Opinion
51598.
Decided November 7, 2003.
ADA Robert T. Hayden, Thomas F. Liotti, Esq., Garden City, New York, District Attorney, Nassau County.
Gerard M. Damiani, Esq., New City, New York.
The Court conducted a Huntley and Singer hearing on June 16, 17, 18, 23, and 25, 2003. The People called five witnesses — Retired Nassau County Police Department Homicide Detective John Sharkey, Nassau County Police Department Homicide Detective Michael Kuhn, Retired Nassau County Police Department Homicide Detective Brian Parpan, Los Angeles Police Department Detective Michael Berchem, and Los Angeles Police Department Detective Eric Mosher. The Court credits the testimony of the People's witnesses and makes the following Findings of Fact and Conclusions of Law.
Findings of Fact
On Wednesday, July 18, 1984, the body of 11 year old Angela Wong was found in a wooded area behind 29 Nancy Place, East Massapequa, Nassau County, New York. She was discovered with her head submerged at the edge of a pond in the wooded area. There were bruises and abrasions on the right side of her face. Her head was being held under water by a log weighing approximately 30 pounds or greater. The medical examiner determined the cause of death to be asphyxiation due to drowning.
It was on this same date that Nassau County Homicide Detective John Sharkey became involved in the investigation of Angela Wong's death. Detective Sharkey went to the crime scene and made observations of the deceased's condition. On that same afternoon, Detective Sharkey spoke with members of Angela Wong's family, specifically her mother Toni Wong and her brother, Angelo Wong. Detective Sharkey was advised that a number of teenagers had spent the afternoon of July 17, 1984, together in the Wong family garage preparing for a break dancing contest at Starz Disco that evening. Among the teenagers were Angela Wong, Angelo Wong as well as the Defendant, Manuel Pacheco, the Defendant's brother Louis Pacheco, and Abe Reyes. The practice ended at approximately 4:20 pm and the group dispersed. Louis Pacheco and Abe Reyes left first, and, approximately two minutes later, the Defendant, Angelo Wong, and Angela Wong left the Wong's home together. The Defendant went north and walked in the direction of his home. Angelo Wong walked his sister Angela a few houses south and then left her to return to their home. Angela had told her brother that she was going to the mall to see if she could meet up with some friends. After parting ways with her brother, Angela Wong was never again seen alive by her family.
A command post had been set up in front of the victim's home for the investigation, and it was at this location, at approximately 6:45 pm, July 18, 1984, that Detective Sharkey spoke with the Defendant for the first time. The Defendant told Detective Sharkey that he had last seen Angela the day before walking south down the block with someone who looked like her brother Angelo. Two days later, July 20, 1984, the Defendant spoke with Nassau County Detective Al Martino. The Defendant was passing by the command post bus and stopped to have a brief conversation with Detective Martino. The Defendant once again informed the police how he had left the Wong's home at approximately 4:20 pm on July 17, 1984, and had seen Angela walking south with an individual the Defendant thought was Angelo Wong.
Angelo Wong was interviewed again by Detective Sharkey on Saturday, July 21, 1984, at the Wong residence. Angelo Wong provided further details about what had taken place during the afternoon and evening of July 17, 1984, including the Defendant's involvement in what had transpired.
On July 25, 1984, Nassau County Detective John Leahy spoke with the Defendant about the events of July 17, 1984.
On August 6, 1984, a woman named Nkeiruka Okoye stopped by the command bus located in front of the Wong family home and spoke with Detective Sharkey. Ms. Okoye advised Detective Sharkey that she lived on Ford Drive West and had seen Angela Wong and the Defendant walking and talking together at 4:20 pm on July 17, 1984.
In furtherance of the investigation into Angela Wong's death, Detective Sharkey spoke to a number of individuals, primarily youths between the ages of eleven and fifteen, as well as with one adult. All of these individuals believed that they had seen Angela Wong at one location or another, either the Busy Bee Mall or Sunrise Mall, on the afternoon of July 17, 1984. Detective Sharkey was not able to confirm anything that these individuals had told him.
