People v. Brown

• Decision Date: 20 March 2020
• Docket Number: KA 19–00074,162
• Citation: 181 A.D.3d 1301,119 N.Y.S.3d 664
• Parties: The PEOPLE of the State of New York, Respondent, v. Sammy L. BROWN, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

181 A.D.3d 1301
119 N.Y.S.3d 664

The PEOPLE of the State of New York, Respondent,
v.
Sammy L. BROWN, Defendant–Appellant.

162
KA 19–00074

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

Entered: March 20, 2020

TODD G. MONAHAN, LITTLE FALLS, FOR DEFENDANT–APPELLANT.

KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (HARMONY A. HEALY OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.

119 N.Y.S.3d 666

MEMORANDUM AND ORDER

181 A.D.3d 1301

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

Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree ( Penal Law § 125.25 [3] ), defendant contends that County Court erred in refusing to suppress statements that he made to police investigators because those statements were made after he invoked his right to counsel and he did not thereafter validly waive that right. Specifically, defendant contends that the court was required to suppress several statements that he made to police investigators on July 13, 2017, because he invoked his right to counsel during an interview on July 12. It is undisputed that defendant requested an attorney during the conversation on July 12. Defendant, however, contends that he was placed in custody on July 12 and that the events of July 12–13 comprised a single, continuous block of custodial interrogation by the investigators, and therefore he could not knowingly, voluntarily, and intelligently waive his right to counsel without an attorney present. We conclude that the court properly declined to suppress the statements at issue.

We reject defendant's initial contention that suppression was required because he requested counsel while in custody on July 12. Although defendant is correct that, once an uncharged individual requests counsel while in police custody, his or her

181 A.D.3d 1302

constitutional right to counsel cannot thereafter be waived without counsel present (see People v. Ramos, 99 N.Y.2d 27, 32–33, 750 N.Y.S.2d 821, 780 N.E.2d 506 [2002] ; People v. Cunningham, 49 N.Y.2d 203, 208–210, 424 N.Y.S.2d 421, 400 N.E.2d 360 [1980] ), the court determined that defendant was not in custody on July 12 (see generally People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969], cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 [1970] ). Giving due deference to the court's credibility determinations (see People v. Clark, 136 A.D.3d 1367, 1368, 25 N.Y.S.3d 485 [4th Dept. 2016], lv denied 27 N.Y.3d 1130, 39 N.Y.S.3d 112, 61 N.E.3d 511 [2016] ), we conclude that the evidence at the Huntley hearing establishes that defendant was not in custody when he requested counsel (see generally People v. Bell–Scott, 162 A.D.3d 1558, 1559, 78 N.Y.S.3d 846 [4th Dept. 2018], lv denied 32 N.Y.3d 1169, 97 N.Y.S.3d 614, 121 N.E.3d 242 [2019] ; People v. Strong, 27 A.D.3d 1010, 1012, 811 N.Y.S.2d 495 [3d Dept. 2006], lv denied 7 N.Y.3d 763, 819 N.Y.S.2d 889, 853 N.E.2d 260 [2006] ).

We reject defendant's further contention that the court erred in concluding that he withdrew his request for counsel before speaking with the police investigators on July 13. The Court of Appeals has stated that a defendant who asserts his or her right to counsel while out of custody may later withdraw that assertion without an attorney present and speak to law enforcement agents (see People v. Davis, 75 N.Y.2d 517, 522–523, 554 N.Y.S.2d 460, 553 N.E.2d 1008 [1990] ). A hearing court may infer that a defendant has withdrawn a request for counsel when the defendant's conduct unambiguously establishes such a withdrawal, which requires consideration of all relevant factors, including "whether defendant was fully advised of his or her constitutional rights before invoking the right to counsel and subsequently waiving it, whether the defendant who has requested assistance earlier has initiated the further communication

