Opinion
Ind. No. 74297-22
07-07-2023
The PEOPLE of the State of New York, v. Candido TUCKER, Defendant.
The defendant stands accused by indictment of 13 crimes, including one count each of Predatory Sexual Assault (P.L. § 130.95(1)(B)), Criminal Sexual Act in the First Degree (P.L. § 130.50(1)), and Robbery in the First Degree (P.L. § 160.15(4)).
On June 5, 2023, the Court held a combined Huntley /Wade /Dunaway hearing. The subject of the Huntley hearing was a statement made by the defendant to Detective Paul Marconi on August 5, 2022 at approximately 10:40 A.M. inside 653 Grand Avenue. The subject of the Wade hearing was an identification made as the result of a photograph array, administered by Det. Shaun Bertin on July 27, 2022 at approximately 8:20 P.M. at the intersection of Douglass Street and Nevins Street. Two witnesses, retired Detective Paul Marconi and Detective Shaun Bertin, testified for the People. The People also introduced three exhibits: a video of the defendant's statement, the photograph array paperwork, and an audio recording of the photograph array administration. The defendant called no witnesses and did not offer any exhibits. The Court finds that Detectives Marconi and Bertin were credible, and makes the following findings of fact and conclusions of law.
See Notice/Disclosure Form for Initial Discovery (Aug. 29, 2022).
Id.
Findings of Fact
Det. Marconi testified that he retired from the New York City Police Department on September 30, 2022, after a 20 year and three month career. His most recent assignment had been two years as a detective in the Brooklyn Special Victims Squad; prior to that, he had been assigned as a detective to the Brooklyn South Gang Squad. Det. Marconi has made around 500 arrests over the course of his career, has investigated many cases, and taken many statements from suspects in his cases. He was trained at the police academy, and then received additional training when he became a detective.
Det. Marconi testified that on July 26, 2022, he was working from 8:00 A.M. to 4:33 P.M. That day he was assigned as the lead detective in an investigation, as the result of a telephone notification from Det. Ramos of the Special Victims night squad that there was an individual who reported a sexual assault at Thomas Greene Playground within the confines of the 78th precinct in Kings County. Det. Marconi reviewed available information, although he could not recall if the complaint report was one of the documents immediately available to him. He then went to the emergency room at Methodist Hospital where, accompanied by Det. Albert, he spoke with Police Officers Sullivan and Sabon, and then interviewed the complainant. P.O. Sullivan provided the description he'd obtained, which was of a Hispanic male, approximately 6 feet tall, medium build.
The complainant's name has not been included in this decision in accord with Civ. R. L. § 50-b.
At some point, Det. Marconi learned that the suspect was also described as someone in his 30s, but he did not recall at the hearing when he learned that information.
The complainant informed Det. Marconi that he had been seated by himself on a bench in the playground, smoking marijuana and drinking alcohol, when a male he did not know approached and engaged him in small talk. The complainant said that the male was handsome, approximately 185 pounds, very cute and smelled good, like clean laundry. The man told the complainant to put his penis in the complainant's mouth. The complainant got up to leave; the man then drew a firearm, and racked the slide. The complainant then put the man's penis in his mouth for about a minute, then fled the playground. The man followed, but then turned in the opposite direction. At some point during the encounter, the man grabbed the complainant by his ears and removed his airpods.
Det. Marconi conducted a video canvass of the area, and used information from the complainant regarding the possible location of his airpods obtained through a tracking application. Through the video he obtained in his canvass, Det. Marconi observed an individual exit the building located at 346 Bergen Street and enter the playground. Another video depicted an encounter between that same individual and the complaining witness, and Det. Marconi also viewed video showing the same individual leaving the playground and returning to 346 Bergen Street. Det. Marconi took a still photograph from the videos and showed it to the building superintendent of 346 Bergen Street, who identified the person in the photograph as a resident of apartment 2C in that building.
Det. Marconi viewed and obtained surveillance video footage from several locations, including Sunset Home Health Care, at 267 Douglass Avenue, and the Fairfield Inn, at 181 Third Avenue. The Court takes notice that likely the detective meant to refer to Douglass Street, not Douglass Avenue.
