People v. Nguyen

• Decision Date: 15 May 1998
• Parties: , 1998 N.Y. Slip Op. 98,332 The PEOPLE of the State of New York, Plaintiff, v. Thang Thanh NGUYEN, Defendant.
• Court: New York Supreme Court

Page 799

675 N.Y.S.2d 799

177 Misc.2d 16, 1998 N.Y. Slip Op. 98,332

The PEOPLE of the State of New York, Plaintiff, v. Thang Thanh NGUYEN, Defendant.

Supreme Court, Monroe County.

May 15, 1998.

Culver K. Barr, Rochester, for defendant.

Howard R. Relin, District Attorney of Monroe County (Richard A. Keenan, of counsel), for plaintiff.

RAYMOND E. CORNELIUS, Justice.

On the early morning of Sunday, January 26, 1992, the Defendant, Thang Thanh Nguyen, along with several other individuals, were allegedly involved in a home invasion in a suburb of Rochester, New York. The victim was a local restauranteur, Chung Lam, who, together with his wife and other members of the family, were present inside of the residence. During the course of this incident, Chung Lam was shot and killed with a handgun, and his wife, Thu Lam, as well as one of the intruders, sustained injury by also being shot with a gun.

The two persons, who are claimed to have accompanied the Defendant, on the morning of January 26, 1992, were subsequently arrested and convicted of various offenses in connection with the incident. However, the Defendant purportedly fled the jurisdiction and returned to the Socialist Republic of Vietnam. Evidence was presented to a Grand Jury on June 29, and July 8, 1992, and this resulted in a sealed indictment, dated July 9, 1992, charging the Defendant with two counts of Murder in the Second degree, one count of Attempt to Commit the Crime of Murder in the Second Degree, two counts of Burglary in the First Degree, and six counts of Robbery in the First Degree. On that same date, and based thereon, a superior court warrant was issued, by the Monroe County Court, for the arrest of the Defendant. Such warrant, of course, may be executed anywhere within the State of New York. Criminal Procedure Law Section 210.10(3). On January 8, 1998, approximately six years after the return of the indictment and issuance of the superior court warrant, the Defendant appeared before this Court for arraignment on the indictment, and has been continuously held in custody since that time.

The omnibus motion, filed pursuant to Criminal Procedure Law Section 255.20, includes an application for dismissal of the indictment upon grounds that the Court lacks jurisdiction over the person of the Defendant, and that there has been a violation of his due process rights, under both the United States and New York State Constitutions. More specifically, in an affidavit submitted in support of the motion, counsel for the Defendant has asserted that, on December 22, 1997, his client was taken into the physical custody of the Vietnamese military police. Although the United States does not have any extradition treaty with the Socialist Republic of Vietnam, counsel contends that the Defendant was taken into custody at the request of American governmental officials, located at the United States Embassy in Bangkok, Thailand, and thereafter, on January 5, 1998, was turned over to representatives of the United States government. ¹ Indeed, discovery material, submitted by the People, confirms that on January 5, 1998, members of the Federal Bureau of Investigation received custody of the Defendant at the Don Muang Airport in Bangkok, Thailand, from representatives of the Vietnamese government. A Federal Bureau of Investigation report discloses that the Defendant was advised that he was not under arrest, "...inasmuch as FBI Special Agents do not have arrest authority in Thailand", but was further told that he would remain in FBI custody during an air flight back to the United States. It appears that, after a stopover in Tokyo, Japan, the Defendant arrived at John F. Kennedy Airport in New York City, where he was placed under arrest by local police officers.

The People have served a notice, pursuant to Criminal Procedure Law Section 710.30, of an intention to use incriminating statements, allegedly made by the Defendant to police in Vietnam on December 23, 1997. In this connection, counsel, again, as part of the omnibus motion, has made a motion to suppress such evidence, pursuant to Criminal Procedure Law Section 710.60. In the affidavit, submitted by counsel, claims are made that, on that date, the Defendant was held against his will and with threats to his life, and after refusal of any right to contact his family, an attorney, or to be taken before a judicial tribunal, was forced to give a statement concerning the subject matter of the indictment.

First, there is no dispute that the statements, allegedly made to members of the Vietnamese military police, occurred subsequent to the indictment and issuance of the superior court warrant. In People v. Settles, 46 N.Y.2d 154, 412 N.Y.S.2d 874, 385 N.E.2d 612(1978), the Court of Appeals ruled that the right to counsel indelibly attached upon filing of an indictment, and there could not be a knowing and intelligent waiver of such right without the actual presence of an attorney. In that case, which involved a motion to suppress identifications made by witnesses at a post-indictment, pre-arraignment corporeal viewing of the Defendant, the Court emphasized the distinction between the accusatory stage of the proceeding, which commences upon the return of an indictment by a Grand Jury, and the investigative stage. In People v. Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400 N.E.2d 1344 (1980), the court ruled that a statement should be suppressed as evidence because the filing of a felony complaint, like the filing of an indictment, commences a criminal proceeding, and therefore, a defendant may not waive the right to counsel in the absence of an attorney.

On first impression, it would, therefore, appear that the statement concerning the homicide, allegedly made to members of the Vietnamese military police on December 23, 1997, should be suppressed as evidence because the Defendant, as a matter of law, could not waive his right to counsel without the actual presence of an attorney. As aforementioned, there is no dispute concerning the sequence of events, in this case, and in this regard, Criminal Procedure Law Section 710.60(2)(a) provides that a court must summarily grant a motion to suppress if "the motion papers comply with the requirements of subdivision one and the people concede the truth of allegations of fact therein which support the motion;....".

There is precedent, which holds that the commencement of a proceeding, or other significant judicial activity, in Federal Court does not preclude a waiver of rights, made to state law enforcement officials, in connection with prospective state criminal charges. See e.g. People v. Ridgeway, 101 A.D.2d 555, 476 N.Y.S.2d 940 (4th Dept.1984) aff'd 64 N.Y.2d 952, 488 N.Y.S.2d 641, 477 N.E.2d 1095(1985). The pending case presents the somewhat reverse situation, namely, a statement from a person, who has been taken into custody at the request of representatives of the federal government, and sought to be used in a state court, criminal action. This Court believes that the Settles--Samuels doctrine, should, nevertheless, be held applicable and any such statement should be...