People v. Shurka

• Decision Date: 29 March 1993
• Citation: 191 A.D.2d 724,596 N.Y.S.2d 428
• Parties: The PEOPLE, etc., Respondent, v. Efraim SHURKA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 428

596 N.Y.S.2d 428

191 A.D.2d 724

The PEOPLE, etc., Respondent, v. Efraim SHURKA, Appellant.

Supreme Court, Appellate Division Second Department.

March 29, 1993.

J. Jeffrey Weisenfeld, New York City (Alan M. Dershowitz, of counsel), for appellant.

Robert Abrams, Atty. Gen., New York City (Edward D. Saslaw, Christine Duisin, and Joseph J. Hester, of counsel, Victoria Brown, on the brief), for respondent.

Before BALLETTA, J.P., and ROSENBLATT, MILLER and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Brill, J.), rendered May 2, 1990, convicting him of offering a false instrument for filing in the first degree (four counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress statements made by him to law enforcement authorities.

ORDERED that the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50(5).

The evidence adduced at the trial established that the defendant and his codefendant Henry Sapir (see, People v. Sapir, 191 A.D.2d 724, 596 N.Y.S.2d 715 [decided herewith] were the principals in a corporation known as Gol Gas, Inc. (hereinafter Gol Gas) which sold, inter alia, diesel fuel for trucks. The fuel station was owned by Blue Ridge Farms, Inc. (hereinafter Blue Ridge Farms), and was leased to Gol Gas under an arrangement that provided for discounted sales of fuel to Blue Ridge Farms' trucks, as well as sales to others unrelated to Blue Ridge Farms. The prosecution of the two defendants stemmed from their alleged under-reporting of fuel sales and the concomitant underpayment of sales and excise taxes.

Contrary to the defendant's contentions, we find that the evidence was legally sufficient to establish his guilt of offering a false instrument for filing in the first degree (Penal Law § 175.35). The evidence adduced at the trial established that the defendant significantly under-reported the amount of diesel fuel Gol Gas sold to Blue Ridge Farms and other corporate consumers during the period alleged in the indictment, and that the taxes remitted to the State were thus proportionately underpaid. There is no merit to the defendant's claim that sales to Blue Ridge Farms were not taxable events. Under no reasonable view of the evidence or any reasonable interpretation of the tax law, was Blue Ridge Farms a bulk user whose withdrawal of fuel from its own tanks was the taxable event (see, 20 NYCRR 420.3[b]. The evidence established that Blue Ridge Farms paid Gol Gas for the fuel it purchased from Gol Gas, which in turn purchased fuel from fuel suppliers. The prosecution established that the sales by Gol Gas to Blue Ridge Farms were retail sales subject to tax (see, 20 NYCRR 420.3; Tax Law § 282-a). The filing of fraudulent tax documents under-reporting quantities of fuel sold for the purpose of under-reporting taxes owed constituted offering a false instrument for filing (see, People v. Diaz, 111 A.D.2d 765, 489 N.Y.S.2d 936; People v. Walsh, 108 A.D.2d 464, 489 N.Y.S.2d 933, affd 67 N.Y.2d 747, 500 N.Y.S.2d 96, 490 N.E.2d 1222). Moreover, upon the exercise of our factual review power (see, CPL 470.15[5], we are satisfied that the jury's verdict was not against the weight of the evidence.

