People v. Johnston

• Citation: 192 A.D.3d 1516,145 N.Y.S.3d 233
• Decision Date: 19 March 2021
• Docket Number: KA 13-02064,847
• Parties: The PEOPLE of the State of New York, Respondent, v. Jermaine W. JOHNSTON, Defendant-Appellant.
• Court: New York Supreme Court Appellate Division

192 A.D.3d 1516
145 N.Y.S.3d 233

The PEOPLE of the State of New York, Respondent,
v.
Jermaine W. JOHNSTON, Defendant-Appellant.

847
KA 13-02064

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

Entered: March 19, 2021

THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

JERMAINE W. JOHNSTON, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CURRAN, TROUTMAN, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

192 A.D.3d 1517

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing those parts convicting defendant of criminal possession of a weapon in the second degree under counts 8, 11, and 16 of the indictment and dismissing those counts of the indictment, and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of murder in the second degree ( Penal Law § 125.25 [1] ), two counts of attempted murder in the second degree ( §§ 110.00, 125.25 [1] ), three counts of robbery in the first degree (§ 160.15 [1], [2], [3]), and seven counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]), arising from a series of incidents in June and July 2012 in which two men were killed and three others were injured. Defendant contends in his main brief that the police lacked reasonable suspicion or probable cause to stop a vehicle in which he was a passenger, and that County Court therefore erred in refusing to suppress, as the fruits of that illegal stop, physical evidence seized following his arrest several hours later at a hospital and his subsequent statements to the police. In his omnibus motion papers and subsequent affidavits, however, defendant sought suppression only with respect to his statements, and only on the grounds that they were involuntarily made and that the police lacked probable cause to effect the arrest. Consequently, his challenge to the earlier stop of the vehicle is not preserved for our review (see

145 N.Y.S.3d 238

People v. Crouch , 70 A.D.3d 1369, 1370, 895 N.Y.S.2d 609 [4th Dept. 2010], lv denied 15 N.Y.3d 773, 907 N.Y.S.2d 461, 933 N.E.2d 1054 [2010] ; see generally People v. Lopez , 139 A.D.3d 1381, 1383, 31 N.Y.S.3d 368 [4th Dept. 2016] ). In any event, defendant's contention lacks merit. The police officers released defendant immediately after that stop, and the only evidence they obtained as the result of it was defendant's identity. It is well settled "that the body or identity of a defendant ... in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred" ( People v. Tolentino , 14 N.Y.3d 382, 384-385, 900 N.Y.S.2d 708, 926 N.E.2d 1212 [2010], cert dismissed 563 U.S. 123, 131 S.Ct. 1387, 179 L.Ed.2d 470 [2011] [internal quotation marks omitted]; see People v. Pleasant , 54 N.Y.2d 972, 973-974, 446 N.Y.S.2d 29, 430 N.E.2d 905 [1981], cert denied 455 U.S. 924, 102 S.Ct. 1285, 71 L.Ed.2d 466 [1982] ; see also INS v. Lopez-Mendoza , 468 U.S. 1032, 1039, 104 S.Ct. 3479, 82 L.Ed.2d 778 [1984] ).

Defendant further contends in his main brief that the court erred for several additional reasons in refusing to suppress his statements to the police. We reject defendant's first such reason, i.e., that his statements were involuntary due to psychological coercion, the length of the interrogation, and the deception

192 A.D.3d 1518

employed by the investigators who interviewed him. It is well settled that, in order to introduce evidence at trial that a defendant made a statement to the police, the People "must show that the statements were not products of coercion, either physical or psychological (see Miranda v. Arizona , 384 U.S. 436, 448 [86 S.Ct. 1602, 16 L.Ed.2d 694 ][1966] ), or, in other words, that they were given as a result of a ‘free and unconstrained choice by [their] maker’ ( Culombe v. Connecticut , 367 U.S. 568, 602 [81 S.Ct. 1860, 6 L.Ed.2d 1037] [1961] ). The task is the same where deception is employed in the service of psychologically oriented interrogation; the statements must be proved, under the totality of the circumstances ...—necessarily including any potentially actuating deception—the product of the maker's own choice" ( People v. Thomas , 22 N.Y.3d 629, 641-642, 985 N.Y.S.2d 193, 8 N.E.3d 308 [2014] ).