Detective Al Martino spoke with the victim's brother, Angelo Wong, on August 29, 1984. Once again, Angelo Wong detailed the events of the afternoon of July 17, 1984.
Four months later, on December 11, 1984, Detective Sharkey spoke with the Defendant's mother at her home. Present in the kitchen during this discussion were both the Defendant and his brother, Louis Pacheco. The Defendant's mother relayed information to Detective Sharkey about a telephone call that she had overheard between an individual named Willie Gonzales and some females. Willie was allegedly cursing at the girls and the call apparently concerned the topic of Angela Wong. While Detective Sharkey was speaking with his mother, the Defendant asked Detective Sharkey if anything was going on with the investigation into Angela's death and he then offered to take a lie detector test. No test was administered to the Defendant at this time.
On August 1, 1985, Detective Sharkey spoke with Nassau County Police Department Seventh Squad Detective Arnold Leonard. Detective Leonard told Detective Sharkey that an unidentified female had called into the precinct stating that her foster daughter told her that the Defendant had killed Angela Wong. After learning the unidentified caller's identity, a Ms. Virginia Stone, Detective Martino went to speak with her on September 19, 1985. Ms. Stone told Detective Martino that the Defendant was at a pizzeria with her foster daughter, Margaret, and three other young woman, and he admitted to them that he had killed Angela Wong. He said that Angela had scratched him in the woods, they had a fight, she slapped him several times and he killed her by accident. Detective Sharkey proceeded to speak with all three young women, two of whom would not confirm that the Defendant had admitted killing Angela Wong and Margaret, the third woman, who said that the Defendant never admitted to her that he killed Angela Wong. She did state that the rumor at school was that the Defendant had killed Angela.
In 1987, continuing the investigation into the death of Angela Wong, Detective Sharkey learned that the Defendant had left his employment at Newmark and Louis and had moved out of New York state to California. In January 1990, Detective Sharkey learned that the Defendant had relocated back to New York state, specifically Massapequa. On January 11, 1990, Detective Sharkey spoke with the Defendant at the Defendant's residence in Massapequa. Detective Sharkey advised the Defendant that he was still continuing the investigation into the death of Angela Wong and that he would like to ask him some further questions about it. The Defendant agreed to finish the conversation with Detective Sharkey at Nassau County Police Headquarters in Mineola. At headquarters, the Defendant updated Detective Sharkey as to what he had been doing and where he had been living over the past few years. The Defendant also spoke about the events of the afternoon of July 17, 1984. While at headquarters on January 11, 1990, the Defendant submitted to a polygraph test. However, the Defendant was found "unsuitable for testing" due to the fact that he would not sit still while taking the test. The Defendant was advised numerous times that a requirement of the test was that he not squirm around in the chair, but sit still so the test could be properly administered. Detective Sharkey told the Defendant that, in his estimation, he had failed the polygraph test. The Defendant told the Detective that he could not sit still as his back was hurting from injuries sustained in an auto accident. This was this first time that the Defendant had complained of any back pain during the two hours that he was speaking with Detective Sharkey at headquarters.
Detective Sharkey subsequently learned that, after their January 11, 1990, meeting, the Defendant had relocated back to California. Detective Sharkey considered the Defendant a suspect throughout the entirety of his investigation of Angela Wong's death. During the course of the investigation, Detective Sharkey had eliminated all other known suspects, except the Defendant.
Detective Sharkey never arrested the Defendant while he was conducting the investigation because, although the Defendant was the lone suspect, Sharkey felt he did not have probable cause to arrest Manuel Pacheco. In January 1999, Detective Sharkey retired from the Nassau County Police Department. Prior to that, on February 2, 1997, Nassau County Homicide Detective Michael Kuhn took over the investigation into the death of Angela Wong.
