Opinion
1128/2016
03-14-2018
The PEOPLE of the State of New York, Plaintiff, v. Ricardo BARET, Defendant.
Edward Purce, Assistant District Attorney, Office of Darcel D. Clark Cesar Gonzalez, Esq., 901 Sheridan Avenue, Bronx, NY 10451, for Defendant
Edward Purce, Assistant District Attorney, Office of Darcel D. Clark
Cesar Gonzalez, Esq., 901 Sheridan Avenue, Bronx, NY 10451, for Defendant
April A. Newbauer, J.
Defendant Ricardo Baret is charged with murder in the second degree (P.L.§ 125.25(1) ). The defendant filed an omnibus motion to suppress any identification of the defendant on the grounds that the identification procedures were suggestive. Defendant also sought to suppress any statements he made to law enforcement. On August 11, 2016, the court (Torres, J.) granted the defendant a Huntley/Dunaway/Rodriguez hearing. The hearing was conducted on March 6–8, 2018. For the reasons stated below, the motion to suppress is denied.
FINDINGS OF FACT
The People first called Detective Klein from the Bronx Homicide Squad, employed by the New York City Police Department ("NYPD") for the past thirteen years. Detective Klein testified that sometime in February of 2016 he was assigned to investigate the homicide of Valentin Medina, which occurred on December 22, 1990 in the vicinity of East 157th Street and Gerard Avenue in Bronx county. Detective Klein received a telephone call from a retiring member of the NYPD, Detective Noel Garcia, who informed him that his mechanic, Josie Nebola, had just disclosed that his friend Valentin Medina had been killed in 1990 and "everyone in the neighborhood knew who did it" but nothing had been done about it. Detective Klein met with Nebola and learned the names of two individuals—John Semper and Jose Pichardo—who might have information regarding the homicide.
Detective Klein spoke with Semper over the telephone and then met with him. Semper informed the detective that he was present the day that Valentin Medina was killed and he described the person who shot him as the defendant. Semper knew the defendant's nickname to be "Tito". He claimed he knew the defendant for a period of two to three years prior to the incident, as he was friends with the defendant's brothers Rubin, Angel and Miguel Baret. Semper told him the Baret family lived at 731 Gerard Avenue in the Bronx, not far from where Valentin Medina was shot. Semper had played baseball with one of the defendant's brothers (Rubin) for years and Semper said the defendant would come to practice with them at 162nd Street and Gerard Avenue. The defendant would also come to watch their games and drink, and all of them would go to a local Chinese restaurant afterwards.
On March 3, 2016, after speaking with Semper, Detective Klein showed him a single photograph of the defendant. Semper identified the defendant by stating, "[t]hat's Tito. That's the person who shot Valentin." Semper also signed the photograph to memorialize the identification. On March 28, 2016, the defendant was arrested and brought to the 44th precinct, then transferred to the 46th precinct for a short time so that the defendant could make a videotaped statement because the equipment at the 44th precinct was not working. The defendant refused to make a statement, asked for counsel and was brought back to the 44th precinct for processing.
This photograph was introduced at the hearing as People's Exhibit 1.
The People also called Detective Norberto Tirado from the 44th precinct Detective Squad. Detective Tirado, a twenty-seven year veteran of the NYPD, testified that he was not involved in the Valentin Medina investigation. But on March 28, 2016, he was working on an unrelated case at his desk, which was located just outside the defendant's holding cell. Detective Tirado overheard the defendant inside the holding cell talking loudly in Spanish to someone on the other end of the telephone. The detective testified that he speaks and understands Spanish, but indicated that at no time did he speak with the defendant or ask the defendant any questions. Detective Tirado indicated that another detective must have dialed the number for the defendant and handed the phone to him in the cell.
A photograph of the location of his desk in relation to the cell was introduced into evidence as People's Exhibit 2.
Detective Tirado translated what he heard the defendant say and jotted it down on a notepad (P's Ex 3): "[d]on't say anything. They don't know anything. I watch 48 hours. They don't have witnesses. They don't know I have a lawyer. I was with my kids. The detectives are treating me good."
Finally, the People called Detective Luis Salvador of the Bronx Homicide Squad. Detective Salvador testified that he was assigned to assist Detective Klein in his investigation of the homicide of Valentin Medina because of his knowledge of the Spanish language and his connection with the Dominican Republic. The detectives were attempting to locate a witness named Jose Luis Pichardo, who knew the decedent, lived in the neighborhood with the defendant and may have been present during the shooting.
