People v. Dunbar

• Decision Date: 30 January 2013
• Citation: 958 N.Y.S.2d 764
• Parties: The PEOPLE, etc., respondent, v. Jermaine DUNBAR, appellant.
• Court: New York Supreme Court — Appellate Division

958 N.Y.S.2d 764

The PEOPLE, etc., respondent,
v.
Jermaine DUNBAR, appellant.

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

Jan. 30, 2013.

958 N.Y.S.2d 767

Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel, Robert J. Masters, and Donna Aldea of counsel), for respondent.

Taylor Prendergrass, Susannah Karlsson, and Christopher Dunn, New York, N.Y., for New York Civil Liberties Union Foundation, American Civil Liberties Union, Brennan Center for Justice, New York State Defenders Association, Pre Trial Justice Institute, New York Association of Criminal Defense Lawyers, Five Borough Defense, and Bronx Defenders, amici curiae (one brief filed).

PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and JEFFREY A. COHEN, JJ.

SKELOS, J.P.

The office of the Queens County District Attorney (hereinafter the District Attorney's office) instituted a program (hereinafter the Program) under which arrested individuals are systematically interviewed just prior to arraignment, or, in other words, immediately before those individuals' indelible right to counsel would attach. As part of the Program, the District Attorney's office formulated a script, containing a number of statements, which is read to suspects before they are advised of their constitutional rights as required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The principal issue presented on this appeal is whether this procedure is effective to secure those individuals' fundamental constitutional privilege against self-incrimination and right to counsel. We hold that it is not, and, therefore, that the defendant's videotaped statement, made to members of the District Attorney's office pursuant to the Program, should have been suppressed.

On April 23, 2009, at 12:40 p.m., the complainant was working as the only cashier at a small commercial establishment that provides money-transfer and other services. A customer entered the store, made some photocopies, and then exited the store. About five minutes later, the customer returned and knocked on the store's locked outer door. The complainant, who was sitting at a counter behind a locked door and a plexiglass barrier, opened the outer door with a button located at the counter. The customer entered, displayed what appeared to be a gun, and demanded money. The complainant got down on the floor behind the counter and called 911, after which, the perpetrator left. The complainant was still lying on the ground when the perpetrator left, and did not see whether the perpetrator fled on foot or in a car. She described the

958 N.Y.S.2d 768

perpetrator as a thin, black man who wore a blue and white striped shirt and a hat.

According to pretrial hearing testimony, Police Officer Frank Diliberto and his partners received a radio call related to this incident, which included a description of a getaway vehicle as a black livery cab with New Jersey license plates. Approximately three minutes later, the police officers stopped a black livery cab, which was occupied by one passenger—the defendant—and a driver, whom a police officer described, at trial, as a dark-skinned, Hispanic man. At that time, the defendant was wearing jeans and a black t-shirt. Officer Diliberto removed the defendant from the vehicle and placed him in handcuffs. According to Officer Diliberto, he then found a black "Yankee hat," a black "handgun," which turned out to be an air pistol, and a blue and white striped shirt, "on the floor of the black livery on the back seat." Officer Diliberto later clarified that he found these items "directly on the floor in front of the seat" or "[d]irectly behind the driver's seat, on the floor of the vehicle."

Police Officer Peter Linke arrived at the location where the livery cab had been stopped when the defendant was already in handcuffs. Officer Linke saw Officer Diliberto remove the hat, gun, and blue and white striped shirt from the car. When Officer Linke was confronted at the pretrial hearing with his grand jury testimony that he saw Officer Diliberto remove the items from "under the passenger seat in the front," Officer Linke indicated: "If that's what I said, that's correct."

Shortly after the livery cab was stopped, a police officer brought the complainant to the location of the stopped vehicle, where she viewed the defendant, who was in handcuffs and surrounded by uniformed police officers. Officer Diliberto was standing next to the defendant and holding the striped shirt at the height of his waist, such that the complainant saw the shirt when viewing the defendant. The complainant identified the defendant as the perpetrator. The defendant was then taken to the police precinct. The time of the defendant's arrest was 12:59 p.m. on April 23, 2009.

About 23 hours later, on April 24, 2009, at 12:03 p.m., Sergeant Mary Picone brought the defendant from the "pens," where he was waiting to be arraigned before a judge, to an interview room to be questioned by herself and Assistant District Attorney (hereinafter ADA) Tina Grillo. As revealed by the recording of the interview, once the defendant was brought to the interview room, Sergeant Picone and ADA Grillo introduced themselves, and ADA Grillo informed the defendant that, "when [he goes] to court," he would be charged with, among other stated offenses, attempted robbery in the first degree and criminal possession of a weapon in the fourth degree, related to an incident that had occurred the previous day in Queens County at the above-referenced store. In accordance with the Program, Sergeant Picone informed the defendant that "in a few minutes" she would read him his Miranda rights, and that he would "be given an opportunity to explain what [he] did and what happened at that date, time, and place." Sergeant Picone then instructed the defendant as follows:

"If you have an alibi, give me as much information as you can, including the names of any people you were with.

"If your version of what happened is different from what we've been told, this is your opportunity to tell us your story. If there is something you need us to investigate about this case you have to tell us now so we can look into it.

958 N.Y.S.2d 769

"Even if you have already spoken to someone else you do not have to talk to us.

"This will be your only opportunity to speak with us before you go to court on these charges."

(These statements will be hereinafter referred to as the preamble.) Sergeant Picone explained to the defendant that the interview was being recorded, advised him of his right to be arraigned without undue delay, and then read him the Miranda warnings. The defendant indicated his understanding of each warning, after which, Sergeant Picone asked the defendant if he would answer questions. The defendant replied "yes," and Sergeant Picone asked the defendant "what happened."

The defendant stated that he had met a man named Pete, who had told him "about robbing this place." The defendant believed that "the money" was under the counter and indicated that he was supposed to scare the cashier by showing her the fake gun, which he had gotten from Pete. Sergeant Picone and ADA Grillo asked the defendant a number of questions about the incident, such as how the defendant got to the location of the crime and what kind of gun he used.

The defendant twice interrupted the questioning to express his confusion or concern as to how the interview was helping him. Sergeant Picone responded that the questioning was "beneficial to [him] if [he had] an alibi, [or] if there's something we need to investigate about this." Sergeant Picone and ADA Grillo also explained that the defendant could tell them something that might benefit him, such as "it wasn't me, I wasn't there." When the defendant stated that he could not truthfully say that it was not him, Sergeant Picone immediately responded: ‘'no, you can't say that because we have pictures of you and they found the BB gun and all that stuff." At that point, ADA Grillo began questioning the defendant about who picked him up after the incident.

The defendant then asked if he would be talking to "the D.A." after he was finished talking to ADA Grillo and Sergeant Picone, to which they responded that the next person he would be talking to was his lawyer. ADA Grillo and Sergeant Picone explained that it was their job to determine if there was anything the defendant needed them to investigate and to find out from him what his side of the story was. The defendant stated that his side of the story was that he felt that he was forced by Pete and "Ralphy" (the driver who picked him up after the incident) to rob the store. ADA Grillo and Sergeant Picone then asked a few more questions about the details of the incident before concluding the interview.

The defendant was subsequently indicted on charges of attempted robbery in the second degree, criminal mischief in the fourth degree, menacing in the third degree, and unlawful sale or possession of an imitation pistol. Prior to trial, the defendant moved, inter alia, to suppress the physical evidence taken from the cab, the showup identification, and his videotaped statement. The Supreme Court denied the motion,...