tire cases in the Bronx, Rockland County and areas further north; and Detective Roger Banash, a detective with the Auto Crime Unit of the Yonkers Police Department who had been working with detectives from other jurisdictions investigating these types of crimes.[FN2]

As with the earlier interview, defendant was not handcuffed and was offered food and drink. Defendant was very cooperative and provided detailed information regarding his criminal activities in connection with stolen rims and tires. Defendant was questioned about his potential involvement in the Clarkstown incidents due to their similarity to the Greenburgh incident, as well as other thefts in Yonkers, White Plains and elsewhere. Due to the fact that Detective Uhlitzsch had been made aware that defendant had been advised of his Miranda rights earlier that morning, and Uhlitzsch had informed the other investigators of that fact, defendant was not advised of his Miranda rights a second time prior to their speaking with him.

On April 1, 2014, defendant was present in the Town of Greenburgh Justice Court for a scheduled court appearance with respect to the charges arising out of the November 24, 2013 incident.[FN3] While there, defendant was arrested by Detective Peter Monroe of the Town of Clarkstown Police Department for the crimes that are the subject of the within indictment.[FN4] Detective Monroe brought defendant to the Town of Clarkstown police station. In the detective bureau interview room, Detective Monroe and Detective Frederick Parent took an audio/video recorded statement from defendant. See, People's Exhibit 7. Prior to speaking with defendant, Detective Monroe, using a pre-printed form, advised defendant of his Miranda warnings. Specifically, Detective Monroe read each of the five warnings out loud, one at a time, to defendant and after reading each one, defendant indicated that he understood the right that had just been read. To further indicate his understanding, defendant placed his initials at the end of each sentence. Detective Monroe then read aloud the acknowledgment that states that defendant understood his rights and was willing to waive them. Defendant signed the acknowledgment and waiver and agreed to speak with the detectives. See, People's Exhibits 6 and 7. Defendant then proceeded to provide a statement to the detectives regarding his involvement in the Clarkstown incidents, as well as his involvement in the case pending in the Town of Greenburgh Justice Court (Statement No. 4).

Conclusions of Law:

Defendant contends that the three statements for which the [*4]People provided notice pursuant to Criminal Procedure Law Section 710.30 must be suppressed on the ground that such statements were involuntarily made. Specifically, defendant argues that the statement he made to PO Lara in the lot (Statement No. 1) should be suppressed as it was the product of a custodial interrogation without the benefit of Miranda warnings. Defendant next contends that the second statement taken at the Town of Greenburgh Police Department (Statement No. 3) must also be suppressed as it also was the product of a custodial interrogation without the benefit of Miranda warnings. Defendant also asserts that such statement should be suppressed on the ground that the police unnecessarily delayed his arraignment in order to obtain an involuntary confession. Lastly, with respect to the videotaped statement taken at the Town of Clarkstown Police Department (Statement No. 4), defendant contends that suppression is required due to the fact that he was represented by counsel on the Westchester charges and therefore, could not waive his Miranda rights and be questioned on related charges without counsel present. With respect to the statement to Detective Miranda, which the People seek to introduce solely to establish that defendant had been advised of his Miranda rights (Statement No. 2), defendant moves to preclude such evidence on the ground that the People failed to provide notice of such statement in violation of C.P.L. §710.30. In the event preclusion is denied, defendant argues that it must be suppressed.

As hereinafter set forth, the Court grants in part and denies in part defendant's motion as follows:

A statement is "involuntarily made" by a defendant when it is obtained (1) by the use or threatened use of physical force or other improper means; (2) by means of any promises made to defendant which creates a substantial risk that defendant might falsely incriminate himself; or (3) in violation of the defendant's constitutional rights. C.P.L. §60.45(2). See also, People v. Rodney, 85 NY2d 289 (1995). The burden of proving the voluntariness of defendant's statements is on the People and such must be proven beyond a reasonable doubt. See, People v. Witherspoon, 66 NY2d 973 (1983); People v. Huntley, 15 NY2d 72, 78 (1965). As applied here, defendant contends that his statements were involuntarily made as they were obtained in violation of his constitutional rights.

Turning first to defendant's statement to PO Lara in the lot (Statement No. 1), defendant contends that such statement was involuntary as it was the product of a custodial interrogation in violation of Miranda v. Arizona. It is well settled that before law enforcement officials are obligated to provide Miranda warnings, the elements of both police "custody" and police "interrogation" must be present. See, People v. Huffman, 41 NY2d 29 (1976). The test to determine the first element — whether a defendant was "in custody" — is an objective one. "The test is not what the defendant thought, but rather what a reasonable man, innocent of any crime, [*5]would have thought had he been in the defendant's position." People v. Yukl, 25 NY2d 585 (1969)(Internal citations omitted). In other words, "the standard to be applied is whether a reasonable person, innocent of any crime, would have believed that [he or] she was in police custody." People v. Delfino, 234 AD2d 382 (2d Dept. 1996).

