Opinion
3247/03.
Decided April 28, 2004.
Defendant is charged in an indictment, filed by the New York State Attorney General's Office, with one count of Unlicensed Engagement in the Business of Receiving Money for Transmission or Transmitting the Same, in violation of New York State Banking Law section 650(2)(b)(1), a class E felony.
A Huntley hearing was held before this court and Police Officer Delores Pilnacek, Shield Number 18676 of the 79th Precinct, and Special Agent Joseph Lestrange, Shield Number 4465 of the Bureau of Homeland Security, testified on behalf of the People. Larry Dorman, Esq., testified for the defendant, and the defendant testified on his own behalf.
This court has evaluated the witnesses' testimony in this case and makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
Police officer Delores Pilnacek, Shield Number 18676 of the 79th Precinct received a call on her cell phone from the defendant on July 2, 2002, asking her to stop by his shop. The defendant said he had a problem and since English was not his first language, Officer Pilnacek thought it would be easier to understand the defendant if they spoke in person. Officer Pilnacek had known the defendant for approximately ten years, once as the victim of a crime and several times as the source of information that had resulted in narcotic arrests.
A few minutes after speaking with the defendant, she and her partner, Officer Craig Mastrometteo, drove to defendant's store, the Superdeli, located at Green and Bedford Avenues in Brooklyn.
The defendant was at the door when the officers arrived, and walked over to their vehicle. The defendant told the officers that he had sent more than $40,000 in money orders via DHL to Yemen and that someone had taken the money. The defendant produced a number for the officer to call, and the officer did so in the defendant's presence.
Officer Pilnacek spoke with Senior Special United States Custom Agent, Joseph Lestrange, Shield Number 4465 of the Bureau of Homeland Security. Officer Pilnacek did not tell the defendant the name of the person she spoke with, but told him that the person would call her back at the precinct, and that she would let the defendant know the results of the conversation.
While at the precinct, Officer Pilnacek spoke again to Special Agent Joseph Lestrange and asked what was going on. Lestrange said he would explain when they met at the precinct on July 3, 2002. The next day, after talking to Lestrange, Officer Pilnacek called the defendant and told him there was a man who wanted to talk to him about the package. Special Agent Lestrange and Special Agent Bryant Wong, along with Officers Pilnacek and Mastrometto, drove to 1047 Bedford Avenue, the defendant's store.
Special Agent Lestrange testified as follows:
The defendant was waiting outside for their arrival and the Custom's officers introduced themselves to the defendant. Because of the presence of onlookers, Lestrange invited the defendant to come with them to the precinct to talk in a more private setting. Lestrange also suggested that the defendant bring his identification, any documents regarding the package, and his money order receipts. The defendant went upstairs to get his papers and returned with an envelope which he attempted to give to the special agent, but Lestrange told him to hold onto them until they reached the precinct. All five individuals then went to the precinct.
The defendant rode to the precinct in the officers' car. He was neither in custody nor under arrest, and was not therefore, searched, handcuffed or restrained in any way, as he sat alone in the rear of the vehicle.
At the precinct, the group sat at a table in the muster room, which is a lobby-like area with a small table and chairs. The room contained a vending machine and appeared to serve as a waiting room, since there were other police officers milling about. Special Agents Wong and Lestrange conducted the interview, which lasted approximately forty minutes and was conducted in English. Officers Pilnacek and Mastrometteo were in and out of the room during the interview.
After re-introducing himself, Lestrange gave the defendant a copy of the Miranda warnings that were printed on a federal form. The form was introduced into evidence as People's Exhibit 1. Lestrange read from the form the following statement of rights:
"Before we ask you any questions, it is my duty to advise you of your Rights. You have the Right to remain silent.
Anything you say can be used against you in Court, or other proceedings.
You have the Right to consult an attorney before making any statement or answering any question, and you may have him present with you during questioning.
You may have an attorney appointed by the U.S. Magistrate or the Court to represent you if you cannot afford or otherwise obtain one.
If you decide to answer questions now, with or without a lawyer, you still have the Right to stop the questioning at any time, or to stop the questioning for the purpose of consulting a lawyer.
