People v. Bethea

• Decision Date: 07 March 2018
• Docket Number: 2011–06537,Ind.No. 10–00766
• Citation: 71 N.Y.S.3d 589,159 A.D.3d 710
• Parties: The PEOPLE, etc., respondent, v. Rodney BETHEA, appellant.
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 710
71 N.Y.S.3d 589

The PEOPLE, etc., respondent,
v.
Rodney BETHEA, appellant.

2011–06537
Ind.No. 10–00766

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

Submitted—November 13, 2017
March 7, 2018

Gary E. Eisenberg, New City, NY, for appellant, and appellant pro se.

David M. Hoovler, District Attorney, Middletown, N.Y. (Nicholas D. Mangold of counsel), for respondent.

L. PRISCILLA HALL, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

159 A.D.3d 710

Appeal by the defendant from a judgment of the County Court, Orange County (Jeffrey G. Berry, J.), rendered June 29, 2011, convicting him of manslaughter in the first degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for

159 A.D.3d 711

review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statement to law enforcement officials.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the record of the pre-trial Huntley hearing (see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 ) shows that at the outset of a custodial interview by the police, the defendant made an intelligent, knowing, and voluntary waiver of his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ), and that his statement to the police was not the product of coercion (see People v. Mateo, 2 N.Y.3d 383, 413–414, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Booker, 49 A.D.3d 658, 658, 854 N.Y.S.2d 430 ; People v. Sepulveda, 40 A.D.3d 1014, 1014, 837 N.Y.S.2d 220 ).

The County Court erred in declining to suppress the statement elicited from the defendant after he unequivocally invoked the right to counsel, as well as evidence from a buccal swab that was taken after the defendant invoked his right to counsel. A suspect in custody who unequivocally requests the assistance of counsel may not be questioned further in the absence of an attorney (see People v. Grice, 100 N.Y.2d 318, 320–321, 763 N.Y.S.2d 227, 794 N.E.2d 9 ; People v. Glover, 87 N.Y.2d 838, 839, 637 N.Y.S.2d 683, 661 N.E.2d 155 ; People v. West, 81 N.Y.2d 370, 373–374, 599 N.Y.S.2d 484, 615 N.E.2d 968 ; People v. Cunningham, 49 N.Y.2d 203, 209, 424 N.Y.S.2d 421, 400 N.E.2d 360 ). "A defendant's unequivocal invocation of counsel while in custody results in the attachment of the right to counsel, indelibly so, meaning that, as a matter of state constitutional law, a defendant cannot subsequently waive the right to counsel unless the defendant is in the presence of an attorney representing that defendant" ( People v. Harris, 93 A.D.3d 58, 66, 936 N.Y.S.2d 233 ; see People v. Grice, 100 N.Y.2d at 320–321, 763 N.Y.S.2d 227, 794 N.E.2d 9 ; People v. Cunningham, 49 N.Y.2d at 205, 424 N.Y.S.2d 421, 400 N.E.2d 360 ). Further, an " ‘alleged deprivation of the constitutional right to counsel may be raised on appeal, irrespective of whether such claim has been preserved for appellate review’ " ( People v. Mateo, 148 A.D.3d 727, 729, 48 N.Y.S.3d 712, quoting People v. Flournoy, 303 A.D.2d 762, 762, 757 N.Y.S.2d 454 ; see People v. Kinchen, 60 N.Y.2d 772, 773, 469 N.Y.S.2d 680, 457 N.E.2d 786 ; People v. Samuels, 49 N.Y.2d 218, 221, 424 N.Y.S.2d 892, 400 N.E.2d 1344 ).

Here, a recording of the defendant's custodial statement to the police, which was entered into evidence at the hearing, shows that during the interview the defendant twice stated, "I think I need a lawyer." The defendant's statements constituted an unequivocal invocation of the right to counsel, and after those statements, the police continued their questioning of the defendant and took no steps to comply with the defendant's unequivocal request for counsel. Therefore, the remainder of the defendant's statement after that point, as well as the buccal

159 A.D.3d 712

swab that he provided to the police after that point, should have been suppressed from evidence (see People v. Porter, 9 N.Y.3d 966, 967, 848 N.Y.S.2d 583, 878 N.E.2d 998 ; People v. Esposito, 68 N.Y.2d 961, 962, 510 N.Y.S.2d 542, 503 N.E.2d 98 ; People v. Harris, 93 A.D.3d at 69–70, 936 N.Y.S.2d 233 ; People v. Wood, 40 A.D.3d 663, 664, 835 N.Y.S.2d 414 ). However, this error was harmless, as the evidence of guilt without reference to the statement and buccal swab was overwhelming, and there is no reasonable possibility that the error contributed to the conviction (see People v. Paulman, 5 N.Y.3d 122, 134, 800 N.Y.S.2d 96, 833 N.E.2d 239 ; People v. Zalevsky, 82 A.D.3d 1136, 1138, 918 N.Y.S.2d 790 ).

The defendant's challenge to the jury charge regarding his statement to the police is unpreserved for appellate review (see CPL 470.05[2] ). In any event, any error in the court's instruction was harmless (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).

The defendant failed to preserve for appellate review his contention that the County Court should have submitted to the jury the count of manslaughter in the second degree (see CPL 470.05[2] ; People v. Nunez, 120 A.D.3d at 716, 991 N.Y.S.2d 121 ). In any event, the court properly declined to charge the jury as to this count, as there was no reasonable view of the evidence that the defendant acted with anything less than intent to seriously injure or kill the victim (see People v. Alvaradoajcuc, 142 A.D.3d 1094, 1095, 37 N.Y.S.3d 589 ; People v....