On November 27, 2017, Detective Salvador traveled to the Dominican Republic to interview Jose Pichardo. Detective Klein had informed Detective Salvador that he believed that Pichardo played baseball with the defendant's brother and they all knew each other from the neighborhood. Moreover, it was routine for Pichardo, the decedent, the defendant and others to gather at the bodega on 157th Street and Gerard Avenue in the Bronx on Saturday nights.
Pichardo did tell Detective Salvador that he knew all three Baret brothers. Pichardo described the brothers: the oldest brother went to the baseball games; the middle one—the defendant—was antisocial; and the younger one played baseball. Detective Salvador indicated that Pichardo knew the defendant by a nickname but at the hearing the detective could not recall the name Pichardo mentioned. Pichardo indicated that he knew the defendant and his brothers for more than two years prior to the incident and would say ‘hi’ to the defendant when he was in his brother's company. He had never seen the defendant with the victim before. On the date of the shooting, Pichardo was on the corner of 157th Street and Gerard Avenue with Semper and they were waiting for Valentin Medina. Pichardo went into the bodega and heard gunshots. He came out and saw Valentin fall and one of the Baret brothers walk past him. Detective Salvador showed Pichardo a single photograph of the defendant and Pichardo stated in Spanish, "[t]hat is the person who killed Valentin."
People's Exhibit 4.
CONCLUSIONS OF LAW
During the hearing, the prosecution bears the burden of demonstrating the legality of police conduct. People v. Whitehurst , 25 NY2d 389, 291 (1969) ; People v. Malinsky , 15 NY2d 86, 91, n.2(1965) ; People v. Hernandez , 40 AD3d 777 (2nd Dept. 2007) ; People v. Moses , 32 AD3d 866 (2nd Dept. 2006). Once the People have met their burden, the defendant has the ultimate burden of establishing the illegality of the police conduct by a fair preponderance of the evidence. People v. Berrios , 28 NY2d 361 (1971). Additionally, the People have the burden of proving the voluntariness of the alleged statements beyond a reasonable doubt. People v. Anderson , 42 NY2d 35 (1977) ; People v. Valeruis , 31 NY2d 51 (1972).
Detectives Klein and Salvador credibly testified that the witnesses knew the defendant for at least two years prior to the incident and were friends with the defendant's brothers. Semper knew the defendant's nickname to be "Tito" and the address where the Baret family lived with the defendant. Semper played baseball with one of the defendant's brothers (Rubin) for years and the defendant would come to practice with them, would come to the games and drink and they would go to the Chinese restaurant at that location. Pichardo indicated that he knew all three Baret brothers from the neighborhood and he knew that the defendant was the middle brother. He also knew the defendant's nickname. Over the course of two years, Pichardo would greet the defendant when he was in his brother's company.
The People have established through the detectives that the alleged eyewitnesses had sufficient knowledge of the defendant for a significant period of time to make an identification. See People v. Waterman , 56 AD3d 329 (1st Dept. 2008) ; People v. Espinal , 262 AD2d 245 (1st Dept. 1999) (witness knew the defendant by first name as well as street name, knew where defendant lived and the car he drove and that he saw him 20 times in the prior year). Based on the course of the witnesses' prior relationship with the defendant, there is no reasonable possibility that the identification was tainted by the suggestivity of the single photo procedures. See People v. Rodriguez , 79 NY2d 445 (1992) ; People v. Williamson , 79 NY2d 799 (1992) ; People v. Kemp , 255 AD2d 397 (2nd Dept. 1998). The People established that the identification of the defendant was merely confirmatory. See People v. Zayas, 283 AD3d 320 (1st Dept. 2001); see also People v. Waterman , 56 AD3d 329 (1st Dept. 2008) ; People v. Espinal , 262 AD2d 245 (1st Dept. 1999). Accordingly, the defendant's motion to suppress the identifications of the defendant is denied.
The statement made by the defendant is admissible even though the defendant invoked his right to counsel, as the statement was not the product of custodial interrogation, an illegal arrest, coercion or unauthorized trickery. See People v. Rivers , 56 NY2d 476 (1982) ; People v. Damiano , 87 NY2d 477 (1996) ; People v. Huffman , 61 NY2d 795 (1984). The Court of Appeals cases People v. Grimaldi, 52 NY2d 611 (1981), and People v. Harris, 57 NY2d 335 (1982), represent polar opposites to consider when weighing the admissibility of statements that are overheard by the police. In Grimaldi, 57 NY2d at 617, the Court of Appeals found statements to be coerced because the police knew the defendant had invoked his Miranda rights but nonetheless interrogated him. When he refused to talk, they listened in on the defendant's telephone conversation with his father from a convenient position of stealth. The defendant's statements were not spontaneous because his need to make a telephone call to his father was created by and in effect an extension of the illegal interrogation, and the officer arranged, acquiesced and took affirmative advantage of the phone call. In contrast, in People v. Harris, 57 NY2d at 342–343, the Court of Appeals upheld the admission of an inculpatory statement the defendant made over the telephone even though she was speaking to an attorney, because the defendant had been given Miranda warnings before the call and waived her rights, and because she blurted out the statement in the presence of a civilian as well as an officer, all while in her own home. The court emphasized that the police had not controlled or subtly maneuvered the situation to their advantage in order to hear the defendant.
