Opinion
Ind. # 2015-0075B
10-20-2015
THE PEOPLE OF THE STATE OF NEW YORK v. SHERRY L. MCDONALD, Defendant.
APPEARANCES: For the People: MICHAEL BEZER, ESQ. BIANCA D'ANGELO, ESQ. Assistant District Attorneys SANDRA DOORLEY, ESQ. Monroe County District Attorney 47 S. Fitzhugh Street Rochester, New York 14614 For the Defendant: LORI ROBB MONAGHAN, ESQ. PETER PULLANO, ESQ. One East Main Street, Suite 711 Rochester, New York 14614
15/981 APPEARANCES:
For the People:
MICHAEL BEZER, ESQ.
BIANCA D'ANGELO, ESQ.
Assistant District Attorneys
SANDRA DOORLEY, ESQ.
Monroe County District Attorney
47 S. Fitzhugh Street
Rochester, New York 14614
For the Defendant:
LORI ROBB MONAGHAN, ESQ.
PETER PULLANO, ESQ.
One East Main Street, Suite 711
Rochester, New York 14614
DECISION AND ORDER
CIACCIO, J.
Defendant Sherry L. McDonald is charged by the above-referenced indictment number with one count of Murder in the Second Degree and one count of Criminal Possession of a Weapon in the Second Degree. By motion dated April 3, 2015, defendant requested suppression of statements and or a Huntley hearing pursuant to CPL §710.20(3) and 710.70(1). She also moves for suppression of evidence obtained during the execution of search warrants signed by Judges of this Court. Finally, by Supplemental Motion dated July 13, 2015, she moves for severance of her trial for that of co-defendant Jerome Phillips. By Answering Affirmations dated April 13, 2015 and September 2, 2015, the People oppose severance as well as the suppression of any evidence or statements. A Huntley hearing was held on July 15, 2015 with respect to both defendants. Defendant McDonald filed a post-hearing written submission dated September 16, 2015. The People filed a written response in opposition dated September 25, 2015. What follows are the Court's findings of fact with regard to both defendants and conclusions of law with respect to defendant McDonald's motion.
Findings of Fact
Lieutenant Frank Umbrino of the Rochester Police Department testified that in January of 2015, he became involved in the investigation into the murder of Brodie Davis. Specifically, on January 26, he assisted with a surveillance detail at the New York State Division of Parole. The detail was waiting for the arrival of an individual who was scheduled to report to the parole office that day.
The person arrived in a vehicle (a red Chrysler) driven by his girlfriend, who Lieutenant Umbrino identified as the defendant, Sherry McDonald. He spoke to defendant McDonald and asked her if she would be willing to come to the Public Safety Building to speak with investigators about information she may have regarding her boyfriend. Defendant McDonald was cooperative and agreed to go to the Public Safety Building.
Defendant McDonald was not under arrest, was not handcuffed and no threats or promises were made to defendant McDonald to have her come to the Public Safety Building. She did not ask for an attorney or to leave. Another officer drove her to the Public Safety Building and, pursuant to standard procedures, Investigator Frasca did a pat-down of defendant McDonald before she got into the police car. Her car was not towed because she was a witness.
Upon arrival at the Public Safety Building, defendant McDonald was taken to what is referred to at the Rochester Police Department as a "soft room." Lieutenant Umbrino described this room as being on the fourth floor of the Public Safety Building, commonly used to interview victims or witnesses. It contains a few couches, tables, chairs and a computer. It is usually an unlocked room, and in January of 2015, the lock was actually broken. The layout is larger than the rooms typically used to interview suspects, although suspects are on occasion interviewed in the "soft room" if special circumstances warrant it.
It was brought out on cross-examination that while defendant McDonald was at the Public Safety Building, a search warrant was being executed at her home.
Investigator Charles LoFaso of the Rochester Police Department was also assigned to investigate the murder of Brodie Davis. Through his investigation, he developed a possible suspect - Jerome Bumba Phillips, who he identified as defendant Phillips. He also learned that defendant Phillips was on parole. The investigators planned to speak with him when he went to his scheduled parole appointment on January 26, 2015.
At approximately 5:21 p.m. on January 26, 2015, he and Investigator David Simpson met with Jerome Phillips, who he identified as the defendant, in an office at the New York State Division of Parole on South Avenue. Other officers were present outside of the Parole office in unmarked cars. During the conversation, Investigator Simpson was using a pocket audio recorder, which recorded the entire conversation at 350 South Avenue. A compact disc of the recording was entered into evidence as People's Exhibit 1.
During this conversation, defendant was not handcuffed, and for at least the beginning of the interview, the door to the room was open. Defendant Phillips was seated closest to the door. Neither investigator was armed at the time. He was treated as if he was a witness and no threats or promises were made to defendant Phillips in order to get him to speak to the investigators. He did not ask for an attorney and did not ask to stop the conversation.
