People v. Perez

• Decision Date: 17 April 2012
• Citation: 2012 N.Y. Slip Op. 22103,37 Misc.3d 272,946 N.Y.S.2d 835
• Parties: The PEOPLE of the State of New York v. Elisaul PEREZ, Defendant.
• Court: New York Supreme Court

37 Misc.3d 272
946 N.Y.S.2d 835
2012 N.Y. Slip Op. 22103

The PEOPLE of the State of New York
v.
Elisaul PEREZ, Defendant.

Supreme Court, Queens County, New York.

April 17, 2012.

[946 N.Y.S.2d 836]

Richard A. Brown, District Attorney (Robert J. Masters and Donna Aldea, of counsel ¹) for the People.

Warren M. Silverman, for defendant.

JOEL L. BLUMENFELD, J.
DECISION AND ORDER

The defendant moves to suppress his statement made as a result of a Central Booking Queens (CBQ) interview.² The issues faced by the court include:

(1)Whether the promises made in the prosecutor's statement to the defendant

[946 N.Y.S.2d 837]

prior to the issuance of the Miranda warnings (hereinafter referred to as the preamble) negated those warnings and rendered the defendant's statement inadmissible as involuntarily made pursuant to CPL 60.45;

(2)Whether the People's failure to live up to the promises to investigate the defendant's version of the facts as made in the preamble constituted acts involving dishonesty, fraud, deception or misrepresentation in violation of Rule 8.4(c) of the Rules of Professional Conduct ³; and

(3)If the answer to number (2) above is yes, what is an appropriate sanction.
The court denies the motion to suppress the statement pursuant to CPL 60.45. However, the court finds the failure to keep the promise to investigate violated Rule 8.4(c) of the Rules of Professional Misconduct and has fashioned what it believes to be an appropriate remedy. These findings are discussed below.

FINDINGS OF FACT

On March 13, 2009, between 12:15 and 12:30 a.m., the police responded to a police radio transmission of a robbery they received ten minutes earlier and stopped the defendant and the co-defendant. The defendant was carrying an iPod with headphones. Although the police officer thought they matched the description given by the complainant, the complainant could not identify either defendant at a showup arranged for him by the police. However, the complainant identified the iPod with headphones seized from the defendant as his.

The defendant (Perez) and a co-defendant (Hernandez) were arrested. The defendant made a properly Mirandized statement at the precinct.⁴ He was taken to Central Booking Queens (CBQ).

The following afternoon at 2:35pm—prior to his arraignment—defendant was removed from his holding cell in CBQ and taken to the interview room. Through an interpreter the defendant was interviewed for about 20 minutes by DA detective Mary Piccone and Assistant District Attorneys Anjula Garg and Louisa DeRose. Just before that interview, co-defendant Hernandez was interviewed by the same team.⁵

In the interview, after the defendant was introduced to the people in the room, he was told what he was going to be charged with and was given the following preamble to the Miranda warnings:

[946 N.Y.S.2d 838]

In a few minutes I'm going to read you your rights. After that, you'll be given an opportunity to explain what happened at that date, time and place.

If you have an alibi, give us as much information as you can, including the names of any people you were with.

If your version of the events of that day is different from what we have heard, this is your opportunity to tell us your story.

If there is something you would like us to investigate concerning this incident, you must tell us now so we can look into it.⁶

THE DEFENDANT: Okay.

MS. PICCONE: Even if you have already spoken to someone else, you do not have to talk to me.

This will be the only opportunity you will have to talk to me prior to your arraignment on these charges.

This entire interview is being recorded with both video and sound.

THE DEFENDANT: Okay....

After the preamble, the defendant was given his Miranda warnings with the standard prompt—“Do you understand?”—after each right.

At that point, the defendant explained his version of the events. He said that he knew the complainant in that they both attended the same high school, Newtown High School. Further, they both had, at different times, a relationship with the same girl, Louisa, who attended Newtown High School with them. He further explained that the prior summer there was a fight between the defendant and the complainant over Louisa. The defendant further stated that he was badly beaten by the complainant during that fight, and as a result he received treatment at Elmhurst Hospital. The defendant told the interviewers that at the time of the incident that is the subject of the instant charges “we sparred, we argued, we fought. I broke his nose and some of his blood fell on my sneakers.” The defendant stated that the complainant's iPod “fell down” and the complainant ran towards his house. The defendant said he picked the iPod up: “I did not rob it from him. I did not rob it—did not rob it from him.”

