Opinion
Index No. 9081/2017
04-05-2023
People of the State of New York v. Joanna Mei, Defendant.
Assistant District Attorney Joseph I. Mancino, Esq., for the People of the State of New York Mr. Lawrence Fredella, Esq., for the defendant, Joanna Mei
Unpublished Opinion
Assistant District Attorney Joseph I. Mancino, Esq., for the People of the State of New York
Mr. Lawrence Fredella, Esq., for the defendant, Joanna Mei
Vincent M. Del Giudice, J.
Defendant, Joanna Mei (hereinafter: defendant), is charged with the crimes of Murder in the Second Degree (Penal Law [hereinafter: P.L.] § 125.25[2]), and other related charges arising from allegations that on November 19, 2017, the defendant did set fire to 6709 11th Avenue, Kings County, causing death to Xi Lin Huang (hereinafter: Decedent Haung) and Feng Xia Xu (hereinafter: Decedent Xu). On August 30, and September 6, 2022, this Court conducted a combined Dunaway/Huntley hearing. The defendant sought to suppress statements made by the defendant related to this case, arguing that the defendant lacked the mental capacity required for a valid waiver of the defendant's Fifth Amendment rights, which the People seek to admit during the prosecution of the instant action.
In addition, the defendant moves this Court to reargue and dismiss the instant indictment, based upon the Court's Decision and Order of March 5, 2018, finding the instant indictment was based upon legally sufficient evidence and the Grand Jury proceeding was proper, pursuant to Criminal Procedure Law (hereinafter: C.P.L.) Article 190.
Finally, the defendant moves this Court for leave to file additional motions.
The People opposed the defendant's motions in their entirety.
CONSTITUTIONAL PRE
TRIAL HEARINGS
STATEMENT OF FACTS
The People initially called three witnesses at the hearing: Fire Department of New York (hereinafter: F.D.NY) Lieutenant Vincent Lorenzo (hereinafter: Lt. Lorenzo), F.D.NY Fire Marshal Robert Cox (hereinafter: Marshal Cox), and New York City Police Department (hereinafter: N.Y.P.D.) Detective Fredrick Daughtry (hereinafter: Det. Daughtry). The defendant called one expert witness in response to the People's presentation of the evidence, Dr. Kate Termini, Ph.D. (hereinafter: Dr. Termini), a licensed clinical psychologist with a specialty in neuropsychology. On rebuttal the People called one additional expert witness, Dr. Kathy Yates, Ph.D., (hereinafter: Dr. Yates), a licensed clinical psychologist with a specialty in neuropsychology. I find the testimony of these witnesses to be credible, reliable and worthy of belief.
F.D.N.Y. Lieutenant Vincent Lorenzo testified as follows:
Lt. Lorenzo was a fire marshal assigned to the F.D.N.Y.'s Citywide South Command from February 2015 to April 2021 as an investigating fire marshal. This unit is responsible to investigate fires within certain portions of New York City, including Kings County. On November 9, 2017, at approximately 7:45 AM, Lt. Lorenzo responded to a three-story multi-dwelling building on fire at 6709 11th Avenue, Kings County. Upon arrival, Lt. Lorenzo observed firefighters operating at the location and approximately seven or eight members of the public on the street.
As he awaited the building being deemed safe for inspection, Lt. Lorenzo interviewed spectators outside the locus in quo. One of the individuals interviewed was the defendant, who stated that she lived in the building that was on fire. During this interview on the street, the defendant was not under arrest or otherwise in government custody, was not in handcuffs, and was free to leave at any time. While speaking with Lt. Lorenzo the defendant expressed concern and was curious about what was happening with her building, provided pedigree information and stated that she had left her apartment at approximately 6:00 AM. The defendant further stated that she did not observe anything unusual at that time and returned to the building when she saw smoke and heard sirens.
After speaking with the defendant, firefighters cleared the building for inspection and Lt. Lorenzo began his physical examination of the building and its interior.
F.D.N.Y. Fire Marshal Robert Cox testified as follows:
Marshal Cox was an investigating fire marshal from 2011 to 2019, and is now serving as a supervising fire marshal. In 2017, Marshal Cox was assigned to the F.D.N.Y.'s Special Investigations Unit, responsible for investigating large, multi-alarm fires and fires resulting in fatalities throughout the City of New York. On November 9, 2017, Marshal Cox responded to 6709 11th Avenue, Kings County, at approximately 8:00 AM. After observing and inspecting the locus in quo, Marshal Cox began interviewing witnesses and canvassing for surveillance video.