After the interview was conducted, defendant Phillips was transported to the Public Safety Building and placed in an interrogation room. Prior to having a further conversation with defendant Phillips, at 8:20 p.m. he was read his Miranda rights and warnings from a standard Rochester Police Department card entered into evidence as People's Exhibit 3. Defendant Phillips indicated that he understood the rights and warning that were read to him. He then stated "I would like to have my lawyer present." The conversation ceased at that point.
Investigators LoFaso and Simpson also met with defendant McDonald at approximately 6:15 p.m. on January 26, 2015 at the Public Safety Building. He wanted to interview her about defendant Phillips' whereabouts at the time of the murder since she was his girlfriend at the time. She was not handcuffed and did not ask for an attorney. She was offered food and drink but declined both. When she asked to use the bathroom, she was able to do so. No threats or promises were made to defendant McDonald.
She was asked about the night of the murder, cell phone information, and also shown pictures of her car, which she did initially identify. However, later in the conversation she expressed uncertainty as to whether it was actually her vehicle. Two of the photographs that were shown to defendant McDonald were entered into evidence as People's Exhibits 5 and 6. According to Investigator LoFaso, at that point in time, they were not aware of the results of the search warrant being executed at defendant McDonald's home.
After being shown the photographs, defendant McDonald provided information regarding her bedroom at 142 Milton Street, stating that she had a key to it, it was her room and she kept it locked. She also stated that all of the contents of that bedroom belonged to her. Subsequent to that statement, the investigators were informed that a loaded handgun was recovered in that bedroom during the execution of the search warrant.
Upon learning that information, at 8:05 p.m., Investigator LoFaso read defendant McDonald her Miranda rights and warnings from a standard Rochester Police Department card entered into evidence as People's Exhibit 4. Defendant McDonald indicated that she understood the rights and warnings as read to her. She stated that she did not wish to speak to the investigators further. The conversation ceased and she was informed that she was under arrest for Criminal Possession of a Weapon in the Fourth Degree.
The interviews of both defendants conducted at the Public Safety Building on January 26, 2015 were recorded and entered into evidence as People's Exhibit 2.
Investigator Melissa Frasca of the Rochester Police Department was called as a witness by defendant McDonald. On January 26, 2015, she was asked by Lieutenant Umbrino to assist with the pat-down of defendant McDonald, who was standing outside of a vehicle when Investigator Frasca arrived to the location. Defendant McDonald was not handcuffed.
Officer Carlos Rodriguez of the Tactical Unit of the Rochester Police Department was also called as a witness by defendant McDonald. He also responded to 350 South Avenue at approximately 6:00 p.m. on January 26, 2015 at the request of Lieutenant Umbrino. He was in a marked patrol vehicle, with his partner Officer McClellan. He brought defendant McDonald to the Public Safety Building on that day. She sat in the back of his patrol vehicle during the ride. He was in uniform and was armed, however, she was not handcuffed. Officer Rodriguez brought defendant McDonald to an interview room on the Fourth Floor of the Public Safety Building.
Conclusions of Law
The Court accepts the testimony of each of the police officers that testified at the hearing, finding them to be credible, believable, and in a position to testify about the events in question.
Severance
It is well settled that "[t]he decision to grant or deny a separate trial is vested primarily in the sound discretion of the Trial Judge." People v. Mahboubian, 74 N.Y.2d 174, 183 (1989). This Court has reviewed the papers filed by all parties and the relevant caselaw. The Court does not find that good cause has been shown at this point to sever the cases under CPL §300.40(1).
Search Warrant
By letter dated April 16, 2015, the People provided defendants with copies of twenty search warrants related to the homicide investigation. Defendant McDonald challenges the search warrants, arguing that there was no probable cause for their issuance.
Initially, this Court determines that no hearing is required in regard to defendant's challenge to the issuance of the search warrant and that the issues can be resolved based on a review of the warrant papers. The Court has reviewed all of the search warrants and applications provided to the Court. The Court finds that the facts set forth in the Affidavits in support of the warrants established probable cause for their issuance.
A valid search warrant must be supported by an Affidavit which includes a statement that "reasonable cause to believe that property of a kind or character described in section 690.10 may be found in or upon a designated or described place" as well as allegations of fact sufficient to support that statement of reasonable cause (CPL §690.35[3] [b] [c]). Because search warrants are preferred to warrantless police action, a search warrant application should not be reviewed in a hyper technical manner and there is a presumption of validity with respect to the affidavit supporting a search warrant. Franks v. Delaware, 438 U.S. 154 (1978), People v. Castillo, 80 N.Y.2d 578, 585 (1992), People v. Desprospero, 91 A.D.3d 39, 44 (4 Dept. 2011), affd 20 N.Y.3d 527 (2013).
