People v. Albert

• Decision Date: 26 April 2019
• Docket Number: KA 14–01531,1101
• Citation: 171 A.D.3d 1519,99 N.Y.S.3d 817
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael A. ALBERT, Also Known as Gotti, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

171 A.D.3d 1519

99 N.Y.S.3d 817

The PEOPLE of the State of New York, Respondent,

v.Michael A. ALBERT, Also Known as Gotti, Defendant–Appellant.

1101

KA 14–01531

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: April 26, 2019

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is affirmed.

Memorandum: Defendant appeals from a judgment convicting him following a jury trial of murder in the second degree ( Penal Law § 125.25[1] ) stemming from a homicide that occurred in 2006. Although defendant was not indicted for the crime until 2013, we reject his contention that he was entitled to a Singer hearing to explore the reasons for the People's delay in procuring the indictment inasmuch as "the record provided County Court with a sufficient basis to determine whether the delay was justified" ( People v. Rogers, 103 A.D.3d 1150, 1151, 958 N.Y.S.2d 835 [4th Dept. 2013], lv denied 21 N.Y.3d 946, 968 N.Y.S.2d 8, 990 N.E.2d 142 [2013] ; see People v. Smith, 60 A.D.3d 706, 707, 874 N.Y.S.2d 541 [2d Dept. 2009], lv denied 12 N.Y.3d 859, 881 N.Y.S.2d 671, 909 N.E.2d 594 [2009] ).

Defendant further contends that the court erred in denying that part of his omnibus motion seeking to preclude statements that he made to a private citizen who was surreptitiously recording the statements for law enforcement agents. It is undisputed that the People failed to provide defendant with a CPL 710.30 notice with respect to those statements, and we reject the People's contention that no notice was required because the citizen was not a public servant at the time defendant made his statements to her. Although the statute does not require notice of "admissions made to private parties who were not police agents " ( People v. Mirenda, 23 N.Y.2d 439, 448, 297 N.Y.S.2d 532, 245 N.E.2d 194 [1969] [emphasis added]; see People v. Bryant, 144 A.D.3d 1523, 1524, 41 N.Y.S.3d 339 [4th Dept. 2016], lv denied 28 N.Y.3d 1143, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017] ; cf. People v. Stern, 226 A.D.2d 238, 239, 641 N.Y.S.2d 248 [1st Dept. 1996], lv denied 88 N.Y.2d 969, 647 N.Y.S.2d 723, 670 N.E.2d 1355 ; 88 N.Y.2d 1072, 651 N.Y.S.2d 416, 674 N.E.2d 346 [1996] ), we agree with our dissenting colleagues that the citizen in this case was acting as a police agent at the time she recorded the statements inasmuch as she was acting "at the instigation of the police ... to further a police objective" ( People v. Ray, 65 N.Y.2d 282, 286, 491 N.Y.S.2d 283, 480 N.E.2d 1065 [1985] ; see People v. Eberle, 265 A.D.2d 881, 882–883, 697 N.Y.S.2d 218 [4th Dept. 1999] ; cf. People v. Smith, 262 A.D.2d 1063, 1063, 694 N.Y.S.2d 256 [4th Dept. 1999], lv denied 93 N.Y.2d 1027, 697 N.Y.S.2d 586, 719 N.E.2d 947 [1999] ).