Marshal Cox interviewed Jin Chen, the owner of 6709 11th Avenue, in an adjoining building. Next, Marshal Cox proceeded to the N.Y.P.D.'s 68 Precinct (hereinafter: 68 Pct.) to interview additional witnesses.
Upon arrival at the 68 Precinct Detective Unit (hereinafter: 68 P.D.U.), Marshal Cox observed the defendant in the waiting area, outside of the detective squad office.As the defendant had been cleared as a suspect at that time by the police, the defendant was not in police custody, nor guarded by police, and was free to leave. Marshal Cox asked the defendant if she would go to an F.D.NY office to be interviewed about the building layout, as well as issues and upkeep of the building. The defendant agreed and was transported by fire marshals to their office. The defendant was not under arrest, nor in handcuffs during the drive from the N.Y.P.D.'s 68 Pct. to the marshal's office. The defendant was followed to the marshal's office by the defendant's aunt, who was present at the N.Y.P.D.'s 68 Pct. and who drove, in her own vehicle, to the marshal's office.
Once at the F.D.NY office, the defendant was taken to a large conference room, containing a large table and multiple chairs. During her time with the fire marshals, the defendant was periodically offered food, drink and the ability to use the restroom. Marshal Cox was joined by F.D.NY Fire Marshal Schmidt during the interview. The defendant was still not a suspect at this time, was not handcuffed and the marshals' firearms were secured outside the conference room in a supervisor's office during the interview. In addition, the defendant was free to leave, if she so chose. The defendant was not advised of her rights pursuant to Miranda v Arizona, 384 U.S. 436 (1966) (hereinafter: Miranda), because she was not a suspect, nor in custody, and only deemed a witness at that point. The defendant provided pedigree and general background information, answering questions appropriately with responsive answers. The defendant appeared to understand what was being asked and did not ask for clarification. The interview was conducted in the English language without issue and the defendant appeared calm during this portion of the interview.
Marshal Cox asked if the defendant would mind having an accelerant sniffing canine check her shoes to determine whether she walked through any accelerant at the fire. The defendant agreed, her shoes were removed and placed in the center of the conference room. When the canine entered the room, the defendant appeared nervous and stated that she did not like dogs. The canine indicated the presence of an accelerant on the defendant's shoes. After the canine alerted to the presence of an accelerant, the defendant stated: "All I did was kick over the garbage can, kick over the can." Hearing Transcript, dated August 30, 2022 (hereinafter: HT 3/30/22), Page: 26, Lines: 11-12. With that, the interview was suspended and the fire marshals consulted their supervisor as the defendant waited in the conference room.
Upon returning to the conference room the fire marshals advised the defendant of her rights pursuant to Miranda from a pre-printed form . The defendant appeared to understand and further stated that she understood each right as read to her, checked "YES" on the form indicating that she understood the rights and did not request clarification from the marshals. After being advise of her rights, the defendant agreed to speak with the fire marshals and answered their questions. In addition, the defendant agreed to provide written statements and generated two hand-written statements memorializing her account of what transpired. This interview at the fire marshals' office was not video recorded, as the facility lacks the equipment to do so. Upon completion of the defendant's written statements, the marshals transported the defendant back to the N.Y.P.D.'s 68 P.D.U. for a video-recorded interview.
A true-copy of the Miranda pre-printed form was entered into evidence at the hearing as People's Exhibit # 1.
A true-copy of the two hand-written statements were entered into evidence at the hearing as People's Exhibits # 2 and 3, respectively.
N.Y.P.D. Detective Frederick Daughtry testified as follows:
Det. Daughtry was assigned to the N.Y.P.D.'s Brooklyn South Homicide Unit since 2015. On November 9, 2017, at approximately 8:00 AM, the detective responded to 6709 11th Avenue, Kings County, and observed a multi-dwelling residential building that had been on fire. Subsequently, at approximately 1:00 PM on that same day, Det. Daughtry was at the N.Y.P.D.'s 68 Pct. and interviewed the defendant. The interview was not recorded, nor was Miranda administered for the purpose of this interview, as the defendant was not a suspect and not in police custody at that time. N.Y.P.D. Detectives Pereria and Ducceschi, as well as Marshal Cox were present for the interview. The defendant was afforded the opportunity to use the restroom and offered food and drink. This interview lasted approximately one hour. After this interview, the defendant met with family members who were also at the N.Y.P.D.'s 68 Pct. and was then taken to a F.D.NY office for additional interviews, as Det. Daughtry continued his investigation into the fire.