HOWEVER. . . . . .
You may waive the Right to advise [sic] of counsel and your Right to remain silent and answer questions or make a statement without consulting a lawyer if you so decide."
At the end of the form, it asks "Do you understand your Rights?" and the box marked "no" is checked. In response to the final question "Do you waive your Rights?" the answer "yes" is marked.
The form, which is dated July 3, 2002, was signed by the defendant at 13:15 hours, (i.e. 1:15 p.m.), and witnessed by Lestrange and Wong. Written at the bottom of the form with an asterisk is the notation "understands English but cannot read. Understands rights verbally."
According to Lestrange, when asked if he understood his rights the defendant said "no". He explained that he could not read the form and therefore did not understand it. However, he answered "yes" to the question of do you waive your rights because he understood the rights verbally read to him by Lestrange, and Lestrange told him he would write this explanation on the form if the defendant agreed to sign it. On that condition, the defendant signed the Statement of Rights.
The agents and the defendant spoke about the package he sent to Yemen that had been intercepted at John F. Kennedy Airport and contained $41,600 in money orders. The defendant explained that the money was collected from people in the neighborhood who wanted to send it to friends and relatives in Yemen where it would be disseminated by a friend, Abda Salah, who operated a transmittal business. A few times, the defendant asked if he could get his money back. Lestrange suggested to the defendant that his cooperation would determine if he were eligible for the return on his money. Lestrange asked the defendant if he would like to cooperate with the government and provide information about other people in the community who had done what he had done. At no time was the defendant physically restrained, or placed under arrest.
At some point, the defendant refused to provide names or agree to cooperate in an investigation of other people also sending money in the same manner out of the country.
Lestrange then asked the defendant if he wanted a ride back to his store and the defendant acquiesced. Again, the defendant sat in the rear seat of the vehicle alone. Defendant was not searched, handcuffed or restrained in any way. During the ride back to Bedford Avenue, the defendant said he had consulted with an attorney about getting his money back. Lestrange gave the defendant his card, and told the defendant to have his attorney contact Customs.
When Lestrange returned to his office, he retrieved a message on his voice mail from Larry Dorman informing him that he is the lawyer for the defendant handling the matter involving the package which had been seized by customs at JFK. Lestrange wrote Dorman's name and number on a yellow post-it-note. At some time later, Lestrange returned Dorman's call. He told Dorman that he was investigating unlicensed transmitting of money and he had spoken to his client, the defendant Nahman Kassim. Lestrange did not record the time or date of the call from Dorman or the date when he returned Dorman's call.
The defendant Nahman Kassim testified as follows:
Born in Yemen, Mr. Kassim, who is fifty-four years old, came to New York City in 1974. His native language is Arabic, although he speaks some English. He can read and write in Arabic having studied the Koran. He cannot, however, read English. Mr. Kassim lives above and works in a store on Bedford Avenue in Brooklyn. Whenever he has to conduct business, such as applying for a gun permit or dealing with vendors, he takes a friend with him to interpret the documents for him. For contracts he uses an attorney and an interpreter.
In June 2002, he sent a package via DHL to Abdul who lives in Yemen. The package never arrived. He went to DHL with a friend who spoke English and told the representative about the missing package. DHL made a call and determined that Customs had the package. The same day he went to his attorney and gave him the DHL documents and called Officer Pilnacek and asked her to help him.
Mr. Kassim believed that the Statement of Rights sheet was a document that would facilitate the return of his money in three days. He testified that Lestrange told him that he wanted to work with him, and that he could get his money back if he signed the paper. Kassim stated that Lestrange never read him the statement of rights or told him that he had the right to remain silent, to consult with an attorney, or to stop the questioning. Lestrange asked for the DHL forms, but defendant told him they were with his lawyer.
Although none of the Customs agents told defendant that he was under arrest, or that he would be arrested if he did not talk to them, defendant testified that he thought the agents were going to arrest him and take him to jail.
Larry Dorman testified that he was retained by defendant on June 27, 2002, to find out what happened to a package that had been intercepted by Customs. The defendant gave him a Parcel Shipping Order from Mail Boxes Etc, and Dorman contacted the DHL export manager, Bruce Kohler. Kohler informed him that the package was being detained by United Stated States Customs, and that Dorman should contact them directly.