Det. Marconi then ran a computer check and identified the defendant as an individual who resides in that apartment. As a result of the computer check, Det. Marconi also learned the defendant's name. Det. Marconi prepared a photograph array including the defendant's photograph in the fourth position, and submitted it to the NYPD photo unit. Det. Marconi explained that in the photograph, the defendant's mouth was slightly open, and so he asked the photo unit to cover the mouths of all of the individuals depicted in the array for uniformity, and also to make the background of each photograph more uniform. Det. Marconi received the array back from the photo unit and gave it to Detective Bertin to administer. Det. Marconi did not inform Det. Bertin that the defendant was the subject or that the subject was in the fourth position of the array. Det. Marconi did not discuss any DD5s or reports with Det. Bertin prior to the administration of the array.
Det. Marconi testified that he did not use characteristics from the description provided by the complainant, including that the suspect was believed to be Hispanic; instead, he selected fillers whom he believed matched the photograph of the defendant as closely as possible.
On July 27, 2022, Det. Marconi called the complainant; the complainant said he was not ready to talk and that he would be in touch, and hung up the phone. Det. Marconi called the complainant again and asked him to come to the precinct to view the array; the complainant said he would not come to the precinct but would meet if the detective came to him, so Det. Marconi and Det. Bertin went to an intersection to meet the complainant. Det. Marconi introduced Det. Bertin to the complainant, then exited the police vehicle so that the array could be administered outside his presence. Once the identification procedure had been completed, Det. Bertin informed Det. Marconi that the complainant had identified the person in the fourth position as the perpetrator.
Following the identification, Det. Marconi applied for and was granted a search warrant for the premises at 346 Bergen Street, Apt. 2C, to look for the firearm from the incident as well as any identifying clothing. The search warrant was executed on August 5, 2022 by the Emergency Services Unit (ESU). Det. Marconi directed ESU to the building and led them to apartment 2C, then stood outside in the hallway while ESU gained entry into the apartment. Det. Marconi followed ESU into the apartment; the defendant was present inside, and had been placed in handcuffs by an ESU member. No one informed the defendant of the reason for his arrest, nor did anyone inform the defendant of Det. Marconi's presence.
The apprehension occurred at approximately 7:06 A.M. Members of the warrant squad transported the defendant to the Special Victims squad with directions from Det. Marconi to take photographs of the defendant. At 7:35 A.M., Det. Marconi received those photographs, depicting the defendant in the Special Victims squad's holding cell. In Det. Marconi's mind, the defendant was not free to leave at that time. Det. Marconi was informed that during transport, the defendant asked a detective from the warrant squad "what all this was about" and was told "I don't know, the case detective will speak with you, I don't know what this is about." Det. Marconi testified that he did not ask the defendant any questions about the incident prior to the videotaped statement, and was unaware of any other officers questioning the defendant.
Det. Marconi described the holding cell as a room with a window; across from the window are a serries of bars and a door.
Det. Marconi did not accompany the defendant to the squad.
Det. Marconi began his interview of the defendant in the Special Victims squad's interview room at approximately 10:30 A.M. From his arrival at the squad until he was escorted to the interview room, the defendant was in the holding cell the entire time. Det. Marconi did not believe that the defendant had access to a telephone during this time. Inside the interview room is a table with a chair on each side and one door. During Det. Marconi's interview of the defendant, he and the defendant were seated on opposite sides of the table, facing each other. Although Det. Marconi generally carried a service weapon, his firearm was secured in his locker during the interview. Det. Marconi testified that his training included interrogation techniques and that he was trained to try to establish a rapport in order to get information.
The video of the defendant's interview starts with the defendant saying "we spoke before," but Det. Marconi testified that he did not know what the defendant was referring to. The defendant was in handcuffs; Det. Marconi had the key, and he uncuffed the defendant. Det. Marconi then asked the defendant his address, to which the defendant replied that he lived at 346 Bergen Street. Det. Marconi asked which apartment, and the defendant said 2C. At that time, Det. Marconi was aware of the evidence in the case, and was aware that neither a gun nor a strap bag had been recovered. After establishing the defendant's address, Det. Marconi orally administered the Miranda warnings to the defendant, and the defendant indicated that he understood the warnings and agreed to speak with Det. Marconi. The defendant clearly understood English. The interview was video-recorded, and the recording, which depicts the noticed statement, was admitted into evidence. Det. Marconi testified that he never threatened the defendant or made any promises to him, and did not observe anyone else threaten the defendant or make any promises to him. Following the defendant's interview, Det. Marconi processed the arrest. He described the defendant as a Black male, 28 years old, five feet and eight inches tall and weighing 160 pounds, with an afro.