Later that same day, the defendant returned to the N.Y.P.D.'s 68 Pct. with the Det. Pereria and Marshal Cox for a video recorded interview . During this interview, which commenced at approximately 8:00 PM, the law enforcement agents were not armed, the defendant was again offered food, drink and the ability to use the restroom, was not in handcuffs, and was advised of her rights pursuant to Miranda. The defendant again appeared to understand her rights as read to her, decided to waive her Miranda rights and spoke with the police. The defendant's answers were clear and concise. The defendant was not free to leave during this interview, which lasted approximately two hours and fifteen minutes.
A true-copy of the video recorded interview of the defendant was entered into evidence at the hearing as People's Exhibit # 4.
Dr. Kate Termini, Ph.D. testified as follows:
Dr. Termini is a self-employed Forensic Psychologist, who has been a licensed Clinical Psychologist since 2012. Dr. Termini received her undergraduate degree in Psychology, with a minor in Criminology, from Duke University and a Masters, as well as a Doctorate, in Clinical Psychology with a specialty in Neuropsychology from the Albert Einstein College of Medicine. Although the doctor has not been published in the area of Forensic Psychology, she has testified in various courts approximately twelve to fourteen times as an expert on the subject. In addition, Dr. Termini has worked on approximately eight to ten prior cases involving the issue of competency to waiver Miranda rights. Dr. Termini was deemed an expert witness in the area of Clinical and Forensic Psychology at this instant hearing.
In connection with this case Dr. Termini interviewed the defendant on at least four occasions, conducted one collateral interview of a relative of the defendant, reviewed the defendant's medical and educational records , legal documents, crime scene photographs, video surveillance, the defendant's video recorded statement to police and a report by Dr. Kathy Yates, Ph.D . It must be noted that the review of certain materials by Dr. Termini, including the defendant's educational records, video recorded statement and Dr. Yates' report, did not occur until after Dr. Termini made her determinations and completed her written report for this case.
A true-copy of the defendant's medical records were entered into evidence at the hearing as People's Exhibit #5.
A true-copy of the defendant's education records from June 2022 and April 2019 were entered into evidence at the hearing as Defense Exhibits C and F, respectively.
A true-copy of Dr. Yates. Report was entered into evidence at the hearing as Defense Exhibit B.
A true-copy of Dr. Termini's report was entered into evidence at the hearing as Defense Exhibit A.
During Dr. Termini's clinical examinations of the defendant, the doctor administered Wechsler Adult Intelligent Scale, Fourth Edition (hereinafter: WAIS Test); Test of Memory and Malingering; and the Wide Range Achievement Test, Fourth Edition, in order to evaluate a variety of brain functions and to rule out whether the defendant was malingering or feigning symptoms of incapacity. As a result, Dr. Termini determined the tests indicate that the defendant was not feigning or malingering any sort of symptoms, and the defendant's full-scale IQ is 61, which places her in the 0.5 percentile. The results of the administered tests further indicate extremely low or borderline range of functioning. Dr. Termini also testified that due to the low score, without impairment of adaptive functioning, the defendant has only one criterion for an intellectual disability (see HR 8/30/22, Pages: 81-82, Lines: 18-4).
Upon assessment of the defendant's reading comprehension, it was determined by Dr. Termini that the defendant read at a second-grade level, however the defendant's educational records from high school show that the defendant scored grades between 70 and 90 in her English classes. The doctor further testified that the defendant spoke Cantonese in the home as a child, and repeated the second grade, according to the defendant's educational records. In addition, the defendant's medical records indicate an elevated level of lead in the bloodstream from ages one to six. Dr. Termini testified that elevated lead levels could adversely affect the brain, as well as other bodily organs and all cells of the body. However, no treatments for the elevated lead, nor complications resulting from this condition were noted in said records.
