People v. Herner

• Decision Date: 26 January 1993
• Parties: The PEOPLE of the State of New York v. William Anthony HERNER, Defendant.
• Court: New York Supreme Court

Page 544

594 N.Y.S.2d 544

156 Misc.2d 735

The PEOPLE of the State of New York v. William Anthony HERNER, Defendant.

Supreme Court, Monroe County.

Jan. 26, 1993.

Howard R. Relin, Dist. Atty., Richard Keenan, Asst. Dist. Atty., for the People.

Edward J. Nowak, Public Defender, Thomas Kidera, Asst. Public Defender, for Herner.

RICHARD C. WESLEY, Justice.

INTRODUCTION

Defendant William Anthony Herner is charged under Indictment Number 960/91 with two counts of Murder in the 2nd Degree; one count of Assault in the 1st Degree; two counts of Robbery in the 1st Degree; one count of Criminal Trespass in the 3rd Degree; and one count of Menacing. Defendant has moved for suppression of tangible property, of statements, and of identifications. Pursuant to a June 10, 1992 Decision and Order of this Court, suppression hearings were held August 27-28 and December 17, 1992. For the reasons set forth below, defendant's motions to suppress are denied, except as to the last page of his statement concerning the Stewart Street shootings.

FACTS

On November 3, 1991, Rochester Police Department (RPD) Detective Casper J. Caceci interviewed a clerk who was on duty at Sal's Birdland Restaurant when it was robbed on October 26, 1991. From a photo array, the clerk identified defendant as the robber, and gave a sworn statement to that effect (Exhibit 1). Det. Caceci conveyed the information to then-Lieutenant Robert Goldfinger, the staff duty officer on November 3rd.

The same day, RPD Investigator Terrance Sheridan became aware of the information developed by Det. Caceci. He obtained defendant's last known address from RPD's Edicon automated video identification system. Inv. Sheridan went to that address, 267 Elmdorf Avenue, that afternoon, and spoke to defendant's mother Helen Hannah. She told Sheridan that defendant did not reside there, but that he "sneaks into her garage from time to time ... without her permission" (Tr. 222). That evening, Sheridan telephoned RPD Sgt. John Prewasnicak, the supervisor on duty on the midnight shift of the Genesee Section (which included Elmdorf Avenue). Sheridan told Prewasnicak that they were looking for a subject wanted in an armed robbery, and that they had information that the subject on occasion hid out in his parents' garage at 267 Elmdorf Avenue.

Sgt. Prewasnicak testified that at about 6:20 a.m. the next day, he participated in the arrest of defendant. He recalled Inv. Sheridan having told him on the telephone that defendant was wanted for a robbery, "and that he probably would be in the garage at 267 Elmdorf Avenue" (Tr. 103). The officers proceeded directly to the garage without stopping at the house. The door of the garage was closed; the window on the right side of the garage was boarded up. Sgt. Prewasnicak and Officer Cedric Felton proceeded to the rear of the garage, which had a window frame from which (they testified) the entire window had been removed. The police officers used their flashlights to look inside and saw a man lying on a couch. The officers testified that, other than the couch, there was no furniture inside the garage, only bicycles, tools, and other "clutter" that one would expect to find in a garage.

Sgt. Prewasnicak indicated that the man on the couch was waking up and looked at him. Sgt. Prewasnicak inquired, "William?"; defendant responded, "Yeah." Sgt. Prewasnicak told defendant that he was under arrest for robbery. He went into the garage through the window frame with his gun drawn. Defendant was allowed to put on his clothes, and was handcuffed. Sgt. Prewasnicak had defendant show him where the lock was on the garage door. The Sergeant raised the door. Officer Felton escorted defendant to Officer Felton's vehicle.

After Officer Felton transported defendant to the Public Safety Building, Sgt. Prewasnicak allowed defendant to use the bathroom. Thereafter, the Sergeant left defendant handcuffed to a table in an interview room, at approximately 6:40 a.m. Defendant did not appear to be intoxicated or under the influence of drugs. Neither Sgt. Prewasnicak nor anyone else in his presence ever threatened defendant or made promises to him. Defendant never requested a lawyer or indicated that he did not want to talk to the police. The testimony of Officer Felton and Officer Ronald L. Bryant concerning the arrest and transportation of defendant and defendant's condition was consistent with Sgt. Prewasnicak's testimony.

