Opinion
1205N/09.
Decided August 4, 2010.
Honorable Kathleen M. Rice, District Attorney, Nassau County, By: Michael Walsh, Esq., Assistant District Attorney, Defense Counsel: Oscar Holt III, Esq., Mineola, NY.
The defendant was charged with one count of Murder 2ø, Penal Law § 125.25(3) for his role in the murder of Samuel Quentzel which occurred on September 4, 1986 at approximately 6:30 p.m. in the driveway of the Woodmere home he shared with his wife and his three children. The Court conducted a combined Huntley, and Minimization hearing on July 6, 7, 8, 2010 pursuant to a stipulation between the parties and an order of this court dated November 17, 2009. Included as part of the hearing was an audibility portion pertaining to certain audio and videotaped recordings. The People called two witnesses: retired Nassau County Police Detective John McHugh, and Nassau County Police Detective Mark Garry. The defendant did not call any witnesses. The Court credits the testimony of the People's witnesses and make the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
On September 4, 1986 at approximately 6:30 p.m. Samuel Quentzel was shot to death inside his automobile which had pulled into the driveway and parked outside of his home on Arbuckle Avenue in Woodmere. He had been shot upon returning home from his place of business, Quentzel Plumbing Supply which is located in Bedford Stuyvesant, Brooklyn. At the time of the murder the police were unable to make any arrests or name any suspects however, they did discover that the killers had used a stolen van in the commission of the murder that they later abandoned blocks away from Quentzel Plumbing Supply in Bedford Stuyvesant, Brooklyn. . The police recovered the van and evidentiary items the killers had left behind including: four cigarette butts, Mr. Quentzel's checkbook and a paper bag from Dunkin' Donuts. These items were recovered and remained in the possession of the police department for more than twenty years. The case ultimately went cold and remained unsolved for more than twenty years.
In 2003, in response to a request by the victim's family the case was to be reinvestigated and the case was then assigned to Detective John McHugh of the Nassau County Police Department Homicide Squad. Detective McHugh discovered the cigarette butts and the paper bag which had been preserved as evidence and submitted them to the Nassau County Police Department Scientific Investigation Bureau for testing and DNA analysis. A genetic profile was generated as a result of the analysis of the cigarette butts and that profile was placed in the state database. In early January of 2008 a match to the genetic profile was discovered within the database and that match to the genetic profile belonged to Roger Williams. On February 26, 2008, Roger Williams was located by Detectives in the custody of the New York City Police Department in the 77th Precinct after he had been arrested on a warrant. Detectives McHugh and Hendry of the Nassau County Police Department Homicide Squad traveled to the 77th Precinct to retrieve the defendant, Roger Williams. On February 26, 2008 at 10:52 p.m. at the New York City Police Department 77th Precinct Detectives McHugh and Hendry took custody of the defendant who was not placed under arrest. Detective McHugh testified that the defendant appeared to be in good health and had no obvious injuries or ailments. The detectives placed the handcuffed defendant in the police vehicle and headed back to Long Island. On the way to Long Island the detectives drove past Quentzel Plumbing Supply which is located on the corner of Throop Avenue and Van Buren Street in Brooklyn. Detective McHugh testified that he pointed to the building where Quentzel Plumbing Supply is located which has a large 25 foot banner hanging on the building with a picture of the victim and an offer for a reward. He asked the defendant if he knew anything about the reward or the picture of the man and the defendant stated no, he did not know the man, and that wasn't his neighborhood. McHugh explained to the defendant that the man had been murdered in Long Island in 1986 and that he and Detective Hendry were conducting an investigation regarding that crime. The defendant stated that he didn't know anything about that and that he didn't go to Long Island. During the 50 minute ride back to Mineola no other questions were asked of the defendant.