Dr. Termini testified that she did not employ objective measure tests, such as the Georgia Court Competency Test, Grisso's Instruments for Assessing and Understanding an Appreciation of Miranda Rights, the Complete Assessment for Standing Trial for Defendants with Mental Retardation Test, nor the Repeatable Battery for the Assessment of Neuropsychological Status Test to assess practice judgment. Moreover, the doctor only conducted one collateral interview of the defendant's godmother, as she testified that no other interviews would be relevant to her determination. Although the defendant provided some questionable responses during her interviews by Dr. Termini, Dr. Termini issued her final report before receiving records that would confirm or dispel these responses. When the belated records were received, the defendant was ultimately determined to be lying. Moreover, upon confirming the defendant was untruthful with Dr. Termini, the doctor testified that the defendant lying would not affect her assessment of the defendant (see HT 8/30/23, Page 101, Lines 14-17).
Based upon the examinations and interviews of the defendant, as well as review of the other sources noted, Dr. Termini testified, in her expert opinion, that "based on a combination of my interview and face-to-face interactions with her, as well as the testing, as well as review of records, I do not think that she was competent to waive Miranda." HT 8/30/23, Pages 86-87, Lines 25-3. Finally, Dr. Termini testified that after receiving reports, records and materials unavailable at the time Dr. Termini made her conclusions and generated her report, Dr. Termini made no attempt or request to re-interview the defendant or to amend her report in any way.
Dr. Kathy Yates, Ph.D. testified as follows:
Dr. Yates is employed by the Nathan Kline Institute for Psychiatric Research as a tenured Clinical Research Psychologist, and as the Chief Neuropsychologist for the National Institute on Aging and National Institute of Health funded grants for NYU Langone Medical Center. In addition, Dr. Yates is an associate professor for NYU Langone and is a consultant for civil and criminal forensic psychological and neuropsychological issues. Dr. Yates received her undergraduate degree in Psychology from Texas A&M University, her Masters in Behavior Sciences with an emphasis in Psychology from the University of Houston and her Doctorate from Columbia University with an emphasis on Neuropsychology. Previously, Dr. Yates has consulted on approximately 250 cases, over twenty-five years, testifying for the prosecution as well as defense, and has been involved in approximately fifty cases concerning the capacity to waive rights pursuant to Miranda. Dr. Yates was deemed an expert witness in the area of Forensic Psychology and Neuropsychology at this instant hearing.
Prior to conducting an interview and examination of the defendant for this case, Dr. Yates conducted six collateral interviews, with two N.Y.P.D. detectives, two F.D.NY fire marshals, the defendant's godmother and the defendant's mother. In addition, prior to meeting with the defendant personally, Dr. Yates reviewed the instant indictment, Miranda waiver, defendant's written statements, defendant's video-recorded statement, statement timeline, Marshal Cox's memo-book, complaint investigation material, crime scene photographs, surveillance timeline, witness interviews, autopsy reports, toxicology reports, defendant's Riker's Island recorded phone calls, the defendant's medical and psychiatric records from 1996 through 2017, defendant's academic records, Dr. Termini's forensic examination of the defendant and resulting report, as well as the data and any notes from said examination.
Dr. Yates testified that a thorough review of the above-listed sources, materials and records were crucial and necessary to be able to assess the information provided by the defendant during the defendant's examination. After so prepared, Dr. Yates obtained the defendant's informed consent for the examination and conducted a single, extended interview/examination of the defendant which spanned approximately five hours and forty-five minutes . During this time, the defendant was given breaks to utilize the restroom, as well as to eat and drink.
A true-copy of the written informed consent form was entered into evidence at the hearing as Defense Exhibit E.
A true-copy of the recorded interview/examination by Dr. Yates was entered into evidence at the hearing as People's Exhibit # 6, and a transcript of said interview was entered into evidence at the hearing as Defense Exhibit D.
Upon examination of the defendant, Dr. Yates administered several objective psychological tests, consisting of two measures of validity indices, one for integrity of memory and one test for symptom validity to assess memory difficulties across different domains (see Hearing Transcript, dated September 6, 2022 [hereinafter: HT 9/6/22], Page 134, Lines 5-18). Of these tests, Dr. Yates administered the Reynolds Intellectual Screening Test (hereinafter: Reynolds Test), which is highly correlated to the WAIS Test, administered by Dr. Termini, however the Reynolds Test is not impacted by low socioeconomic status or poor education, as the WAIS Test is so affected. As a result of the tests administered by Dr. Yates, the defendant's score was 91, placing the defendant within the average or normal range of IQ., as opposed to Dr. Termini's finding of "extremely low or borderline range of functioning." Upon review of Dr. Termini's final report, Dr. Yates noted that Dr. Termini does not address the three prongs of competency to proceed, nor does she address knowing and intelligent waiver. Rather, Dr. Termini appears to utilize IQ to categorically determine the defendant's capacity for waiver, without utilizing objective measures to assess the intellect prong, Dr. Termini failed to verify statements made by the defendant against objective records and other sources, and Dr. termini failed to re-interview the defendant after receiving Dr. Yate's conflicting report. All of which is contrary to accepted scientific standards. HT 9/6/22, Pages 148-150.
