People v. Nunez

• Decision Date: 13 February 1992
• Citation: 579 N.Y.S.2d 959,176 A.D.2d 70
• Parties: The PEOPLE of the State of New York, Respondent, v. Juan "Johnny" NUNEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 959

579 N.Y.S.2d 959

176 A.D.2d 70

The PEOPLE of the State of New York, Respondent, v.Juan "Johnny" NUNEZ, Appellant.

Supreme Court, Appellate Division Third Department.

Feb. 13, 1992.

David Seth Michaels, Spencertown, for appellant.

Paul Czajka, Dist. Atty. (Marlene O. Tuczinski, of counsel), Hudson, for respondent.

Before WEISS, P.J., and LEVINE, MERCURE and CASEY, JJ.

LEVINE, Justice.

Appeal from a judgment of the County Court of Columbia County(Zittell, J.), rendered March 12, 1991, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the second degree.

This appeal arises from the denial of a motion by defendant to suppress certain statements made by him following his arrest.The relevant facts, as established at the suppression hearing, are as follows.On the evening of March 3, 1989, members of the Capital District Drug Task Force placed under surveillance the Amtrak Train Station in the City of Hudson, Columbia County, for the purpose of intercepting a cocaine shipment expected to arrive at that location and arresting defendant pursuant to a superior court warrant out of Schenectady County on a cocaine possession charge.Following defendant's arrival at the station and subsequent arrest, he was transported to the Hudson Police Department where he was advised of his Miranda rights by Investigator David Penny.Also present at that time was Officer William Ward.At the conclusion of the warnings, defendant was asked whether he understood each of his rights and he nodded his head affirmatively.Defendant was then asked by Penny whether he wished to "talk to us now", to which defendant did not respond.Instead, defendant put his head down and exhaled.At that point, Penny took pedigree information from defendant but engaged in no further conversation with defendant.

Approximately 2 1/2 hours later, after being brought to the Albany office of the Task Force and while he was being fingerprinted by Ward, defendant asked Ward "how [they knew] that he was going to be in Hudson that evening".Before Ward could reply, defendant stated, "I think I know that answer."Ward then asked defendant"[h]ow much a person could make bringing up a half a kilo of cocaine to Hudson", and defendant replied that "[he] would have received $5,000".Ward further asked how much "Alex", an individual also arrested that evening, received and defendant told him "[f]ive hundred".Finally, Ward inquired as to why there was such a difference, to which defendant responded, "Alex was just a courier.You have to be able to crawl before you can walk."

Defendant was subsequently indicted by a Columbia County Grand Jury on a cocaine possession charge.Following the denial of his motion to suppress the above-described statements, defendant entered a plea of guilty to criminal possession of a controlled substance in the second degree.This appeal ensued.

Defendant's sole contention on this appeal is that County Court erred in refusing to suppress the statements made by him to Ward because there was no valid waiver of his Miranda rights.This claim is unavailing.While defendant correctly argues that no waiver may be presumed from a defendant's silence alone (see, Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694), a waiver may be established by implication from the defendant's "silence, coupled with an understanding of his rights and a course of conduct indicating waiver"(North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286;see, People v. Sirno, 76 N.Y.2d 967, 968, 563 N.Y.S.2d 730, 565 N.E.2d 479;People v. Warden, 170 A.D.2d 469, 470, 565 N.Y.S.2d 828, lv. denied77 N.Y.2d 968, 570 N.Y.S.2d 502, 573 N.E.2d 590;People v. Bretts, 111 A.D.2d 864, 865, 490 N.Y.S.2d 266).Here, it is undisputed that defendant indicated that he understood his rights, that he made no request for an attorney, and that he put his head down and remained silent when Penny asked him whether he wanted to speak with them.Defendant then, within 2 1/2 hours of being advised of his rights, spontaneously and voluntarily initiated a conversation with Ward regarding his involvement in the suspected crime.