Dorman called the general Customs number at JFK and told the person who answered the phone, that he was defendant's attorney and that he was checking into the seizure of a package. He was told that he could not speak to the investigator assigned to the case, but that his message would be conveyed to the appropriate agent, who would in turn, contact him. Dorman called again the next day, and was given the same response. On July 12, 2002, he received a telephone call from Lestrange, informing him that defendant had been arrested.
CONCLUSIONS OF LAW
A confession or admission is admissible at trial in this State, only if its voluntariness is established by the People beyond a reasonable doubt. See C.P.L. § 60.45; People v. Anderson, 42 NY2d 35; People v. Witherspoon, 66 NY2d 973.
To determine whether the People have met this burden, this court must consider two questions: (1) was the defendant in custody at the time the statement was made, and (2) was the statement made in response to an inquiry by law enforcement officers. Miranda v. Arizona, 384 U.S. 436.
The standard for determining whether a defendant is in custody is whether a reasonable person, innocent of any wrongdoing, would believe he was in custody under the circumstances. People v. Yukl, 25 NY2d 585; People v. Centano, 76 NY2d 837. It is the belief of the defendant that controls and not that of the interrogator. The factors to be considered in making such a determination include "(1) the amount of time spent with the police; (2) whether the person's freedom of action was restricted; (3) the location and atmosphere under which, the questioning took place; (4) the degree of cooperation exhibited; (5) whether constitutional rights were administered; and (6) whether the questioning was investigatory or accusatory in nature." People v. Mosley, 196 AD2d 1993. The defendant fails to satisfy any of these factors.
The testimony adduced at the hearing reflects that defendant, who voluntarily accompanied the police to the precinct, was not in custody at the time of the statement. Therefore, Miranda warnings were not required. People v. Bell, 182 AD2d 858, 3rd Dep't (affirming trial court's determination that defendant was not in custody, when evidence reflected that defendant voluntarily accompanied police to police station, was not restrained and was not told that he could not leave). Defendant, whose interview lasted for one hour, cooperated with the police, and his freedom of action was not restricted. Although not required, Miranda warnings were administered and the questioning was investigatory in nature. Even if the Special Agents had considered defendant a suspect during the course of the interview, this is of no consequence, since this belief was in no way conveyed to the defendant. People v. Ripic, 182 AD2d 226.
Here, the record reveals that defendant, who sought the return of money he had sent via DHL to Yemen, contacted Police Officer Pilnacek, with whom he had worked with in the past, and asked her to assist him in getting his money back. When Officer Pilnacek and her partner arrived at defendant's store, defendant produced a number for her to call, and the officer did so in defendant's presence. Officer Pilnacek spoke with Senior Special United States Customs Agent Joseph Lestrange, who told her to call him again when she returned to the precinct.
On July 3, 2002, Officer Pilnacek and Agent Lestrange went to defendant's store to discuss the package. By his own account, defendant testified that he agreed to accompany the officers back to the precinct to speak with them in a more private setting. The defendant was not a suspect at this time, rather he came forward, posing as a potential victim. When Lestrange suggested that the defendant bring his identification and any documents regarding the package, defendant agreed and went upstairs to get them. Defendant returned with an envelope that he attempted to give to the special agent, but Lestrange told him to hold onto it until they reached the precinct.
The record reveals that defendant rode to the precinct in the back of the officer's vehicle, and that defendant was neither handcuffed, nor otherwise restrained in any way. Moreover, when defendant arrived at the precinct, he continued to cooperate with the police. He explained how the money was collected, and inquired how he could get his money back. Throughout, the interview, defendant remained unrestrained and was never told that he could not leave. The interview lasted approximately thirty minutes and was held in the muster room, which is a lobby-like area with a small table and chairs. People v. Bailey, 140 AD2d 356 (concluding that a defendant who voluntarily went to the precinct and spent eight to nine hours in the company of police officers was not in custody). At the conclusion of the interview, defendant accepted a ride home in the agent's vehicle, and rode alone, unhandcuffed, in the back of the agent's car. See People v. Hicks, 108 Misc 2d 730 (fact that defendant was permitted to leave even after statements were made to the police is a factor to consider in determining whether defendant was in custody). Collectively, the circumstances of this case demonstrate that defendant was not in custody.