Moreover, Dr. Yates was unable to evaluate the integrity of the defendant's responses to the WAIS Test, as Dr. Termini did not record the responses nor were observations noted, contrary to accepted professional standards. Rather Dr. Termini simply circled values. Thus, a qualitative assessment was not possible.
Dr. Yates noted, in the reviewed materials as well as during her examination of the defendant, the defendant responded to open ended questions relevantly, concisely and immediately. If the defendant was unfamiliar with or did not understand a word, she asked for clarification. During the examination of the defendant, Dr. Yates confronted the defendant with untruthful or inconsistent statements the defendant provided, which conflicted with the sources reviewed in preparation for the exam. When so confronted, the defendant quickly amended her responses to address these falsehoods and inconsistencies. HT 9/6/22, Page 140, Lines 19-20.
In addition, Dr. Yates observed that, upon review of the defendant's recorded Riker's Island phone calls, when speaking with people other than the defendant's mother, the defendant did not speak in "baby talk", rather she employed clear and concise language, inclusive of explaining advanced math and computer terms to her sister. Conduct which further conflicted with the defendant's performance on the formal tests administered during her examination.
Based on the foregoing, Dr. Yates opined that the defendant was competent to waive her rights pursuant to Miranda, "from a knowing, intelligent point of view." HT 9/6/22, Page 154, Lines 18-19.
Evidence admitted post-testimony, upon stipulation of the Parties:
After conclusion of the testimonial portion of the instant hearing, the parties received additional educational records from the New York City Department of Education, which both parties believed would aid this Court in reaching its ultimate determination of the key issue of competence to waive the defendant's constitutional rights. Upon stipulation, the evidentiary portion of the hearing was re-opened and the parties introduced the defendant's GED Scores from 2021-2022 ; newly received New York City Department of Education Records ; and expert report addenda from Dr. Termini and Dr. Yates .
A true-copy of defendant's GED Scores from 2021-2022, were entered into evidence at the hearing as Defense Exhibit G.
A true-copy of the newly received New York City Department of Education records were entered into evidence at the hearing as Defense Exhibit H.
A true-copy of the expert report addenda, were entered into evidence at the hearing as Defense Exhibit I.
CONCLUSIONS OF LAW
Dunaway Hearing
At a Dunaway hearing, the People have the initial burden of going forward to show, by credible evidence, the lawfulness of the police conduct (People v. Moses, 32 A.D.3d 866 [2d Dept 2006]; see also People v. Wise, 46 N.Y.2d 321 [1978]; People v. Whitehurst, 25 N.Y.2d 389, 391 [1969]). In evaluating the police action, the court must determine whether it was justified at its inception and whether it was reasonably related in scope to the circumstances at the time (People v. DeBour, 40 N.Y.2d 210, 215 [1976]). Pursuant to C.P.L. § 70.10(2), "reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgement and experience that it is reasonably likely that such offense was committed and that such person committed it." New York has employed the term "reasonable cause to believe" as a statutory equivalent of probable cause. See New York Search and Seizure, Hon. Barry Kamins (ret.), §102(1)(a), citing People v Russell, 16 A.D.3d 776 (3rd Dept 2005); cf. People v Jenkins, 209 A.D.2d 164 (1st Dept 1994). In addition, "A[n] arrest need not be supported by information and knowledge which, at the time, excludes all possibility of innocence and points to the defendant's guilt beyond a reasonable doubt. As the very name suggests, probable cause depends upon probabilities, not certainty." People v Sanders, 79 A.D.2d 688 (2d Dept 1980), citing People v Miner, 42 N.Y.2d 937; Adams v Williams, 407 U.S. 143, 149; and Brinegar v US, 338 U.S. 160, 175.
Based upon the statements made to law enforcement during the course of their investigation by the defendant, as well as the trained accelerant sniffing canine's alert to the presence of an accelerant on the defendant's shoes, and the defendant's immediate statement following that alert: "All I did was kick over the garbage can, kick over the can" (HT 3/30/22, Page: 26, Lines: 11-12), this Court finds that information possessed by the law enforcement agents were sufficient to establish probable cause for the defendant's arrest.
