People v. Rivera
| Decision Date | 01 March 2013 |
| Citation | 960 N.Y.S.2d 620,2013 N.Y. Slip Op. 23057,39 Misc.3d 569 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Jose RIVERA, Defendant. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Steven Banks, Esq., by Titus Mathai, Esq., Brooklyn, for Defendant.
Lindsay Shapses, Esq., Brooklyn, for the People.
Defendant's motion to suppress was sent to me for a Huntley/ Dunaway hearing.
I make the following findings of fact and conclusions of law.
The sole witness at the hearing was Detective Clint Moody, whose testimony I found to be candid and credible.
Det. Moody testified that on April 9, 2011, he was assigned to investigate a shooting which occurred that same day at 77 Tompkins Avenue, a multiple dwelling located in Kings County. The complainant Khalik Moore, a resident of Apt. 13G, stated he was shot by a person standing in the stairwell of the apartment building wearing a “do-rag,” a hood, or “something that covered his face.” (H. p. 8). The description was limited to the fact that a male person shot him, without any identification as to the race of the perpetrator. (H. p. 30.) In fact, the victim, while hospitalized, told Det. Moody that he didn't see the shooter's face. (H. p. 45). To other officers, the victim stated that the perpetrator was wearing a ski mask. (H. p. 45.) One responding officer transmitted a description of a black male wearing blue jeans, a blue hoodie, and a black ski mask. (H. p. 35). The victim was shot three times in the stomach or torso, but survived.
On April 12, Det. Moody was informed by other officers of the 79th Squad that the defendant was a suspect in the shooting. The information came from an informant, who stated that someone named “Joey,” who had been shot in front of the same project earlier that year, was responsible for the shooting. (H. p. 9.) It is unclear how “Joey” was identified as defendant Jose Rivera. The informant's information was based on “what everyone else [was] saying in the neighborhood,” and not any personal knowledge (H. p. 50.)
Det. Moody ascertained that the defendant was on parole, and that he was scheduled to report to his parole officer on May 11. Prior to May 11, Det. Moody called the defendant's parole office, told them that defendant was a suspect in a non-fatal shooting, and arranged for parole to “hold” the defendant when he reported on May 11. (P. 53–53.) The detective understood that in asking for a “parole hold,” parole would “physically hold him...in custody until [the detective] came and got him.” (H. p. 75). At approximately 1:00 PM, Det. Moody and his partner arrived to “pick up” the defendant, approximately a half hour after being called. (H. p. 12, 53–54.) The defendant was sitting, handcuffed to a chair, when Det. Moody and his partner first observed him. (H. p. 54.)
According to Det. Moody, on direct examination:
(H. p. 11.)
On cross-examination, Det. Moody further explained:
Question: When you got to the parole office, at some point Mr. Rivera asks you what this is about, correct?
Answer: Yes.
Question: That's when you said you wanted to take him in for questioning?
Answer: I was going to take him back to the 79th. He wasn't arrested, I just needed to talk to him about something.” (Emphasis added.)
Question: So you told him you were going to take him back to the 79 Precinct?
Answer: That's correct. (H. p. 54).
On redirect, Det. Moody testified that the defendant “voluntarily” agreed to go to the 79th Precinct:
Question: Just very briefly, detective, when you went to parole to pick up the defendant, did he have a choice to come with you?
Answer: He had a choice.
Question: He had a choice?
Answer: Yes.
Question: He voluntarily came with you?
Answer: He said yes, he will go.
Question: He never gave you any indication at all that he did not want to come with you to the 70th [sic] Precinct?
Answer: No, he did not? (H. p. 73–74).
After a half-hour drive, during which defendant was handcuffed, (H. p. 56), they arrived at the precinct. Defendant was brought into the Precinct and up to the interview room in handcuffs. (H. P. 57.) He was then placed, without handcuffs, in an interview room. According to Det. Moody, “I didn't let him know that he wasn't under arrest....” (H. P. 13.) Nevertheless, the interview room was bolted closed, locked from the outside, and defendant was not free to leave. (H. P. 71.) Defendant declined an offer for food, drink or a cigarette. (H. p. 14.) From the time of arrival at the precinct, at approximately 1:30 PM until the defendant was Mirandized at 2:45, Det. Moody prepared to question the defendant, who remained confined in the locked interview room by himself. (H. P. 58, 70.) During this time, Det. Moody created a false photo array which made it appear that defendant had been identified as the perpetrator. (H. p. 18, 19.)