Neither party elicited testimony explaining the significance of the strap bag.
Det. Sean Bertin testified that he has been employed by the New York City Police Department for 11 years, the last six months in the Special Victims Division of the Major Case Unit in the Bronx. Previously, he served as a detective in the Brooklyn Special Victims squad for approximately four and a half years, and was promoted to detective in 2019.
Det. Bertin testified that he was trained both in the police academy and prior to becoming a detective, and that his training included identification procedures. He has conducted dozens of such procedures. He testified further that it is important to avoid suggestiveness in identification procedures, because if one person sticks out then the wrong person could be identified, and consequently the wrong person could be arrested. He also stated that it is important for a witness to be confident in their identification.
Det. Bertin explained that a photograph array is a collection of photographs used to identify a subject in an investigation, and that the subject is a possible perpetrator of a crime. Fillers are individuals who have similar characteristics to the subject and are shown to the person attempting to make an identification. The administrator of a photograph array is responsible for providing instructions to the witness, showing the array to the witness, and documenting the results.
On July 27, 2022, Det. Bertin was working and became involved in this investigation when Det. Marconi asked him to administer a photograph array. Prior to administering the array, Det. Bertin did not know who the subject of the array was or the facts of the case that Det. Marconi was investigating. Det. Bertin administered the array in the vicinity of Douglass and Nevins Streets. He testified that Det. Marconi drove him to the location in an unmarked police minivan, and that he believed the location was near the complainant's residence. The complainant was present when they arrived. The complainant entered the police vehicle, where Det. Marconi introduced Det. Bertin to the complainant and then exited the vehicle. Det. Bertin sat in the front passenger seat, and the complainant sat in the first row in the back of the minivan. Det. Bertin waited until Det. Marconi exited the vehicle, and then read the array instructions to the complainant. Det. Bertin then administered the array to the complainant; the entire procedure, including the instructions, was memorialized in the paperwork admitted as People's Exhibit 2 and in the audio recording admitted as People's Exhibit 3.
When the complainant said he recognized the person in the fourth position, Det. Bertin asked him how confident he was in the identification. The complainant said that he was "90% sure" and Det. Bertin wrote down on the photograph array viewing report that the complainant was "sure," explaining that they do not record percentages. Det. Bertin did not ask the complainant what he meant by "90%" because Det. Bertin did not believe it was a vague answer. Det. Bertin did not remember how long the complainant looked at the array. The complainant said that the person in position four looked familiar, asked if there were more pictures, and then identified the defendant, who was the person in position four, as the perpetrator of the charged crimes. The complainant placed his initials on the form, and Det. Bertin recorded the complainant's answers to his follow-up questions. Det. Bertin wrote down that the complainant said "I'm sure that's the guy" and that he recognized the person from "the morning that I was attacked."
Once the array was completed, Det. Bertin exited the vehicle and informed Det. Marconi of the results. Det. Bertin had no further involvement in the case.
In the video of the defendant's interrogation, the defendant enters the room laughing and joking and appears to refer to Det. Marconi as "Big Homey." Det. Marconi leaves the room briefly, and when he reenters, the defendant greets him by saying, "You clean up nice, man," and laughing again. People's Ex. 1 at 1:21. Det. Marconi says he's trying to come in like a gentleman and not a schlub (id. at 1:28), and then asks the defendant to "do me a favor" and spell his first and last name (id. at 1:38). Det. Marconi writes down the information, asks the defendant for his date of birth, his address, including the apartment, and then puts away his folder.