Huntley Hearing
As in any case where the defense challenges the admission of a defendant's statement, the People must prove the statement's voluntariness beyond a reasonable doubt (People v. Huntley, 15 N.Y.2d 72, 78 [1965]; People v. Anderson, 42 N.Y.2d 35, 38-39 [1977] ; People v. Holland, 48 N.Y.2d 861, 862 [1979]). The police may not legally interrogate a person who is in custody without first administering to that suspect his or her Miranda rights (Miranda, at 479). If the defendant was subjected to custodial interrogation, the prosecutor's burden also includes the duty to prove, beyond a reasonable doubt, that the defendant was advised of his Miranda rights and that he knowingly and voluntarily waived those rights (Miranda, 384 U.S. at 471-472).
Miranda rights are required whenever a person is subjected to custodial interrogation. Whether a person is in custody is generally a question of fact. The standard the court must apply is what a reasonable person, innocent of any crime, would have thought had he been in the defendant's position when initially questioned by detectives (People v. Yukl, 25 N.Y.2d 585 [1969]). Factors to be considered include: (1) the amount of time the suspect spent with the police; (2) whether the suspect's freedom of action was restricted; (3) the location and atmosphere under which the questioning occurred; (4) the degree of cooperation exhibited by the suspect; (5) whether constitutional warnings were administered; and (6) whether the questioning was investigatory or accusatory in nature (People v. King, 222 A.D.2d 699 [2d Dept 1995]; People v. Macklin, 202 A.D.2d 445 [2d Dept 1994], lv denied 83 N.Y.2d 912 [1994]; People v. Arcese, 148 A.D.2d 460 [2d Dept 1989], lv. denied 74 N.Y.2d 661 [1989]).
Based upon the evidence presented during the hearing, there is no question that prior to the canine indicating the presence of an accelerant on the defendant's shoes, the defendant was free to leave and was not in custody for the purposes of Miranda. As such, for all statements made by the defendant prior to this point, the defendant was not entitled to receive her Miranda warnings. In addition, this Court finds that these statements and interview responses to be voluntary, not the product of duress or coercion. However, after the identification of a chemical agent, in conjunction with the defendant's statement "All I did was kick over the garbage can, kick over the can" (HT 3/30/22, Page: 26, Lines: 11-12), the defendant was clearly no longer free to leave, and was in police custody. Therefore, at this point, the defendant was entitled to receive her Miranda rights prior to being questioned further by law enforcement, which the defendant did receive, as evidenced by the testimony of Marshal Cox and Det. Daughtry in conjunction with the documentary and video evidence introduced at the hearing, as People's Exhibits No. 1 & 4, respectively.
"The special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation" (Rhode Island v. Innis, 446 U.S. 291, 300 [1980]; People v. Ferro, 63 N.Y.2d 316, 322 [1984], cert. denied 472 U.S. 1007; People v. Tavares-Nunez, 87 A.D.3d 1171, 1172 [2nd Dept 2011, lv. denied 19 N.Y.3d 1105]). Not every statement made by a suspect in custody is subject to Miranda. Only those statements that are the product of custodial interrogation, or its functional equivalent, must be preceded by administration of Miranda rights.
"Prior to questioning, the person must be warned that he has the right to remain silent, that any statement he does make may be used against him, and that he has a right to the presence of an attorney, either retained or appointed." Miranda, at 444-445. Verbatim use of the language or a set order of the rights outlined in Miranda is not required. "No talismanic incantation [is] required to satisfy its strictures." California v. Prysock, 453 U.S. 335 (1981). As long as the warnings, as administered by the law enforcement agent, convey principles set forth in Miranda, they are adequate. See People v. Anderson, 146 A.D.2d 638 (2nd Dep't 1989), lv. denied 74 N.Y.2d 660 (1989).
