People v Lorient

[*1] People v Lorient 2017 NY Slip Op 51372(U) Decided on October 13, 2017 Supreme Court, Kings County Qui¤ones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2017
Supreme Court, Kings County

People of the State of New York, Plaintiff,

against

Luckner Lorient, Defendant



5122-2016



For the People: Samantha Magnani, Esq., Vivian Joo, Esq., Sara Walshe, Esq., Kings County District Attorney's Office

For the Defendant: Donald LaRoche, Esq., Charles Tucker, Jr., Esq., Duane Harley, Esq.
Joanne D. Qui±ones, J.

Defendant is charged, by way of indictment, with the crimes Manslaughter in the Second Degree, in violation of Penal Law (P.L.) section 125.15(1), Criminally Negligent Homicide, in violation of PL section 125.10, and other related charges stemming from an incident that allegedly occurred on November 19, 2014. On September 26, 2017 and October 11, 2017, the court conducted a Huntley hearing. The People presented three witnesses at the hearing: Detective William Simon, Fire Marshal John Orlando, and Agent Robert Rivera. Defendant did not present any witnesses. At the end of the testimony, the court heard oral arguments from both sides.

I make the following findings of fact and conclusions of law:

FINDINGS OF FACT

Detective William Simon has been working with the New York City Police Department [*2](NYPD) for approximately 20 years, and has been working as a detective with the Cold Case Homicide Bureau for approximately three years. Fire Marshal (FM) John Orlando has been with the New York City Fire Department (FDNY) for over 20 years, the last 9 ½ as a Fire Marshal, and since November 2016 as a Supervising Fire Marshal. He has investigated approximately one thousand fire scenes. Agent Robert Rivera has been assigned to the Department of Homeland Security, Customs and Border Protection for approximately 29 years, and currently serves as the Supervisory Task Force Officer.

Fire Marshal Orlando testified credibly that on November 19, 2014, he responded to 1434 Flatbush Avenue in Kings County to investigate the origin and cause of a fire. When he arrived on scene at approximately 1:30 AM, there was still an active fire. He observed that the location was a three-story building, mixed occupancy, non-fireproof. He learned that approximately 20 people had self-evacuated or been removed from the location by FDNY, seven individuals were seriously injured and there was one fatality.

Once the fire was suppressed, FM Orlando went inside the location and observed that the first floor was a church, and the second and third floors contained several rooms that were broken up into single room occupancies with a shared kitchen and bathroom on each floor.

At some point, FM Orlando learned that the owner of the building, Luckner Lorient, was outside and he exited the building to speak with him. At approximately 5:50AM, he spoke to Defendant in a bureau fire investigation fire scene unit vehicle that is about the size of an ambulance. The vehicle had a table and benches, the FM and two detectives from the NYPD Arson and Explosion Squad sat on one side of the table and Defendant and his brother, Josue Lorient, sat on the other. The FM asked Defendant questions about the building, the tenants and what happened. Defendant stated that he was the owner of the building which he purchased in 1985 and that he did not have insurance on the building. He indicated that he rented the second floor to Dieula Guirand and the third floor to Erilia Ravilus, but that he did not rent to or know the other tenants who lived on the second and third floors. He confirmed that he was responsible for the heat and hot water, which was working, and that the tenants were responsible for the electricity, but he was unsure as to its condition. He also wrote the names of the tenants to whom he rented the second and third floors on a sheet of paper. Defendant was not handcuffed or under arrest and his brother sat by his side during the entire interview. At one point, Defendant indicated he did not feel well and would like to go home. FM Orlando confirmed Defendant's contact information and advised Defendant he may be contacted again if there were additional questions. Defendant then left the location.

Detective Simon testified credibly that on November 19, 2014, he was assigned to investigate the fire at 1434 Flatbush Avenue. He arrived on scene at approximately 8 AM, interviewed tenants and spoke with Fire Marshal Orlando. Following the fire, he conducted a review of the records of the building.

In July 2016, Detective Simon was assigned to arrest Defendant on the instant indictment. After failed attempts to arrest Defendant at his home at 781 Remsen Avenue in Brooklyn, Detective Simon was directed to go to Florida to apprehend Defendant when he returned to the country from Haiti.

On July 26, 2016, Detective Simon and his partner were in a secured area at the airport in Dade County, Miami, to make the arrest with the assistance of US Customs Agent Rivera. Once Defendant was brought in, Detective Simon observed the customs agents go through their questioning process. He remembered "part of the conversation Agent Rivera was asking [*3][Defendant] about his business in Haiti" and Defendant responded that he was a pastor, that he was preaching in Haiti, that he was an engineer and knew a lot about buildings. Detective Simon indicated that Defendant kept talking to Agent Rivera, "the conversation was between the two of them." Defendant told Agent Rivera that tenants were doing drugs and had started a fire at 1434 Flatbush Avenue and that Defendant lived at 781 Remsen Avenue and had several other properties. After Defendant was cleared by Customs, Detective Simon informed Defendant that he was there to place him under arrest and took him into custody.