The defendant prompts the detective to speak, saying, "Let's just get straight to the nitty-gritty man, let's skip all the bullshit." Id. at 2:08. Det. Marconi says you're probably wondering why you're here and the defendant states that a SWAT team had busted down his door. Det. Marconi says, "we will discuss all of that," but that he needs to read the defendant his Miranda rights first, which he does. Id. at 2:30. After Det. Marconi reads Miranda warnings to the defendant from a card, the defendant says he will answer the detective's questions. Id. at 3:22. The detective explains that they are in the special victims squad, stating that it probably caught the defendant off-guard, and the defendant agrees. Id. at 3:30. The detective then makes a reference to a popular television program, which causes the defendant to chuckle. Id. at 3:37. He then says he'd like to start by showing the defendant some pictures and see if the defendant recognizes anyone in the pictures; the defendant says, "Ok." Id. at 4:04. His demeanor is calm and cooperative. The detective's demeanor is also calm, and not overbearing or threatening in any way. The congenial atmosphere is maintained throughout the remainder of the interrogation, which lasts less than twenty minutes, and during which the defendant insists on his innocence and makes exculpatory statements.
Conclusions of Law
Wade
Under both federal and state authority, it has long been held that unduly suggestive pre-trial identification procedures fundamentally violate due process because of the increased potential to wrongfully convict an innocent party. United States v. Wade , 388 U.S. 218, 237 (1967) ; People v. Adams , 53 NY2d 241, 251 (1981) ; People v. Chipp , 75 NY2d 327, 335 (1990) ; People v. Gee , 99 NY2d 158, 161—162 (2002) ; People v. Delamota , 18 NY3d 107, 117—18 (2011) ; People v. Legall , 176 AD3d 867, 868 (2nd Dept. 2019).
"Review of whether a pretrial identification procedure is unduly suggestive is subject to a well-established burden-shifting mechanism." People v. Holley , 26 NY3d 514, 522 (2015). The People must make an initial showing that the police conduct in administering the photo array procedure was reasonable and lacked unduly suggestive elements, and then the burden shifts to the defendant to show that the procedure was unduly suggestive. People v. Berrios , 28 NY2d 361, 367 (1971) ; People v. Chipp , 75 NY2d 327, 335 (1990).
Here, the People have carried their initial burden of demonstrating that the pre-trial photograph array procedure was properly conducted and not unduly suggestive.
The defendant has argued the identification procedure was unduly suggestive because the fillers were selected based on similarity to a photograph of the defendant, and differed in significant respects from the description given by the complainant. The defendant argues further that the reliability of the complainant's identification is suspect because the complainant reported the incident and provided a description in the early morning hours, after the complainant had been smoking marijuana and drinking alcohol. Finally, the defendant argues that the complainant did not actually make an identification but merely stated that the defendant "looks like" the perpetrator.
The Court of Appeals has held that there is no requirement for individual subjects used in an identification procedure to be "nearly identical" to the defendant in appearance. People v. Chipp , 75 NY2d 327, 336 (1990) ; People v. Mason , 138 AD2d 411, 412 (1988). Additionally, alleged suggestiveness due to variance in skin tone or complexion can be remedied by considering the totality of the other subjects’ characteristics if they are sufficiently similar to the defendant. Chipp , 75 NY2d at 336.
Here, the photograph array entered into evidence depicts six men of apparently similar age, complexion, weight, hair and beard style, and facial features. Each photograph has a gray background, and each man is wearing a similar black or white shirt. "[S]uggestiveness could be caused by the selection of fillers whose [racial identities] were so dissimilar to a description given by the complainant ... that the complainant would eliminate the fillers out of hand or by the selection of fillers whose [racial identities] were so similar to each other and yest so dissimilar to defendant's as to unfairly highlight defendant's [racial identities]." People v. McRae , 195 AD2d 180, 185 (1st Dept. 1994). Although the complainant believed that the perpetrator was Hispanic, all of the individuals depicted in the photograph array, including the defendant, appear to be Black. Therefore, while the perceived racial identities of the individuals in the photograph array differed from the racial identity described by the complainant, the fillers and the defendant were sufficiently similar to each other in this respect, so that this distinction did not highlight or single out the defendant in any way.
