Opinion
2012-05212, Ind. No. 1699/10.
10-14-2015
The PEOPLE, etc., respondent, v. Daniel RODRIGUEZ, appellant.
Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jill Oziemblewski of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jill Oziemblewski of counsel), for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, HECTOR D. LaSALLE, and BETSY BARROS, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered May 7, 2012, convicting him of murder in the second degree, assault in the first degree, and assault in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress a videotaped statement he made to law enforcement officials.
ORDERED that the judgment is affirmed.
The defendant was convicted, after a jury trial, of murder in the second degree, assault in the first degree, and assault in the second degree after he acted in concert with codefendant Devone Sanders to set fire to a residential building, causing the death of one victim and injuring two others.
On February 22, 2010, at approximately 10:50 p.m., the defendant, who was in custody, waived his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ) and gave an oral statement to Detectives Rodriguez and Belissimo. After giving the oral statement, the defendant agreed to make a videotaped statement. The next morning, at 5:47 a.m., the defendant answered questions from Assistant District Attorney DiIngines, in the presence of Detective Rodriguez, while being videotaped. After five minutes, the defendant invoked his right to remain silent. At 8:30 a.m., Detectives Rodriguez and Belissimo returned to the interview room, and, without giving the defendant further Miranda warnings, showed the defendant a videotaped statement given earlier by another suspect which inculpated the defendant. After showing the defendant the videotaped statement, Detective Rodriguez questioned the defendant for 10 to 15 minutes (hereinafter the pre–9 a.m. questioning), and then asked the defendant to reconsider making a videotaped statement, and the defendant agreed to do so. That interrogation ended at 9:00 a.m. At 11:00 a.m., the Assistant District Attorney, in the presence of Detective Rodriguez, re-administered the Miranda warnings, and the defendant gave a full videotaped statement (hereinafter the second videotaped statement).
On appeal, the defendant contends that the hearing court erred in refusing to suppress the second videotaped statement because that statement was tainted by the pre–9 a.m. questioning.
“[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a ‘single continuous chain of events', there is inadequate assurance that the Miranda warnings were effective in protecting a defendant's rights, and the warned statement must also be suppressed” (People v. Paulman, 5 N.Y.3d 122, 130, 800 N.Y.S.2d 96, 833 N.E.2d 239, quoting People v. Chapple, 38 N.Y.2d 112, 114, 378 N.Y.S.2d 682, 341 N.E.2d 243 ). In determining whether a subsequent statement made after Miranda warnings were given was part of a “single continuous chain of events,” the court considers various factors including “whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; and whether, prior to the Miranda violation, defendant had indicated a willingness to speak to police” (People v. Paulman, 5 N.Y.3d at 130–131, 800 N.Y.S.2d 96, 833 N.E.2d 239 ). The purpose of the inquiry is to determine whether there was a “definite, pronounced break in questioning sufficient to return the defendant to the status of one who is not under the influence of questioning” (People v. Sedunova, 83 A.D.3d 965, 967, 922 N.Y.S.2d 134 ; see People v. Celleri, 29 A.D.3d 707, 708, 814 N.Y.S.2d 270 ; People v. Johnson, 79 A.D.2d 617, 618, 433 N.Y.S.2d 477 ; see also People v. Paulman, 5 N.Y.3d at 131, 800 N.Y.S.2d 96, 833 N.E.2d 239 ; People v. Chapple, 38 N.Y.2d at 115, 378 N.Y.S.2d 682, 341 N.E.2d 243 ).
Here, the statement made by the defendant during the pre–9 a.m. questioning, which the Supreme Court suppressed, and the second videotaped statement were part of a single continuous chain of events inasmuch as during the pre–9 a.m. questioning, Detective Rodriguez asked the defendant to make a further videotaped statement when he interrogated the defendant in violation of his constitutional rights. Therefore, during the two-hour break, the defendant was never returned to the status of one who was not under the influence of questioning (see People v. Celleri, 29 A.D.3d at 708, 814 N.Y.S.2d 270 ), but was anticipating the arrival of the Assistant District Attorney to continue the interrogation. Moreover, Detective Rodriguez, who elicited the 10–to–15 minute statement the defendant made during the pre–9 a.m. questioning without having been again given his Miranda warnings, was present during the subsequent videotaped interrogation, and both interrogations were conducted in the same interview room (see People v. Paulman, 5 N.Y.3d at 130–131, 800 N.Y.S.2d 96, 833 N.E.2d 239 ; People v. Celleri, 29 A.D.3d at 708, 814 N.Y.S.2d 270 ). Considering these factors and the nature and extent of the Miranda violation, we cannot conclude that there was a definite, pronounced break between the defendant's first and second videotaped statements sufficient to return the defendant to the status of one who was not under the influence of questioning (see People v. Chapple, 38 N.Y.2d at 115, 378 N.Y.S.2d 682, 341 N.E.2d 243 ; People v. Sedunova, 83 A.D.3d at 967, 922 N.Y.S.2d 134 ; People v. Celleri, 29 A.D.3d at 708, 814 N.Y.S.2d 270 ).
Accordingly, the Supreme Court should have suppressed the defendant's second videotaped statement.However, reversal is not required since the People presented overwhelming proof of the defendant's guilt, including the defendant's prior untainted statements, his codefendant's trial testimony, and two surveillance videos corroborating the codefendant's account of the crimes. There is no reasonable possibility that the admission of the second videotaped statement affected the verdict (see People v. Paulman, 5 N.Y.3d at 134, 800 N.Y.S.2d 96, 833 N.E.2d 239 ; People v. Celleri, 29 A.D.3d at 708, 814 N.Y.S.2d 270 ; People v. Pearson, 20 A.D.3d 575, 577, 799 N.Y.S.2d 155 ).
The defendant's contention regarding the Supreme Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ), is unpreserved for appellate review (see People v. Mantock, 117 A.D.3d 753, 984 N.Y.S.2d 613 ) and, in any event, is without merit (see People v. Monk, 50 A.D.3d 925, 926, 854 N.Y.S.2d 784 ).
The defendant's request for a missing witness charge was properly denied since the testimony of the uncalled witness would have been merely cumulative (see People v. Smith, 49 A.D.3d 904, 905–906, 855 N.Y.S.2d 572 ; People v. Miller, 282 A.D.2d 691, 723 N.Y.S.2d 684 ).
Contrary to the defendant's contention, he has not demonstrated that his trial counsel was ineffective under either federal or state constitutional standards (see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; People v. Caban, 5 N.Y.3d 143, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 ; People v. Salcedo, 150 A.D.2d 624, 541 N.Y.S.2d 494 ). The record establishes that defense counsel provided meaningful representation as a whole (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Cruz, 127 A.D.3d 987 ; People v. Anderson, 24 A.D.3d 460, 805 N.Y.S.2d 655 ).