People v. Tavares–nunez

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PETER B. SKELOS, J.P., RANDALL T. ENG, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
• Citation: People v. Tavares–nunez, 87 A.D.3d 1171, 930 N.Y.S.2d 589, 2011 N.Y. Slip Op. 6868 (N.Y. App. Div. 2011)
• Decision Date: 27 September 2011
• Parties: The PEOPLE, etc., respondent,v.Juan TAVARES–NUNEZ, appellant.

87 A.D.3d 1171

930 N.Y.S.2d 589

2011 N.Y. Slip Op. 06868

The PEOPLE, etc., respondent,

v.Juan TAVARES–NUNEZ, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 27, 2011.

Michael P. Mays, Jamaica, N.Y., for appellant.Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Brooke E. Barnes of counsel), for respondent.PETER B. SKELOS, J.P., RANDALL T. ENG, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered March 5, 2009, convicting him of criminal sexual act in the first degree and endangering the welfare of an incompetent person, upon a jury verdict, and imposing sentence. The appeal bring up for review the denial, after a hearing (Demakos, J.H.O.), of that branch of the defendant's omnibus motion which was to suppress his statement to law enforcement officials.

ORDERED that the judgment is affirmed.

We agree with the defendant that his inculpatory statement to law enforcement officials made before the administration of Miranda warnings ( see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) should have been suppressed. The hearing evidence revealed that a police detective, Detective Echeverria, interviewed a witness who informed him that, earlier that day, he had observed the defendant, an employee whom he supervised, engaging in oral sexual conduct with an incapacitated resident of the nursing home where the defendant and the witness worked, and that the defendant had been sent home early due to the incident. Detective Echeverria then proceeded to the defendant's home, where he identified himself as a detective and advised the defendant that he “needed to speak” with him. The detective informed the defendant that it was “inappropriate” to speak in the defendant's house, and that he “needed” to speak with the defendant in the detective's office. The defendant asked the detective what he needed to talk to him about, and the detective responded that he was a member of the Special Victims Squad and that he needed to speak to him about an incident that happened at the defendant's place of work. The defendant agreed to accompany Detective Echeverria to the police station and, on the way to the station, the detective advised the defendant that they would not be talking about the case in the car. Once Detective Echeverria and the defendant arrived at the police station, the defendant was placed in an “interview room,” and the detective left to gather some paperwork. When Detective Echeverria returned, the defendant stated: “we're in your office, what do you want to talk about.” Detective Echeverria explained that the defendant was at work that day and that “there was an incident and [the defendant] had to leave early because of this incident and that's what [they] would be talking about.” The defendant then proceeded to make an inculpatory statement, apologizing for his conduct.

Contrary to the People's contention, under the totality of the circumstances, the defendant was in police custody at the time he made the inculpatory statement ( see People v. Baggett, 57 A.D.3d 1093, 868 N.Y.S.2d 423; People v. Payne, 41 A.D.3d 512, 513, 838 N.Y.S.2d 123; People v. Vachet, 5 A.D.3d 700, 773 N.Y.S.2d 455; see also People v. Macklin, 202 A.D.2d 445, 447, 608 N.Y.S.2d 509).

Further, the Supreme Court erred in concluding that the inculpatory statement was admissible because it was spontaneous, and not the result of interrogation or its functional equivalent. “[T]he special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation” ( Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 64 L.Ed.2d 297). “[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect” ( id. at 301, 100 S.Ct. 1682; see People v. Ferro, 63 N.Y.2d 316, 322, 482 N.Y.S.2d 237, 472 N.E.2d 13, cert. denied 472 U.S. 1007, 105 S.Ct. 2700, 86 L.Ed.2d 717; People v. Huffman, 61 N.Y.2d 795, 797, 473 N.Y.S.2d 945, 462 N.E.2d 122; People v. Rivers, 56 N.Y.2d 476, 480, 453 N.Y.S.2d 156, 438 N.E.2d 862). Statements made in response to such police words or actions are inadmissible in the absence of Miranda warnings ( see People v. Ferro, 63 N.Y.2d at 319, 482 N.Y.S.2d 237, 472 N.E.2d 13).

