People v. Smedman

• Decision Date: 08 June 1992
• Citation: 584 N.Y.S.2d 627,184 A.D.2d 600
• Parties: The PEOPLE, etc., Appellant, v. Steven SMEDMAN and David Mulholland, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 627

584 N.Y.S.2d 627

184 A.D.2d 600

The PEOPLE, etc., Appellant, v. Steven SMEDMAN and David Mulholland, Respondents.

Supreme Court, Appellate Division Second Department.

June 8, 1992.

Francis D. Phillips II, New York City (Allan Y. Drian, John Goldsmith, and Frank Craig, of counsel), for appellant.

Before BRACKEN, J.P., and HARWOOD, ROSENBLATT and EIBER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the County Court, Orange County (King, J.), dated April 19, 1988, which granted those branches of the omnibus motions of the defendants Steven Smedman and David Mulholland which were to suppress identification testimony and statements made by them to law enforcement officials and which dismissed Orange County Indictment Number 87-00089 as to them.

ORDERED that the order is reversed, on the law and the facts, Orange County Indictment Number 87-00089 is reinstated against the defendants Steven Smedman and David Mulholland, those branches of the omnibus motion of those defendants which were to suppress identification testimony and statements made by them to law enforcement officials are denied, and the matter is remitted to the County Court, Orange County, for further proceedings.

The defendants Steven Smedman and David Mulholland, together with a codefendant Oscar Conley, were indicted in May 1987 for assault in the second degree of a soldier which occurred in the early morning hours of September 21, 1986. The codefendant Conley pleaded guilty to assault in the third degree in satisfaction of the indictment during the pendency of the appeal. At issue here is the admissibility of statements made by Smedman to the police on September 21, 1986, and September 22, 1986, respectively, and by Mulholland to the police on September 21, 1986, and February 2, 1987, respectively. Also at issue are the admissibility of identification testimony of a witness who viewed two photographic arrays in April 1987 and the propriety of the dismissal of the indictment against Smedman and Mulholland by the County Court based upon its suppression ruling. We conclude that the County Court's rulings were made in error.

The evidence adduced at the suppression hearings reveals that Smedman appeared at the Highland Falls police station at the request of a police officer at approximately 9:30 A.M. on September 21, 1986, approximately eight hours after the incident then under investigation. Smedman was advised of his Miranda rights, waived them, and denied that he was at the scene of the crime or knew about the fight. He was questioned by another officer at about noon, when he continued to deny knowledge of the incident but admitted he was at the scene. Smedman left the police station after making the second statement. He was never handcuffed or otherwise restrained, no weapons were ever displayed, and he was at the station house for a total of about six hours. However, Smedman and his girlfriend, who had been at the scene of the incident and who was also questioned by police at the station house on September 21, 1986, appeared at the police station at 7:30 A.M. on the following day, whereupon Smedman asked to speak with the officer he had met with at noon the day before in order to clarify his earlier statement. After speaking with the officer, Smedman and his girlfriend left the station house.

Mulholland first arrived unescorted by the police at the station house around 12 noon on September 21, 1986, after he learned from the defendant Smedman's brother that the police wanted to question him. He was interviewed by an investigator with the District Attorney's office in the presence of a police officer dressed in civilian clothes. The investigator and Mulholland sat at a desk, Mulholland was not handcuffed, no weapons were displayed, and he was not advised of his rights. Following the interview, the investigator, in Mulholland's presence, typed a statement which Mulholland reviewed and signed at about 3:00 P.M. In his statement, Mulholland acknowledged he pushed the soldier, but asserted it was the codefendant Conley who delivered a single cracking blow to the soldier's head. Mulholland left the station house shortly after signing the statement.

On February 2, 1987, the investigator telephoned Mulholland and asked him to come to the station house for further questioning. Mulholland did so and again met with the investigator, who testified at the suppression hearing that he advised Mulholland of his Miranda rights, and that Mulholland waived those rights. Mulholland, who was wearing a cast on his arm, reviewed his earlier statement, added some details, made mention of an attorney handling an unrelated civil matter, and reported that Smedman had admitted hitting the soldier in the jaw. As with his first interview with the investigator, Mulholland was unrestrained, and left the station house at the conclusion of the interview, which lasted approximately one hour and a half to two hours.

In April 1987 a witness, who had at the outset of the investigation informed police that he saw at least part of the incident from across the street, viewed two photographic arrays. In preparing the arrays, the District Attorney's investigator searched through 250 photographs to find ones depicting persons of ages, facial characteristics, and hairstyles similar to those of Smedman and of Mulholland. Moreover, the investigator testified, and the photographic arrays as reproduced in the record demonstrate that, to eliminate height lines in the photographs of some of the fillers, he put paper frames around the photographs. Furthermore, there is no evidentiary indication that the police made any suggestive comments to the witness, who picked Smedman's photograph from among six in one array and Mulholland's photograph from another group of six.

Following the lengthy suppression hearings, the County Court apparently found that Smedman and Mulholland had each been in custody each time he made a statement to law enforcement officials. It upheld use at trial of Smedman's first statement, but suppressed the second and third statements on the ground that the second statement was not preceded by a rereading of the Miranda warnings (but see, People v. Allen, 138 A.D.2d 612, 526 N.Y.S.2d 196), and that the third statement was a tainted product of the second (but see, People v. Alaire, 148 A.D.2d 731, 737-738, 539...