119 N.Y.S.3d 667

or conversation with the police ..., and whether there has been a break in the interrogation after the defendant has asserted the need for counsel with a reasonable opportunity during the break for the suspect to contact an attorney" ( id. at 523, 554 N.Y.S.2d 460, 553 N.E.2d 1008 ). Here, defendant was repeatedly advised of his rights, including twice immediately before he resumed speaking with the police. Moreover, after an overnight break in questioning, defendant initiated the conversation with the police to inquire about taking a polygraph examination, and he provided his own transportation to the investigators' office. Consequently, we conclude that the court properly determined that defendant withdrew his assertion of his right to counsel (see id. ; People v. White, 27 A.D.3d 884, 886, 811 N.Y.S.2d 473 [3d Dept. 2006], lv denied 7 N.Y.3d 764, 819 N.Y.S.2d 890, 853 N.E.2d 261 [2006] ; cf. People v. Lewis, 153 A.D.3d 1615, 1616–1617, 62 N.Y.S.3d 661 [4th Dept. 2017], lv denied 30 N.Y.3d 1106, 77 N.Y.S.3d 5, 101 N.E.3d 391 [2018] ). We reject defendant's contention that a different result is required because he did not cause the break in the interrogation.

181 A.D.3d 1303

The relevant consideration is not which party caused the break in the questioning, rather it is whether there was "a reasonable opportunity during the break for the suspect to contact an attorney" ( Davis, 75 N.Y.2d at 523, 554 N.Y.S.2d 460, 553 N.E.2d 1008 ), and in this case defendant had such an opportunity during the overnight break in questioning.

Defendant failed to preserve for our review his contention that the court erred in permitting a prosecution witness to testify that the victim was shot by a left-handed shooter and that defendant was left-handed (see generally People v. Houk, 225 A.D.2d 1085, 1085, 639 N.Y.S.2d 197 [4th Dept. 1996], lv denied 90 N.Y.2d 940, 664 N.Y.S.2d 758, 687 N.E.2d 655 [1997] ). He also failed to preserve his contention concerning an alleged violation of his right of confrontation (see People v. Liner, 9 N.Y.3d 856, 856–857, 840 N.Y.S.2d 755, 872 N.E.2d 868 [2007], rearg. denied 9 N.Y.3d 941, 844 N.Y.S.2d 782, 876 N.E.2d 510 [2007] ). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).

Defendant did not request a Dunaway hearing and thus failed to preserve his contention that the court erred in failing to conduct one (see People v. Mitchell, 303 A.D.2d 422, 423, 755 N.Y.S.2d 867 [2d Dept. 2003], lv denied 100 N.Y.2d 564, 763 N.Y.S.2d 821, 795 N.E.2d 47 [2003], reconsideration denied 100 N.Y.2d 597, 766 N.Y.S.2d 172, 798 N.E.2d 356 [2003] ). Similarly, defendant did not request a Darden hearing or challenge the identity of the confidential informant (see People v. Darden, 34 N.Y.2d 177, 181, 356 N.Y.S.2d 582, 313 N.E.2d 49 [1974], rearg. denied 34 N.Y.2d 995, 360 N.Y.S.2d 1027, 318 N.E.2d 613 [1974] ), and thus he also failed to preserve his contention that the court erred in failing to conduct such a hearing (see CPL 470.05[2] ; People v. Cruz, 89 A.D.3d 1464, 1465, 932 N.Y.S.2d 650 [4th Dept. 2011], lv. denied 18 N.Y.3d 993, 945 N.Y.S.2d 647, 968 N.E.2d 1003 [2012] ). In any event, defendant's contentions that the court erred in failing to conduct those hearings lack merit. The evidence at the suppression hearing establishes that no Dunaway hearing was required because defendant's "statement on its face shows probable cause for defendant's arrest, and defendant failed to controvert it" by submitting motion papers addressing the issue ( People v. Lopez, 5 N.Y.3d 753, 754, 801 N.Y.S.2d 245, 834 N.E.2d 1255 [2005] ; see People v. Bakerx, 114 A.D.3d 1244, 1246, 980 N.Y.S.2d 210 [4th Dept. 2014], lv denied

119 N.Y.S.3d 668

22 N.Y.3d 1196, 986 N.Y.S.2d 417, 9 N.E.3d 912 [2014] ). Similarly, no Darden hearing was necessary because the evidence from the suppression hearing establishes that the police had probable cause to arrest defendant that was independent of any information gleaned from the confidential informant (see generally People v. Farrow, 98 N.Y.2d 629, 630–631, 745 N.Y.S.2d 752, 772 N.E.2d 1110 [2002] ).

Defendant further contends that he was denied effective assistance of counsel due to his attorney's failure to object to the testimony regarding the left-handed shooter or to request Dunaway

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