People v. Johnson

• Decision Date: 18 May 2016
• Docket Number: 2011-10107, 2011-10113.
• Citation: 2016 N.Y. Slip Op. 03896,139 A.D.3d 967,34 N.Y.S.3d 62
• Parties: The PEOPLE, etc., respondent, v. Michael JOHNSON, appellant.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 967

34 N.Y.S.3d 62

2016 N.Y. Slip Op. 03896

The PEOPLE, etc., respondent,

v.Michael JOHNSON, appellant.

2011-10107, 2011-10113.

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

May 18, 2016.

Lynn W.L. Fahey, New York, NY (De Nice Powell of counsel), for appellant, and appellant pro se.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Merri Turk Lasky of counsel), for respondent.

L. PRISCILLA HALL, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and JOSEPH J. MALTESE, JJ.

Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Lasak, J.), rendered October 12, 2011, convicting him of attempted murder in the second degree, robbery in the first degree (two counts), assault in the first degree, criminal possession of a forged instrument in the first degree (three counts), criminal possession of a forged instrument in the second degree (two counts), robbery in the second degree, and criminal possession of stolen property in the fifth degree, under Indictment No. 2352/09, upon a jury verdict, and imposing sentence, and (2) a judgment of the same court, also rendered October 12, 2011, as amended October 17, 2011, convicting him of unauthorized use of a vehicle in the third degree under Indictment No. 1328/11, upon a jury verdict, and imposing sentence. The appeals bring up for review the denial, after a hearing (Grosso, J.), of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

ORDERED that the judgments are affirmed.

At about 10:00 p.m. on May 11, 2009, a 66–year–old chauffeur was robbed at gunpoint, and then shot, in front of his house in Queens. The victim had just finished work and parked his black BMW automobile on the street when a masked man approached, threatened him with a gun, and grabbed the car's computerized key fob from the victim's hand. The perpetrator shot the victim in the chest and the abdomen from about an arm's length away, which ultimately led to the victim becoming completely disabled. Notwithstanding that he shot the victim twice in the torso, the perpetrator continued to fire approximately six or seven more shots before driving away in the victim's BMW. Several people witnessed the carjacking incident.

Three days later, the police received information that the defendant may have been the perpetrator and ascertained his whereabouts. Detectives from the New York City Police Department (hereinafter NYPD) followed the defendant and observed him commit several traffic infractions while driving a GMC Arcadia, and approached him when he stopped at a gas station. Upon inquiry, the defendant stated that the vehicle was a rental, but his name was not on the rental agreement and he did not have a valid driver license. The detectives arrested the defendant and recovered a Louisiana driver's license, a John F. Kennedy International Airport (hereinafter JFK) identification (hereinafter ID) card, a New York State nondriver ID card, approximately $2,000 in United States currency, and two BMW key fobs. The defendant gave his name as “Michael Johnson,” which did not match the name on the Louisiana driver's license and the JFK ID card. Those two cards bore the defendant's photo, but listed the name “Anis Saleh.”

After the defendant was transported to the precinct station house, where he was placed—uncuffed—in an interview room, the NYPD learned that the GMC Arcadia he was driving had been stolen and the “VIN plate” had been “re-tagged.” They also learned that many of the U.S. dollar bills recovered from the defendant bore the same serial number. In addition, they discovered that one of the key fobs recovered from the defendant belonged to the BMW that was stolen from the victim in Queens, and the other fob belonged to a vehicle reported stolen in Suffolk County. In furtherance of the ever-expanding investigation of the defendant, he was interviewed by three other law enforcement agencies. Members of the Suffolk County Police Department interviewed the defendant about the other stolen vehicle. The United States Secret Service interviewed him about the suspected counterfeit currency that was in his possession, and concluded that the currency was counterfeit. The Port Authority Police Department interviewed him concerning the JFK ID card, and concluded that the JFK ID card was not valid.

During that same period of time, the lead NYPD detective on the case traveled to the hospital where the victim was recovering from his gunshot wounds

, and showed him a photo array which included a photo of the defendant. The victim identified the defendant as the man who shot him and stole his BMW. The detective returned to the station house and obtained statements from the defendant that he was involved in robbing the victim, but the defendant claimed that he was not the shooter. After the defendant's arraignment, the victim identified him at a lineup.

Following a jury trial, the defendant was convicted of numerous crimes, including attempted murder in the second degree, robbery in the first degree (two counts), and criminal possession of a forged instrument in the second degree (two counts). The defendant appeals.