Moreover, the photographs are cropped in a similar manner to render each subject's height equal, and the photographs appear to have been taken from the same distance with similar lighting. People v. Marryshow, 162 AD3d 1313, 1315 (3rd Dept. 2018). The totality of these factors shows that there is no aspect about the photograph array that would cause the defendant to be "singled out for identification." People v. McBride , 14 NY3d 440, 448 (2010) ; People v. Richardson , 200 AD3d 984, 985 (2nd Dept. 2021) ; People v. Bell , 188 AD3d 904, 905 (2nd Dept. 2020). Moreover, the Court's independent viewing shows that the photograph array does not suggest that any one of the photographs is more likely to be selected.
The record further reflects that the detectives who generated and administered the photo array did so reasonably through a double-blind procedure, which was preserved and received into evidence. Det. Bertin read the complaining witness the instructions included on the photograph array previewing instructions sheet and activated the recording device when the witness was ready to view the photos. The complaining witness then identified the defendant in the photograph array with certainty and signed the array. Such a record is sufficient to satisfy the People's initial burden of showing that the photograph array was properly administered. People v. Legall , 176 AD3d 867, 868 (2nd Dept. 2019) ; People v. Castello , 176 AD3d 730, 732 (2nd Dept. 2019) ; People v. Busano , 141 AD3d 538, 540—41 (2nd Dept. 2016) ; People v. Ashby , 289 AD2d 588 (2nd Dept. 2001). Indeed, the procedure and the way it was administered here comported with today's generally accepted standards for a non-suggestive photograph array. See C.P.L. §§ 60.25(1)(c), 60.30.
The defendant has not carried his ultimate burden of showing that the photograph array identification procedure was unduly suggestive. Therefore, the defendant's motion to suppress it is denied. The Court finds further that the procedure which was conducted was a blinded procedure. See C.P.L. § 60.25(1)(c).
Dunaway
In a motion to suppress, the People have the initial burden of production to establish the legality of the police conduct in the first instance. See People v. Berrios , 28 NY2d 361 (1971) ; People v. Whitehurst , 25 NY2d 389 (1969). Once that burden has been met, the burden of persuasion falls on the defendant to establish, by a preponderance of the evidence, that the police conduct was unlawful. See Berrios , supra ; People v. Dunbar , 188 AD3d 1247 (2d Dept. 2020).
Here, Det. Marconi had tracked the defendant on surveillance video, and obtained an identification through the building superintendent. Det. Marconi then confirmed that the defendant resided in the subject building through a check of an NYPD database, and prepared a photograph array, which resulted in a positive identification of the defendant. Det. Marconi then applied for and was granted a search warrant to search the defendant's home for evidence of the crime and to apprehend the defendant. A "presumption of validity attache[s] to the warrant given that a Magistrate had already reviewed the purported basis for the search and determined it to be valid[.]" People v. Castillo , 80 NY2d 578, 585 (1992). The Court further finds that, based on the testimony adduced at the hearing, probable cause existed for the issuance of the search warrant. During the execution of the search warrant, the defendant was discovered in the apartment and taken into custody.
Based on the foregoing, the Court finds that the People have established that Det. Marconi had probable cause to arrest the defendant.
Huntley
At a Huntley hearing, the People bear the burden of going forward in the first instance, and must prove the voluntariness of any statements by the defendant beyond a reasonable doubt. People v. Huntley , 15 NY2d 72 (1965) ; see also People v. Guilford , 21 NY3d 205 (2013). In this case, the defendant provided a noticed statement which was elicited by Det. Marconi while the defendant was in custody, following his apprehension during the execution of the search warrant. The defendant was clearly in custody at that time. See People v. Harris , 48 NY2d 208 (1979) ; People v. Yukl , 25 NY2d 585 (1969).
Although the interview room was relatively small and confined, the defendant was not restrained in the room, was not subject to any threats or inducements, and otherwise the totality of the circumstances do not demonstrate that the defendant's will had "been overborne and his capacity for self-determination critically impaired." People v. Anderson , 42 NY2d 35, 41 (1977) (internal citation omitted).
The defendant's statement was made in response to questions asked by Det. Marconi, almost all of them after the detective had administered Miranda warnings to the defendant. Miranda v. Ariz. , 384 U.S. 436 (1966). The exception was when Det. Marconi obtained the defendant's address prior to administering Miranda warnings. The defendant argues that that pedigree information must be suppressed as having been obtained in violation of his Miranda rights.