On January 8, 2002, Detective Kuhn had a conversation with an individual named Maureen Geoghegan in Las Vegas, Nevada, where she resided at that time. Ms. Geoghegan told Detective Kuhn about conversations that she had in the past with the Defendant concerning the death of Angela Wong.
On January 23, 2002, Detective Kuhn spoke with Nkeiruka Okoye and confirmed what Ms. Okoye had told Detective Sharkey back in July 1984. On March 19, 2002, Detective Kuhn spoke with an individual named Raluca Iociuflescu. Ms. Iociuflescu told Detective Kuhn that the Defendant had beaten her in the past and he had apologized to her, saying it was like when he could not stop himself from killing his cousin. The Defendant told Ms. Iociuflescu that he had killed his cousin in a wooded area in New York where he had drowned her and put a log over her head. He also told Ms. Iociuflescu that he was going to hell for killing his cousin and that he had really done it.
On Wednesday, March 20, 2002, the Defendant was arrested by Detective Michael Berchem of the Los Angeles Police Department. The Defendant was immediately advised of his Miranda rights by Detective Berchem. The Defendant stated that he understood his rights and would voluntarily speak with the police. The Defendant first spoke with Detectives Berchem and Kuhn, with no mention of the murder of Angela Wong or the alleged abuse of Maureen Geoghegan. When Detective Berchem left the interview room at approximately 12:05 pm, Nassau County Homicide Detective Brian Parpan entered and along with Detective Kuhn spoke with the Defendant about the death of Angela Wong. The conversation ended when the Defendant asked to speak with an attorney. A warrant was issued for the Defendant's arrest on March 21, 2002, and the Defendant was eventually extradited to Nassau County, New York in June 2002, by means of a Governor's warrant.
Conclusions of Law
I. March 20, 2002 Los Angeles Interview of Defendant
On March 20, 2002, when the Defendant was placed into custody by the Los Angeles Police Department, he was immediately advised of his Miranda warnings. Said warnings were read off of a card by LAPD Detective Michael Berchem. The Defendant stated that he understood the rights as they were read to him and that he was willing to freely and voluntarily speak with the police without a lawyer being present. The Defendant voluntarily spoke with Nassau County Homicide Detectives Kuhn and Parpan one hour and twenty minutes after his arrest and after first speaking with LAPD Detective Berchem and NCPD Detective Kuhn. It is well settled that where a person is in police custody has been issued Miranda warnings and voluntarily and intelligently waives those rights, it is not necessary to repeat the warnings prior to the subsequent questioning within a reasonable time thereafter, so long as custody remains continuous. People v. Pierre, 300 A.D.2d 324 (2nd Dept. 2002). In People v. Pierre, the Court denied the defendant's motion to suppress his statement to the police given approximately two to three hours after the police administered the Miranda warnings. "Contrary to the defendant's contention, the police were not obligated to re-administer Miranda warnings since he voluntarily and intelligently waived his rights and remained in continuous custody." People v. Pierre, supra. "It was not necessary to repeat Miranda warnings prior to the Defendant's written statements where the Defendant remained in the interview room during his entire detention and only eight hours had passed from the time he was issued Miranda warnings and his statement." People v. Baker, 208 A.D.2d 758 (2nd Dept. 1994). See also People v. Thomas, 233 A.D.2d 347 (2nd Dept. 1996), People v. Vasquez, 183 A.D.2d 864 (2nd Dept. 1992), People v. Stanton, 162 A.D.2d 987 (4th Dept. 1990). The Court notes that the cases cited by the Defendant in his memorandum of law date back to 1977 and 1983. It is evident that the more current case law supports the finding that there was no violation of the Defendant's constitutional rights with respect to the statement he gave to the police on March 20, 2002.