The defendant was later arraigned.

Shortly after the arraignment, ADA Schraeter was assigned to this case. ⁷ The ADA reviewed Hernandez's statement, then Perez's statement. ADA Schraeter then interviewed the complainant and asked him if he was sure about his identification of the defendants. The complainant said he was. Schraeter did not ask him how he was sure when the complainant was unable to make an identification of either defendant at the showup arranged by the police. At this juncture, he had a complainant who said he was robbed and unable to identify any assailant and a defendant who claimed that he knew the complainant, assaulted him, but never robbed him.

DEFENSE ARGUMENTS

The defendant argues that the District Attorney's Office engaged in “improper conduct” by misrepresenting their intent when they explicitly promised to investigate what the defendant told them in his CBQ statement; that this misrepresentation is an ethical violation warranting suppression of the defendant's statements.

[946 N.Y.S.2d 839]

The defendant notes that the prosecutor took the defendant out of the holding cell without asking him if he wanted to be a part of CBQ; that the District Attorney's Office then set up an atmosphere of urgency by using words such as “you must tell us now so that we can look into it,” “that this will be the only opportunity you have to speak to me before arraignment”; and that the script “assumes that the defendant is knowledgeable about the criminal justice system and knows what an arraignment is and that he will be assigned an attorney prior to it.” He contends that this procedure rendered his statement involuntary; further, that the People violated Rule 8.4(c) by making a false promise to investigate. The statement telling the defendant that if he possesses information that he wishes the prosecutor to investigate—presumably to assist the defendant—he should waive his rights and divulge that information, rather than wait until arraignment when he will be assigned an attorney to assist him, is clearly a promise to investigate.

The defendant asserts that it is clearly deceitful for an attorney to tell someone that you will assist him in investigating a claim of innocence or something which may be beneficial to his defense, but not actually investigate what is said.

Specifically, he contends that, by the time of his arraignment, the People possessed the statement of the defendant that there was a dispute over a girl from the previous summer, and that it was a fight, rather than a robbery, but they did not do an investigation as to that statement as promised.

Defendant finally argues that even if the prosecutor thought that the defendant's story was not credible in that it did not coincide with the complainant's story, they still had the duty to investigate as promised. Therefore, it is material misrepresentation to say you say that you will investigate but do not.

Defendant concludes that suppression pursuant to CPL 60.45 is the appropriate remedy.

PEOPLE'S ARGUMENTS

The People argue that they did not engage in any improper conduct in contravention of their ethical obligations in obtaining defendant's CBQ statement and, in any event, defendant's statement was not “involuntarily made” under CPL 60.45. Therefore, they maintain that the court is precluded from suppressing the statement.

The People argue that the preamble does not contain a false promise to investigate in violation of Rule 8.4(c); that the preamble does not make any promise to investigate if the defendant makes a statement; that “[c]ontrary to this Court's expressed concern, there is no explicit or implicit promise contained in the statement if there is something you would like us to investigate concerning this incident, you must tell us now so that we can look into it.' ”

Additionally, the People claim that they did investigate this case even though ADA Garg, in CBQ, was not given any “concrete information that might suggest that the defendant had not been involved in the incident at all.” When ADA Garg was asked by this court about whether she attempted to verify that the defendant had been attacked the previous summer and had gone to the hospital, she stated that it would be up to the assigned assistant to conduct that interview.⁸

The People contend that the defendant's statement “simply did not ring true under the circumstances” and they did not believe the co-defendant's CBQ statements.

[946 N.Y.S.2d 840]

Nevertheless, ADA Schraeter recalled talking to the complainant only to ascertain if he was sure now about his identification of the defendant. “While ADA Schraeter could not recall if he specifically asked the complainant about whether he and the victim had fought over a girl, he believed that he would have' done so.” They also state that the Assistant called Elmhurst Hospital to find out if defendant had been hospitalized “and may have taken other steps to obtain defendant's hospital records, but did not ultimately receive any such records from the hospital.”

The People conclude that even if “the ADA did not remember asking the complainant if he attended [Newtown] High School; did not contact the school to inquire; was not sure if he...