Opinion
Index No. 07315-19
05-16-2023
People of the State of New York, v. Lester Nash, Defendant.
Assistant District Attorney Daphney Gachette, Esq., for the People of the State of New York Samuel Karliner, Esq., for the defendant, Lester Nash
Unpublished Opinion
Assistant District Attorney Daphney Gachette, Esq., for the People of the State of New York
Samuel Karliner, Esq., for the defendant, Lester Nash
Vincent M. Del Giudice, Acting Supreme Court Justice
Lester Nash (hereinafter: defendant) is charged with the crimes of Murder in the Second Degree (Penal Law [hereinafter: P.L.] § 125.25[1]); Criminal Possession of a Weapon in the Second Degree (P.L. §§ 265.03[1][B] & 265.03[3]) arising from the November 16, 2019, homicide by gunplay of Kevin Hunt (hereinafter: decedent), in front of 433 Lafayette Avenue, Kings County (hereinafter: locus in quo) . This Court conducted a combined Dunaway/Wade/Rodriguez/Huntley hearing on. The defendant sought to suppress various identification and statement evidence related to this case, which the People seek to admit during the prosecution of the instant action.
The People called two witnesses at the hearing: Detective Christian Hoell (hereinafter: Det. Hoell), a nineteen-year member of the New York City Police Department (hereinafter: N.Y.P.D.) assigned to the 79 Precinct Detective Unit (hereinafter: 79 P.D.U.), and Detective Joseph Tillotson (hereinafter: Det. Tillotson), a twenty-one-year member of the N.Y.P.D., assigned to the N.Y.P.D.'s Brooklyn North Homicide Squad. Furthermore, the People introduced seven pieces of evidence at the hearing. The defendant did not call witnesses at the hearing but cross-examined the People's witnesses and entered one piece of evidence at said hearing. I find the testimony of these witnesses to be credible, reliable and worthy of belief.
FINDINGS OF FACT
On November 16, 2019, Det. Tillotson, was notified of the shooting death of the decedent and responded to the locus in quo. Upon arrival the detective observed an established crime scene with sixteen shell casings on the sidewalk in front of that location. In addition, Det. Tillotson observed video surveillance, that was recovered in relation to this case, which depicted the shooting.
During the course of the investigation, on November 16, 2019, Det. Hoell received a photograph by text message from an individual known as "Maine." The photograph depicted a person of interest for the instant case, who was identified as "Old Dog." The photograph was uploaded into the N.Y.P.D.'s Photo Manager Program and known photographs of Lester Nash, linked to the moniker of "Old Dog" by police records, were obtained. A known photograph for the defendant was then used by Det. Hoell to generate a photographic array . The defendant's picture was in position number two of the array. Later that same day, Det. Hoell contacted Detective Vargas (hereinafter: Det. Vargas) of the N.Y.P.D.'s 88 Precinct (hereinafter: 88 Pct.) to meet and administer the photo array to a person identified as Confidential Witness No.1. Det. Vargas was not provided with any information about the instant case, nor was he informed of what position the defendant's picture was located in, in the array. In addition, Det. Vargas had no independent information about the facts of the instant case.
A true-copy of the Photographic Array was entered into evidence at the hearing by the People as People's Exhibit # 1C.
On the night of November 16, 2019, Det. Tillotson was informed by Confidential Witness #1, that there had been a fight at a party and the witness convinced the decedent to leave. Outside of the building, a male approached the decedent, Confidential Witness #1 and Confidential Witness #2, who attempted to stop the male, begging him not to shoot the decedent. Despite these pleas, the male took out a gun and shot the decedent until the gun was empty. Confidential Witness #1 went on to explain to Det. Tillotson that the witness knew the shooter for approximately five to six years, seeing the shooter almost every day during the warmer months. The witness and shooter were friends who would speak regularly, went to parties together, and knew the shooter as "Old Dog."
Det. Vargas met Detectives Tillotson and Hoell on the corner of Bedford Avenue and Lafayette Avenue, Kings County, to show the above-described photographic array to Confidential Witness #1. Upon his arrival, Det. Vargas was given the photographic array and related N.Y.P.D. paperwork, then entered an unmarked police vehicle at that location to administer the array. As Det. Vargas administered the identification procedure to Confidential Witness #1, there was no one else in the vehicle with them. Detectives Tillotson and Hoell waited outside said vehicle during the administration of the photographic array identification procedure. Upon completion of the identification procedure Det. Vargas completed the related paperwork and returned it to Det. Hoell informing Det. Hoell that the witness identified the individual in position number two.
