People v. Fiorino
| Decision Date | 30 July 2015 |
| Docket Number | 106647 |
| Citation | 15 N.Y.S.3d 498,2015 N.Y. Slip Op. 06382,130 A.D.3d 1376 |
| Parties | The PEOPLE of the State of New York, Respondent, v. James FIORINO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
130 A.D.3d 1376
15 N.Y.S.3d 498
2015 N.Y. Slip Op. 06382
The PEOPLE of the State of New York, Respondent
v.
James FIORINO, Appellant.
106647
Supreme Court, Appellate Division, Third Department, New York.
July 30, 2015.
Terence L. Kindlon, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Before: McCARTHY, J.P., EGAN JR., DEVINE and CLARK, JJ.
Opinion
EGAN JR., J.
Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered July 2, 2014, upon a verdict convicting defendant of the crime of assault in the second degree.
During the early morning hours of June 27, 2013, the victim
was attacked and robbed as she was walking home from a party on South Pearl Street in the City of Albany. After the victim, who was choked during the attack, regained consciousness, she took a taxi home and, later that morning, reported the incident to the Albany Police Department. The police successfully tracked the victim's cell phone, which was stolen during the robbery, and arrested a suspect, whom the victim later identified as her attacker.
While the victim was at the police station completing a report of the incident, she received a telephone call from defendant, her father. According to a patrol officer who witnessed this conversation, defendant sounded “very upset” and could be heard “yelling” at the victim. The victim explained that her phone had been stolen and that she was at the police station, in response to which defendant said, “[W]ell, you know what's going to happen when you get home.”
Thereafter, on July 2, 2013, the victim appeared in Albany City Court for a preliminary hearing on the underlying robbery, at which time the Assistant District Attorney prosecuting that matter noted that the victim had, among other things, two black eyes. William VanAmburgh, a detective with the Albany Police Department, advised the Assistant District Attorney that the victim did not display such injuries at the time that she reported the robbery; upon further inquiry, the victim informed VanAmburgh that, following her return from the police station on the afternoon of June 27, 2013, she and defendant engaged in a physical altercation, during the course of which defendant repeatedly punched and kicked her, in addition to striking her with a wooden walking cane. Photographs of the victim taken following this altercation revealed two badly blackened eyes, as well as multiple bruises and abrasions to the victim's face, arms, shoulders, legs and back.
VanAmburgh telephoned defendant and advised that he wished to speak with defendant “about a fight he had with [the victim].” Defendant agreed to come down to the police station and, once there, VanAmburgh advised defendant of his Miranda rights. Defendant thereafter gave a written statement wherein he expressed his belief that the victim was “doing things that [he] didn't know about, having unknown friends, having sex, having a boyfriend etc.” and indicated how, on the afternoon in question, he confronted the victim and asked her to “lay it all out for [him].” The victim indicated that “there was nothing” to tell, but defendant did not believe her—apparently because a fortune teller had told him that the victim “was having a lot of sex and also taking a lot of pills.” Having
previously found condoms in the victim's purse, defendant took this as “confirmation that the fortune teller was telling [him] the truth,” and he started “to get upset.” As the verbal altercation between defendant and the victim intensified, the victim attempted to leave the residence, at which point defendant “grabbed her right arm and pulled her back into the house and told her that she was not going anywhere.” At this point,
“punches started to go back and forth,” and defendant admitted that he “threw [the victim] to the ground and grabbed a stick and hit her a little bit.” Defendant also acknowledged that he “kicked [the victim] a little when she was on the ground”; once he noticed bruises developing on the victim's face, defendant “snap[ped] out of [his] anger spell” and allowed the victim to leave.
Defendant thereafter was indicted and charged with one count of assault in the second degree. Following an unsuccessful motion to suppress defendant's written statement, the matter proceeded to trial, where both the victim and defendant appeared and testified. Although defendant attempted to minimize his conduct, claiming that he never struck the victim with a closed fist, insisting that she only sustained “little blows” and asserting that he merely “tapped her” with the cane, defendant nonetheless admitted to engaging in a physical altercation with the victim, and both his written statement and a redacted video recording of his oral statement were admitted into evidence. The jury convicted defendant as charged, and County Court subsequently sentenced defendant to three years in prison followed by three years of postrelease supervision. This appeal by defendant ensued.