A key issue here is not only whether the defendant was entitled to receive and did actually receive the administration of warnings pursuant to Miranda, but whether the defendant was competent and capable of waiving those rights prior to being interrogated by law enforcement and providing statements. This issue turns on whether the defendant was able make a knowing and intelligent waiver of her constitutional rights. "Whether the defendant intelligently waived his rights is a factual question to be determined by the totality of the circumstances of which mental capacity is only one factor (People v King, 234 A.D.2d 923). It is not required that a defendant understand more than the immediate meaning of the warnings, that is, the basic concept that he can refuse to talk or ask for a lawyer (People v Williams, 62 N.Y.2d 285; People v Ferguson, 285 A.D.2d 901); and neither mental instability, cognitive deficits not limited intelligence mandate a different finding (People v Comfort, 6 A.D.3d 871; People v King, 234 A.D.2d 923 ; People v Gerard, 123 A.D.2d 635; People v Paul, 116 A.D.2d 746; People v Miles, 115 A.D.2d 962; People v Mathis, 77 A.D.2d 720)." People v Corbett, 20 Misc.3d 1118 (A) (Kings Sup Ct, 2008) (D'Emic, J.). "Whether a defendant knowingly and intelligently waived his or her rights to remain silent and to an attorney is determined upon an inquiry into the totality of the circumstances surrounding the interrogation (People v Santos, 112 A.D.3d 757, 758[2013] [internal quotation marks omitted]; see (People v Williams, 62 N.Y.2d at 288), including the defendant's age, experience, education, background, and intelligence, and whether he [or she] has the capacity to understand the warning given him [or her], the nature of his [or her] Fifth Amendment rights, and the consequences of waiving those rights (Fare v Michael C., 442 U.S. 707, 725 [1979])." People v Cleverin, 140 A.D.3d 1080, 1081 (2d Dept 2016).
In addressing the same issue faced sub judice, the Court of Appeals in People v Williams, 62 N.Y.2d 285 (1984), addressed a defendant whom "when arrested, defendant was a 20-year-old, functionally illiterate, borderline mentally retarded man who also suffered from organic brain damage as a result of having been struck by a car during his childhood. He had previously been hospitalized for psychotic episodes" (id, at 287). In affirming the intermediate appellate court's determination that Williams's waiver of his Fifth Amendment rights were knowing, intelligent and voluntary, the Court of Appeals held, "to be valid, an accused's waiver of his or her rights must be knowing and intelligently made (see Johnson v Zerbst, 304 U.S. 458). This is essentially a factual issue that must be determined according to the circumstances of each case. In assessing the impact of an individual's mental capacity on the validity of waiver, '[the] very widely recognized principle governing the question of the effect of an accused's subnormality of intelligence upon the voluntariness and admissibility of his confession is that deficient intelligence is but one factor in the whole 'totality of the circumstances' to be considered in determining voluntariness and admissibility, at least unless the degree of retardation is so great as to render the accused completely incapable of understanding the meaning and effect of the confession. Completely similar principles have been applied in the determination of an accused's understanding of Miranda warnings or voluntary waiver of Miranda rights' (Ann., 8 ALR4th 16, 21 [n omitted]). A court must always ascertain whether the defendant understood how the Miranda rights affected the custodial interrogation. In dealing with a person of subnormal intelligence, close scrutiny must be made of the circumstances of the asserted waiver." Williams, at 288-89. In the instant matter, the defendant is in substantially better mental and intellectual position, sharply contrasting the difference between herself and the defendant in Williams. See also People v Hernandez, 46 A.D.3d 574 (2d Dept 2007); People v Casiano, 40 A.D.3d 528 (1st Dept 2007); and People v Bucknor, 140 A.D.2d 706 (2d Dept 1998).
During the entire time the defendant spent with law enforcement authorities the defendant communicated fluently in the English language, expressed that she understood what she was being told in regard to the Miranda warnings, as well as understood what was being asked of her throughout the day by providing relevant, clear and concise responses. In addition, in dealing with any word or concept the defendant may not have understood in the moment, the defendant affirmatively asked for clarification. Moreover, as the uncontroverted testimony bore out, the defendant is not only fluent in the English language, but serves as an unofficial interpreter for her family and members of her community, assists her sister with scholastic issues in the subject areas of math and computers, and has herself attended formal education through the New York City Department of Education in the English language.
In addition, the learned testimony of the expert witnesses who testified at the instant hearing are a significant aid to this Court's finding of fact. Although credible, this Court is not persuaded by Dr. Kate Termini, Ph.D.'s ultimate determination that the defendant lacked the capacity to waive her rights pursuant to Miranda. Dr. Termini's investigation and examination were too narrowly focused, relying primarily on the responses of the defendant without verification of those responses for veracity or considered the impact of those untruthful responses. In addition, to the limited materials and records used in making Dr. Termini's determination, the doctor refused to revisit her analysis when belatedly obtained records became available, when she learned that the defendant had not been truthful during her examination, and when she received Dr. Kathy Yates, Ph.D.'s conflicting report. Dr. Termini failed to reinterview the defendant, revisit her findings or at the very least take these developments into consideration. Contrarily, this Court not only finds Dr. Yates to be credible, but also finds her testimony, based on her six collateral interviews, extensive record review, thorough interview and objective testing of the defendant, to be exceedingly persuasive to this Court in its role as judge of the law and facts. It is the opinion of this Court that Dr. Yate's ultimate expert conclusion is well reasoned and based on thorough analysis.