A true-copy of the Photo Array Pre-Viewing Instructions to Witness Report was entered into evidence at the hearing by the People as People's Exhibit #1A.
A true-copy of the Photo Array Viewing Report was entered into evidence at the hearing by the People as People's Exhibit #1B.
On December 3, 2019, Det. Tillotson interviewed Confidential Witness #2 and was informed that the witness observed the decedent and Confidential Witness #1 in front of the locus in quo. Confidential Witness #1 asked Confidential Witness #2 to help get the decedent out of the area. The defendant, known to Confidential Witness #2 as "Old Dog", approached the decedent as the confidential witnesses begged the defendant to leave the decedent alone. The defendant took out a gun and fired at the decedent as the decedent attempted to run away. After the decedent was struck and fell to the ground, the defendant stood over the decedent and continued to shoot the decedent. Confidential Witness #2 explained that the witness knew the defendant for approximately six to nine years, spoke to the defendant on a regular basis, was "hit on " by the defendant and the witness and defendant knew each other's families. Confidential Witness #2 was shown a single photograph of the defendant and identified the individual as "Old Dog" and as the person who was the shooter.
The term "hit on" is a common colloquialism for flirtatious behavior.
A true-copy of the photograph shown to Confidential Witness #2 was entered into evidence at the hearing by the People as People's Exhibit #2.
On December 5, 2019, the defendant was apprehended by members of the N.Y.P.D.'s Warrant Squad and transported to the N.Y.P.D.'s 79 P.D.U. for arrest processing. When Det. Hoell encountered the defendant at the 79 P.D.U. holding cell, the detective did not observe the defendant to be injured, nor did the detective make any threats or promises to the defendant. The defendant asked Det. Hoell why he was there, and the detective replied that the defendant had an order of protection, and they would talk about everything. In addition, Det. Hoell obtained the defendant's pedigree information and discussed the defendant's girlfriend, Sabrina Middleton, in detail, including her drinking habits and their relationship. This entire exchange was without benefit of the administration of the defendant's constitutional rights pursuant to Miranda v Arizona, 384 U.S. 436 (1966).
The defendant was then taken into an interview room at the 79 P.D.U. for a video-recorded interview by Detectives Hoell and Tillotson. The detectives did not threaten or promise the defendant anything in exchange for speaking with them, the defendant was offered the opportunity to use the bathroom, eat, drink and was given cigarettes prior to and during the interview. In addition, the detectives were not armed during the interview and the defendant was not handcuffed. The defendant was not informed that the subject matter of the interview would be the homicide of the decedent, rather the detectives emphasized the reason why the defendant was in custody and that they were speaking to him was because of a temporary order of protection against him, in favor of Sabrina Middleton. The defendant was advised of his rights pursuant to Miranda (id.), and the defendant stated that he did not have anything to talk about because the matter concerning the temporary order of protection had already been dismissed . Several minutes after the defendant stated that he had nothing to say, Det. Tillotson exited the interview room, then returned and asked the defendant if he was sure that he understood his rights . During the course of the interview the detectives showed the defendant several still images from surveillance video for the purpose of the defendant identifying himself in the images. This interview lasted approximately one hour and ultimately concluded when the defendant asked for a lawyer because, as the defendant stated, the detectives were not asking about the order of protection .
A true-copy of the video-recorded interview was entered into evidence at the hearing by the People as People's Exhibit #7.
A true-copy of the temporary order of protection, shown to the defendant during the interview, was entered into evidence at the hearing by the People as People's Exhibit #6.
See People's Exhibit #7, timestamp ~ 17:27 (real time).
A true-copy of a New York City Criminal Court, New York County, Certificate of Disposition, showing the matter underlying the temporary order of protection was dismissed and sealed, was entered into evidence at the hearing by the defense as Defense Exhibit A.
See People's Exhibit #7, timestamp ~ 17:31 (real time).
A true-copy of the images shown to the defendant during the interview were entered into evidence at the hearing by the People as People's Exhibits #3-5.
See People's Exhibit #7, timestamp ~ 18:19 (real time).