I credit Agent Rivera's testimony to the following extent: on July 25, 2016, he was contacted by Detective Simon to assist in the execution of an arrest warrant for Defendant. Agent Rivera was advised that it was "a homicide warrant out of Brooklyn" related to a building fire where "several people were seriously injured and a person lost their life." The next day Agent Rivera and his partner and Detective Simon and his partner remained in an enclosed room about 15 X 15 in size, behind the Passport Control section of the airport, awaiting Defendant's arrival. Defendant was met at the plane by two uniformed Customs officers, who escorted him through Passport Control to the room where Agent Rivera and the others were waiting. The uniformed officers then remained in the room with the others. Agent Rivera did not identify himself or the NYPD Detectives. When asked whether the uniformed officers who escorted Defendant spoke to Defendant as they escorted him from the plane to the room, Agent Rivera asnwered "not at all." Defendant was brought into the room and seated in front of Agent Rivera, who was seated with the two NYPD Detectives standing behind him. According to Agent Rivera, the uniformed Customs officers were at a computer inside the room processing paperwork. Agent Rivera further testified that Defendant started talking about his education, that he was an engineer, and had several degrees. Agent Rivera testified that he only asked Defendant "how he was going to get home once he got to New York, if anyone was going to pick him up at the airport," and that Defendant responded that he was going to take a cab, that his wife was waiting for him at home, that he was a pastor of a church, that he owned a building, and that there was a lady selling marijuana in the building who caused a fire and somebody died. According to Agent Rivera, the entirety of Defendant's statement was made in response to the single question about how Defendant was going to get home once he arrived in NY. Agent Rivera's testimony is belied by Detective Simon's testimony that during the questioning process, Defendant was also asked about his business in Haiti. After the interview and processing with Agent Rivera which lasted about an hour, Defendant was advised that there was a warrant for his arrest and that the NYPD detectives would be taking him into custody.

CONCLUSIONS OF LAW

At a Huntley hearing, the People have the burden of proving beyond a reasonable doubt that the statements made by Defendant were voluntary. It is manifest that a defendant who is in custody may not be interrogated by law enforcement without being advised of his constitutional rights (Miranda v Arizona, 384 US 436 [1966]). "Both the elements of police custody and police interrogation must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda" (People v Huffman, 41 NY2d 29, 33 [1976]).

With respect to the oral statement and handwritten names made by Defendant to Fire Marshal Orlando, it is clear that these statements were not the product of custodial interrogation. While it is undisputed that these statements were made in response to questions posed by the Fire Marshal, the questions posed by the Fire Marshal were investigatory in nature and not [*4]intended to elicit an incriminating response (see People v Ferro, 63 NY2d 316, 322 [1984]). Furthermore, Defendant was not in custody at the time of his statements. He was not handcuffed or deprived of his freedom in any way. He was not isolated, in that his brother remained at his side during the entirety of the interview. Most significantly, when Defendant indicated he was not feeling well and wanted to go home, he was allowed to leave the scene. As the People pointed out in their closing argument, Defendant was not even arrested until more than a year and a half later. As such, this court finds that the oral and written statements made by Defendant at the scene are not the product of custodial interrogation. Accordingly, the motion to suppress these statements is denied.

With respect to the statement made to Agent Rivera, it is without question that any person entering or re-entering the US is subject to detention and search by the US Customs and Border Control (see 19 USC §1582). Here, upon landing on US soil, Defendant was stopped by two uniformed officers and brought to a secure room to be interviewed by Agent Rivera. At the time of the interview, Defendant "was still within the confined area which was under the jurisdiction and control of the US Customs Bureau" (see People v Furey, 42 Misc 2d 579, 580 [Sup Ct, Queens Cty 1964]) and was therefore subject to a border search. It is settled that a routine inspection of luggage and other belongings at the border, conducted without a warrant or even probable cause, does not violate the constitutional proscriptions against unreasonable searches and seizures. The difference here, however, is that Defendant was stopped by customs agents at the instigation of the police for assistance in executing the arrest warrant. Where, as here, customs agents acted as "agents of the police the full panoply of constitutional provisions and curative measures applies" (see People v Esposito, 37 NY2d 156, 160 [1975]). Police officers are not permitted to use federal officials to circumvent constitutional prohibitions by conducting local investigations by unlawful means (id.).

While Defendant may not have been formally arrested during his interview with Agent Rivera, he was, without question, in custody. "Custody occurs if the suspect is physically deprived of his freedom of action in any significant way or is led to believe, as a reasonable person, that he is so deprived" (see People v P, 21 NY2d 1, 9 [1967] [internal citations omitted]). In this case, upon his arrival into the US, Defendant was taken by two uniformed officers and escorted to a secure room behind Passport Control. Crediting Agent Rivera's testimony, the uniformed officers had no conversation with Defendant as they escorted him and he therefore received no explanation of where he was going or why. He was then brought into a room with six law enforcement officials: two uniformed customs officers, Agent Rivera and his partner, and Detective Simon and his partner. No one identified themselves. Defendant was not free to leave. "It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity" (Miranda v Arizona, 384 US at 457-458).

Here, Defendant was subjected to custodial interrogation. "Custodial interrogation is not limited to police station questioning or that occurring after a formal arrest" (People v P, 21 NY2d at 8). Custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way" (id. at 9 [internal citations omitted]). Because Defendant was stopped by customs agents at the behest of the police and then subjected to interrogation by Agent Rivera while in custody, Miranda warnings were required. It cannot be said that the questioning of [*5]Defendant here was a "routine customs inquiry designed to ascertain the identity and purpose of a person entering the country" for which Miranda warnings are not required (cf. People v Hicks, 162 AD2d 1004 [4th Dept 1990]). Defendant's identity was known as well as the fact that he was wanted for "a homicide warrant out of Brooklyn." Here, Agent Rivera's questioning of Defendant should have been preceded by Miranda warnings. Because no Miranda warnings were afforded and waived by Defendant, the statement made to Agent Rivera must be suppressed. Accordingly, the motion to suppress this statement is granted.

This constitutes the decision and order of the court.

Dated: October 13, 2017

Brooklyn, New York

_________________________________

Joanne D. Qui±ones, A.J.S.C.