Under the totality of the circumstances, the evidence overwhelmingly supports this court's determination that defendant was not in custody.
Notwithstanding the fact that defendant was not in custody at the time, prior to speaking to the defendant at the precinct, Agent Lestrange gave defendant a copy of the Statement of Rights, a federal form that advises defendant of the Miranda warnings. Although defendant contends that the issuance of the warnings changed defendant's status to a custodial one, defendant submits no authority and this court cannot find any case that supports defendant's contention that "the gratuitous giving of the rights changes the status of the defendant." Rather, it is commonly accepted to be the law, that when a person is interrogated by the police in a non-custodial setting, Miranda warnings are not required and the issuance of the rights by the police, albeit precautionary, is not necessary, and does not therefore, change the defendant's status. People v. Bailey, 140 AD2d 356, 2nd Dep't; People v. Casellas, 227 AD2d 343, 1st Dep't.
In People v. Bailey, 140 AD2d 356, the Appellate Division, Second Department unequivocally held that "the mere administration of the Miranda warnings to the defendant did not automatically place defendant within a custodial setting, as the receipt of such constitutional rights does not preclude a finding that a reasonable guiltless person would believe he was not free to leave." Bailey at 360.
Moreover, in People v. Hicks, 108 Misc 2d 730, a case factually similar to the case at bar, the court held that a defendant, who voluntarily entered the police station, was not in custody when he made the statement, and that the giving of the Miranda warnings did not change the setting to a custodial one. In making its determination, the Court applied the test set forth in People v. Yukl, 25 NY2d 585 which states that "the test is not what the defendant thought, but rather what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position." Hicks at 732, quoting Yukl.
Similarly here, in applying the test set forth in Yukl, that defendant was free to leave and in fact, did leave after making a statement to the agents. Thus, this court concludes that since the Miranda warnings were not required, the agent's recital of the warnings does not automatically render defendant's statement inadmissible, nor does it necessarily constitute a violation of defendant's Fifth Amendment rights.
Having concluded that defendant was not in custody, this court must next decide whether the right to counsel had attached.
In People v. Hobson, 39 NY2d 479, the Court of Appeals initially held that the right to counsel did not apply unless a represented defendant was in custody. Hobson, 39 NY2d at 483; People v. Kumpan, 55 AD2d 748, 749. Later, however, in People v. Skinner, 52 NY2d 24, the rule was extended to protect represented individuals from non-custodial questioning.
In Skinner, a case factually similar to the case at bar, the Court of Appeals rejected the People's argument that defendant's right to counsel did not attach because defendant was not in custody, and determined that "whether a person is in custody at the time of interrogation is not controlling when an attorney represents that person on the matter about which he or she is questioned." Skinner, at 30, citing People v. Townes, 41 NY2d 97. In so finding, the Court held that the questioning of a defendant under such circumstances can interfere with the lawyer-client relationship no less than custodial questioning. Skinner at 30.
As a general rule, the police may not question a suspect after being advised that he is represented by counsel unless there is a waiver of counsel in the presence of counsel. The right to counsel is indelible, because once it attaches, interrogation is prohibited unless the right is waived in the presence of counsel. Attachment can occur in two well defined situations. The first is when a criminal action is formally commenced against a suspect by the filing of an accusatory instrument. People v. Ramos, 99 NY2d 27, 32; People v. Settles, 46 NY2d 154. The second is when a person in custody requests to speak to an attorney. People v. West, 81 NY2d 370. This right has been expanded and found to attach when an attorney who is retained to represent the suspect "enters" the matter under investigation. See People v. Grice, 100 NY2d 318, citing People v. West, 81 NY2d 370, 373-374; People v. Hobson, 39 NY2d at 481.
