People v. Nehma

• Citation: 2012 N.Y. Slip Op. 08359,101 A.D.3d 1170,954 N.Y.S.2d 706
• Parties: The PEOPLE of the State of New York, Respondent, v. Walid NEHMA, Appellant.
• Decision Date: 06 December 2012
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 1170

954 N.Y.S.2d 706

2012 N.Y. Slip Op. 08359

The PEOPLE of the State of New York, Respondent,

v.Walid NEHMA, Appellant.

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

Dec. 6, 2012.

James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.

Before: MERCURE, J.P., LAHTINEN, KAVANAGH, McCARTHY and GARRY, JJ.

MERCURE, J.P.

Appeal from a judgment of the Supreme Court (Teresi, J.), rendered December 23, 2010 in Albany County, upon a verdict convicting defendant of the crime of attempted rape in the first degree.

Defendant is an Iraqi refugee. In 2009, he was charged in an indictment with one count of attempted rape in the first degree after he allegedly attempted to have sexual intercourse with the victim, an adult female, by the use of force. The incident occurred near the area of Jillian's Bar on North Pearl Street in the City of Albany. Prior to trial, County Court (Breslin, J.) conducted a suppression hearing. Thereafter, County Court granted defendant's motion to suppress a statement that he made while being transported to the police station for questioning, but denied his motion with respect to statements made at the police station. At the close of the ensuing jury trial before Supreme Court (Teresi, J.), defendant was convicted of attempted rape in the first degree and sentenced to a term of 14 years in prison to be followed by five years of postrelease supervision. Defendant now appeals and, inasmuch as we conclude that County Court erred by failing to grant his motion to suppress in its entirety, we now reverse.

Initially, we reject defendant's argument that the verdict is against the weight of the evidence. Inasmuch as an acquittal would not have been unreasonable, we “must weigh [the] conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions” in light of the elements of the crime ( People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];see People v. Romero, 7 N.Y.3d 633, 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ). In our view, the evidence adduced at trial demonstrated that defendant intended and came dangerously close to engaging in forcible sexual intercourse with the victim, thereby establishing the elements of attempted rape in the first degree ( seePenal Law §§ 110.00, 130.35[1] ). Defendant argues that the victim mistakenly identified him and that her testimony was incredible, given her history of mental illness, her intoxication and failure to take her medication on the day of the incident, and her admission that she had consensual sex with another man at the scene of the incident on the night in question but lied about it to police. These matters, however, were fully explored at trial and the victim's testimony was not inherently incredible. Indeed, her testimony that defendant knocked her to the ground and tried to force her to have intercourse with him while she punched and scratched him was corroborated by the presence of defendant's DNA on her neck and under her fingernails and the nature of her injuries observed by nurses and police at the hospital. According the jury deference in its resolution of credibility issues, we conclude that the verdict was not against the weight of the evidence ( see People v. Blackman, 90 A.D.3d 1304, 1306–1308, 935 N.Y.S.2d 181 [2011],lv. denied19 N.Y.3d 971, 950 N.Y.S.2d 353, 973 N.E.2d 763 [2012];People v. Newkirk, 75 A.D.3d 853, 858–859, 906 N.Y.S.2d 133 [2010],lv. denied16 N.Y.3d 834, 921 N.Y.S.2d 198, 946 N.E.2d 186 [2011];People v. Jackson, 48 A.D.3d 891, 892, 851 N.Y.S.2d 677 [2008],lv. denied10 N.Y.3d 841, 859 N.Y.S.2d 400, 889 N.E.2d 87 [2008] ).

We agree with defendant, however, that the statements that he made at the police station should have been suppressed. The testimony at the suppression hearing revealed that Police Officer Brandon Bailey was on patrol in Albany around 11:00 p.m., several weeks after the incident, when he learned that defendant—who police had observed on video surveillance from the night of the incident—was using the restroom inside a nearby bar. When defendant exited the bar, Bailey and his partner asked if they could speak to him and pat him down for weapons. Defendant, who began studying English when he arrived in the United States eight months earlier and spoke only broken English, replied “okay” to these requests. Nevertheless, when Bailey began to pat him down, defendant was “agitated” and “irate,” began “flailing his arms” and tried “to turn around.” The officers placed defendant in handcuffs and into the backseat of a patrol vehicle. Bailey conceded that he found nothing during the pat down, but defendant was in custody at that point and Miranda warnings were not given.

While they were in the car, Bailey's partner asked if defendant “want[ed] to come down and speak to detectives about an incident not involving tonight.” Although defendant agreed, he continuously asked, “What is the problem? I am no problem,” and repeatedly insisted, “I just went to use the bathroom. I am no problem here.” In response to a further question, defendant also stated that he had never been to bars in downtown Albany before.

Bailey testified that the handcuffs were removed once they got to the station because the officers believed that defendant was calmer and “acting more civilized.” Bailey then brought defendant to the interview room and remained seated outside for the entire time that defendant was there. Detective James Olsen, who was investigating the attempted rape, arrived at approximately 12:45 a.m. to interview defendant. Olsen advised defendant of his Miranda rights, but neglected to inform defendant of the right to have an attorney present during questioning. In response to questioning by Olsen, defendant denied ever being at bars in downtown Albany or that he owned a black jacket with white fur on the hood.¹

Based upon Bailey's admission that defendant was in custody while in the patrol car but no Miranda warnings were given prior to questioning, County Court determined that defendant's statement that he had never been to downtown Albany before, which was made while in the vehicle, must be suppressed ( see generally People v. Baptiste, 306 A.D.2d 562, 566, 760 N.Y.S.2d 594 [2003],lv. denied1 N.Y.3d 594, 776 N.Y.S.2d 226, 808 N.E.2d 362 [2004] ). The court then properly concluded that the Miranda warnings administered by Olsen at the station were insufficient ( see People v. Hutchinson, 59 N.Y.2d 923, 924–925, 466 N.Y.S.2d 294, 453 N.E.2d 523 [1983] ). Nevertheless, the court ruled that there was a pronounced break between the custodial situation in the vehicle and the later questioning at the station, such that “attenuation principles” dictated that defe...