Once the detectives and the Defendant arrived in Mineola the defendant was immediately taken to the second floor where the Homicide Squad is located. The defendant was uncuffed and placed in the smaller of two interview rooms, which is approximately 10 feet by 10 feet, has one window, a desk and three chairs. Defendant sat at the head of the table and Detectives McHugh and Hendry began the interview of the defendant at approximately 12:05 a.m. Detective Hendry read the defendant his rights from the Miranda Rights Card in their entirety. He asked Mr. Williams if he understood his rights and if he was willing to speak to the Detectives without an attorney present. He indicated that it was fine and that he understood his rights and was willing to answer questions without an attorney present but indicated he would be unwilling to sign anything. When Detective Hendry asked the defendant to sign the Miranda Rights Card indicating that he had been read his rights, he understood his rights, and was willing to speak to the Detectives without a lawyer present the defendant indicated that he had been to prison three times and that he wasn't signing anything. The detectives then signed the card themselves and proceeded with the interview. The Miranda Rights Card was admitted into evidence as People's Exhibit No. 2.
The Detectives then began to ask background questions of the defendant who appeared calm and cooperative. Defendant was then given an opportunity to go to the bathroom and was brought back to the room ten minutes later. The defendant resumed his previous position at the head of the table and the Detectives sat on either side of him and began to discuss the defendant's prior arrests and history of drug usage. The defendant was offered water which he accepted and a doughnut which he declined.
The conversation then turned to the Quentzel murder. Detective McHugh asked the defendant if he was familiar with the area where Quentzel Plumbing supply was located and he said yes, but he denied knowing the Quentzel family or anyone who worked there. Defendant continued to deny any knowledge of the murder or Quentzel Plumbing Supply. The Detectives then showed the defendant a picture of the stolen van used in the commission of the murder and he looked at it for a long time and then looked up at the Detectives and said he had never seen it and he did not know anyone who owned a van like that. The Detectives told the defendant that their investigation had revealed that he had been in the van and he continued to deny knowledge of the van.
The Detectives once again allowed the defendant the opportunity to go to the bathroom again and this time took the defendant to have a cigarette. The Detectives then asked the defendant if he knew what DNA was and he indicated that he did. Defendant was shown the DNA profile linking him to the crime and he indicated he thought the police were making this up to pin a 21 year old murder on him. At that point the defendant had become agitated and tried to be evasive in his answers. At 4:45 a.m. the conversation between the Detectives and the defendant concluded.
Detective Mark Gary testified regarding the wiretap evidence and eavesdropping warrants in this case. He testified about his experience with wiretapping and eavesdropping warrants in both the New York City Police Department and the Nassau County Police Departments and the post minimization technique used in this case. He testified that on March 11, 2009 Associate Justice William F. Mastro, Appellate Division, Second Department signed an eavesdropping and electronic video surveillance warrant which authorized the Nassau County Police Department to intercept, videotape and record certain oral communications and observations of Roger Williams and Lewis Slaughter occurring in an interview room within the Homicide Squad (People's #3 in Evidence). The warrant also required that any Detective of the Nassau County Police Department acting at the direction and under the supervision of the District Attorney of Nassau County selected to conduct the minimization procedure follow the procedure for post-interception minimization of communications and observations set forth in the District Attorney's affidavit requesting the eavesdropping and electronic surveillance warrant.
On March 11, 2009 Detective Garry was designated to observe the electronic surveillance of the defendant and Lewis Slaughter and to perform the post-interception minimization process on the recordings obtained pursuant to the warrant. As the post minimization officer, his role was to view and listen to the dialogue and intercept information relevant to the investigation into the death of Samuel Quentzel. Prior to actually intercepting the communications of the defendant and Lewis Slaughter, Detective Garry met with Assistant District Attorney Rick Whalen and Assistant District Attorney Meg Reiss at the Homicide Squad and they designated an area within the Homicide Squad which would be the monitor room or "the plant". Assistant District Attorney Whalen then read the minimization process to Detective Garry, he then signed the document indicating that he understood what had been read to him and that he agreed to the terms (People's Exhibit #4). He was also given written instructions for intercepting and minimizing the recordings and he read them numerous times to familiarize himself with the process. The instructions and a copy of the electronic surveillance warrant were maintained within the plant by Detective Garry as he observed and intercepted the conversations.