Although the statement pertaining to the defendant's address was not explicitly included as part of the § 710.30 notice, the defendant moved for suppression and so waived any argument about the sufficiency of the notice he received. See C.P.L. § 710.30(3).
The Court of Appeals has recently held that "simply because a pedigree question elicits an incriminating response does not preclude the application of the pedigree exception to Miranda. " People v. Wortham , 37 NY3d 407, 414 (2021). Applying an objective standard, "the proper inquiry for the suppression court is whether the police used pedigree questions as a guise for improperly conducting an investigative inquiry without first providing Miranda warnings." Id. at 415. The "pedigree exception will not apply even if the pedigree question is reasonably related to police administrative concerns where, under the circumstances of the case, a reasonable person would conclude based on an objective analysis that the pedigree question was a ‘disguised attempt at investigatory interrogation.’ " Id. (citing People v. Rodney , 85 NY2d 289, 294 (1995) ).
Thus, "there are times when pedigree questions seek inculpatory information and must be preceded by Miranda warnings, such as where a person's address might be important to establishing the criminal charges." People v. Myles , 188 N.Y.S.3d 346, 350 (4th Dept. 2023). "The test for suppression is not whether the information is inculpatory but ‘whether the police were trying to inculpate defendant or merely processing him[.]’ " People v. Hester , 161 AD2d 665, 666 (2d Dept. 1990).
The biographical questions must be "reasonably related to police administrative concerns" in order to qualify for the pedigree exception. Wortham , 37 NY3d at 414. In this case, Det. Marconi processed the defendant's arrest after obtaining the videotaped statement, and so the pedigree statement at issue was not obtained during that administrative processing. Compare People v. Rodney , 85 NY2d 289 (1995). Nor was the pedigree statement made during the execution of the search warrant. Compare Wortham , 37 NY3d at 415-16. At the hearing, no testimony was elicited that would identify any administrative purpose that was served by Det. Marconi's request for the defendant's address prior to administering Miranda warnings.
It is the People's burden to prove the voluntariness of any statements beyond a reasonable doubt, including that the defendant's constitutional rights were respected. See Huntley , supra. Here, the People have failed to prove beyond a reasonable doubt that the defendant's pedigree information elicited at the beginning of the interview was exempt from Miranda because it was obtained in furtherance of an administrative purpose, because they adduced no evidence identifying that administrative purpose. See People v. Rottela , 194 AD3d 1079 (2d Dept. 2021) ; People v. Buza , 144 AD3d 1495 (4th Dept. 2016). Therefore, the defendant's motion to suppress is granted with respect to that portion of the videotaped statement. The Court finds that the pedigree statement was voluntarily made under traditional due process standards, and so the People may use the statement of his address for impeachment purposes. See Harris v. New York , 401 U.S. 222 (1971).
At the outset of the hearing, the only statement which the parties sought to litigate was the statement contained in the § 710.30 notice, and the Court did not hear any argument regarding the voluntariness of any other statements the defendant may have made. This decision is confined to the evidence and arguments that were actually presented to the Court during the suppression hearing.
Additionally, the Court finds that the remainder of the statement was sufficiently distinct from the pre-Mirandized portion. As an initial matter, the Court notes the general lack of coerciveness or intimidation inherent in obtaining pedigree information. See People v. Rivera , 26 NY2d 304 (1970). Moreover, because the predicate for suppression is "simply the failure timely to administer Miranda warnings," the action required to dissipate the taint of the late warnings is necessarily less than where there had been "actual coercion." People v. Guilford , 21 NY3d 205, 209 (2013).
The Court of Appeals has held that late Miranda warnings will protect the voluntariness of a later statement when "there is such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning." People v. Chapple , 38 NY2d 112, 115 (1975). Factors that have been considered by the courts include "the time differential between the Miranda violation and the subsequent admission; whether the same police personnel were present and involved in eliciting each statement; whether there as a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; and whether, prior to the Miranda violation, defendant had indicated a willingness to speak to police." People v. Paulman , 5 NY3d 122, 130-31 (2005). Another factor that can support a finding of voluntariness of a post-Mirandized statement is "the absence of any incriminating responses to the [pre-Mirandized] police questioning[.]" People v. Kinnard , 62 NY2d 910, 912 (1984) ; see also People v. White , 10 NY3d 286, 291 (2008).