Here, we conclude that any alleged police deception in the form of exaggeration of the evidence is insufficient under the circumstances presented to warrant suppression (see People v. Deitz , 148 A.D.3d 1653, 1654, 50 N.Y.S.3d 726 [4th Dept. 2017], lv denied 29 N.Y.3d 1125, 64 N.Y.S.3d 675, 86 N.E.3d 567 [2017] ; see generally People v. Tarsia , 50 N.Y.2d 1, 11, 427 N.Y.S.2d 944, 405 N.E.2d 188 [1980] ), and "the duration of the interview did not render the resulting statement involuntary" ( People v. Huff , 133 A.D.3d 1223, 1225, 19 N.Y.S.3d 378 [4th Dept. 2015], lv denied 27 N.Y.3d 999, 38 N.Y.S.3d 109, 59 N.E.3d 1221 [2016] ; see People v. Clyburn-Dawson , 128 A.D.3d 1350, 1351, 7 N.Y.S.3d 770 [4th Dept. 2015], lv denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015] ; cf. People v. Guilford , 21 N.Y.3d 205, 210-212, 969 N.Y.S.2d 430, 991 N.E.2d 204 [2013] ). We further conclude that "[d]efendant ... was not subjected to the type of deprivations and psychological pressure ... [that] ‘bespeak such a serious disregard of defendant's rights, and [are] so conducive to unreliable and involuntary statements, that the prosecutor has not demonstrated beyond a reasonable doubt that the defendant's will was not overborne’ " ( People v. Jin Cheng Lin , 26 N.Y.3d 701, 725, 27 N.Y.S.3d 439, 47 N.E.3d 718 [2016] ; cf. Thomas , 22 N.Y.3d at 641, 985 N.Y.S.2d 193, 8 N.E.3d 308 ).

145 N.Y.S.3d 239

We agree in part with defendant's further challenge in his main brief to the admissibility of his statements to the police, i.e., that the statements that he made after he invoked his right to remain silent should have been suppressed. " ‘It is well settled ... that, in order to terminate questioning, the assertion by a defendant of his right to remain silent must be unequivocal and unqualified’ ... Whether that request was ‘unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request[,] including the defendant's demeanor, manner of expression and the particular words found to have been used by the defendant’ ( People v. Glover , 87 N.Y.2d 838, 839 [637 N.Y.S.2d 683, 661 N.E.2d 155] [1995] ). The court's determination that defendant did not unequivocally invoke his right to remain silent is ‘granted deference and

192 A.D.3d 1519

will not be disturbed unless unsupported by the record’ " ( People v. Zacher , 97 A.D.3d 1101, 1101, 948 N.Y.S.2d 509 [4th Dept. 2012], lv denied 20 N.Y.3d 1015, 960 N.Y.S.2d 359, 984 N.E.2d 334 [2013] ).

Here, defendant told the police three times that he did not wish to speak to them. We conclude that the court's determination that defendant did not unequivocally invoke his right to remain silent is supported by the record with respect to the first such instance, because in that instance he "did not clearly communicate a desire to cease all questioning indefinitely" ( People v. Caruso , 34 A.D.3d 860, 863, 822 N.Y.S.2d 825 [3d Dept. 2006], lv denied 8 N.Y.3d 879, 832 N.Y.S.2d 491, 864 N.E.2d 621 [2007] ; see People v. Reibel , 181 A.D.3d 1268, 1270-1271, 119 N.Y.S.3d 659 [4th Dept. 2020], lv denied 35 N.Y.3d 1029, 126 N.Y.S.3d 22, 149 N.E.3d 860 [2020], reconsideration denied 35 N.Y.3d 1096, 131 N.Y.S.3d 289, 155 N.E.3d 782 [2020] ), "especially in light of his continued participation in the conversation" ( People v. Flowers , 122 A.D.3d 1396, 1397, 996 N.Y.S.2d 458 [4th Dept. 2014], lv denied 24 N.Y.3d 1219, 4 N.Y.S.3d 607, 28 N.E.3d 43 [2015] ). We further conclude, however, that the remainder of the court's determination is not supported by the record, inasmuch as, twice more during the questioning, "defendant said that he did not want to talk about [the crimes], thus unequivocally invoking his right to remain silent" ( People v. Brown , 266 A.D.2d 838, 838, 700 N.Y.S.2d 605 [4th Dept. 1999], lv denied 94 N.Y.2d 860, 704 N.Y.S.2d 536, 725 N.E.2d 1098 [1999] ; see People v. Henry , 133 A.D.3d 1085, 1086-1087, 20 N.Y.S.3d 682 [3d Dept. 2015] ; People v. Graham , 48 A.D.3d 265, 266, 856 N.Y.S.2d 7 [1st Dept. 2008], lv denied 10 N.Y.3d 959, 863 N.Y.S.2d 143, 893 N.E.2d 449 [2008] ). Consequently, the court was required to suppress the statements that defendant made after invoking his right to remain silent for the second time. Nevertheless, we conclude that the error in failing to suppress those statements is harmless inasmuch as the proof of guilt is overwhelming and there is no reasonable possibility that the jury would have acquitted defendant if the court had suppressed the statements that he made after that point (see People v. Brown , 120 A.D.3d 954, 955, 990 N.Y.S.2d 755 [4th Dept. 2014], lv denied 24 N.Y.3d...