On March 12, 2009 pursuant to the eavesdropping and electronic video surveillance warrant signed by Associate Justice of the Appellate Division William F. Mastro the Nassau County Police Department intercepted communications between Roger Williams and Lewis Slaughter. At 7:24 a.m. Lewis Slaughter was placed in interview room number one in the Nassau County Homicide Squad. At 9:53 a.m. Roger Williams was placed in interview room number two. Both of the rooms were described by Detective Garry as hot; meaning that both rooms had video and audio equipment recording from the moment each of the defendants entered the room. At 12:41 p.m. the defendant, Roger Williams, was taken out of interview room two and placed in interview room one along with Lewis Slaughter.
Detective Garry testified about the recording system used in the Nassau County Homicide Squad which is provided through a private vendor called Court Smart, located in Chelmsford, Massachusetts. He testified that in each room there are two microphones and two cameras and that the data recorded in real time to the Court Smart hard drive and that the hard drive is backed up by two servers; A server and B server. This is done so that if one server fails there is a back up of a recording of the conversations within the interview room. The system, according to Detective Garry, is very simple and easy to operate. In order for a room to go live a switch is flipped that is similar to a light switch and two lights within the room go on indicating that both A sever and B server are working.
Once the recording began on March 12, 2009 at 12:41 p.m. Detective Garry testified that he had the ability to watch what was going on in the interview room and listen to what was happening in real time. Once the interception or eavesdropping pursuant to the warrant began Detective Garry was sealed inside the plant and continued to monitor the conversations in isolation during the entire ten hour interception. He was the sole detective selected and authorized to minimize the conversations and therefore was the only person allowed inside the plant for the duration of the interception. The door was locked and all personnel within the Homicide Squad were notified that the seal on the plant was to be maintained and that no one could break the seal on the plant. At the direction of ADA Whalen, Detective Garry took contemporaneous notes which were primarily a time line during the course of the interception. The interception lasted approximately ten hours.
Once the interception was complete and the defendants were removed from the room Detective Garry began the task of retrieving the data, securing the data and minimizing the intercepted conversations. Initially, a disk containing the entire conversation was retrieved from the hard drive and that disk was dated, signed by Detective Garry and sealed in an envelope to be secured. The detective retrieved an additional disk intended to be used as a working copy for minimization purposes. Upon attempting to manipulate the second disk pursuant to the minimization process, the detective discovered the disks copied from the Court Smart system could not be manipulated and therefore the detective would need to conduct the minimization process directly on one of the servers. In order to conduct the minimization directly on the server the detective needed a password issued by Court Smart. That password allowed him exclusive access to the B server and only he held a password to the B server. The complete unedited product remained on the A server and in the copies the detective made and sealed pursuant to the Order of the Appellate Division.
Once the detective gained access to the B server he began the painstaking process of re-watching the ten hour conversation while sealed within the plant and minimizing portions of the conversation that were not related to the Samuel Quentzel murder and investigation based on good faith and his experience as a police officer for 26 years. Once the minimization process was completed the copy of the minimized product was retrieved from the B server and a copy was made for the investigating detectives and for the District Attorney.
After retrieving the minimized conversation, the detective placed the sealing passwords, disk one which was the original untouched conversation, and disk two an identical copy of the untouched entire conversation in a box within an envelope and the envelope was signed by Detective Garry, ADA Whalen and an Associate Justice of the Appellate Division. That sealed evidence was invoiced in the Nassau County Property Bureau. Additionally, the hard drive and A and B servers are sealed and only the passwords which are currently sealed by Order of the Appellate Division can be used to access the hard drive and servers. The minimized portion of the defendant's conversation was admitted into evidence as People's Exhibits 5 and 6 and an enhanced audio tape of the conversation was admitted as People's Exhibit 7. The portions of the intercepted conversation the People intend to use against the defendant were played in court during the course of the hearing.