The record supports County Court's finding that this dialogue was not the result of any police conduct which reasonably should have been anticipated to evoke a declaration from defendant( see, People v. Lynes, 49 N.Y.2d 286, 295, 425 N.Y.S.2d 295, 401 N.E.2d 405;People v. Bretts, supra ).Having examined the totality of the circumstances ( see, Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2571, 61 L.Ed.2d 197;People v. Dunwoody, 89 A.D.2d 569, 570, 452 N.Y.S.2d 96), it is our view that defendant, by his silence together with his acknowledgment that he understood his rights and his subsequent conduct in initiating conversation with Ward, implicitly waived his Miranda rights ( see, People v. Warden, 170 A.D.2d 469, 470, 565 N.Y.S.2d 828, supra;People v. Bretts, supra;see also, People v. Griffith, 94 A.D.2d 850, 852, 463 N.Y.S.2d 322).Thus, although the statements made by defendant after his initial inquiry to Ward were the result of direct questioning, they were nevertheless properly found to be admissible because they were made pursuant to a valid waiver (see, People v. Bretts, supra ).County Court's denial of defendant's suppression motion should therefore be affirmed.

ORDERED that the judgment is affirmed.

WEISS, P.J., and MERCURE, J., concur.

CASEY, Justice (dissenting).

The undisputed evidence establishes, in my view, that defendant's statements were the product of police interrogation or its functional equivalent and that they were not preceded by defendant's knowing and voluntary waiver of his right to remain silent or his right to counsel.The statements should, therefore, be suppressed and, accordingly, I respectfully dissent.

There is no evidence in the record to support the majority's conclusion that the "dialogue" between defendant and Officer William Ward was not the result of any police conduct which reasonably should have been anticipated to evoke a declaration from defendant.Assuming that Ward was merely curious about the going rate for couriers bringing drugs into the City of Hudson or that his questions were prompted by some other innocent purpose, the subjective intent of the police is irrelevant for the test is whether, in light of their knowledge concerning the suspect, the police should have known that their words or actions were reasonably likely to elicit an incriminating response (People v. Ferro, 63 N.Y.2d 316, 322-323, 482 N.Y.S.2d 237, 472 N.E.2d 13, cert. denied472 U.S. 1007, 105 S.Ct. 2700, 86 L.Ed.2d 717).The exchange between defendant and Ward was not a mere dialogue or conversation; defendant asked a question which he answered himself before Ward could respond.Defendant volunteered no additional information and asked no other questions.Instead of responding to defendant's question, Ward embarked upon a line of questioning on a topic clearly outside the scope of defendant's inquiry, questions which obviously sought a response (comparePeople v. Ackerman, 162 A.D.2d 793, 794, 558 N.Y.S.2d 216, withPeople v. Brown, 161 A.D.2d 778, 556 N.Y.S.2d 661, lv. denied76 N.Y.2d 891, 561 N.Y.S.2d 553, 562 N.E.2d 878).Inasmuch as the police suspected defendant's involvement in drug trafficking, Ward clearly knew or should have known that his questions were reasonably likely to elicit an incriminating response (see, People v. Ferro, supra;People v. Ackerman, supra ).That defendant's initial question, which he answered himself, was spontaneous does not convert the statements in the ensuing "dialogue", which were the product of police questioning, into spontaneous statements (see, People v. Rodriguez, 167 A.D.2d 562, 563, 562 N.Y.S.2d 232;People v. Bretts, 111 A.D.2d 864, 865, 490 N.Y.S.2d 266).

If defendant had invoked his right to remain silent after he received the Miranda warnings at the Hudson police station, the subsequent questioning in Albany would had to have been preceded by a fresh set of Miranda warnings (see, People v. Ferro, supra, 63 N.Y.2d at 322, 482 N.Y.S.2d 237, 472 N.E.2d 13), which were not given.In denying defendant's suppression motion, County Court concluded that no inference of an invocation of the right to remain silent could be drawn from defendant's nonverbal response to the police inquiry as to whether he wished to talk to them.The police, however, apparently had little difficulty in understanding the meaning of defendant's response, for they refrained from any interrogation concerning the criminal investigation and limited their inquiry to background information: name, date of birth, address and telephone number (cf., People v. Griffith, 94 A.D.2d 850, 463 N.Y.S.2d 322[where the police viewed defendant's response as equivocal and continued to question him about the crime].After obtaining this information, the police had no further conversation with defendant in Hudson, and he was transported to the Capital District Drug Task Force office in Albany.

Assuming that defendant did not invoke his right to remain silent in the Hudson police station after indicating that he understood his rights, it is my view that the People failed to meet their burden of showing the implicit waiver of defendant's rights permitted by North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286.Neither the silence of the accused after warnings are given nor the fact that a confession was eventually obtained will give rise to an implicit or presumed waiver (Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694).The courts of this State, however, have permitted a waiver to be found when "a defendant clearly understands his Miranda rights and promptly after having been administered those rights willingly proceeds to make a statement or answer questions...