Here, the evidence at the hearing established that defendant's statement to PO Lara must be suppressed as it was the product of custodial interrogation. At the time the statement was made, defendant had already been detained and handcuffed. Thus, defendant was in custody. The question, therefore, is whether defendant's statement was the product of an interrogation.

It is well-settled that when police respond to the scene of a crime, the police may ask preliminary questions to find out what is transpiring. See, People v. Rifkin, 289 AD2d 262, 263 (2d Dept. 2001). However, "where criminal events have concluded and the situation no longer requires clarification of the crime or its suspects, custodial questioning will constitute interrogation." Id.

Applied here, the Court finds that PO Lara's question, "why are you here?" or "why are you in the lot?", had no purpose other than to elicit an inculpatory response. When PO Lara asked defendant the question, PO Lara had also already seen the ten or so rims and tires inside the minivan, several Acuras perched on milk crates, and a drill, i.e., a tool used to remove the rims and tires, resting on the trunk of a car. Based on PO Lara's observations, this was no longer "a situation where the circumstances or defendant's conduct w[as] merely suspicious and the police needed to clarify an ongoing and volatile situation." People v. O'Connor, 6 AD3d 738 (3d Dept. 2004). Rather, defendant had already been detained and handcuffed and it was clear to PO Lara that a crime had already been committed. Nor was it necessary for PO Lara "to acquire general information before taking further action." People v. Bastian, 294 AD2d 882, 884 (4th Dept. 2002). As PO Lara's question was clearly designed to elicit an inculpatory response, Statement No. 1 must be suppressed.

Turning next to the unnoticed "statement" that defendant gave to Detective Miranda (Statement No. 2), defendant's motion to preclude is denied in part and granted in part.

Section 710.30 of the Criminal Procedure Law states, in relevant part, as follows:

Whenever the people intend to offer at a trial (a) evidence of a statement made by a defendant to a public servant, which statement if involuntarily made would render the evidence thereof suppressible upon motion pursuant to subdivision three of section 710.20, ... they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered.

While C.P.L. §710.30 sets forth the notice requirement for the introduction of "statement evidence," C.P.L. §60.45 sets forth the rules of evidence for the admissibility of such evidence. To begin, C.P.L. §60.45(1) defines "statements of defendants" as "[e]vidence of a written or oral confession, admission, or other statement made by defendant with respect to his participation or lack of participation in the offense charged." C.P.L. §60.45(1)(Emphasis added). Section 60.45(2) then goes further and defines the situations when a confession, admission or other statement is "involuntarily made":

A confession, admission or other statement is "involuntarily made" by a defendant when it is obtained from him:

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(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.

C.P.L. §60.45(2)(b).

Thus, in determining whether a statement by a defendant was "involuntarily made" in terms of the admissibility of such evidence pursuant to C.P.L. §60.45 and in terms of the notice requirements of C.P.L. §710.30, the Court is tasked with making a legal determination as to whether the statement was "taken in violation of such rights as the defendant may derive from the constitution' (subd. 2[b][ii]), which includes the right to Miranda warnings as a procedural prerequisite to the admissibility in evidence of any statement given during custodial interrogation of a suspect. Dickerson v. United States, 530 U.S. 428, 435, 120 S. Ct. 2326, 147 L. Ed. 2d 145 (2000)." Preiser, Peter, Practice Commentaries, McKinneys Consolidated Laws of NYS, C.P.L. §60.45, p. 30 (2004)(Emphasis added). In other words, whether Miranda warnings were administered, and if so, the manner in which they were administered, inclusive of the defendant's responses indicating his understanding of those warnings, will determine whether the statement that follows the Miranda warnings was voluntarily made. The defendant's responses, limited of course to his understanding of his constitutional rights, are therefore not statements pertaining to "his participation or lack of participation in the offense charged" for which C.P.L. §710.30 notice is required to be given. As such, defendant's motion to preclude Statement No. 2 is denied insomuch as the statement pertains to the administration of the Miranda warnings.