I. Voluntariness of the Defendant's Statements

The defendant contends that the Supreme Court should have suppressed his statements to police on the ground that they were involuntarily given. At a hearing to suppress statements made to law enforcement officials, the People have the burden of demonstrating, beyond a reasonable doubt, that the defendant's statements were voluntary (see People v. Anderson, 42 N.Y.2d 35, 38, 396 N.Y.S.2d 625, 364 N.E.2d 1318

; People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 ; People v. Loucks, 125 A.D.3d 890, 2 N.Y.S.3d 620 ) and that the defendant knowingly, intelligently, and voluntarily waived his or her Miranda rights (see

Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 ) prior to making the statements (see

People v. Williams, 62 N.Y.2d 285, 288–289, 476 N.Y.S.2d 788, 465 N.E.2d 327 ). If the People meet their burden, the defendant then bears the burden of persuasion (see

People v. Santos, 112 A.D.3d 757, 758, 976 N.Y.S.2d 565 ; People v. Aveni, 100 A.D.3d 228, 237, 953 N.Y.S.2d 55 ).

Proof of voluntariness compatible with due process depends upon the particular circumstances—“ ‘the totality’ ”—of each case (People v. Guilford, 21 N.Y.3d 205, 208, 969 N.Y.S.2d 430, 991 N.E.2d 204

, quoting People v. Anderson, 42 N.Y.2d at 38, 396 N.Y.S.2d 625, 364 N.E.2d 1318 ; see

People v. Dunbar, 104 A.D.3d 198, 204–205, 958 N.Y.S.2d 764, affd. 24 N.Y.3d 304, 998 N.Y.S.2d 679, 23 N.E.3d 946 ). A court must “review all of the surrounding circumstances to see whether the defendant's will has been overborne” (People v. Mateo, 2 N.Y.3d 383, 413, 779 N.Y.S.2d 399, 811 N.E.2d 1053

). Moreover, the court's credibility determinations following a suppression hearing “are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record” (People v. Baliukonis, 35 A.D.3d 626, 627, 829 N.Y.S.2d 112 ; see

People v. Mateo, 2 N.Y.3d at 413, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Oliver, 87 A.D.3d 1035, 1036, 929 N.Y.S.2d 182 ).

Here, there is no dispute that the defendant was advised of his Miranda rights, acknowledged those rights in writing, and then agreed to provide a statement. Further, it is undisputed that the defendant did not request an attorney. In his statement, he admitted that he was involved in the robbery, explaining that he was only a driver and that another man, known as “G,” crafted the plan and shot the victim.

Notwithstanding the valid waiver of his Miranda rights, the defendant argues that the Supreme Court should have suppressed his statement because there was up to a 33–hour delay between his arrest and his arraignment. The defendant also argues that the People failed to affirmatively prove that he was given food and drink, access to a restroom, or an opportunity to rest during that time. We note, however, that the defendant did not testify that he was denied any of these necessities, and his counsel did not offer any other proof of such deprivation.

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 voluntariness (see People v. Ramos, 99 N.Y.2d 27, 34–35, 750 N.Y.S.2d 821, 780 N.E.2d 506

; People v. DeCampoamor, 91 A.D.3d 669, 670–671, 936 N.Y.S.2d 256 ). Recently, the Court of Appeals clarified that “the overriding concern is not with the mere fact that a delay has transpired, but rather with the effect of an unnecessary time lag between arrest and arraignment on a defendant's ability to decide whether to speak and how to respond to questioning” (People v. Jin Cheng Lin, 26 N.Y.3d 701, 720, 27 N.Y.S.3d 439, 47 N.E.3d 718 [emphasis added] ). In Jin Cheng Lin, the Court of Appeals unanimously affirmed a 3–1 decision of this Court (105 A.D.3d 761, 761–762, 963 N.Y.S.2d 131 [Hall, J., dissenting] ), in which the majority concluded, among other things, that a 28–hour delay in arraignment did not demonstrate that the defendant's statements were involuntary where the delay was attributable to a thorough police investigation and was not part of a “strategically designed plan to permit the defendant to be questioned outside the presence of counsel” (People v. Jin Cheng Lin, 105 A.D.3d at 761–762, 963 N.Y.S.2d 131 ).

In Jin Cheng Lin, the Court of Appeals reiterated the maxim that, although an unwarranted pre-arraignment delay is a suspect circumstance, “ ‘except in cases of involuntariness, a delay in arraignment, even if prompted by a desire for further police questioning, does not warrant suppression’ ” (People v. Jin Cheng Lin, 26 N.Y.3d at 720, 27 N.Y.S.3d 439, 47 N.E.3d 718

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