Here, the sworn affidavit of the police officers provided probable cause for the issuance of all of the search warrants. In reviewing all of the information before this Court, specifically the sworn Affidavits of the police officers, and the relevant caselaw in conjunction with the language of CPL §690.35, this Court finds that the facts alleged in the applications for the search warrant and the accompanying Affidavits provided "reasonable cause" that the evidence sought "may be found" at the various locations. CPL §690.35(3)(b).
Statement of Defendant
At a hearing to consider suppression of statements made by a defendant, it is the People's burden to prove beyond a reasonable doubt that the statements were voluntarily made and not the result of coercive police activity. People v. Guilford, 21 N.Y.3d 205, 208 (2013).
Miranda warnings are required whenever a person is subjected to custodial interrogation; that is, when a person's freedom of movement is restrained in a manner associated with a formal arrest, and the questioning is intended to elicit incriminating evidence. See Miranda v. Arizona, 384 U.S. 436 (1966), People v. Bennett, 70 N.Y.2d 891, 893-894 (1987), People v. Shelton, 111 A.D.3d 1334 (4 Dept. 2013), lv denied 23 N.Y.3d 1025 (2014).
The issue of whether a person is in custody is generally a question of fact. People v. Centano, 76 N.Y.2d 837 (1990). In deciding whether a defendant was in custody, the test is not what the defendant thought, but rather, whether a reasonable person, innocent of any crime, would have believed that he or she was in police custody. See People v. Yukl, 25 N.Y.2d 585, 589 (1969), cert denied 400 U.S. 851 (1970). The factors to be considered include the amount of time the individual spent with the police, whether her freedom of action was significantly restricted, the location of the questioning and atmosphere under which she was questioned, her degree of cooperation, whether she was apprised of her constitutional rights, and whether the questioning was investigatory or accusatory in nature. See People v. Macklin, 202 A.D.2d 445, 46 (2 Dept. 1994), lv denied 83 N.Y.2d 912 (1994).
Based upon the credible evidence adduced at the hearing in this matter and a review of the relevant caselaw, the Court concludes that defendant was not in custody at the time she made the statements at issue on January 26, 2015 at the Public Safety Building prior to approximately 8:00 p.m. Defendant was cooperative, she agreed to accompany police to the Public Safety Building to be questioned, she was not handcuffed, and her car was not impounded, but rather was driven down to the station. She was questioned in an interview room that was not locked, did not ask for an attorney or for questioning to cease. The tone of the conversation was clearly investigative rather than accusatory.
Defendant argues that she told the investigators that she had "1 blunt" three hours prior and thus was under the influence so as not to understand what was being asked of her. However, a review of People's Exhibit 2 shows that defendant fully participated in the conversation with the investigators and was not confused in any way. She informed them that she was "coming down" and when specifically asked if she understood everything they had talked about, she said she did, with the exception of some confusion over whether the car depicted in the photographs was hers or not.
Given the circumstances, as set forth more fully in the Findings of Fact, a reasonable person, innocent of any crime, would not have considered herself to be in custody had she been in the defendant's position. People v. Yukl, 25 N.Y.2d 585, 589 (1969), People v. Taylor, 256 A.D.2d 1146 (4 Dept. 1998), lv denied 93 N.Y.2d 879 (1999).
The defendant, therefore, was not subject to custodial interrogation, and the absence of Miranda warnings at the initial scenes does not warrant suppression of her statements made to law enforcement. See People v. Weakfall, 108 A.D.3d 1115, 1116 (4 Dept. 2013), lv denied 21 N.Y.3d 1078 (2013), People v. Brown, 82 A.D.3d 1698 (4 Dept. 2011), lv denied 17 N.Y.3d 792 (2011).
When the investigators were made aware that a gun was found inside defendant's bedroom at 142 Milton Street, she was read her Miranda rights and Warnings (8:05 p.m.) and she indicated that she understood those rights and warnings. When asked if she wanted to waive those rights and speak to the investigators further, she said "no." No further questions were asked of her and she was informed that she was being placed under arrest for criminal possession of a weapon in the second degree.
In sum, based on the totality of the circumstances, the defendant's statements to law enforcement as set forth at the hearing were not the product of coercion, pressure, or any other improper form of inducement. No evidence leads the Court to conclude that any of the defendant's statements were anything other than voluntary and they were obtained with due regard to the defendant's constitutional rights.
Accordingly, in light of the foregoing, it is hereby
ORDERED that the portion of defendant's motion seeking suppression of statements is DENIED.
This is the ORDER of the Court. Dated: October 20, 2015
Rochester, New York
/s/_________
HON. CHRISTOPHER S. CIACCIO
Monroe County Court Judge