When analyzing the voluntariness of a later statement, "[n]o one factor is determinative and each case must be viewed on its unique facts." Paulman at 131. In People v. White , the Court of Appeals found it significant that the initial, pre-Mirandized portion of the exchange between the detectives and the defendant "lasted no longer than five minutes." 10 NY3d at 292. The Court held: "Although the same police personnel were involved in eliciting each pre- and post-warned statement, and there was no change in the location of the interrogation, the brevity of the initial exchange is significant under Paulman ." 10 NY3d at 292 ; see also People v. Malaussena , 10 NY3d 904 (2008). The defendant in that case received and acknowledged his Miranda rights "prior to making any substantive statement about the case, and the record shows that defendant freely indicated his willingness to speak." Id. Observing that the defendant's post-Miranda statement was initially exculpatory, the Court in White found that he had been "returned, in effect, to the status of one who is not under the influence of questioning." 10 NY3d at 292 (citing Chapple , 38 NY2d at 115 ); see also People v. Gray , 27 NY3d 78, 83 (2016).
Here, as in White , the exchange between the detective and the defendant prior to the administration of Miranda warnings was brief, in this case lasting approximately two and a half minutes; there was no change in police personnel or location; and the defendant did not make any statements that would have been apparently inculpatory either prior to receiving Miranda warnings or directly afterward. None of the statements was about the acts constituting the crimes being investigated, nor about the defendant's activities around the time of the crimes or otherwise. There was nothing inherently accusatory about the questioning. The defendant had been arrested in his home during the execution of a search warrant which did not result in the recovery of any physical evidence. Therefore, when the defendant was asked for his address, including the apartment number, it would not have been apparent that he was either giving Det. Marconi information the detective did not already have, or that he was connecting himself in any way to the commission of a crime. Compare People v. Daniel , 122 AD3d 401 (1st Dept. 2014). Indeed, despite the People's failure to establish beyond a reasonable doubt at the hearing that Det. Marconi may have had an administrative basis to request the defendant provide his home address, the casual nature of his questions makes it difficult to infer that the detective consciously sought to induce an incriminating statement from the defendant. Moreover, following the administration of Miranda warnings, the defendant continued to evince a willingness to speak to Det. Marconi, going so far as to invite the detective to question him, and he denied the allegations made against him.
Although the exchange was continuous, and did not contain the fifteen to twenty minute break found sufficient in White , "each case must be viewed on its unique facts." Paulman , 5 NY3d at 131. A determination about the voluntariness of a defendant's statement presents a mixed question of law and fact. E.g. , People v. Scott , 86 NY2d 864 (1995). In this case, the Court benefitted from viewing a video recording which captured the entire exchange between the defendant and Det. Marconi. The statute requiring that recording, C.P.L. § 60.45(3)(a), was passed in 2018. Consequently, previous decisions had to rely almost exclusively on the testimony elicited at the hearing in order to determine whether the defendant's statements were voluntarily made. With the near ubiquity of video recordings, courts no longer have to rely on summary descriptions, but can instead observe the defendant's demeanor, body language, tone of voice, and other intangible qualities in making that determination.
In addition, the defendant's statement referenced his previous contacts with the criminal justice system, indicating a level of sophistication and experience in communicating with law enforcement. See People v. Gray , 27 NY3d 78, 83 (2016) ; People v. Cleverin , 140 AD3d 1080, 1081 (2d Dept. 2016).
After watching the video of the interrogation in this case and considering the totality of the circumstances, the Court finds a "general absence of coercive circumstances." People v. Morales , 184 AD3d 532 (1st Dept. 2020). Based on the video of the interrogation, including the defendant's demeanor and body language, as well as Det. Marconi's testimony, the Court finds that the People have established beyond a reasonable doubt that the defendant's post-Miranda statements were voluntarily made and that at the time of those statements, the defendant had effectively been returned to the status of one who was not under the influence of improper questioning. Therefore, the defendant's motion to suppress the post-Miranda statement is denied.
The foregoing constitutes the Decision and Order of the Court.