Later cases focus on the specific factors which bring them under the rubric of one of these extremes. Generally, in determining whether there was police manipulation to obtain the defendant's statement, courts review whether Miranda warnings were administered, whether the police or the defendant himself initiated or prompted the telephone contact (see People v. Eldridge, 213 AD2d 667 (2d Dept 1995) ), and whether the police presence was obvious or camouflaged. See People v. People v. Moss , 179 AD3d 271 (2nd Dept 1992)(defendant talked to brother from hospital bed while officer hid behind hospital curtain).
A decade after People v. Grimaldi, a trial court held that for a telephone call overheard at the precinct to be admissible, the police must have warned the defendant that station house calls are monitored and anything said in those phone calls would be used against him. See People v. Aponte, 151 Misc 2d 981 (Sup Ct Kings Co 1991). The Second Department implicitly adopted this rule in People v. Jackson, 202 Ad2d 689 (2d Dept 1994), finding the defendant's statement inadmissible where the police installed a listening device on the telephone the defendant was given to call his mother. See also People v. Byers, 2004 NYLJ LEXIS 1844 (CrmCt NYCo 2004)(although not required to administer Miranda warnings before obtaining pedigree information, police should have advised defendant before phone call that anything he said might be used against him at trial); People v. Smith, 100 Misc 2d 823 (SupCt Bx Co 1979). Here the record does not speak clearly to whether Miranda warnings were administered to the defendant. What is known is that he was transferred to another precinct for a videotaped statement, then returned when he requested counsel.
As the judge noted, standard NYPD booking procedure is to allow an arrestee to make a phone call, and to monitor the call for security reasons.
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Detective Tirado did not question the defendant prior to his statement nor did he have anything to do with the defendant's arrest or investigation of the homicide. Detective Tirado testified that he was at his desk working on an unrelated case when he overheard the defendant speaking loudly on the phone in Spanish to an unidentified individual from the holding cell directly across from the detective's desk. People's exhibit 2 shows how close in fact the desk was to the cell door, a mere five to ten feet away. A reasonable person knew or should have been aware that his conversation could be heard from this distance. Further, on this record, the fact that Detective Tirado spoke and understood Spanish does not constitute a subtle maneuver that renders the defendant's statement other than spontaneous. See People v. Shurka , 191 AD2d 724 (2d Dept 1993).
Evidence of police maneuvering lacking
Although the defense suggested that the detective's overhearing defendant's telephone conversation is too convenient to be a mere coincidence, there is nothing in the record to demonstrate that the police did anything improper to coerce the defendant. Many facts are unknown. No testimony was elicited as to the interaction between Detectives Klein and Tirado, if any, before the phone call. No evidence was presented as to how defendant came to place a phone call, or whether the police knew who he was calling. There was no testimony as to when Detective Tirado arrived at his desk and whether it coincided with the phone call. There is nothing to suggest that he just created the appearance of being engaged in another activity to avoid detection. Whether he was the only person visible in the area is unknown. There was no testimony elicited as to whether the police administered Miranda warnings at either the 44th or 46th precincts but it is reasonable to infer that the defendant was given warnings before beginning the videotaping, and he responded by invoking his right to counsel. The time between the videotaping at the 46th precinct and the phone call at the 44th precinct is unknown as well. Although the potential for police manipulation exists as other courts have recognized, there are no telltale signs of police orchestration present in the record. Neither does the evidence reveal a series of actions by the police that while innocuous separately, collectively add up to a pattern of maneuvering. Many factors that could undermine voluntariness just do not resound from this record.
Although largely beside the point, the defendant's statements were brief, mainly exculpatory in nature and therefore any prejudicial impact is negligible. Cf. People v. Fox, 119 AD2d 690 (2d Dept 1986). The People have met their burden of proving the voluntariness of the statement made by defendant beyond a reasonable doubt. See People v. Holland , 48 NY2d 861 (1979) ; People v. Huntley, 15 NY2d 72 (1965) ; People v. Ringer, 140 AD2d 642 (2d Dept. 1988).
Accordingly, the defendant's motions to suppress the statement and the identifications are denied.
This decision shall constitute the order of this court.