As a threshold issue, this Court finds that the defendant possessed the mental and intellectual capacity to knowingly and intelligently waive her Fifth Amendment Constitutional Rights pursuant to Miranda and that such the waiver in question was indeed knowing and intelligent .
Moreover, t his Court has reviewed the relevant portions of the defendant's video interviews by the police, which pertain to constitutionality. In addition, there is no testimony to the contrary or evidence that the defendant's statements were involuntarily made, or were the product of coercion or duress. To the contrary, People's Exhibit # 4, as well as the testimony of the witness established the absence of any such claim of coercion. The defendant, after being advised of her rights pursuant to Miranda, freely and voluntarily spoke to the detectives, after knowingly and voluntarily waiving her Fifth Amendment rights, having the capacity to do so.
Based upon the evidence adduced at the hearing, the People have met their burden of proof.
CONCLUSION ON THE CONSTITUTIONAL PRE-TRIAL HEARINGS
WHEREFORE, based upon the well-argued, researched and prepared submissions of all parties, and the testimonial evidence, as well as exhibits presented at the instant hearing, for the reasons stated above, the defendant's motion to suppress evidence is hereby DENIED, in its entirety.
DEFENDANT'S MOTION TO REARGUE AND DISMISS THE INSTANT INDICTMENT
Nothing contained in the Criminal Procedure Law provides a legal vehicle for a defendant to petition a court to renew, reargue or reconsider a previously rendered decision. However, there is a body of case law which holds that where there are no applicable provisions in the C.P.L. concerning an issue at hand, those provisions of the Civil Procedure Law and Rules (hereinafter: C.P.L.R.) that address the issue may be applied in a criminal action (People v Borzon, 47 Misc.3d 914 [Supreme Ct, Bronx County 2015]; People v Davis, 169 Misc.2d 977 [County Ct, Westchester County 1996]; People v Radtke, 153 Misc.2d 554 [Supreme Ct, Queens County 1992]).
C.P.L.R. §2221 provides, inter alia:
(d) A motion for leave to reargue:
2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion.
A motion to reargue "is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided" (Foley v Roche, 68 A.D.2d 558, 567 [1st Dept 1979]; People v Borzon, at 916-7; see also Mangine v Keller, 182 A.D.2d 476 [1st Dept 1992]). "A motion to reargue is based on no new proof. It just seeks to convince the judge that the decision was in error and should be changed" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2221:7, at 182). Motions for reargument are left to the sound discretion of the court and may be granted "upon a showing that the court has overlooked or misapprehended the facts or the law or for some other reason mistakenly arrived at its earlier decision" (Loland v City of New York, 212 A.D.2d 674 [2nd Dept 1995]).
Upon review, no matters of fact or law were overlooked or misapprehended. As such, defendant's motion to reargue does not set forth any acceptable grounds for which this Court would exercise its discretion to grant the relief requested.
However, if this Court granted the Defendant's motion to reargue, said motion still fails on the merits. An indictment must be based on "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof." C.P.L. §70.10(1). In addition, "legal sufficiency means prima facie proof of the crimes charged." People v Bello, 92 N.Y.2d 523, 526 (1998).
In reviewing the evidence, in a light most favorable to the non-moving party (see People v Carroll, 93 N.Y.2d 564 [1999]), this Court finds, as it did in its Decision and Order, dated March 15, 2018, that the People presented sufficient admissible evidence to sustain the above-listed charges.
CONCLUSION ON DEFENDANT'S MOTION TO REARGUE AND DISMISS THE INSTANT INDICTMENT
WHEREFORE, the defendant's motion to reargue this Court's March 15, 2018 Decision and Order, and dismiss the instant indictment is hereby DENIED, in its entirety.
DEFENDANT'S APPLICATION TO FILE ADDITIONAL MOTIONS
Leave to file additional motions is hereby DENIED, absent a showing of good cause.
This constitutes the decision, opinion and Order of this Court.