The detectives then left the interview room for several minutes before Det. Hoell returns to escort the defendant out of the interview room to use the bathroom. In response to the defendant's request for the bathroom, Det. Hoell further engages the defendant by saying, in sum and substance: 'I know you're upset, you're going to the bathroom. Your mindset changed. We have been good all day, are we still good?' To which the defendant directly responds to the detective's statement and question .
See People's Exhibit #7, timestamp ~ 18:27 (real time).
CONCLUSIONS OF LAW
Dunaway Hearing
At a Dunaway hearing, the People have the initial burden of going forward to show, by credible evidence, the lawfulness of the police conduct (People v Moses, 32 A.D.3d 866 [2d Dept 2006]; see also People v Wise, 46 N.Y.2d 321 [1978]; People v Whitehurst, 25 N.Y.2d 389, 391 [1969]). In evaluating the police action, the court must determine whether it was justified at its inception and whether it was reasonably related in scope to the circumstances at the time (People v DeBour, 40 N.Y.2d 210, 215 [1976]).
It is clear that once a witness identifies the defendant as the perpetrator, the police have probable cause to arrest him. S ee People v Walton, 309 A.D.2d 956, 957 (2d Dept 2003). "An identified citizen informant is presumed to be personally reliable" (People v Parris, 83 N.Y.2d 342, 350 [1994]). There is a "built-in' basis for crediting" such a witness' reliability (People v Hetrick, 80 N.Y.2d 344, 349 [1992]). "(I)nformation provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest" (People v Phillips, 120 A.D.2d 621, 621 [2d Dept 1986]; see also People v Johnson, 66 N.Y.2d 398, 403 [1985]; People v Hicks, 38 N.Y.2d 90, 94 [1975]; People v Jean-Charles, 226 A.D.2d 395, 395 [2d Dept 1996], lv denied 88 N.Y.2d 987).
In the instant case, the confidential witnesses identified the defendant to police in photographic array and confirmatory photograph identification procedures, as the shooter from the above-described incident. As such, this Court finds sufficient probable cause to arrest the defendant in this case.
Rodriguez Hearing
At a Rodriguez hearing, the court must focus on the extent and degree of the prior relationship between the protagonists, the history of their encounters and how well they knew one another. The A confirmatory identification exception, & commat; which states that due to the familiarity between a witness and a suspect there is little or no risk that police suggestion can lead to a mis-identification, permits the prosecution to avoid litigating the suggestiveness of certain pre-trial identification proceedings. This requires a case-by-case analysis which "rests on the length and quality of prior contacts between witness and defendant, but always requires a relationship which is more than 'fleeting or distant'" (People v Coleman, 73 A.D.3d 1200, 1202 [2d Dept 2010] [internal citations omitted]). No single factor is determinative and prior familiarity is to be determined considering the "totality of the circumstances" (id.).
The People bear the burden of demonstrating that the identification procedure was merely confirmatory. This burden can easily be established when the protagonists are family members, friends or acquaintances (People v Collins, 60 N.Y.2d 214, 219 [1983]). It is not satisfied when the familiarity emanates from merely a brief encounter (Rodriguez, 79 N.Y.2d 445, 450; People v Newball, 76 N.Y.2d 587, 591-592 [1990]). Each case requires a presentation of sufficient details to determine the extent and degree of the protagonists' prior relationship, their prior encounters, and how they know one another. This is required so the hearing court can determine whether the identifying witness was A impervious & commat; to police suggestion (Rodriguez, at 451; People v Graham, 283 A.D.2d 885, 888 [3rd Dept 2001], lv denied 96 N.Y.2d 940).
Some of the factors to be considered include: the number of times the witness saw the defendant prior to the crime; the duration and nature of those prior encounters; the setting in which those encounters took place; the period of time over which the viewings between the protagonists took place; the time that had elapsed between the crime and the previous viewing between the protagonists; and whether the witness indicated he or she recognized and could describe the person prior to any identification procedure (Rodriguez, at 451).