Furthermore, the Court finds that the Defendant did indeed make a voluntary and knowing waiver of his rights. The Defendant's argument that he did not understand the nature of the Miranda warnings due to so-called steroid rage is without merit. The Defendant did not exhibit this so-called rage at the time that the Miranda warnings were administered. The testimony adduced at the hearing detailed how the Defendant became agitated at certain points during his conversation with the police, but there was no testimony that the Defendant ever became so enraged that he became incapacitated. There was no testimony that the Defendant ever exhibited any signs of being unable to understand the meaning of his statements. The case cited by the Defendant, People v. Turkenich, 137 A.D.2d 363 (2nd Dept. 1988), is clearly distinguishable from the case at bar, as duly noted in the People's memorandum.
II. January 11, 1990 Nassau County Interview of the Defendant
On January 11, 1990, the Defendant voluntarily accompanied Detective John Sharkey to the Nassau County Police Headquarters to be interviewed. The hearing record clearly establishes that the Defendant was not in custody when he went to headquarters with Detective Sharkey. The station house setting alone does not require the finding of custody where the defendant is voluntarily present. See People v. Thomas, 292 A.D.2d 549 (2nd Dept. 2002), People v. Petrovich, 202 A.D.2d 523 (2nd Dept. 1994), People v. Watt, 153 A.D.2d 708 (2nd Dept. 1989). On the date in question, January 11, 1990, no probable cause to make an arrest in connection with the death of Angela Wong. Therefore, the Defendant was not placed under arrest at this time. Dunaway v. New York, 442 U.S. 200 (1979), as cited by the Defendant, does not apply to the statements made by the Defendant on January 11, 1990, since Dunaway deals with statements made by an individual who is arrested without probable cause for the arrest. There was no arrest made on this date. The Court holds that no Miranda warnings were necessary and the statements made on this date are admissible. Once again, the case law cited by the Defendant dates back to the 1980s and even the 1960s. The Court finds that the most recent case law, as cited by the People, is controlling.
III. Singer Issue
The Court finds that no Singer violation has taken place in the case at bar. People v. Singer, 44 N.Y.2d 241 (1978). While eighteen years did pass between the death of Angela Wong and the Defendant's arrest for her murder, the People have demonstrated good cause for the delay. The investigation of the Wong case covered the span of those eighteen years, and it was not until 2002 when the Nassau County Police Department had probable cause to make an arrest in this matter that they did so. In People v. Vernace, 278 A.D.2d 169 (1st Dept. 2001), the court held that "a determination made in good faith to delay prosecution for sufficient reasons will not deprive the defendant of due process even thought there may be some prejudice to the defendant." People v. Singer, 44 N.Y.2d 245 (1978). The factors utilized to determine if a defendant's rights have been abridged are the same whether the right asserted is a speedy trial right or the due process right to prompt prosecution. People v. Staley, 41 N.Y.2d 789, 792 (1977). Those factors are not simply the extent of the delay, but also the reasons for the delay, the nature of the underlying charge, whether there has been an extended period of pretrial incarceration, and whether there is any indication that the defense has been impaired by reason of the delay. People v. Taranovich, 37 N.Y.2d 442, 445 (1975). In the case at bar, the Defendant was not incarcerated during the eighteen year investigation. Quite the contrary, he was able to move freely about the country, taking up residence in California, and other locations in the United States. While enjoying significant freedom, the Defendant enjoyed no public suspicion attendant upon an untried accusation of crime. People v. Vernace, 278 A.D.2d 169 (1st Dept. 2001). Far from giving the People an unfair tactical advantage, the delay in making an arrest in this case has made the case against the Defendant more difficult to prove beyond a reasonable doubt. People v. Vernace, 278 A.D.2d 169 (1st Dept. 2001). The Court notes the numerous cases cited by the People in their memorandum of law which support their argument that "delays due to difficulty in obtaining sufficient evidence to indict or even to arrest do not mandate dismissal of charges (on due process grounds)." People v. Denis, 276 A.D.2d 237, 248 (3rd Dept. 2000) and rules accordingly.
