Opinion
6077 Ind. 2206/13
03-22-2018
The PEOPLE of the State of New York, Respondent, v. Malaquias JIMENEZ, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), and White & Case LLP, New York (Martin Sawyer of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Stephen J. Kress of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), and White & Case LLP, New York (Martin Sawyer of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Stephen J. Kress of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Kahn, Kern, Singh, JJ.
Judgment, Supreme Court, New York County (Larry R.C. Stephen, J. at suppression hearing; Patricia M. Nuñez, J. at jury trial and sentencing), rendered March 31, 2016, convicting defendant of robbery in the third degree and grand larceny in the fourth degree, and sentencing him to an aggregate term of 5 years' probation, unanimously affirmed.Although the court suppressed defendant's initial statements as tainted by a warrantless arrest in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1981), it properly found that defendant's subsequent video statement was attenuated from any illegality. The videotaped interrogation began about 3 hours and 45 minutes after the suppressed statements ended, and more than 15 hours after the arrest (see e.g. People v. Divine, 21 A.D.3d 767, 767, 800 N.Y.S.2d 545 [1st Dept. 2015], affd 6 N.Y.3d 790, 812 N.Y.S.2d 26, 845 N.E.2d 457 [2006] ; People v. Santos, 3 A.D.3d 317, 317, 770 N.Y.S.2d 314 [1st Dept. 2004], lv denied 2 N.Y.3d 746, 778 N.Y.S.2d 471, 810 N.E.2d 924 [2004] ). The Payton violation was not flagrant, and a false statement by the police to defendant about the strength of the case also did not constitute flagrant misconduct (see People v. Johnson, 52 A.D.3d 1286, 1287, 859 N.Y.S.2d 539 [4th Dept. 2008], lv denied 11 N.Y.3d 738, 864 N.Y.S.2d 396, 894 N.E.2d 660 [2008] ; People v. Stokes, 233 A.D.2d 194, 194, 650 N.Y.S.2d 104 [1st Dept. 1996], lv denied 89 N.Y.2d 1101, 660 N.Y.S.2d 395, 682 N.E.2d 996 [1997] ). Moreover, the videotaped statement was made at a different location to a different interrogator, who did not refer to the prior interrogations, and defendant's first interrogator was merely present at the video statement without participating (see People v. Thompson, 136 A.D.3d 429, 25 N.Y.S.3d 143 [1st Dept. 2016], lv denied 27 N.Y.3d 1075, 38 N.Y.S.3d 846, 60 N.E.3d 1212 [2016] ; People v. Chen Ren Jie, 280 A.D.2d 301, 720 N.Y.S.2d 135 [1st Dept. 2001], lv denied 96 N.Y.2d 798, 726 N.Y.S.2d 376, 750 N.E.2d 78 [2001] ). Another intervening circumstance was that defendant was served a meal (see People v. Fashaw, 134 A.D.3d 490, 491, 21 N.Y.S.3d 235 [1st Dept. 2015], lv denied 27 N.Y.3d 1131, 39 N.Y.S.3d 113, 61 N.E.3d 512 [2016] ). Furthermore, the overall circumstances were not coercive.
After a jury note revealed that one juror had conducted online research on false confessions and shared it with the rest of the jury, the court providently exercised its discretion in denying defendant's request to discharge the offending juror and concomitantly declare a mistrial. Defendant did not preserve his contention that the court should have conducted one or more individual inquiries (see People v. Parrilla, 27 N.Y.3d 400, 405, 33 N.Y.S.3d 842, 53 N.E.3d 719 [2016] ; People v. Albert, 85 N.Y.2d 851, 623 N.Y.S.2d 848, 647 N.E.2d 1356 [1995] ), and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. The court took adequate curative measures by thoroughly admonishing the jury to disregard the information obtained by a juror, not to conduct any outside research, and to decide the case solely based on the evidence presented at trial (see People v. Reader, 142 A.D.3d 1109, 37 N.Y.S.3d 349 [2d Dept. 2016], lv denied 28 N.Y.3d 1149, 52 N.Y.S.3d 301, 74 N.E.3d 686 [2017] ). The jury presumably followed these instructions (see People v. Davis, 58 N.Y.2d 1102, 1104, 462 N.Y.S.2d 816, 449 N.E.2d 710 [1983] ). The court also granted defense counsel's request for individual polling of the jurors as to whether they had reached the verdict based only on the evidence and the law as instructed by the court, and not based on any outside influence, to which all jurors answered in the affirmative. Under the circumstances, the juror's misconduct in researching and telling the other jurors about false confessions did not prejudice defendant.