Bare bones statements that protagonists know one another from the neighborhood, without more, would be insufficient to establish the requisite degree of familiarity (People v Bernhard, 188 A.D.2d 348, 348 [1st Dept 1992]). Confidential Witness #1's familiarity with the defendant is based upon a period of approximately five to six years, seeing the defendant almost daily during the warmer months, over that time Confidential Witness #1 has spoken to the defendant regularly, was friends with defendant, went with the defendant to various parties and knew the defendant's nickname to be "Old Dog". In addition, Confidential Witness #2 knew the defendant for a period of six to nine years, had spoken to the defendant on a regular basis, knew the defendant by his nickname: "Old Dog", was "hit on " by the defendant and the defendant and witness knew each other's families.
See footnote # 4.
This Court finds that the People have met their burden of proving that the reliable evidence solicited at the pre-trial hearing establishes that Confidential Witnesses #1 and #2's in-court identifications of the defendant at trial would be based on that witness' familiarity of the defendant before the commission of the crime and would not be the result of an identification suggested to the witnesses by members of law enforcement at any time prior to trial.
Wade Hearing
"While the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive" (People v Chipp, 75 N.Y.2d 327, 335 [1990]; People v Berrios, 28 N.Y.2d 361, 367 [1971]).
Single Photograph Identification Procedure
It is axiomatic that the purpose of a Wade hearing is to determine whether police conducted pre-trial identification procedures were unduly and impermissibly suggestive so as to deny a defendant due process (Stovall v Denno, 388 U.S. 293 [1967]; People v Adams, 53 N.Y.2d 241 [1981]). The Court of Appeals and appellate courts have consistently recognized that the showing of a single photograph to a witness is unduly suggestive, and therefore constitutionally inadmissible, absent special circumstances, such as a sufficient independent ability to observe the subject or a sufficient prior familiarity with the subject. See People v Marshall, 26 N.Y.3d 495 (2015); People v Rodriguez, 79 N.Y.2d 445, 453 (1992); People v Mitchell, 42 A.D.3d 758, 760 (3rd Dept 2007); People v Smith, 221 A.D.2d 485, 486 (2d Dept 1995).
Here, Confidential Witness #2 was shown only a single photograph of the defendant. This Court cannot fathom an identification procedure that would be more suggestive. However, as discussed above, this Court finds that due to the nature of the contact and relationship with the defendant, Confidential Witness #2 is impervious to suggestion. As such, evidence of this identification procedure, as well as an in-court identification of the defendant by that witness is admissible as part of the People's case-in-chief.
Blind Photographic Array Identification Procedure
"A photo array is unduly suggestive 'where some characteristic of one picture draws the viewer's attention to it, indicating that the police have made a particular selection'" (People v Smiley, 49 A.D.3d 1299 [4th Dept 2008], lv denied 10 N.Y.3d 870 [2008], quoting People v Diggs, 19 A.D.3d 1098, 1098 [4th Dept 2005], lv denied 5 N.Y.3d 787 [2005]; People v Boria, 279 A.D.2d 585, 586 [2d Dept 2001], lv denied 96 N.Y.2d 781 [2001]; People v Robert, 184 A.D.2d 597, 598 [2d Dept 1992], lv denied 80 N.Y.2d 929, 933 [1992]; People v Cherry, 150 A.D.2d 475, 475 [2d Dept 1989]; People v Dubois, 140 A.D.2d 619, 622 [2d Dept 1988], lv denied 72 N.Y.2d 911 [1988]). This Court has examined the photographic array introduced into evidence as People's Exhibit #1C. The defendant's appearance and pose does not differ greatly from those of the other men in the photographic array. All of the men, including the defendant, appear to be close in age and have similar hairstyles, skin tones and facial characteristics (People v Howard, 50 A.D.3d 823 , 823 [2d Dept 2008], lv denied 10 N.Y.3d 935 [2008]; Robert, 184 A.D.2d at 598). The men depicted in the photographic array were sufficiently similar in appearance so that the procedure was not rendered unduly suggestive (Howard, supra; People v Ragunauth, 24 A.D.3d 472, 472 [2d Dept 2005], lv denied 6 N.Y.3d 779 [2005]; People v Malphurs, 111 A.D.2d 266, 267-268 [2d Dept 1985], lv denied 66 N.Y.2d 920 [1985]). "The composition and presentation of the photo array were such that there was no reasonable possibility that the attention of the witness[es] would be drawn to defendant as the suspect chosen by the police" (People v Sylvester, 32 A.D.3d 1226, 1227 [4th Dept 2006], lv denied 7 N.Y.3d 929 [2006]; People v Dean, 28 A.D.3d 1118, 1119 [4th Dept 2006], lv denied 7 N.Y.3d 787 [2006]; see generally Chipp, 75 N.Y.2d at 335-336).