IV. Evidence of Other Criminal and Immoral Acts
The Defendant lists several alleged prior immoral or illegal acts that he believes the People intend to produce as evidence at trial. However, the general list does not contain any specific instances of these alleged acts as is required in an Molineaux application.
The People make reference to one specific instance where the Defendant beat Raluca Iofciuflescu and subsequent to said alleged beating made admissions to her with respect to the killing of Angela Wong. The Court holds that direct testimony concerning this alleged conversation between the Defendant and Raluca Iofciuflescu would be evidence in chief and inextricably interwoven with testimony concerning the beating that preceded it.
With respect to the statements made by the Defendant to the detectives, the Court will permit their admissibility assuming they are relevant to the issues in the trial.
V. Discovery
The Court holds that the People have fulfilled their obligations as set forth in Criminal Procedure Law § 240.20. The Defendant argues that New York State law requires witness disclosure upon court order for good cause shown. The mere fact that the case is nineteen years old does not persuade the Court to order discovery above and beyond that which is prescribed in the Criminal Procedure Law. Additionally, the argument that the Defendant does not have the unlimited resources of the government and its police in which to investigate this matter also does not persuade the Court to deviate from the established discovery rules set forth in the Criminal Procedure Law. The People have indicated that their witnesses do not want to be contacted by anyone representing the Defendant. The People have provided numerous cases which support their position. In People v. Buie, 289 A.D.2d 140 (1st Dept. 2001), the Court held that there was no statutory basis for compelling the discovery of the addresses of three potential witnesses who were not called by the People since one of the three individuals could not be located and the other two had been contacted but were unwilling to speak to defense counsel. In the case cited by the Defendant, People v. Rivera, 119 A.D.2d 517 (1st Dept. 1986), the court did not grant the defendant's request for the name of the key witness even after the jury had been sworn. Such is not the case here. The People will be obligated to provide both the Court and the Defendant a copy of their witness list on the date of trial prior to jury selection. Additionally, the Defendant was provided with the names of a number of the People's witnesses through the testimony elicited during the five day hearing.
The Court notes that the People are aware of their continual duty to disclose pursuant to Brady v. Maryland. VI. Exhumation
The Court holds that the Defendant has not provided "good and substantial reason" so as to permit exhumation. People v. Radtke, 152 Misc. 2d 744 (1991). The two reasons set forth by the Defendant in support of the request for exhumation, that "scientific dust testing" might produce evidence some nineteen years after Angela Wong's death and that there is an exculpatory letter from the Defendant in Angela Wong's coffin, are completely speculative. No evidence has been set forth to support these beliefs. Therefore, the Court does not feel that exhumation of Angela Wong's body would be necessary or proper at this time.
VII. Criminal Procedure Law § 60.50
The Defendant's motion to dismiss pursuant to Criminal Procedure Law § 60.50 is denied. The Court has not only reviewed the Grand Jury minutes and ruled on their sufficiency in a prior decision, but has heard all of the evidence presented at the pre-trial hearing in which the People set forth the evidence in this case. The Court finds that the Defendant is incorrect in his assertion that the only evidence in the case is the two confessions made by the Defendant to women with whom he had prior relationships. The People have set forth direct evidence of Angela Wong's death as "additional proof that the offense charged has been committed." Criminal Procedure Law § 60.50.
It is SO ORDERED
PLEASE TAKE NOTICE THAT: The petitioner be and is hereby advised of his right to apply to the Appellate Division, Second Department for a certificate granting leave to appeal from this determination and upon proof of his financial inability to retain counsel and to pay the costs and expenses of the appeal, petitioner may apply to the Appellate Division for the assignment of counsel and for leave to prosecute the appeal as a poor person and to dispense with printing. Such application for poor person relief will be entertained only if, as and when such permission of certificate is granted. 22 NYCRR Section 671.5.