Opinion
238-2018
09-25-2019
PEOPLE of the State of New York, Plaintiff, v. Reynaldo SANCHEZ, Defendant.
Edward C. Bruno, Esq., Attorney for Defendant, PO Box 987, Pine Bush, New York 12566, ebrunoesq@yahoo.com Hon. James R. Farrell, Sullivan County District Attorney, 414 Broadway, Monticello, N.Y. 12701, By Meagan Galligan, ADA, Attorney for People, Meagan.galligan@co.sullivan.ny.us
Edward C. Bruno, Esq., Attorney for Defendant, PO Box 987, Pine Bush, New York 12566, ebrunoesq@yahoo.com
Hon. James R. Farrell, Sullivan County District Attorney, 414 Broadway, Monticello, N.Y. 12701, By Meagan Galligan, ADA, Attorney for People, Meagan.galligan@co.sullivan.ny.us
Frank J. LaBuda, J.
Issue:
Was the Defendant's request for counsel "unequivocal"?
Procedural Status:
This matter comes before the Court by way of Defendant's Omnibus Motion request for Huntley /Mapp /Suppression hearings regarding the statements made by the Defendant to Investigator Dymond and Detective Davis on June 8, 2018, as well Defendant's request to suppress all evidence obtained from the eavesdropping warrant. This Court granted the Defendant's request for a Huntley Suppression hearing, which was held on July 9th, 2019. Both parties submitted a post-hearing brief.
Opinion :
None could gainsay that the Defendant's right to counsel is indelible once the Defendant uniquivocally requests counsel. Furthermore, once the Defendant has invoked the Right to counsel, any purported waiver of the right is ineffective if it is made without counsel present ( People v. Jemmott, 116 AD3d 1244 (2014, 3rd Dept. ) (See also People v. Esposito, 68 NY2d 961 (1986) ; NY Constitution, article I, § 6.) The question before this court however is whether this Defendant unequivocally requested counsel so as to trigger his Right to counsel, and suppression of his admissions to the Police.
The Defense counsel argues that the custodial interview of the Defendant continued after the Defendant's unequivocal request for counsel and all further questioning should have ceased. However, the Police continued questioning the defendant and persuaded the defendant to continue answering their questions. Defense sets forth the following excerpt from the audio/video recording from the Defendant's police interview:
• 5:43:50 defendant was read Miranda warnings;
• 5:46:10 defendant was advised that he is charged, and that there are signed complaints charging him with Conspiracy and Operating as a Major Drug Trafficker;
• 5:48:49 defendant refused to answer questions regarding who he was dealing with;
• 5:59:10 defendant refused to answer a question regarding the most he would pick up;
• 6:12:10 defendant again advised that there are signed complaints charging him;
• 7:04 defendant indicated that he did not want to talk;
• 7:04:15 defendant indicated that "I am not gonna say nothing to him" and "I want a lawyer here", and Det. Sgt. Davis left the room (he was the only one in the room at that time);
• When Dymond and Davis returned, at 7:07:15, defendant again said "I would rather have a lawyer here with me";
• At 7:07:25, Inv. Dymond, still trying to convince defendant to waive the right to counsel that he already invoked, asked defendant if he was ok talking to "us" without a lawyer, and defendant answered, "I am not saying nothing, I think I said enough already," after which, Dymond and Davis still continued to try and convince defendant to waive his right to counsel and continue to answer questions;
Prosecution argues that the Defendant's request for counsel was ambiguous and not unequivocal and that using the commonly accepted Constitutional standard of what an objective officer could interpret the Defendant's request to mean, it was clear that Investigator Dymond and Detective Davis had every right to believe that the Defendant was willing to speak to them without an attorney present so long as the District Attorney did not participate.
The Court of Appeals has articulated an "objective" standard for the ascertaining of this Right to counsel.