In determining whether an attorney has "entered" a case, the Court of Appeals has declined to rely on "factors that are either trivial . . . or fundamentally unfair to the accused." Rather, "it has adopted pragmatic and simple tests grounded on "common sense and fairness" which "avoid irregularity about whether there has or has not been an actual appearance by counsel." People v. Grice, 100 NY2d 318, 323 (citations omitted).
The Court of Appeals has held that "a telephonic communication between a defendant's attorney and the police suffices to establish counsel's entry, at which point the police are required to cease all questioning." People v. Grice, 100 NY2d 318, citing People v. Gunner, 15 NY2d. The Court of Appeals has also held that an attorney is not required to inform the specific police officer in charge of the investigation, but can give notice of representation by calling the general number at the police station. People v. Pinzon, 44 NY2d 464-465.
In People v. Arthur, 22 NY2d 325, the Court of Appeals held that a formal retainer agreement is not required, for the right to counsel to attach. However, by deciding to retain an attorney in response to police-initiated contacts, a defendant unequivocally indicates that he feels uncomfortable dealing with the authorities without legal assistance and has activated his constitutional right to impose an attorney between himself and the State. People v. Skinner, 52 NY2d 24.
Here, this court finds that at the time of questioning, defendant was in fact, represented by counsel, and that the right to counsel had attached.
Defendant testified that prior to speaking to the police, he had contacted an attorney, Larry Dorman, and had given him the documents relating to the package. During his testimony, Mr. Dorman confirmed, that defendant had retained him on June 27, 2002, to investigate what happened to the package. See People v. Skinner, supra, 52 NY2d 24 (by retaining an attorney defendant unequivocally activated his constitutional right to interpose an attorney between himself and the State).
Mr. Dorman also testified that he spoke to Bruce Kohler, the DHL export manager for Mail Boxes Etc. He then called the general number for Customs at JFK and told the unidentified person who answered the phone that he was defendant's attorney and that he was checking into the seizure of the package. The fact that Dorman did not speak directly to Agent Lestrange, who was in charge of the investigation is not dispositive. See People v. Pinzon, 44 NY2d 464-465 (attorney not required to inform specific police officer in charge of investigation but can give notice of representation by calling general number at police station). This court finds that Mr. Dorman had "entered" the case on behalf of his client, thereby triggering defendant's right to counsel.
Notwithstanding the fact that the right to counsel had attached, this court must determine whether the defendant, who was not in custody, but was represented by counsel, knowingly, voluntarily and intelligently waived his rights in counsel's absence, thereby rendering his statements admissible. This court concludes that defendant did not.
In People v. Davis, 75 NY2d 517, the Court of Appeals held that a defendant, who is not in custody at the time of questioning, can change her mind and voluntarily withdraw her request for counsel without her attorney being present. However, the waiver must be knowing, voluntary and intelligent. In reaching its determination in Davis, the Court of Appeals considered as factors, the lapse of time between the defendant's request for counsel and her waiver one day later; the fact that she had been advised of the Miranda warnings and subsequently waived them and that defendant made no effort to secure legal assistance, although she was free to do so. None of these circumstances are present in the instant case. This court cannot ignore the fact that defendant answered "no" when asked whether he understood his rights, that Special Agent Lestrange wrote "no" on the Statement of Rights form, and that at the bottom of the form it is written defendant "understands English but cannot read."
In Davis, the People conceded that the defendant was in custody at the time of her statement. Yet, in its decision, the Court addressed the issue of whether a defendant who was not in custody, but who had been represented by counsel, could waive her rights without her attorney's presence.
This court also notes, that defendant, who testified at the hearing with the assistance of an Arabic interpreter, stated that when transacting business, he takes a friend with him to interpret the documents, and that for contracts, he uses an attorney and an interpreter. This court finds credible, defendant's testimony that during the interview, he told the agents that he had retained an attorney and that he had given the documents they had requested to his lawyer.
It does not appear to this court, under the totality of the circumstances, that defendant knowingly, voluntarily and intelligently waived his right to counsel.
For all the foregoing reasons, defendant's motion to suppress the statement is hereby GRANTED, insofar as it was elicited in violation of defendant's Sixth Amendment right to counsel.
This constitutes the decision, order and opinion of this court.