The defendant's remaining contentions, including his challenges to the fairness of the trial, and the sentence imposed, are without merit. Contrary to the conclusions of our dissenting colleague, the court correctly denied suppression of the statements made between the defendant and his codefendant to one another in Hebrew that were overheard by a Hebrew-speaking police officer who had been placed in the room by the police to overhear the conversations of the defendant and his codefendant, if any. There is no dispute that the defendant had invoked his right to counsel prior to the time the inculpatory statements were overheard. However, that the prosecution did nothing to elicit these statements (see, Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364; People v. Gonzales, 75 N.Y.2d 938, 555 N.Y.S.2d 681, 554 N.E.2d 1269, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70). The dissent states that the mere presence of a Hebrew-speaking police officer constitutes a subtle maneuver that renders the statements other than spontaneous. However, the mere presence of an officer who, unbeknownst to the defendant, understood his nonprivileged communications, is not equivalent of the police-orchestrated telephone call overheard in People v. Grimaldi, 52 N.Y.2d 611, 439 N.Y.S.2d 833, 422 N.E.2d 493. Indeed, in that case the Court of Appeals criticized the police for creating the need for the telephone call that they planned to overhear, and found that this was an illegal extension of questioning (see, People v. Grimaldi, supra; at 617, 439 N.Y.S.2d 833, 422 N.E.2d 493; accord, People v. Moss, 179 A.D.2d 271, 583 N.Y.S.2d 699). Unlike the situations in Grimaldi and Moss, the statements made by the defendant here, which do not implicate the attorney-client privilege (cf., People v. Cooper, 307 N.Y. 253, 120 N.E.2d 813) were simply not the product of an interrogation, nor were they the result of express questioning or its functional equivalent (see, People v. Harris, 57 N.Y.2d 335, 342, 456 N.Y.S.2d 694, 442 N.E.2d 1205, cert. denied 460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 803). The officer was placed in a position to hear anything the defendant and his codefendant might say to one another, but any statements they made resulted solely from their mistaken assumption that only they could understand one another. The record does not suggest that the Hebrew-speaking officer did anything to mislead them into believing that he could not understand them, and there was testimony that it was a standard practice to have an officer present who spoke the same foreign language as the parties turning themselves in. Absolutely nothing was done to induce the defendant and his codefendant into conversing with one another, and that is exactly what they did, of their own free will (see, People v. Kaye, 25 N.Y.2d 139, 144, 303 N.Y.S.2d 41, 250 N.E.2d 329). Moreover, it must be emphasized that no privilege attached to these statements. Under these circumstances, we find no basis to disturb the hearing court's suppression ruling. The defendant and his codefendant spoke freely and voluntarily to one another in voices loud enough to be overheard (see, People v. Harrell, 87 A.D.2d 21, 450 N.Y.S.2d 501, affd 59 N.Y.2d 620, 463 N.Y.S.2d 185, 449 N.E.2d 1263). That their assumption that they could not be understood was flawed does not compel a finding that their statements must be suppressed.

BALLETTA, J.P., and ROSENBLATT and MILLER, JJ., concur.

O'BRIEN, J., dissents and votes to reverse the judgment, on the law, to grant the branch of the defendant's motion which was to suppress his statements to law enforcement authorities, and to order a new trial, with the following memorandum.

I find that the statements made by the defendant to his codefendant in Hebrew were obtained from the defendant in violation of his right to counsel and were therefore inadmissible on the People's direct case. Since the admission of these statements was not harmless error, I would reverse the defendant's conviction and grant him a new trial.

The evidence adduced at the suppression hearing established that the defendant and his codefendant Henry Sapir voluntarily surrendered to the Office of the Attorney-General on a prearranged date following their indictment. They were immediately given Miranda warnings, and both refused to answer questions without an attorney being present. For the next two hours, the defendant and his codefendant remained in a squad room while their arrests were processed by Investigator Ernest Peck, who handled all the paperwork and asked them pedigree questions in English. Another police officer, Investigator Richard Friedman, was in the squad room during the entire period, but he merely sat in the rear of the room and did not participate in the processing of the arrest. Investigator Friedman testified at the hearing that he was placed in the room because the defendant and his codefendant spoke Hebrew, and he understood the language. His assignment was to write down everything the defendant and his codefendant said in Hebrew. According to Friedman, neither the defendant nor his codefendant asked him if he understood Hebrew. On five separate occasions, when Peck left the immediate area, the defendant and his codefendant conversed in Hebrew. Friedman later made notes of their conversations. In addition, while the defendant and his codefendant were in a courthouse hallway awaiting arraignment and Investigator Peck was absent, Investigator Friedman overheard another conversation in Hebrew. Investigator Friedman, as instructed by his supervisor, informed the defendant and his codefendant after their arraignment that he understood Hebrew. The hearing court refused to suppress the statements in Hebrew which were overheard by Investigator Friedman.

During oral argument of this appeal, the People acknowledged that Investigator Friedman was placed in the squad room for the express purpose of overhearing conversations by the defendant and his codefendant which were spoken in Hebrew. The People contend that this did not violate their constitutional rights because the statements were spontaneous. I disagree.

The defendant was indicted before he surrendered to the Attorney-General. Therefore, his right to counsel had attached at the time the statements were overheard by Friedman. As stated in People v. Settles, 46 N.Y.2d 154, 161-163, 412 N.Y.S.2d 874, 385 N.E.2d 612, once an indictment is returned, the character of the police function shifts from investigatory to...