People v. Stephans
| Decision Date | 23 January 2019 |
| Docket Number | Ind. No. 1094/15,2015–12082 |
| Citation | 168 A.D.3d 990,93 N.Y.S.3d 317 |
| Parties | The PEOPLE, etc., Respondent, v. Luander STEPHANS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
DECISION & ORDER
ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.
In the early morning hours of October 16, 2014, the defendant's husband went to a police precinct station house in Queens and reported that the defendant had assaulted him. A police officer spoke with the defendant by telephone, asked her to come to the station house, and told her that she would be arrested. The defendant told him that she would come to the station house the next day. Later that morning, Police Officer Raymond Persaud was assigned to the case and spoke with the defendant by telephone. Officer Persaud informed the defendant that he was investigating an allegation made by her husband and that she needed to come to the station house. The defendant and her husband went the station house and met with Officer Persaud. The officer separated the defendant and her husband, and placed the defendant in the squad interview room.
At a suppression hearing, Officer Persaud testified that after interviewing the defendant's husband, he went into the squad interview room, introduced himself to the defendant, and thanked her for coming in. He then told her of the assault allegations against her, that he had learned that her alleged acts would also violate an existing order of protection, and that she would be arrested. The defendant then told Officer Persaud that she and her husband had gotten into an argument and that she did not mean to hit him, but when she swung her hand at his face, her ring might have cut his eye. Officer Persaud testified that although he asked the defendant questions about "personal stuff," such as where she worked and where she was from, he had not questioned the defendant about the alleged assault before she made this incriminating statement.
Officer Persaud further testified that after he and the defendant had conversed for an unspecified time, he told her that she was going to be placed under arrest, and that, as he was about to leave the interview room, the defendant offered him sex and money to "make the charges disappear." According to Officer Persaud, he informed the defendant that he would need to speak to his superior and the assistant district attorney. Officer Persaud reported the incident to his superior. The Internal Affairs Bureau (hereinafter Internal Affairs) was contacted and, approximately two hours later, officers from Internal Affairs came to the station house and placed a recording device on Officer Persaud. Officer Persaud returned to the interview room, where the defendant continued to be detained, and recorded a conversation with her in which she repeated the offer to give him money and sex in exchange for making the charges disappear. One hour later, Officer Persaud returned to the interview room with his sergeant, and the sergeant informed the defendant that she was being charged with bribery. Officer Persaud testified that the defendant appeared surprised, and said that she had not been trying to bribe Officer Persaud, but was "just trying to give him something for his kindness because he was kind to me." At no point during the four hours in which she was interviewed did Officer Persaud, or any other officer, advise the defendant of her Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ).
Shortly after the conversation with Officer Persaud and the sergeant, the defendant was moved to a cell in the station house, and the following day she was arraigned on a felony complaint charging her with bribery of Officer Persaud and various charges relating to the alleged assault of her husband. The defendant was represented by an attorney at arraignment and was released from custody.
A few days later, on October 20, 2014, the defendant called the precinct station house and reported to Detective Oliver Muir that while she was there on October 16, 2014, Officer Persaud "felt her breast, grabbed her private parts and asked her for $2500 in cash." She further reported that since that day, she had received numerous calls from Officer Persaud telling her "not to say anything." The defendant's complaint was referred to Sergeant Latania Keith in Internal Affairs. Sergeant Keith contacted the defendant to set up an interview, and arranged to meet her that evening at a coffee shop. Sergeant Keith and her partner met the defendant, who was alone, at the arranged location and conducted the interview in the back of the police vehicle. They did not administer Miranda warnings, and, without the defendant's knowledge, recorded the interview, which lasted just over an hour. The officers asked the defendant about the events surrounding the alleged assault of her husband and the defendant's interactions with Officer Persaud at the station house. In response to their questions, the defendant described the argument that she had with her husband and how, at the station house, Officer Persaud began flirting with her and eventually told her that he could make the charges go away in exchange for sex and money. The defendant told the officers, among other things, that Officer Persaud had removed her to a room with no cameras, turned the lights off, touched her breasts, and placed his hand inside of her pants.
The defendant subsequently was charged by indictment with criminal contempt in the first degree, assault in the third degree, and harassment in the second degree, in relation to the alleged assault of her husband, bribery in the third degree based upon on her interactions with Officer Persaud at the station house, and falsely reporting an incident in the third degree based upon her later report of Officer Persaud's alleged conduct. Before trial, the People gave notice pursuant to CPL 710.30(1)(a) of their intent to offer at trial the defendant's statement to Officer Persaud that she had not meant to strike her husband, and her statement to Officer Persaud and his sergeant that she was not trying to bribe Persaud, but was only trying to give him something for his kindness. The defendant moved, inter alia, to suppress those statements. At the suppression hearing, the People argued that the subject statements were not the product of a custodial interrogation, but instead were spontaneously offered by the defendant. The motion court agreed, and denied that branch of the defendant's motion which was to suppress those statements.
At trial, in addition to the statements of which the People gave notice pursuant to CPL 710.30(1)(a), Officer Persaud testified to numerous other statements the defendant made while she was in the interview room concerning the incident with her husband and the attempted bribery of Officer Persaud, with no objection from defense counsel. Among other things, Officer Persaud admitted that during his interview with the defendant, he called the defendant's cell phone from his own so that they would have each other's phone numbers and could communicate later, and that before the officers from Internal Affairs arrived, he moved the defendant to another room where he briefly turned off the lights while they were together. The conversation between Officer Persaud and the defendant which was recorded by the recording device placed on Officer Persaud by the officers from Internal Affairs was played for the jury.
The People also introduced into evidence at trial the unredacted audio recording of the defendant's interview with Sergeant Keith and her partner, initially with the consent of defense counsel. However, while the recording was playing for the jury, the trial court interrupted it and called a sidebar conference outside of the jury's presence. The court observed that the manner in which the officers were questioning the defendant shifted the burden of proof, and the questions posed were improper since, at the time the interview was conducted, the defendant had charges pending against her and was represented by counsel. The court further observed that the facts underlying the charges of bribery in the third degree and falsely reporting an incident in the third degree were "so intertwined that they are one in the same," and that the defendant should not have been questioned in the back of a police vehicle without an attorney present. The court stated that it found the recording "highly prejudicial," and that it was considering declaring a mistrial. Defense counsel then moved for a mistrial on the ground that the recording was prejudicial and deprived the defendant of a fair trial. Ultimately, the court declined to declare a mistrial, but it instructed the jury to disregard everything it had heard on the audio recording. Nonetheless, thereafter, Sergeant Keith testified as to certain statements made by the defendant during the recorded interview, with no objection by the defense.
The defendant testified at trial, inter alia, that Officer Persaud had touched her sexually and made sexually explicit comments. The defendant testified that she was frightened, and tried to get out of the situation by offering to give Officer Persaud money and telling him that they could have sex the following week.
The jury acquitted the defendant of all counts relating to the alleged assault of her husband, but convicted her of bribery in the third degree and falsely reporting an incident in the third degree. The defendant appeals, arguing, among other things, that the Supreme Court erred in denying suppression of certain statements she made at the precinct, the evidence was legally insufficient to establish her guilt of bribery in the third degree, the admission of her statements to Sergeant Keith violated her right to counsel, and she was denied the effective assistance of counsel.
The defendant contends that ...
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