We respectfully disagree with our dissenting colleagues, however, on the issue whether the failure to provide the CPL 710.30 notice warrants preclusion of those statements. We conclude that it does not. Where, as here, there is "no colorable basis for suppression of the statement, the failure to give notice [constitutes] a mere irregularity not warranting preclusion" ( People v. Clark, 198 A.D.2d 46, 47, 603 N.Y.S.2d 450 [1st Dept. 1993], lv denied 83 N.Y.2d 870, 613 N.Y.S.2d 131, 635 N.E.2d 300 [1994] ; see People v. Rockefeller, 89 A.D.3d 1151, 1152–1153, 931 N.Y.S.2d 807 [3d Dept. 2011], lv denied 20 N.Y.3d 1064, 962 N.Y.S.2d 615, 985 N.E.2d 925 [2013] ; see also People v. Garcia–Lopez, 308 A.D.2d 366, 366, 764 N.Y.S.2d 264 [1st Dept. 2003], lv denied 1 N.Y.3d 572, 775 N.Y.S.2d 789, 807 N.E.2d 902 [2003], cert denied 541 U.S. 1078, 124 S.Ct. 2424, 158 L.Ed.2d 991 [2004] ; see generally People v. Greer, 42 N.Y.2d 170, 178–179, 397 N.Y.S.2d 613, 366 N.E.2d 273 [1977] ). In our view, there is no colorable basis for suppression of defendant's statements to the private citizen. There is no dispute that defendant voluntarily went to the citizen's home and that he was interested in pursuing a romantic relationship with her. During the entire conversation, wherein defendant admitted committing the homicide, the private citizen made no explicit or implicit promises that she would engage in sexual relations with defendant. Rather, it was defendant who offered to tell her anything she wanted to know after she expressed that she was afraid of him, and then provided her with all of the details concerning the homicide. We thus conclude that the private citizen did not make any statement or engage in any conduct that "create[d] a substantial risk that ... defendant might falsely incriminate himself" ( CPL 60.45[2][b][i] ; see People v. Bradberry, 131 A.D.3d 800, 802, 16 N.Y.S.3d 97 [4th Dept. 2015], lv denied 26 N.Y.3d 1086, 23 N.Y.S.3d 643, 44 N.E.3d 941 [2015] ). If anything, the citizen's expressed fear of defendant would have had a higher likelihood of inducing defendant to deny participation in the homicide. Although the private citizen ultimately engaged in sexual relations with defendant later that night, the recording establishes that she made no explicit or implicit promises that she would do so (cf. Commonwealth v. Lester, 392 Pa. Super. 66, 67–73, 572 A.2d 694, 695–698 [1990], appeal denied 527 Pa. 609, 590 A.2d 296 [1991] ). The fact that defendant hoped his confession would endear him to the citizen and convince her that he was worthy of her sexual favors does not provide any arguable basis to believe that his statements were anything but " ‘spontaneous and uncontestably voluntary’ " ( People v. Smith, 118 A.D.3d 920, 921, 988 N.Y.S.2d 233 [2d Dept. 2014], lv denied 24 N.Y.3d 1089, 1 N.Y.S.3d 15, 25 N.E.3d 352 [2014], reconsideration denied 25 N.Y.3d 992, 10 N.Y.S.3d 535, 32 N.E.3d 972 [2015] ). We thus further conclude that the court did not err in refusing to instruct the jury regarding the voluntariness of his statements to that private citizen; there was no evidence at trial "presenting a genuine issue of fact concerning the voluntariness of [those] statements" ( People v. Clyburn–Dawson, 128 A.D.3d 1350, 1352, 7 N.Y.S.3d 770 [4th Dept. 2015], lv denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015] ; see People v. Nelson, 133 A.D.3d 1228, 1228, 18 N.Y.S.3d 915 [4th Dept. 2015], lv denied 27 N.Y.3d 1003, 38 N.Y.S.3d 113, 59 N.E.3d 1225 [2016] ; see generally People v. Cefaro, 23 N.Y.2d 283, 288–289, 296 N.Y.S.2d 345, 244 N.E.2d 42 [1968] ).