The New York Legislature has abrogated the long-standing rule which barred admission of photo arrays into evidence during the People's case-in-chief through the enactment of New York Criminal Procedure Law §§ 60.25 and 60.30. For the photo array to be admissible it is required that the administrator of the photo array does not know who the suspect is and where the suspect is located within the photo array. "The 'blind/blinded' criterion is intended to deny the administrator of an identification procedure the knowledge that could prompt him to send signals, even unwittingly, to the viewing witness" (Hibel, New York Identification Law §4.06[4], at 4-61 [2017]). Here, Detective Hoell prepared the photo array which contained the defendant, in position number two, as the photo array's subject. After preparing the array, it was given to Det. Vargas for administration to Confidential Witness #1. When Det. Vargas administered the photo array to Confidential Witness #1, on November 16, 2019, Det. Vargas was alone with the witness, lacked knowledge of who the subject of the identification procedure was and was unaware of his position within the photo array. In keeping with the statutory requirements, Detective Cruz was a "blind" administrator.
As such, evidence of the November 16, 2019, photographic array identification procedure, as well as an in-court identification of the defendant by that witness is admissible as part of the People's case-in-chief.
Huntley Hearing
As in any case where the defense challenges the admission of a defendant's statement, the People must prove the statement's voluntariness beyond a reasonable doubt (People v Huntley, 15 N.Y.2d 72, 78 [1965]; People v Anderson, 42 N.Y.2d 35, 38-39 [1977] ; People v Holland, 48 N.Y.2d 861, 862 [1979]). The police may not legally interrogate a person who is in custody without first administering to that suspect his or her Miranda rights (Miranda v. Arizona, supra). If the defendant was subjected to custodial interrogation, the prosecutor's burden also includes the duty to prove, beyond a reasonable doubt, that the defendant was advised of his Miranda rights and that he knowingly and voluntarily waived those rights (Miranda, at 471-472).
Need for Miranda
Miranda rights are required whenever a person is subjected to custodial interrogation. Whether a person is in custody is generally a question of fact. The standard the court must apply is what a reasonable person, innocent of any crime, would have thought had he been in the defendant's position when initially questioned by detectives (People v Yukl, 25 N.Y.2d 585 [1969]). Factors to be considered include: (1) the amount of time the suspect spent with the police; (2) whether the suspect's freedom of action was restricted; (3) the location and atmosphere under which the questioning occurred; (4) the degree of cooperation exhibited by the suspect; (5) whether constitutional warnings were administered; and (6) whether the questioning was investigatory or accusatory in nature (People v King, 222 A.D.2d 699 [2d Dept 1995]; People v Macklin, 202 A.D.2d 445 [2d Dept 1994], lv denied 83 N.Y.2d 912 [1994]; People v Arcese, 148 A.D.2d 460 [2d Dept 1989], lv denied 74 N.Y.2d 661 [1989]).
"The special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation" (Rhode Island v Innis, 446 U.S. 291, 300 [1980]; People v Ferro, 63 N.Y.2d 316, 322 [1984], cert. denied 472 U.S. 1007; People v Tavares-Nunez, 87 A.D.3d 1171, 1172 [2nd Dept 2011, lv denied 19 N.Y.3d 1105]). Not every statement made by a suspect in custody is subject to Miranda. Only those statements that are the product of custodial interrogation, or its functional equivalent, must be preceded by administration of Miranda rights.
The term "interrogation" refers not only to express questioning, but also to any words or actions on the part of the police, other than those normally attendant to arrest and custody, that the police know, or should know, are reasonably likely to elicit an incriminating response (Innis, at 301; Ferro, at 322). The definition of interrogation can also extend to words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response (Innis, at 301-302). Simply stated, the Miranda safeguards come into issue, and must be administered, whenever a person in custody is subjected to either express questioning or its functional equivalent (Innis, at 300). "The question is not what was the subjective intent of the police but rather what words and actions, in light of their knowledge concerning the suspect, they 'should have known were reasonably likely to elicit an incriminating response'" (Ferro, at 322-323; Innis, at 302).
