| People v Nehma |
| 2012 NY Slip Op 08359 [101 AD3d 1170] |
| December 6, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Walid Nehma,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the Supreme Court (Teresi, J.), rendered December23, 2010 in Albany County, upon a verdict convicting defendant of the crime of attempted rapein the first degree.
Defendant is an Iraqi refugee. In 2009, he was charged in an indictment with one count ofattempted rape in the first degree after he allegedly attempted to have sexual intercourse with thevictim, an adult female, by the use of force. The incident occurred near the area of Jillian's Bar onNorth Pearl Street in the City of Albany. Prior to trial, County Court (Breslin, J.) conducted asuppression hearing. Thereafter, County Court granted defendant's motion to suppress astatement that he made while being transported to the police station for questioning, but deniedhis motion with respect to statements made at the police station. At the close of the ensuing jurytrial before Supreme Court (Teresi, J.), defendant was convicted of attempted rape in the firstdegree and sentenced to a term of 14 years in prison to be followed by five years of postreleasesupervision. Defendant now appeals and, inasmuch as we conclude that County Court erred byfailing to grant his motion to suppress in its entirety, we now reverse.
Initially, we reject defendant's argument that the verdict is against the weight of the [*2]evidence. Inasmuch as an acquittal would not have beenunreasonable, we "must weigh [the] conflicting testimony, review any rational inferences thatmay be drawn from the evidence and evaluate the strength of such conclusions" in light of theelements of the crime (People vDanielson, 9 NY3d 342, 348 [2007]; see People v Romero, 7 NY3d 633, 643-644 [2006]). In our view,the evidence adduced at trial demonstrated that defendant intended and came dangerously closeto engaging in forcible sexual intercourse with the victim, thereby establishing the elements ofattempted rape in the first degree (see Penal Law §§ 110.00, 130.35 [1]).Defendant argues that the victim mistakenly identified him and that her testimony was incredible,given her history of mental illness, her intoxication and failure to take her medication on the dayof the incident, and her admission that she had consensual sex with another man at the scene ofthe incident on the night in question but lied about it to police. These matters, however, werefully explored at trial and the victim's testimony was not inherently incredible. Indeed, hertestimony that defendant knocked her to the ground and tried to force her to have intercoursewith him while she punched and scratched him was corroborated by the presence of defendant'sDNA on her neck and under her fingernails and the nature of her injuries observed by nurses andpolice at the hospital. According the jury deference in its resolution of credibility issues, weconclude that the verdict was not against the weight of the evidence (see People v Blackman, 90 AD3d1304, 1306-1308 [2011], lv denied 19 NY3d 971 [2012]; People v Newkirk, 75 AD3d 853,858-859 [2010], lv denied 16 NY3d 834 [2011]; People v Jackson, 48 AD3d 891, 892 [2008], lv denied 10NY3d 841 [2008]).
We agree with defendant, however, that the statements that he made at the police stationshould have been suppressed. The testimony at the suppression hearing revealed that PoliceOfficer Brandon Bailey was on patrol in Albany around 11:00 p.m., several weeks after theincident, when he learned that defendant—who police had observed on video surveillancefrom the night of the incident—was using the restroom inside a nearby bar. Whendefendant exited the bar, Bailey and his partner asked if they could speak to him and pat himdown for weapons. Defendant, who began studying English when he arrived in the United Stateseight months earlier and spoke only broken English, replied "okay" to these requests.Nevertheless, when Bailey began to pat him down, defendant was "agitated" and "irate," began"flailing his arms" and tried "to turn around." The officers placed defendant in handcuffs and intothe backseat of a patrol vehicle. Bailey conceded that he found nothing during the pat down, butdefendant was in custody at that point and Miranda warnings were not given.
While they were in the car, Bailey's partner asked if defendant "want[ed] to come down andspeak to detectives about an incident not involving tonight." Although defendant agreed, hecontinuously asked, "What is the problem? I am no problem," and repeatedly insisted, "I justwent to use the bathroom. I am no problem here." In response to a further question, defendantalso stated that he had never been to bars in downtown Albany before.