In contrast, volunteered statements, meaning those that are “self-generated” ( People v. Dunn, 195 A.D.2d 240, 244, 607 N.Y.S.2d 689, affd. 85 N.Y.2d 956, 626 N.Y.S.2d 1007, 650 N.E.2d 854) and “ ‘made without apparent external cause,’ ” are admissible even if the defendant was in custody and unwarned ( People v. Rivers, 56 N.Y.2d at 480, 453 N.Y.S.2d 156, 438 N.E.2d 862, quoting People v. Stoesser, 53 N.Y.2d 648, 650, 438 N.Y.S.2d 990, 421 N.E.2d 110; see People v. Maerling, 46 N.Y.2d 289, 302–303, 413 N.Y.S.2d 316, 385 N.E.2d 1245; People v. Dunn, 195 A.D.2d at 244, 607 N.Y.S.2d 689). For a statement to fall within that category, “the spontaneity has to be genuine and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed” ( People v. Maerling, 46 N.Y.2d at 302–303, 413 N.Y.S.2d 316, 385 N.E.2d 1245; see People v. Rivers, 56 N.Y.2d at 479, 453 N.Y.S.2d 156, 438 N.E.2d 862).

While a police officer's brief response to a defendant's query as to the basis of an arrest, or similar inquiry, often does not amount to the functional equivalent of interrogation ( see e.g. People v. Davis, 32 A.D.3d 445, 445–446, 821 N.Y.S.2d 217; People v. Harrison, 251 A.D.2d 681, 682, 677 N.Y.S.2d 794; People v. West, 237 A.D.2d 315, 654 N.Y.S.2d 390; People v. Pryor, 194 A.D.2d 749, 749–750, 600 N.Y.S.2d 81), here, considering the totality of the circumstances leading up to the defendant's statement, we cannot say that, viewed objectively, the statement was genuinely “self-generated” and not the product of “an external cause” ( see People v. Stoesser, 53 N.Y.2d at 650, 438 N.Y.S.2d 990, 421 N.E.2d 110). The defendant was told by Detective Echeverria that he “needed” to speak to him, and was twice told that they would not speak until they reached the detective's office. Once they reached the office, the defendant, who had already been told that the subject of the interview was an incident that happened at work, observed that they were now in the detective's office and again asked what the detective needed to talk to him about. It is clear that the defendant expected that the interview had begun, and was not seeking information as to the general subject of the conversation, having already received that information. In other words, the facts indicated that an interrogational environment existed ( see People v. Lanahan, 55 N.Y.2d 711, 712, 447 N.Y.S.2d 139, 431 N.E.2d 624; People v. Stoesser, 53 N.Y.2d at 650, 438 N.Y.S.2d 990, 421 N.E.2d 110; cf. People v. Bryant, 87 A.D.2d 873, 874, 449 N.Y.S.2d 314 [“The record is devoid of any facts which would tend to indicate that an interrogational environment existed at the time defendant's statement was made”], affd. 59 N.Y.2d 786, 464 N.Y.S.2d 729, 451 N.E.2d 476). Moreover, Detective Echeverria's statement to the defendant, explaining that there was an incident at work and that the defendant had to leave early from work as a result of the incident was not, for example, a mere recitation of a charge upon arrest. Rather, it revealed to the defendant that the detective had spoken to individuals at the nursing home, who were aware, one of them having witnessed the incident, of the defendant's conduct ( cf. People v. Lucas, 53 N.Y.2d 678, 680, 439 N.Y.S.2d 99, 421 N.E.2d 494 [statement not spontaneous where it was made after police officer informed defendant that the District Attorney had obtained a statement from his alleged accomplice, accusing him of murder] ). Not surprisingly, the detective's revelation prompted the defendant to apologize for his conduct.

In sum, from an objective standpoint, it was natural for the defendant to have believed that the interview with Detective Echeverria had begun and, not having been advised of his right to remain silent or to counsel, to respond to the detective's statement that they were going to talk about an incident at work that caused him to leave early, with a statement relevant to that incident. In other words, the detective's explanation and “the atmosphere in which it was uttered” ( People v. Bryant, 87 A.D.2d at 874–875, 449 N.Y.S.2d 314), was of such a nature that the detective should have reasonably anticipated that it would evoke a response from the defendant. Prior to responding to the defendant's statement “we're in your office, what do you want to talk about,” there was “both time enough ... and clear reason” to give the defendant Miranda warnings ( People v. Ferro, 63 N.Y.2d at 323, 482 N.Y.S.2d 237, 472 N.E.2d 13). Because the detective failed to do so before engaging in the...