Furthermore, with respect to the administration of the Miranda warnings, the Court finds that defendant was fully advised of his rights and freely and voluntarily waived his rights. The evidence elicited at the hearing establishes that defendant understood his Miranda rights and voluntarily waived them. Specifically, Detective Miranda administered the Miranda warnings to defendant using a Town of Greenburgh Police Department printed form. Detective Miranda read each right to defendant, which defendant indicated that he understood. Detective Miranda then gave defendant the form to review and initial to indicate that he understood his rights. Contrary to defendant's contention, the fact that defendant did not place his initials after the first line, i.e., his right to remain silent, the evidence clearly establishes that Detective Miranda read defendant that right and defendant indicated he understood that right. See, People's Exhibit 4. Defendant also signed the form indicating that he understood his rights and was willing to speak to the detective.[FN5] See, People's Exhibits 3 and 4.

However, with respect to that portion of the statement that immediately followed the administration of the Miranda warnings, i.e., defendant's conversation with Detective Miranda regarding the crimes for which defendant was charged in November 2013, defendant's motion to preclude is granted. There is no question that notice pursuant to C.P.L. §710.30 was not given, and the Court finds that the People have failed to establish "good cause" for their failure to comply with the statutory notice requirements. See, e.g., People v. Lubarska, 143 AD2d 1048 (2d Dept. 1988); People v. Spruill, 47 NY2d 869 (1979).

Defendant further contends that the statement he gave at approximately 11:00 a.m. on November 25, 2013 at the Town of Greenburgh police station (Statement No. 3) must also be suppressed. Specifically, defendant argues that this statement was involuntarily made on the grounds that, inter alia, he was not advised of his Miranda warnings and the police prolonged the taking of his statement in order to intentionally delay his arraignment. Defendant's motion to suppress is denied.[FN6]

With respect to defendant's claim that he was not re-advised of his Miranda warnings prior to giving this statement, it is well-settled that "[w]here ... a person in police custody was issued Miranda warnings and waived those rights voluntarily and intelligently, it is not necessary to repeat the warnings prior to subsequent questioning within a reasonable time thereafter, so long as the custody has remained continuous.'" People v. Petronio, 34 AD3d 602, 604 (2d Dept. 2006), quoting, People v. Glinsman, 107 AD2d 710 (1985); see also, People v. Santalis, 302 AD2d 614 (2d Dept. 2003). Applied here, defendant remained in police custody from the time of his arrest at approximately 11:00 p.m. on November 24, 2013 to when he was first given his Miranda warnings by Detective Miranda at approximately 2:35 a.m. on November 25, 2013. Defendant was still in police custody when he was subsequently questioned by Detectives Uhlitzch and Banash and Investigator Green at approximately 10:30 a.m. later that same morning. Although eight hours elapsed between the time defendant was first given his Miranda warnings and the time he was subsequently questioned, the Court finds that defendant's custody remained continuous and was not for an unreasonable amount of time. See, e.g., People v. Rodriguez, 70 AD3d 729 (2d Dept. 2010); People v. Baker, 208 AD2d 758 (2d Dept. 1994), app. den., 85 NY2d 905 (1995).

This Court further finds that the hearing record does not support defendant's contention that the police intentionally delayed his arraignment. "To suppress a statement on this ground, there must be evidence that the delay was for the purpose of depriving the defendant of the right to counsel and obtaining an involuntary confession." People v. Solorzano, 94 AD3d 1153 (2d Dept. 2012); see also, People v. Kelley, 73 AD3d 809 (2d Dept. 2010). On the contrary, the testimony elicited at the hearing established that defendant's second interview (Statement No. 3) did not commence until all of the necessary law enforcement representatives arrived at the Town of Greenburgh police station and were made aware of the recent events. Furthermore, "[a]n unnecessary delay in arraignment, without more, does not cause the accused's right to counsel to attach automatically, and such a delay is only one factor to consider in assessing the voluntariness of a confession." People v. Solorzano, 94 AD3d 1153. Defendant's motion to suppress Statement No. 3 is denied.

Lastly, with respect to Statement No. 4, defendant contends that because he was represented [*6]by counsel on the related Town of Greenburgh charges, he could not waive his right to counsel in the absence of counsel when questioned about the Clarkstown charges and therefore, Statement No. 4 must be suppressed as it was obtained in violation of his Fifth and Sixth Amendment rights. The People contend that since defendant was not in custody on the Westchester charges, defendant could effectively waive his Miranda rights in the absence of counsel. This Court rejects the People's argument and finds that defendant was denied his right to counsel and defendant's motion to suppress Statement No. 4 is granted.

The right to counsel in New York has "long been viewed ... as a cherished and valuable protection that must be guarded with the utmost vigilance." People v. Lopez, 16 NY3d 375, 380 (2011). In fact, "the right to counsel is referred to as indelible' because, once it attaches,' interrogation is prohibited unless the right is waived in the presence of counsel." Id.