Here, the defendant was apprehended upon probable cause, was brought to the 79 P.D.U. for arrest processing and interviewed by Detectives Hoell and Tillotson. It is indisputable that the defendant was in custody while at the 79 P.D.U. In addition, the conversation with the defendant concerning his girlfriend and the order of protection in the holding cell area, prior to the video recorded interview, as well as the recorded interview itself, were clearly interrogations as contemplated by the law. Therefore, the defendant was entitled to the administration of his Miranda rights prior to interrogation by the police, which the defendant did not received until he was brought into the interview room, as evidenced by the testimony of Det. Hoell and the video recording presented during this hearing as People Exhibit #7. As such, the defendant was deprived of his constitutional rights pursuant to Miranda when answering questions and responding to statements related to the order of protection, his girlfriend and the case underlying that order of protection. As such, the defendant's statements, with the exception of the defendant's pedigree information, obtained prior to the administration of Miranda are inadmissible during the People's case-in-chief.
"The primary purpose of pedigree questions is to satisfy a non-investigatory, informational need and not to acquire incriminating information, courts consider such questions interrogation but an exception to the Miranda rule requiring warnings before custodial interrogation" (Brunetti, New York Confessions §2.06-17, [2018]). In People v Rodney, 85 N.Y.2d 289 (1995), the Court of Appeals held that obtaining pedigree information from a person, who is in custody, is an exception to the application of Miranda v Arizona, (supra). The Court found that "answers given in response to such questions fall outside the protections of Miranda if they are 'reasonably related to the police's administrative concerns (Pennsylvania v Muniz, 496 U.S. 583, 601-602; see also U.S. v McLaughlin, 777 F.2d 388, 391-392; US v Sims, 719 F.2d 375, 378, cert. denied, 465 U.S. 1034).'" See also People v Hester, 161 A.D.2d 665 (2d Dept 1990), People v Nelson, 147 A.D.2d 774 (3d Dept 1989), People v McLoud, 50 A.D.3d 379 (1st Dept 2008). Further, the Court in Rodney stated that "the exception derives from the essential purpose of Miranda -to protect defendants from self-incrimination in response to questions posed as part of the investigation of a crime, as distinguished from non-investigative inquiries." People v Rodney, at 292.
As such, the defendant's statements to police, concerning his pedigree information is admissible during the People's case-in-chief.
In addition, this Court finds that the statements made prior to the defendant being brought into the interview room were voluntarily made, not the product of coercion. Pursuant to People v. Harris, 25 N.Y.2d 175 (1969), aff'd sub nom Harris v. New York, 401 U.S. 222 (1971) and its progeny, only these statements may be used on cross-examination of the defendant, should he elect to testify on his own behalf, for the limited purpose of impeachment of his credibility.
Invocation of Fifth Amendment Rights
When a suspect in custody "indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease" (People v Steele, 277 A.D.2d 932 [4th Dept 2000], lv den., 96 N.Y.2d 788 [2001], see also: Miranda v Arizona, supra) . When a suspect exercises this right, "the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his right to cut off questioning' was scrupulously honored'" (Michigan v Mosley, 423 U.S. 96, 104, [1975]).
Invocation of an individual's right to remain silent or for legal representation must be clear and unequivocal. Statements, such as 'I have nothing to say', must be viewed in context of the defendant's full statement, when determining whether such a statement constitutes a clear and unequivocal invocation of a defendant's Fifth Amendment right. Moreover, the court is under an obligation "to indulge every reasonable presumption against waiver' of fundamental constitutional rights" (People v. Warren, 97 A.D.2d 486, 488 [1983]).
This Court has reviewed the video of the defendant's interview by the police while in custody. As such, this Court was able to evaluate the content, as well as the defendant's demeanor as he provided his statement to the police, in addition to all attendant circumstances and relevant evidence. It is the finding of this Court that when viewed in context, this defendant clearly and unequivocally invoked his right to terminate the questioning and remain silent when the defendant stated: 'I don't have anything to talk about, it's already been dismissed', immediately upon being advised of his rights pursuant to Miranda. Moreover, this invocation was clear to the police, as evidenced by Detective Tillotson's "clarification" that the defendant understood his rights in response to the defendant's statement that he did not want to speak with the police. Although this required the police to scrupulously honor the defendant's constitutional right to be free of continued custodial interrogation, the police continued nonetheless, rendering the entirety of the defendant's statements during the interrogation session inadmissible in the People's case-in-chief.