"In the context of the conversation between the defendant and the police, the defendant's suggestions that he or the police might want to consult with his attorney with respect to certain matters cannot be said to constitute an unequivocal assertion of the right to counsel." People v. Fridman, 71 NY2d 845, 846 [1988 ]. Likewise, in People v. Higgins, 124 AD3d 929, 931 [3d Dept 2015] the Defendant requested to speak to his attorney before signing anything. Since the Police had not asked the Higgins Defendant to sign anything, the court concluded that an "objective" officer would interpret that statement as merely a forewarning of a possible, contingent desire to confer with counsel rather than an unequivocal statement of defendant's present desire to speak with counsel. Accordingly the court held that the Defendant's statements did not suffice to invoke Defendant's Right to counsel.
This Court further held that the determination of whether a Defendant's request for counsel is unequivocal, is an inquiry which is a mixed question of law and fact in that it must be determined with reference to the circumstances surrounding the request for counsel, including the Defendant's demeanor, manner of expression, and the particular words found to have been used by the Defendant (People v. Higgins, Id [2015Appellate Division 3d Dept.].
Indeed, this Court in People v. Davis, 59 Misc 3d 1203(A) [Sullivan Co Ct 2018] (LaBuda, J.) has adopted a similar line of "objective" reasoning. In People v. Davis, Id , the Defendant claimed that he had invoked his Right to counsel when he stated "Will I have a lawyer there to explain to me what is going on?" Thereafter, after having been read his Miranda Rights and knowingly waived them, the Defendant went on to confess. This Court reviewed the Defendant's interview video and found that the Defendant's statement applied only to the Defendant's reference to his arraignment. In holding that the Defendant had failed to preserve his Right to counsel, this Court stated, "At no time during the interview did Defendant ask to speak with or call an attorney, nor did Defendant request to terminate the interview. Therefore, it cannot be said that Defendant unambiguously and unequivocally invoked his right to have counsel present with him at the interview."
In support of the People's argument, they set forth this excerpt of the Defendant's
audio/video recording of the Police Interview:
D: Who's the prosecutor, Farrell? I don't wanna fucking talk to that nigga.
Investigator Davis: Why do you say it like that?
D: Cause that nigga's a dick.
Investigator Davis: Why do you say he's a dick?
D: Cause I know him from before.
Investigator Davis: You dealt with him before?
D: Yeah, he's the one that prosecuted me.
Davis: So it would be better if someone else came and talk to you?
D: I mean, it doesn't matter.
Davis: OK, whatever you want to do.
D: What do you want me to — I'm not going to say nothing to him, know what I'm saying. With him, I want my lawyer, I want a lawyer here in front of me. I really want a copy of that, um, of those paperwork.
Investigator Davis: Yeah, You're gonna get it.
D: Over there, yeah?
Davis: Once you get to processing, they'll have it right for you.
D: All right. [2 minutes elapse with no conversation]
Investigator Dymond (hereinafter, Dymond): Rey, we got a little bit of an issue bro.
D: What?
Dymond: My partner here told me that you are not a fan of the District Attorney. You don't want him here. Alright, so I just told him not to come. Alright, so he's not coming now. Um, I just, I like having them come sometimes, cause with something like that..
D: I mean, I don't care to talk to him, but I would rather have a lawyer here with me talking to him, you know what I'm saying?
Dymond: But, having that said, are you OK to still talk to me and Mike without a lawyer?
D: I mean, I'm not, don't expect me to go, I'm not saying nothing, you know what I'm saying, I think I said enough already, you know if I don't see, if I..
Dymond: Cause you want to talk to Mandy
Mandy is the Defendant's girlfriend and mother of his children.
--------
, I get it. I'm trying to get that in motion, all right? But I can't have any more conversation with you if you want an attorney here when you're speaking to us. If you want an attorney if he's here, that's a different story.
D: I'm saying, I'm not gonna, I don't mind talking to you [emphasis added], just don't expect me to break shit down. You know the basics already. You know what's going on and I know what's going on. If you want to know what the fuck I've been doing, you already know what I've been doing, you know what I'm saying? If you're asking me to tell you, who's this person, what he's been doing, what he's been getting, I'm not gonna do that to them.