When an accusatory instrument is filed with the court and defendant has been arraigned on the charges contained therein, defendant's right to counsel will have "indelibly" attached and he cannot be questioned with respect to those charges in the absence of counsel. See, People v. Miller, 54 NY2d 616, 618 (1981). A defendant also cannot be questioned on the subject of one crime after the right to counsel has indelibly attached by the actual appearance of an attorney representing defendant in another crime "where the two criminal matters are so closely related transactionally, or in space or time, that questioning on the unrepresented matter would all but inevitably elicit incriminating responses regarding the matter in which there had been an entry of counsel." People v. Cohen, 90 NY2d 632, 638 (1997).

Here, relying on the well-settled principle that it is the People's burden to prove the voluntariness of defendant's statement beyond a reasonable doubt, the Court finds that the People have failed to meet their burden with respect to Statement No. 4. Significantly and undisputedly, the crimes for which defendant was questioned by the Town of Clarkstown detectives were inextricably interwoven with the pending Town of Greenburgh charges such that conversations about the Clarkstown charges "would all but inevitably elicit incriminating responses" regarding the Greenburgh charges. Such was the case in the instant matter. See, People's Exhibits 5 and 7. Clarkstown Detective Monroe testified that he had been in contact with Investigator Green, who was involved in the investigation of the Greenburgh charges. In fact, Detective Monroe was obviously informed about the status of the Town of Greenburgh charges since Detective Monroe specifically went to the Town of Greenburgh Justice Court on the date that defendant was scheduled to appear in court to effectuate an arrest of defendant on the Clarkstown charges.

Because the Clarkstown charges were so closely related to the Town of Greenburgh charges such that any statement defendant gave with respect to the Clarkstown charges would inevitably elicit incriminating responses regarding the Greenburgh charges, and based on the knowledge Detective Monroe had with respect to the status of the Town of Greenburgh charges, this Court finds that Detective Monroe had an obligation to inquire whether defendant was represented on the Greenburgh charges. In fact, defendant was represented by counsel with respect to the Town of Greenburgh charges and had been since January 31, 2014. See, Defendant's Exhibit B. Given the fact that Detective Monroe arrested defendant at the Town of Greenburgh Justice Court on a date defendant was scheduled to appear in court, Detective Monroe could easily have determined, either by asking the court staff or the defendant himself, whether he was represented by an attorney on the related Greenburgh charges. That defendant was not in custody on the Town of Greenburgh charges [*7]is of no moment considering the obvious relatedness of the Greenburgh and Clarkstown charges. In point of fact, in defendant's November 25, 2013 statement at 11:00 a.m. and in his statement to the Clarkstown detectives, defendant makes admissions with respect to both the Greenburgh and the Clarkstown charges. See, People's Exhibits 5 and 7.

Due to the interrelatedness of the Greenburgh and Clarkstown charges, and the circumstances of defendant's arrest on the Clarkstown charges, this Court finds that it was incumbent on Detective Monroe to determine whether defendant was represented by counsel on the Town of Greenburgh charges prior to speaking with him. Since defendant was represented by counsel with respect to the Greenburgh charges, this Court finds that defendant could not waive his right to counsel in the absence of counsel. As such, defendant's motion to suppress Statement No. 4 is granted.

Lastly, any arguments raised by the parties not specifically addressed herein are either moot or deemed to be without merit.

The foregoing shall constitute the Decision and Order of this Court.

E N T E R

Dated: August 10, 2015

New City, New York

HON. ROLF M. THORSEN, J.C.C. Footnotes

Footnote 1:By Decision and Order dated March 5, 2015, this Court granted defendant's motion, on the consent of the People, to expand the Huntley hearing to "encompass all statements noticed by the People in the Voluntary Disclosure Form." The Court notes that the People's Voluntary Disclosure Form contains three "noticed" statements. However, the evidence elicited at the hearing and the post-hearing memoranda of law submitted by both parties establish that there are four statements that are before this Court for consideration.

Footnote 2:The interview commenced once the three detectives/investigators arrived at the police station and were briefed and/or reviewed the case file as to the recent events from the night before.

Footnote 3:Defendant had previously been assigned counsel to represent him with respect to those charges and was in fact represented by Ron Stokes, Esq., who first appeared with defendant in the Town of Greenburgh Justice Court on January 31, 2014. See, Defendant's Exhibit B.

Footnote 4:Investigator GREEN had been in contact with Detective MONROE and provided him with information regarding defendant's interview at the Town of Greenburgh police station.

Footnote 5:The manner in which Detective Miranda administered the Miranda warnings to defendant was elicited through the testimony of Detective Miranda and also depicted on the videotaped statement. See, People's Exhibit 3.

Footnote 6:The Court's within Decision and Order pertains only to the admissibility of defendant's statement on the issue of whether defendant's statement was voluntarily made.