People v. Jin Cheng Lin

• Citation: 2013 N.Y. Slip Op. 02267,105 A.D.3d 761,963 N.Y.S.2d 131
• Parties: The PEOPLE, etc., respondent, v. JIN CHENG LIN, appellant.
• Decision Date: 03 April 2013
• Court: New York Supreme Court Appellate Division

105 A.D.3d 761
963 N.Y.S.2d 131
2013 N.Y. Slip Op. 02267

The PEOPLE, etc., respondent,
v.
JIN CHENG LIN, appellant.

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

April 3, 2013.

[963 N.Y.S.2d 132]

Lynn W.L. Fahey, New York, N.Y. (De Nice Powell of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Karen Wigle Weiss of counsel), for respondent.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and JEFFREY A. COHEN, JJ.

[105 A.D.3d 761]Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.), rendered July 14, 2008, convicting him of murder in the first degree (six counts), murder in the second degree (six counts), burglary in the first degree, and attempted robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Eng, J.), of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

ORDERED that the judgment is modified, on the law, by vacating the convictions of murder in the second degree, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.

[963 N.Y.S.2d 133]

The hearing court properly denied that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials. Approximately 28 hours elapsed between the time the police arrested the defendant and the time the defendant made the statement sought to be suppressed. While an undue delay in arraignment is properly considered when assessing the voluntariness of a defendant's confession, a delay in arraignment alone does not warrant suppression, as it is but one factor in assessing the voluntariness of a confession ( see People v. Ramos, 99 N.Y.2d 27, 35, 750 N.Y.S.2d 821, 780 N.E.2d 506;[105 A.D.3d 762]People v. DeCampoamor, 91 A.D.3d 669, 671, 936 N.Y.S.2d 256;People v. Williams, 53 A.D.3d 591, 592, 861 N.Y.S.2d 420;see also People v. Williams, 297 A.D.2d 325, 746 N.Y.S.2d 175). The record does not support the defendant's claim that the police unnecessarily delayed his arraignment. Here, the delay in arraigning the defendant was attributable to the time it took the police to conduct a thorough investigation and not to a strategically designed plan to permit the defendant to be questioned outside the presence of counsel ( see People v. Williams, 297 A.D.2d 325, 746 N.Y.S.2d 175;People v. Irons, 285 A.D.2d 383, 727 N.Y.S.2d 311).

Moreover, the record supports the hearing court's finding that the defendant understood the import of the Miranda warnings ( see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) given to him ( see People v. Madrid, 52 A.D.3d 530, 531, 859 N.Y.S.2d 717;People v. Zadorozhnyi, 267 A.D.2d 263, 264, 699 N.Y.S.2d 306;People v. Alexandre, 215 A.D.2d 488, 626 N.Y.S.2d 520). Further, the defendant was provided with food, water, cigarettes, access to a bathroom, and the opportunity to rest in between questioning sessions. Nothing in the record suggests that physical force was used or threatened ( see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;People v. Petronio, 34 A.D.3d 602, 825 N.Y.S.2d 99;People v. Miles, 276 A.D.2d 566, 714 N.Y.S.2d 714;cf. People v. Anderson, 42 N.Y.2d 35, 396 N.Y.S.2d 625, 364 N.E.2d 1318). Accordingly, our “review of the totality of the circumstances demonstrates that the defendant's statement[s] w[ere] voluntarily made” ( People v. Winkfield, 90 A.D.3d 959, 960, 935 N.Y.S.2d 130;see People v. Seabrooks, 82 A.D.3d 1130, 1130–1131, 918 N.Y.S.2d 797).

Contrary to the defendant's contention, and our dissenting colleague's position, the trial court did not improvidently exercise its discretion in precluding the defendant from introducing into evidence at trial a videotape of an interview conducted by an Assistant District Attorney from the Queens County District Attorney's Office on May 16, 2005. Trial courts are accorded wide discretion in making evidentiary rulings. However, “[a] court's discretion in evidentiary rulings is circumscribed by the rules of evidence and the defendant's constitutional right to present a defense” ( People v. Carroll, 95 N.Y.2d 375, 385, 718 N.Y.S.2d 10, 740 N.E.2d 1084). Nonetheless, the “right to present a defense does not give criminal defendants carte blanche to circumvent the rules of evidence” ( People v. Hayes, 17 N.Y.3d 46, 53, 926 N.Y.S.2d 382, 950 N.E.2d 118,cert. denied––– U.S. ––––, 132 S.Ct. 844, 181 L.Ed.2d 553 [internal quotation marks omitted] ). Indeed, a trial court has the discretion to exclude even relevant evidence if its probative value is outweighed by risks such as “undue prejudice to the opposing party, confusing the issues or misleading the jury” ( People v. Aziziandavidi, 100 A.D.3d 765, 954 N.Y.S.2d 132 [internal quotation marks [105 A.D.3d 763]omitted] ). Evidence of “ ‘slight, remote or conjectural significance’ will ordinarily be insufficiently probative to outweigh these

