Opinion
2012-07-12
The PEOPLE of the State of New York v. Marvin JOSEPH, Defendant.
Daria Aumand, Attorney for defendant. ADA Deborah Wassel, Attorney for the People.
Daria Aumand, Attorney for defendant. ADA Deborah Wassel, Attorney for the People.
ELISA S. KOENDERMAN, J.
The defendant, Marvin Joseph, moves to reargue this Court's decision and order, rendered February 3, 2012 after a Huntley/Dunaway hearing, denying suppression of his videotaped statement to the Queens District Attorney's Office (QDAO). Specifically, the defendant alleges that the QDAO compelled him to make a statement by falsely promising to investigate whatever information the defendant provided to them. The defendant contends that the QDAO therefore violated Rule 8.4–c of the Rules of Professional Conduct and that the defendant's statement should be precluded as a sanction ( see People v. Perez, 946 N.Y.S.2d 835, 2012 N.Y. Slip Op. 22103). Because there is no evidence that the QDAO made a promise that was likely to induce the defendant to falsely confess or that the QDAO engaged in conduct which was so fundamentally unfair as to deny him due process, the defendant's statement is admissible as voluntarily made. Since this Court did not overlook or misapprehend any fact or point of law in denying suppression, the defendant's motion to re-argue is denied ( see CPLR § 2221[d][2] )
.A defendant's statement may not be received in evidence against him at a criminal proceeding if it is involuntarily made ( seeCPL § 60.45[1] ). A defendant's statement is involuntarily made when it is obtained by anyone (1) by the use or threatened use of physical force or by “any other improper conduct or undue pressure which impair[s] the defendant's physical or mental condition to the extent of undermining his ability to make a choice” whether to make a statement ( CPL § 60.45[2][a] ); (2) when it is obtained by law enforcement by a promise or statement which “creates a substantial risk that the defendant might falsely incriminate himself” ( CPL § 60.45[2][b][i] ); or (3) in violation of the defendant's constitutional rights ( CPL § 60.45 [2][b][ii] ).
CPLR § 2221(d)(2) provides that “a motion for leave to reargue ... 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.”
The use of mere deception by law enforcement is not enough to render a defendant's statement involuntary ( see People v. McQueen, 18 N.Y.2d 337, 346, 274 N.Y.S.2d 886, 221 N.E.2d 550 [1966] ). The police may use stratagems to obtain a statement such as telling the defendant that the victim is still alive ( see People v. Pereira, 26 N.Y.2d 265, 268–269, 309 N.Y.S.2d 901, 258 N.E.2d 194 [1970] ); that he failed a polygraph test ( see People v. Zehner, 112 A.D.2d 465, 466, 490 N.Y.S.2d 879 [3rd Dept. 1985] ); that he has been identified by witnesses ( see People v. Jordan, 193 A.D.2d 890, 892, 597 N.Y.S.2d 807 [3rd Dept. 1993] ); or that his actions were caught on video surveillance ( see People v. Dishaw, 30 A.D.3d 689, 690–691, 816 N.Y.S.2d 235 [3rd Dept. 2006] ). Indeed, the police are permitted to act as “midwife to a declaration naturally born of remorse, or relief, or desperation or calculation” ( People v. Tarsia, 50 N.Y.2d 1, 10, 427 N.Y.S.2d 944, 405 N.E.2d 188 [1980], citing Culombe v. Connecticut, 367 U.S. 568, 578, 81 S.Ct. 1860, 6 L.Ed.2d 1037 [1961] ).
The police may not, however, use tactics that are so fundamentally unfair so as to deprive the defendant of due process ( see id.; People v. Jaeger, 96 A.D.3d 1172, 946 N.Y.S.2d 680 [3rd Dept. 2012];People v. Gutierrez, 96 A.D.3d 1455, 946 N.Y.S.2d 375 [4th Dept. 2012];Dishaw, 30 A.D.3d at 690–691, 816 N.Y.S.2d 235;People v. McCoy, 284 A.D.2d 554, 554–555, 727 N.Y.S.2d 133 [2d Dept. 2001];People v. Miller, 268 A.D.2d 600, 601, 702 N.Y.S.2d 851 [2d Dept. 2000] ). While the potential of “third degree methods” to generate false confessions is readily recognizable, more subtle methods are equally prohibited ( Tarsia, 50 N.Y.2d at 11, 427 N.Y.S.2d 944, 405 N.E.2d 188). Thus where the police told the defendant that an infallible polygraph machine which knew the truth “just like [you] and God” proved that he was lying, his confession was found to be involuntary and suppressed ( id., citing People v. Leonard, 59 A.D.2d 1, 14–15, 397 N.Y.S.2d 386 [2d Dept. 1977] ). Similarly, where police retained the services of a psychiatrist who purported to offer help to the defendant yet subjected him to an unrelenting interrogation, his confession was deemed to be mentally coerced and inadmissible ( see People v. Leyra, 302 N.Y. 353, 362–363, 98 N.E.2d 553 [1951] ). Additionally, where police detained the defendant for more than 19 hours where he was continuously questioned, deprived of sleep, and isolated from family and friends, the defendant's “will [was] overborne and his capacity for self-determination critically impaired” and his statement was suppressed ( People v. Anderson, 42 N.Y.2d 35, 41, 396 N.Y.S.2d 625, 364 N.E.2d 1318 [1977] ). Regardless of the method by which it is obtained, “an involuntary confession is by its very nature evidence of nothing” ( Leyra, 302 N.Y. at 364, 98 N.E.2d 553).
Even assuming arguendo that the QDAO falsely promised the defendant that they would investigate whatever he told them, “such deception did not create a substantial risk that the defendant might falsely incriminate himself” ( Gutierrez, 96 A.D.3d 1455, 946 N.Y.S.2d 375, 376). To the contrary, the alleged promise is likely to encourage the defendant to provide exculpatory information. A failure to investigate the information provided by the defendant may have other negative consequences, but it does not vitiate the voluntariness of the defendant's statement ( see e.g., People v. Richardson, 202 A.D.2d 958, 609 N.Y.S.2d 981 [4th Dept. 1994] ). The ethics of making such an alleged false promise are irrelevant to the issue of whether the defendant's statement should be suppressed. Consequently, this Court respectfully declines to follow Perez, supra, by which it is not bound.
In sum, “there is no evidence that the defendant requested an attorney at any time, that he was deprived of food or drink, or that he was subjected to persistent and overbearing interrogation or deception so fundamentally unfair as to deny him due process” ( McCoy, 284 A.D.2d at 555, 727 N.Y.S.2d 133). Moreover, the record establishes that the defendant knowingly, intelligently and voluntarily waived his Miranda rights ( see id.). The defendant's videotaped statement to the QDAO therefore is admissible as voluntarily made and the defendant's motion to reargue is denied.
This constitutes the decision and order of the Court.