RPD Investigator Terrance W. Coleman testified that he entered the defendant's interview room at about 8:05 a.m. that day. He introduced himself and his partner Det. Gordon Hall, and told defendant that they "were there to investigate and talk to him about an incident that occurred where two people were killed and one person was shot and wounded and to discuss with him several other robberies that he had been implicated in by a Mr. Brian Morton" (Tr. 298). He then advised defendant of his constitutional rights. Defendant indicated he understood them, and agreed to waive his rights and talk to them. From 8:10 a.m. to 9:20 a.m., Coleman and his partner talked to defendant regarding information they had obtained from Mr. Morton implicating defendant in several robberies in the Rochester area.

Although defendant initially denied participating in any of the crimes, he soon began to discuss his involvement in various robberies. Among other things, he indicated that he had been involved in a robbery at a "Sugar Creek" store on Scottsville Road. Neither Coleman nor his partner was familiar with a Sugar Creek store on Scottsville Road. They left the room, walked across the hall to Crimes Analysis, and retrieved a stack of at least 40 files concerning robberies that had occurred during August, September and October of 1991. They went through the stack with defendant, determined that the convenience store was really an "A-Plus" store, and used some of the other files to help defendant identify other robberies in which he had participated.

Ultimately, in addition to the A-Plus and Sal's Birdland robberies, defendant admitted his involvement in a robbery of a Wegman's store, and a robbery of a CVS drugstore, both on Mt. Hope Avenue. The investigators then questioned defendant about Mr. Morton's possession of a .22 rifle, which defendant had seen Morton shoot into a garage at 12 Fenwick Street.

Investigator Coleman then began taking depositions from defendant. A deposition regarding the .22 rifle, was completed at about 9:40 a.m. Coleman then interviewed defendant further until approximately 10:00 a.m.. A deposition concerning the Wegman's beer robbery was completed at approximately 10:20 a.m. After a five minute break for defendant to use the bathroom, Coleman took a deposition concerning the Sal's Birdland robbery. This deposition was completed at about 11:00 a.m.

At 11:00 a.m., Inv. Coleman, who had been joined by Inv. Barnes, began talking to defendant about the CVS robbery. Defendant initially denied having gone into the CVS store. At approximately 11:35 a.m., the officers learned from other police officers that defendant's fingerprint had been found on a package of razor blades that had been left on the counter by the person who had robbed the store. At that point, defendant admitted he had gone into the CVS store. He then put his head in his hands and said nothing for about a minute.

Without any other prompting, defendant then stated, "I didn't shoot anybody," two or three times. Although Coleman had already mentioned the shootings of three people, he, his partner and Barnes asked defendant, "What are you talking about?" Investigator Coleman then took a statement from defendant regarding the shootings at 41 Stewart Street. The statement started at 11:40 a.m., and was concluded at 12:30 p.m.

After the first two pages of the statement were finished, Coleman gave them to Thereafter, Coleman telephoned the Public Defender's office, and was told that Paulino no longer worked there. He informed defendant, who told him to ask for Benjamin Bruce. Coleman called Bruce, and told him that defendant had been arrested and had given statements. Bruce indicated he would be right over, and the investigators ceased talking to defendant at 12:42 p.m.

                defendant.   Defendant read the preprinted notification and waiver portion of the statement out loud and then read the body of the statement to himself.   He had Coleman correct the statement concerning the color of the jacket he had been wearing;  Coleman corrected a typographical error;  and defendant initialled the corrections.   Coleman asked defendant if it was the truth, and defendant said, "yes."   When Coleman then asked defendant to sign it, defendant said that he would not sign it until Coleman called an attorney called Peter Paulino or Palino in the Public Defender's office.   Defendant indicated that he wanted the statement to reflect this, and Coleman typed up a third sheet of paper [156 Misc.2d 740] indicating that the statement was true and that defendant would not sign it until he talked to his lawyer
                

Coleman also testified that defendant did not appear to be injured, intoxicated, or under the influence of drugs, that no threats or promises were made to defendant, and that defendant never requested to speak to an attorney until the end of his last statement.

Monroe County Sheriff's Deputy John Kennedy testified that at about 2:30 p.m. on November 4, 1991, Inv. Coleman and other RPD officers brought defendant to the Monroe County Jail. Kennedy typed the time of defendant's arrival on a city docket sheet and wrote down the charges given to him by the RPD officers. He then patted down defendant and placed him in a holding cell.

After the RPD officers had left, defendant called Kennedy over to the cell and asked him what he was charged with. Kennedy informed him that he had been charged with Robbery, 1st Degree, and that he was going to be charged with the "Distillery murders." Defendant began...