The Appellate Division Third Department has held that when determining whether the Defendant's request for counsel is unequivocal "The relevant inquiry is whether a reasonable police officer would have understood the statement in question as a request for an attorney" ( People v. Jemmott, 116 AD3d 1247.)
The Court of Appeals has also ruled on this issue in People v Glover, 87 NY2d 838 [1995 Court of Appeals] and held :
"When the defendant's request is not unequivocal, the right to counsel does not attach (see, People v. Hicks, 69 NY2d 969 ; People v. Rowell, 59 NY2d 727 ).
In upholding the lower Court's ruling to allow the defendant's statements into evidence, the Court of Appeals stated:
"There is evidence in the record that as part of the same statement in which defendant said he wanted to call a friend to get a lawyer, defendant clearly and unambiguously negated those very words. Thus, the undisturbed finding of the lower courts is supported by evidence in the record and is not reviewable by this Court. As defendant did not unequivocally inform the police that he wanted counsel, defendant's statements were admissible in evidence."
In the case at bar, the Defendant did not "unequivocally" assert his right to counsel. In fact, quite the opposite, the Defendant, when told that the District Attorney was coming to speak with him directly, the Defendant set a condition precedent on his request for counsel by making the following statement to the Police:
D: "What do you want me to — I'm not going to say nothing to him, know what I'm saying. With him, I want my lawyer, I want a lawyer here in front of me..."
When the Defendant used the words "with him [emphasis added], I want my lawyer" he set a condition precedent to asking for a lawyer. The use of the term "with him" when prefacing the statement "I want a lawyer" becomes in and of itself a qualifying term and thus his Right was not unequivocally asserted. However, when the Defendant indicated that he wanted a lawyer "with him" indicating, at a minimum, to the Police Interviewer that he wanted a lawyer if the District Attorney was present, it would be logical for the Police to infer that if the District Attorney were not present, that the Defendant was willing to speak without counsel.
The evidence in the record further shows the ambiguity and obscurity of his assertions when the Defendant went on to state:
D: I mean, I don't care to talk to him, but I would rather have a lawyer here with me talking to him, you know what I'm saying?
Dymond: But, having that said, are you OK to still talk to me and Mike without a lawyer?
D: I mean, I'm not, don't expect me to go, I'm not saying nothing, you know what I'm saying, I think I said enough already, you know if I don't see, if I..
Dymond: Cause you want to talk to Mandy, I get it. I'm trying to get that in motion, all right? But I can't have any more conversation with you if you want an attorney here when you're speaking to us. If you want an attorney if he's here, that's a different story [emphasis added].
D: I'm saying, I'm not gonna, I don't mind talking to you [emphasis added], just don't expect me to break shit down. You know the basics already. You know what's going on and I know what's going on. If you want to know what the fuck I've been doing, you already know what 've been doing, you know what I'm saying? If you're asking me to tell you, who's this person, what he's been doing, what he's been getting, I'm not gonna do that to them.
With these statements the Defendant emphasized his condition precedent to his assertion of request for counsel, and reiterated his willingness to speak to the Police only. Therefore, the record does not show that the Defendant unambiguously and unequivocally invoked his Right to have counsel present with him at the interview. It is also interesting to note here that as for spontaneous declarations, it is established law that, even after the right to counsel has attached, a defendant's statements are not subject to suppression if they were not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed. The police bear no obligation to silence a chatterbox. The test is not whether defendant, through hindsight, claims that the police intended to provoke an incriminating response; rather, the court, using an objective standard, must determine whether the defendant's statement can be said to have been triggered by police conduct (See People v. Higgins, 124 AD3d 929 supra. ) Based on the foregoing, the defendant's ambiguous request to invoke his Right to counsel denies the claim for the suppression of his statements.
With regard to the Defendant's request for the Court to hear an unrelated argument regarding the sealing of the eavesdropping record, this court finds that this Post Hearing submission is not the appropriate forum for which this Court can address this issue. Therefore the Defendant's unrelated sealing argument is denied without prejudice.
This shall constitute the Decision and Order of this Court.