Defendant initially contends that County Court erred in failing to suppress his oral and written statements. We disagree. As a starting point, we find no merit to defendant's claim that he invoked his right to counsel. In this regard, VanAmburgh testified at the suppression hearing that, when he first spoke with defendant on the phone about coming down to the police station, defendant “asked if he should bring an attorney with him”; VanAmburgh told defendant that “[it] was up to him, that it was his decision.” On cross-examination, VanAmburgh was asked whether the issue of counsel came up during the course of his interview with defendant; in response, VanAmburgh testified that, after defendant executed his written statement and was placed under arrest, defendant said something to the effect of “I ... asked you if I should bring an attorney with me,” whereupon VanAmburgh reminded defendant, “I said, that's up to you. That's your decision.”
To be sure, “[o]nce an uncharged individual requests counsel while in police custody, his or her constitutional rights cannot thereafter be waived without counsel present” (People v. Strong, 27 A.D.3d 1010, 1012, 811 N.Y.S.2d 495 [2006], lv. denied 7 N.Y.3d 763, 819 N.Y.S.2d 889, 853 N.E.2d 260 [2006] ; see People v. Cade, 110 A.D.3d 1238, 1240, 973 N.Y.S.2d 432 [2013], lv. denied 22 N.Y.3d 1155, 984 N.Y.S.2d 638, 7 N.E.3d 1126 [2014] ; People v. Engelhardt, 94 A.D.3d 1238, 1239–1240, 941 N.Y.S.2d 808 [2012], lv. denied 19 N.Y.3d 960, 950 N.Y.S.2d 112, 973 N.E.2d 210 [2012] ). Whether a defendant is in custody presents “a mixed question of law and fact, which is dependent on the circumstances existing when the challenged statements were made” (People v. Henry, 114 A.D.3d 1025, 1026, 980 N.Y.S.2d 594 [2014], lv. dismissed 22 N.Y.3d 1199, 986 N.Y.S.2d 419, 9 N.E.3d 914 [2014] [citation omitted] ). Additionally, in order for a defendant to invoke his or her right to counsel, there must be an “unequivocal assertion” of that right (People v. Engelhardt, 94 A.D.3d at 1241, 941 N.Y.S.2d 808 ; see People v. Glover, 87 N.Y.2d 838, 839, 637 N.Y.S.2d 683, 661 N.E.2d 155 [1995] ; People v. Higgins, 124 A.D.3d 929, 931, 1 N.Y.S.3d 424 [2015] ; People v. Phoenix, 115 A.D.3d 1058, 1059, 981 N.Y.S.2d 851 [2014], lv. denied 23 N.Y.3d 1024, 992 N.Y.S.2d 806, 16 N.E.3d 1286 [2014] ).
Here, defendant plainly was not in custody at the point in time when he initially spoke with VanAmburgh on the phone (prior to actually coming to the police station) and, even assuming—without deciding—that defendant indeed was in custody upon his arrival at the police station, the record fails to reflect that defendant thereafter unequivocally asserted his right to counsel. Merely inquiring as to whether he should bring (or should have brought) an attorney with him to the police station did not, under the particular facts of this case, constitute an unequivocal assertion of defendant's right to counsel (see People v. Barski, 66 A.D.3d 1381, 1382, 886 N.Y.S.2d 285 [2009], lv. denied 13 N.Y.3d 905, 895 N.Y.S.2d 319, 922 N.E.2d 908 [2009] ; compare People v. Jemmott, 116 A.D.3d 1244, 1246–1247, 984 N.Y.S.2d 443 [2014] ), and defendant points to no other statement made by him that could reasonably be interpreted as an unequivocal assertion of his rights in this regard. Accordingly, inasmuch as defendant's statements were not obtained in violation of his right to counsel, County Court properly denied defendant's motion to suppress upon this ground.
Defendant's related claim—that his oral and written statements should be suppressed because he did not voluntarily waive his Miranda rights—is equally unavailing. Defendant was orally advised of his Miranda rights prior to any questioning; defendant nodded his...
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