Despite the invocation of the defendant's right to remain silent, the detectives continued to interrogate the defendant until he invoked his right to counsel, which brought this unconstitutional exercise to a close. However, after invocation of his right to counsel, upon Det. Hoell's re-entery to the interview room, the detective again engaged the defendant. Although the defendant initiated the contact by asking to use the bathroom, the defendant's subsequent statements were in direct response to Det. Hoell's statement and inquiry, which went well beyond the defendant's mere request. See Innis, supra. Moreover, the record is utterly devoid of any facts tending to support any attenuation which may have purged the taint of this egregious, unconstitutional conduct. As such, any statements by the defendant made after Det. Hoell re-entered the interview room upon the defendant's request to use the bathroom are inadmissible during the People's case-in-chief.
Voluntary, Knowing and Intelligent Waiver of Constitutional Rights
Assuming arguendo that the defendant did not clearly and unequivocally invoke his rights pursuant to the Fifth Amendment, which this Court finds that he did, this Court further finds that the defendant did not knowingly, voluntarily and intelligently waive his constitutional protections.
It is an uncontroverted principle that the police are not obligated to inform the defendant of the scope of an interrogation in order to obtain a valid waiver of the defendant's Fifth Amendment rights. See Moran v Burbine, 475 U.S. 412, 422 (1986); Oregon v Elstad, 470 U.S. 298 (1985).However, "the relinquishment of the right [to remain silent] must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception" (emphasis added) (Burbine, at 421). In addition the New York State Court of Appeals has held that where the deception is so fundamentally unfair that it denies due process, the resulting waiver is involuntary. See People v Tarsia, 50 N.Y.2d 1 (1980); see also C.P.L. § 60.45(2)(b)(ii).
The United States Supreme Court, in Fare v Michael C., 442 U.S. 707, 725 (1979), held that the relinquishment of a constitutional right must be a product free from coercion or deception, in order to find that Miranda rights have been validly waived. "The determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forego his rights to remain silent and to have counsel." Id., at 725. Moreover, in Colorado v Spring, 479 U.S. 564 (1987) the Court has held that although the police have no duty to inform a defendant of the subject matter of an interrogation, the police cannot employ trickery and misinformation to obtain a waiver of constitutional rights by deceit.
The issue sub judice is not that the police refused, or even failed, to inform the defendant of the scope of the interrogation, but rather that the police affirmatively employed trickery by mis-informing the defendant as to the basis of the interrogation. This was evidenced by Det. Hoell's testimony that the order of protection gave the detective an excuse to find out what happened for everything else (see Hearing Transcript, page 65, line 1-4), meaning the homicide. This deceitful trickery by misdirection deprived the defendant of the free-will to decide of his own accord whether or not he wished to waive his rights pursuant to Miranda and speak with the police in this case." Any evidence that the accused was tricked into a waiver will, of course, show that the defendant did not voluntarily waive his privilege." (Emphasis added) Miranda, at 476.
The fact that the defendant was led to believe the interrogation concerned a violation of an order of protection, as opposed to the instant homicide, is not mere silence on the part of the police in regard to the subject matter, but is the exact trickery that vitiates a voluntary, knowing and intelligent waiver of the defendant's Miranda rights. This deception is so fundamentally unfair, that it deprives the defendant of his due process rights. See People v Tarsia, 50 N.Y.2d 1, 11 (1980). As such, the defendant's will was overborne by the deception and the defendant's capacity for self-determination was critically impaired by the police's use of trickery and misdirection. See Colorado v Connelly, 479 U.S. 157 (1986).
As the defendant's waiver of his constitutional Fifth Amendment rights were in response to police orchestrated deception which deprived the defendant of the ability to voluntarily waive this right, as an act of his own free-will, the People are precluded from using the defendant's statements made during the interrogation session in their case-in-chief, as well as on cross-examination for impeachment purposes, should the defendant elect to testify on his own behalf. C.f. Harris, supra.
CONCLUSION
WHEREFORE, the defendant's motion to suppress identification evidence related to Confidential Witnesses, #1 and #2, is hereby DENIED in all respects. Defendant's motion to suppress statement evidence is hereby DENIED in part and GRANTED in part.
This constitutes the decision, opinion and Order of this Court.