[963 N.Y.S.2d 134]

countervailing risks” ( People v. Primo, 96 N.Y.2d 351, 355, 728 N.Y.S.2d 735, 753 N.E.2d 164, quoting People v. Feldman, 299 N.Y. 153, 169–170, 85 N.E.2d 913). In the instant matter, we agree with the trial court's determination, in effect, that the videotape's probative value was outweighed by potential prejudice to the People. Although the defendant claimed that the purpose of admitting the videotape was to demonstrate his appearance and demeanor following multiple days of interrogation, his physical appearance on the videotape did not have any relevance to a material issue. It did not show that the defendant was subjected to any coerciveness on the part of the police. Moreover, the trial court's offer to have the jury view a still photograph culled from the videotape permitted the defendant a meaningful method by which to present to the jury his physical appearance on May 16, 2005.

However, under the circumstances of this case, as the People correctly concede, the convictions of murder in the second degree, and the sentences imposed thereon, must be vacated, and those counts of the indictment dismissed, because those charges are inclusory concurrent counts of the convictions of murder in the first degree ( see People v. Howard, 92 A.D.3d 1219, 1220, 937 N.Y.S.2d 807;People v. Villafane, 48 A.D.3d 712, 713, 852 N.Y.S.2d 301).

The defendant's remaining contentions are without merit.

RIVERA, J.P., DICKERSON, and COHEN, JJ., concur.

HALL, J., dissents, and votes to reverse the judgment, grant that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials, and order a new trial, with the following memorandum.

I must respectfully dissent because, in my view, the statements made by the defendant to law enforcement officials should have been suppressed, and the defendant was deprived of his constitutional rights to present a defense and to a fair trial.

This case involves the murders of Cho Man Ng, known as Sharon (hereinafter Sharon), and her brother, Sek Man Ng, known as Simon (hereinafter Simon), which occurred on May 12, 2005, in Queens County. According to the evidence presented at the suppression hearing, at approximately 7:00 a.m. or 8:00 a.m. on May 13, 2005, Detective Bernard Marshall and another detective went to the home of the defendant and asked him to accompany them to the precinct station house to discuss the murders. The defendant willingly went with the detectives to the station house.

At approximately 11:00 a.m. on May 13, 2005, Detective Philip Wong spoke to the defendant, who was sitting in a “12 by 12” [105 A.D.3d 764]interview room with no window. Detective Wong spoke to the defendant in English and in the Cantonese dialect of the Chinese language. Detective Wong interviewed the defendant six or seven times throughout the course of the day; no interview lasted longer than 10 to 15 minutes.

The defendant told Detective Wong that he had known Sharon for approximately seven years, and had dated her for approximately five years. According to the defendant, he broke up with Sharon approximately one year earlier because she was cheating on him with a married man. The defendant stated that on May 12, 2005, he went to Sharon and Simon's home, and after Simon answered the door and let him in, the defendant gave Simon a gift to give to Sharon. The gift consisted of two seashell figurines.

At 10:00 p.m. on May 13, 2005, Detective Kevin Hui entered the interview room,

[963 N.Y.S.2d 135]

where the defendant was speaking with Detective Wong and two other detectives. After five minutes, the defendant asked to speak to Detective Hui alone. Detective Hui spoke to the defendant in the Cantonese dialect. At the beginning of the conversation, Detective Hui instructed the defendant not to waste his time, and that if the defendant “wanted to talk, talk.” The defendant asked Detective Hui what would happen if he “st[u]ck it out to the end,” or if he talked. The defendant also asked Detective Hui if they could work out a deal. Detective Hui replied that he was not the case officer, but that he would get someone to talk to the defendant. As Detective Hui walked out of the interview room, the defendant stated that “he didn't want to squat for 60 years until he's 60 ... maybe until 40.” Detective Hui then informed the detectives and a Lieutenant Belluchi of his conversation with the defendant. However, Lieutenant Belluchi ultimately decided to let the defendant go home.

The very next day, on May 14, 2005, at approximately 11:00 a.m., Detective Marshall picked up the defendant, who willingly returned to the station house. At approximately 11:40 a.m., Detective Marshall, speaking in English, advised the defendant of his Miranda rights ( see Miranda v. Arizona, 384 U.S....