Conclusions of Law Huntley/Oral and Written Statements A.) CPL § 710.30 Improperly Noticed Statement
Although the People timely served the defendant with Criminal Procedure Law § 710.30 notice at the time of the defendant's arraignment, the statements testified to during the hearing were made on February 26, 2008 and not February 8, 2008 as was indicated in the Criminal Procedure Law § 710.30 notice. The statements the Detective testified had been made on February 26, 2008 were not provided to the defense counsel pursuant to Criminal Procedure Law § 710.30. Detective McHugh did not testify to any statement being made on February 8, 2008, the date that the actual Criminal Procedure Law § 710.30 notice indicated that all of the statements had been made.
In the present case the CPL 710.30 although incorrect was adequate to inform the defendant of the sum and substance of the statement the People intended to use at trial. In People v. Lopez, 84 NY2d 425, the Court of Appeals held the purpose of CPL 710.30 notice is "to facilitate the Defendant's opportunity to challenge before trial the voluntariness of statements made by him" by requiring notice be given within 15 days of arraignment. In this case, the error was an inaccurate day of the month however the defendant was nonetheless on notice of a statement the People intended to use at trial. The defendant's ability to challenge the statement was not hampered as is evidenced by the fact that the court has conducted a Huntley Hearing to litigate the issue of the voluntariness of the statement. Since the difference between the notice served and the evidence sought to be offered at trial in no way impeded the defense, the proffered evidence should not be precluded from admission under CPL 710.30 ( People v. Canute, 190 AD2d 745).Thus, the error is a minor mistake that amounts to a typographical error and the Defendant is not prejudiced by the court allowing the People to amend their notice to reflect the true date the statement was made ( see, People v. Canute, 190 AD2d 745 [2nd Dept. 1993]; People v. Ocasio, 183 AD2d 921 [2nd Dept. 1992]).
Preclusion is normally the sanction when the People fail to timely serve notice pursuant to CPL § 710.30. However, it is incumbent upon the defense to make a preclusion claim and not participate in the suppression hearing regarding the unnoticed statement. If the defendant continues to litigate an improperly noticed or completely unnoticed statement the preclusion argument is waived. ( See, People v. Griffin , 12 AD3d 458 [2d Dept. 2004]; People v. Barrows, 251 AD2d 711 [3d Dept. 1998]). During the hearing, counsel made a tactical decision to continue to ask questions regarding the newly revealed statement made by his client thereby waiving his right to preclusion People v. Griffin , 12 AD3d 458 , supra. Therefore, any preclusion claim as to the statement noticed on June 16, 2009 which were allegedly made on February 8, 2008 and constitute all of the statements the People seek to introduce in their case in chief at this point is denied.
The oral statements made by the defendant to Detectives McHugh and Hendry at the Homicide Squad in response to questioning were voluntarily made after a knowing and intelligent waiver of his Miranda warnings ( see, Johnson v. Zerbst, 304 U.S. 458; People v. Williams, 62 NY2d 285; People v. Love, 57 NY2d 998). An individual may validly waive Miranda rights so long as the immediate import of those warnings is comprehended, regardless of his ignorance of the mechanics by which the fruits of that waiver may be used later in the criminal process ( People v. Williams, supra at 289).
The defendant's oral response that it was fine and that he understood his rights and was willing to answer questions without an attorney present but would be unwilling to sign anything, in response to being asked by Detective Hendry whether he understood his Miranda Rights and was willing to answer questions without a lawyer present, represents a knowing, voluntary, and intelligent waiver of his Miranda Rights ( see, Miranda v. Arizona, 384 U. S. 436; People v. Williams, 62 NY2d 285; People v. Baliukouis, 35 AD3d 626 [2d Dept. 2006]).
Once the People meet their initial burden of establishing the legality of the police conduct and defendant's waiver of rights, the burden of persuasion at the suppression hearing shifts to the defendant ( People v. Love, supra at 999; People v. Chavis, 147 AD2d 582 [2d Dept. 1989]). Here, the defendant, who did not proffer any testimony or evidence at the hearing, failed to establish that his waiver of Miranda rights was unknowing or unintelligent.
In conclusion, the court finds that the People met their burden of proof establishing beyond a reasonable doubt that the defendant's statement was voluntarily made and, accordingly, is admissible at trial in the People's case-in-chief. (C.P. L. § 60.45; People v. Anderson, 42 NY3d 35).