Before beginning the questioning, at approximately 2:55 PM, defendant was given Miranda warnings (H. P. 18.) The detective then advised the defendant that he was being questioned with regard to the shooting of Khalik Moore. The detective stated falsely that “people came forward in regards to him being the shooter in this case....” (H. p. 19.) He also stated falsely that “members of the family ...were speaking about him being involved in the case....” (H. p. 19.)
Shortly after the interrogation commenced, the defendant made an oral statement admitting that he was the perpetrator.The defendant refused to write the statement down. (H. p. 23.) 1
Defendant argues that he was unlawfully placed in custody by parole officers at the direction of the police, who lacked probable cause to seize the defendant, as the only predicate for detaining defendant was surmise, speculation and rumor. Moreover, defendant maintains that he did not voluntarily agree to accompany the officers to the precinct, but instead, merely acquiesced to their authority. (Citing Matter of Daijah, 86 A.D.3d 521, 927 N.Y.S.2d 342 [1st Dept.2011] [].) He asserts that defendant was continuously in custody, and that there was no intervening event which could relieve the taint of the initial unlawful seizure. Alternatively, defendant argues that his confession was not voluntarily obtained, in view of the illegal detention followed by the officer's “coercive conduct” in employing trickery.
The People argue that there was no continuing, unlawful detention. The defendant, they assert, voluntarily accompanied the detectives to the precinct, citing People v. Page, 63 A.D.3d 506, 880 N.Y.S.2d 287 (1st Dept.2009) (). The People contend that the defendant's detention by parole ceased when the detectives arrived, and that a reasonable, innocent person in defendant's circumstances would not have thought that he was in custody. In addition, they argue that handcuffing the defendant during the drive to the precinct did not constitute an arrest, citing People v. Perez, 293 A.D.2d 329, 741 N.Y.S.2d 514 (1st Dept.2002). The People further contend that the defendant's post-Miranda statements were sufficiently attenuated from the allegedillegal detention as to be admissible, in view of the facts that over two hours had elapsed from the time of the initial detention; that the initial detention by parole ended when the detectives arrived; that the defendant was left by himself “peacefully” for approximately an hour in the interview room; that defendant received Miranda warnings and voluntarily agreed to speak to the detective.; and that the use of deception did not render the defendant's confession involuntary.
The People must prove that defendant's statements were voluntary beyond a reasonable doubt ( People v. Huntley, 15 N.Y.2d 72, 78, 204 N.E.2d 179, 255 N.Y.S.2d 838;People v. Anderson, 42 N.Y.2d 35, 38–39, 364 N.E.2d 1318, 396 N.Y.S.2d 625;People v. Holland, 48 N.Y.2d 861, 862, 400 N.E.2d 293, 424 N.Y.S.2d 351). The prosecutor's burden also includes the duty to prove, beyond a reasonable doubt, that the defendant was advised of his Miranda rights and that he knowingly and voluntarily waived those rights ( Miranda v. Arizona, 384 U.S. 436, 471–472, 86 S.Ct. 1602, 16 L.Ed.2d 694).
The People do not argue that they had either probable cause or even reasonable suspicion to hold the defendant.2 Nor do they challenge the initial unlawfulness of parole officers placing the defendant in custody. Rather, the People argue that any illegal detention was dissipated by the fact that the defendant was in effect released, and then voluntarily accompanied the detectives to the precinct.
In People v. Page, supra, 63 A.D.3d 506, 880 N.Y.S.2d 287 [1st Dept.2009], relied upon by the People, the First Department observed that “[a]lthough defendant was initially seized and handcuffed by parole officers, police detectives immediately removed the handcuffs and clearly conveyed to defendant that the detention had terminated, whereupon defendant agreed to accompany the detectives to be interviewed as a potential witness.” The court consequently concluded that a reasonable person in defendant's position, innocent of any wrongdoing, would not have believed that the interrogation was custodial.
What distinguishes this case from Page, is that there is compelling evidence that defendant was in custody when he was taken to the...
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