We reject defendant's contention that the court erred in refusing to suppress statements that he made to law enforcement personnel without the benefit of Miranda warnings. Although defendant was incarcerated on an unrelated offense, he was not subjected to custodial interrogation inasmuch as "[t]here was no ‘added constraint’ that would have led defendant to believe that some other restriction had been placed on him ‘over and above that of ordinary confinement in a correctional facility’ " ( People v. Boyd, 159 A.D.3d 1358, 1362, 73 N.Y.S.3d 301 [4th Dept. 2018], lv denied 31 N.Y.3d 1145, 83 N.Y.S.3d 427, 108 N.E.3d 501 [2018] ; see People v. Ayala, 27 A.D.3d 1087, 1088, 811 N.Y.S.2d 247 [4th Dept. 2006], lv denied 6 N.Y.3d 892, 817 N.Y.S.2d 627, 850 N.E.2d 674 [2006] ; see generally People v. Alls, 83 N.Y.2d 94, 100, 608 N.Y.S.2d 139, 629 N.E.2d 1018 [1993], cert denied 511 U.S. 1090, 114 S.Ct. 1850, 128 L.Ed.2d 474 [1994] ). We thus conclude that Miranda warnings were not required (see Ayala, 27 A.D.3d at 1088, 811 N.Y.S.2d 247 ; see generally People v. Huffman, 41 N.Y.2d 29, 33, 390 N.Y.S.2d 843, 359 N.E.2d 353 [1976] ). Defendant further contends that the court erred in failing to instruct the jury on the voluntariness of his statements to law enforcement personnel. That contention is not preserved for our review inasmuch as he did not seek such an instruction for those statements (see People v. Thomas, 96 A.D.3d 1670, 1673, 949 N.Y.S.2d 545 [4th Dept. 2012], lv denied 19 N.Y.3d 1002, 951 N.Y.S.2d 478, 975 N.E.2d 924 [2012] ). In any event, the contention lacks merit where, as here, there was no evidence in the trial record that would raise a factual issue concerning the voluntariness of those statements (see Clyburn–Dawson, 128 A.D.3d at 1351–1352, 7 N.Y.S.3d 770 ; see generally Cefaro, 23 N.Y.2d at 288–289, 296 N.Y.S.2d 345, 244 N.E.2d 42 ).

During jury selection, defendant raised Batson challenges with respect to two prospective jurors. We agree with the People that they provided race-neutral reasons to support striking those jurors. The first juror's disclosure that her father and brother had criminal convictions was offered by the People as the basis for their challenge and constitutes a race-neutral reason to strike a juror (see e.g. People v. Garcia, 143 A.D.3d 1283, 1284, 39 N.Y.S.3d 572 [4th Dept. 2016], lv denied 28 N.Y.3d 1184, 52 N.Y.S.3d 710, 75 N.E.3d 102 [2017] ; People v. Ball, 11 A.D.3d 904, 905, 782 N.Y.S.2d 228 [4th Dept. 2004], lv denied 3 N.Y.3d 755, 788 N.Y.S.2d 671, 821 N.E.2d 976 [2004], lv denied 4 N.Y.3d 741, 790 N.Y.S.2d 653, 824 N.E.2d 54 [2004] ). The second prospective juror disclosed that he had recently read two books by a writer the prosecutor described as "a black revolutionary-type writer," who had "very antigovernment [sic], anti-law-and-order type views." Contrary to defendant's contention, the prospective juror's "expos[ure] ... to ‘anti-police’ and ‘anti-establishment’ sentiments" was a race-neutral reason for the exclusion of that prospective juror ( People v. Funches, 4 A.D.3d 206, 207, 772 N.Y.S.2d 62 [1st Dept. 2004], lv denied 3 N.Y.3d 640, 782 N.Y.S.2d 411, 816 N.E.2d 201 [2004] ).

Defendant's remaining contentions lack merit. We conclude that defendant's right of confrontation was not violated "when an autopsy report prepared by a former medical examiner, who did not testify, was introduced through the testimony of another medical examiner" ( People v. Acevedo, 112 A.D.3d 454, 455, 976 N.Y.S.2d 82 [1st Dept. 2013], lv denied 23 N.Y.3d 1017, 992 N.Y.S.2d 800, 16 N.E.3d 1280 [2014] ; see People v....