Post Interception Minimization
Criminal Procedure Law § 700.30 governs the form and content of eavesdropping and video surveillance warrants. CPL § 700.30 (7) sets forth the minimization requirements founded upon the Fourth Amendment principle "that, in investigations utilizing eavesdropping techniques, no greater invasion of privacy than [is] necessary under the circumstances should be permitted." ( People v. Floyd, 41 NY2d 245, 249). The inclusion of minimization directives in the warrant "is designed to insure that the communications intercepted conform, as nearly as possible, to those subject to interception by the terms of the eavesdropping warrant" ( People v. Floyd, 41 NY2d at 249). Minimization is defined as a good faith and reasonable effort to keep the number of non-pertinent communications to the smallest practicable number. The determination as to whether proper minimization has been achieved must be made on an individual basis with regard to the scope and circumstances of the investigation and the good faith efforts of law enforcement to limit the conversations intercepted. The members of law enforcement conducting the surveillance must show a high regard for the right of privacy and should do all that is necessary to limit the intrusion. The burden lies with the People to illustrate the legality of the police conduct. This burden may be satisfied by demonstrating that procedures were established to minimize interception of non-pertinent communications and that a conscientious effort was made to adhere to those procedures ( People v. Floyd, 41 NY2d at 249).
The court has reviewed the eavesdropping and video surveillance warrant, the incorporated post interception minimization procedures and considered the testimony of Detective Garry, the post interception minimization officer, designated pursuant to an Order of the Appellate Division Second Department issued March 11, 2009. Having examined the suppression hearing minutes; observed and listened to the video and audio tapes of the intercepted conversations, as well as the transcripts and records of the communications intercepted, this court is satisfied that the minimization guidelines established under People v. Floyd, 41 NY2d 245 were followed. The warrants included minimization directives and Detective Garry articulated a familiarity and command of the minimization directives and procedures. The testimony of Detective Garry as to the intricate steps taken to conduct post interception minimization were consistent with the manual for Execution of Electronic Eavesdropping Orders admitted into evidence as People's Exhibit 4. The minimization was carried out in good faith by a minimization officer who was properly instructed by ADA Whalen as to what and how to minimize. The testimony and exhibits contain sufficient information about the minimization procedures utilized by the police to satisfy the People's burden of going forward to show the legality of the police conduct ( see, People v. Floyd, 41 NY2d 245; People v. Di Stefano, 38 NY2d 640).
Audibility Hearing
Finally, the court has reviewed the video tapes and enhanced audio tapes proffered by the People at the hearing. The determination of the audibility of a recording is primarily an issue to be determined by the trial court ( People v. Mitchell, 220 AD2d 813 [3rd Dept. 1995]). "Tape recordings are generally admissible into evidence when the recording is sufficiently audible and distinct so that a jury need not speculate as to the contents thereof. Thus to be admissible, a taped conversations should at least be sufficiently audible so that an independent third party can listen to it and produce a reasonable transcript ( People v. Lubow, 29 NY2d 58, 68).
In order to determine audibility the court must decide whether the tape is of poor or good quality and whether it can glean from the tape the conversations. The admissibility of tape-recorded conversations requires proof of the accuracy or authenticity of the tape by clear and convincing evidence ( People v. Ely, 68 NY2d 520). Detective Garry, who witnessed the conversations, was able to testify that the tapes represented a complete and accurate reproduction of the conversation and that the only alteration to the conversation was the court ordered post interception minimization.
Even if a recording is partially inaudible or unintelligible, it will be admissible unless those portions are so substantial as to render the recordings as a whole inadmissible ( People v. Graham, 57 AD2d 478). A recording must be excluded if it is so inaudible and indistinct that a jury would be forced to speculate as to its contents ( People v. Morgan, 145 AD2d 442).
After reviewing the proffered recordings (People's Exhibits 5, 6, 7) together with the applicable law it, is the determination of this court that the recordings are sufficiently audible and intelligible and the transcripts provided by the People are sufficiently accurate.