Bailey testified that the handcuffs were removed once they got to the station because theofficers believed that defendant was calmer and "acting more civilized." Bailey then broughtdefendant to the interview room and remained seated outside for the entire time that defendantwas there. Detective James Olsen, who was investigating the attempted rape, arrived atapproximately 12:45 a.m. to interview defendant. Olsen advised defendant of hisMiranda rights, but neglected to inform defendant of the right to have an attorney presentduring questioning. In response to questioning by Olsen, defendant denied ever being at bars indowntown Albany or [*3]that he owned a black jacket with whitefur on the hood.[FN*]
Based upon Bailey's admission that defendant was in custody while in the patrol car but noMiranda warnings were given prior to questioning, County Court determined thatdefendant's statement that he had never been to downtown Albany before, which was made whilein the vehicle, must be suppressed (see generally People v Baptiste, 306 AD2d 562, 566[2003], lv denied 1 NY3d 594 [2004]). The court then properly concluded that theMiranda warnings administered by Olsen at the station were insufficient (see People vHutchinson, 59 NY2d 923, 924-925 [1983]). Nevertheless, the court ruled that there was apronounced break between the custodial situation in the vehicle and the later questioning at thestation, such that "attenuation principles" dictated that defendant was not in custody at thestation, and that Miranda warnings were therefore not required. We disagree.
Attenuation in this context refers to " 'such a definite, pronounced break in the interrogationthat the defendant may be said to have returned, in effect, to the status of one who is not underthe influence of questioning' " (People vWhite, 10 NY3d 286, 291 [2008], cert denied 555 US 897 [2008], quotingPeople v Chapple, 38 NY2d 112, 115 [1975]), thereby "dissipat[ing] the taint from [a]Miranda violation" such that a subsequent "Mirandized statement is admissible at trialdespite [a] prior, unwarned statement" (People v Paulman, 5 NY3d 122, 131 [2005]). That inquiry isirrelevant here because Miranda warnings were never properly given, and there is no"subsequent Mirandized statement" to be considered. In contrast, "[t]he standard for assessing asuspect's custodial status"—the correct inquiry here—"is whether a reasonableperson innocent of any wrongdoing would have believed that he or she was not free to leave"(id. at 129). The relevant circumstances present here include defendant's limited fluencywith the English language, his evident confusion over and resistance to Bailey's attempt to pathim down, his repeated questioning of why the officers had detained him for using the bathroomin a bar, the admission that defendant was in custody while in the patrol vehicle, the officers' useof handcuffs on him until they felt he was beginning to act "more civilized," the continuingpresence of Bailey—who had earlier handcuffed defendant for resisting the patdown—outside the interview room, Olsen's evident belief that Miranda warningswere, in fact, required, and the similarity of Olsen's questions to those asked while defendant wasadmittedly in custody. Under these circumstances, a reasonable person would not have felt free toleave and, thus, defendant's statements at the station—denying that he had been to bars indowntown Albany or that he owned a black jacket with white fur—were the product ofcustodial interrogation and should have been suppressed (see People v Baggett, 57 AD3d 1093, 1094-1095 [2008]; People v Burry, 52 AD3d 856, 859[2008], lv dismissed 10 NY3d 956 [2008]). Inasmuch as it cannot be said that theimproper admission of these statements was harmless beyond a reasonable doubt, reversal isrequired (see People v Van Patten,48 AD3d 30, 35-36 [2007], lv denied 10 NY3d 845 [2008]).
With the exception of his challenge to Supreme Court's Molineux ruling, defendant'sremaining arguments are rendered academic by our decision. His Molineux challengelacks [*4]merit; the admitted evidence was relevant to defendant'smotive and intent, provided necessary background, and was more probative than prejudicial (see People v Dorm, 12 NY3d 16,19 [2009]; People v Tarver, 2 AD3d968, 969 [2003]).
Lahtinen, Kavanagh, McCarthy and Garry, JJ., concur. Ordered that the judgment is reversed,on the law, and matter remitted to the Supreme Court for further proceedings not inconsistentwith this Court's decision.
Footnote *: These statements were relevantto defendant's identity and, arguably, his consciousness of guilt, inasmuch as defendant had beenobserved taking pictures of women in area bars on the night of the incident, and later followingthe victim and her male companion. In addition, the victim had described him as wearing a blackjacket with white fur on the hood. A search of defendant's apartment revealed a jacket matchingthe victim's description and photos of women dancing on a dance floor.