| People v Higgins |
| 2015 NY Slip Op 00253 [124 AD3d 929] |
| January 8, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Appellant, vSteven Higgins, Respondent. |
Joel E. Abelove, District Attorney, Troy (Kelly L. Egan of counsel), forappellant.
Adam C. Eggleston, Albany (Kevin O'Brien of counsel), for respondent.
Garry, J. (1) Appeal from an order of the County Court of Rensselaer County(Young, J.), entered August 8, 2014, which, among other things, granted defendant'smotion to suppress certain evidence, and (2) motion to strike appendix.
On October 8, 2013, defendant was observed driving in an erratic manner and wasstopped by an officer of the East Greenbush Police Department in the Town of EastGreenbush, Rensselaer County. Upon approaching the vehicle, the officer observed thatdefendant smelled of alcohol and had slurred speech and bloodshot, glassy eyes. Theofficer administered three field sobriety tests, all of which defendant failed. Defendantwas arrested, transported to the police station for booking, and ultimately indicted onnumerous violations of the Vehicle and Traffic Law, including felony driving whileintoxicated and refusing to submit to a breath test. Defendant thereafter served anomnibus motion seeking, among other things, Mapp, Dunaway andHuntley hearings and the suppression of certain evidence including, as relevanthere, defendant's statements to police. The People consented to a Huntleyhearing, and County Court granted defendant's request for a Mapp/Dunawayhearing. At the joint hearing, defendant argued that he had invoked his right to counselalmost immediately upon the start of the booking process and that any statements hemade thereafter should be suppressed, including those depicted in a video of the bookingprocess (hereinafter the video).[FN1] Following the hearing, the courtdetermined that defendant had invoked his right to counsel at the onset of the bookingprocess, that the police had failed to honor his request for counsel, and that defendant'sstatements thereafter should be suppressed. As a result, the court suppressed the video inits entirety. The People appeal.[FN2]
Initially, we wholly reject the People's contention that County Court erred in grantingdefendant's request for a Mapp/Dunaway hearing. Although a defendant seekinga suppression hearing must make sworn factual allegations supporting his or her motion,CPL 710.60 "does not mandate summary denial of defendant's motion even if the factualallegations are deficient" (People v Mendoza, 82 NY2d 415, 429 [1993];see CPL 710.60 [3]). Here, the People had consented to a Huntley hearing"grounded in the same facts involving the same police witnesses" (People vMendoza, 82 NY2d at 429). Principles of judicial economy clearly weighed in favorof conducting any related suppression hearings, and we cannot find any error in soproceeding.
The People further contend that County Court erred in suppressing all of defendant'sstatements during the booking process as well as the video depicting them. The courtfound that defendant had invoked his right to counsel when he stated at the outset of thebooking process—specifically at 3:23 a.m.—that he wanted to speak to hisattorney before he would sign anything. A defendant's request for an attorney will invokehis or her indelible right to counsel if the request is unequivocal, an inquiry which "is amixed question of law and fact that must be determined with reference to thecircumstances surrounding the request including the defendant's demeanor, manner ofexpression and the particular words found to have been used by the defendant"(People v Glover, 87 NY2d 838, 839 [1995]; accord People v Jemmott, 116 AD3d 1244, 1246 [2014];see People v Phoenix, 115AD3d 1058, 1059 [2014], lv denied 23 NY3d 1024 [2014]; see also People v Harris, 93AD3d 58, 67 [2012], affd 20 NY3d 912 [2012]). Generally, remarks that aresubject to numerous objective interpretations or a defendant's mere "suggestion thatcounsel might be desired . . . will not suffice" (People v Mitchell, 2 NY3d272, 276 [2004]; see People v Fridman, 71 NY2d 845, 846 [1988];People v Wade, 296 AD2d 720, 720 [2002]). Here, considering thecircumstances existing at the time of the statement, [*2]defendant's request to speak to his attorney beforesigning anything was prospective, as he had not been asked to sign anything. Anobjective officer could interpret the statement as merely a forewarning of a possible,contingent desire to confer with counsel rather than an unequivocal statement ofdefendant's present desire to do so (compare People v Porter, 9 NY3d 966, 967 [2007]).Accordingly, defendant's statement at 3:23 a.m. did not suffice to invoke his right tocounsel (see People vEngelhardt, 94 AD3d 1238, 1240-1241 [2012], lv denied 19 NY3d 960[2012]; People v Isaac, 224 AD2d 993, 994 [1996], lv denied 88 NY2d937 [1996]; People v Thompson, 153 AD2d 456, 464 [1990], lv denied76 NY2d 867 [1990]).
However, defendant's statement at 3:41 a.m., requesting that he be allowed to call hisattorney, was sufficiently unequivocal to invoke his right to counsel (see People v Jones, 21 AD3d429, 429 [2005], lv denied 6 NY3d 755 [2005]; compare People vGlover, 87 NY2d at 839). The officers agreed to allow defendant to contact hisattorney, but never provided him with the means to do so. Thus, any testimonialstatements that were elicited from defendant after this point were properly subject tosuppression (see People vDashnaw, 85 AD3d 1389, 1390-1391 [2011], lv denied 17 NY3d 815[2011]; see also People v Pinzon, 44 NY2d 458, 464 [1978]; compare People v Jabaut, 111AD3d 1140, 1141-1142 [2013], lv denied 22 NY3d 1139 [2014]). ThePeople argue, however, that County Court's order was not limited to testimonialstatements, but also improperly suppressed defendant's responses to pedigree questions,spontaneous declarations, physical appearance and refusal to submit to chemicaltesting.
Initially, although a defendant's responses to routine booking questions that are"reasonably related to . . . administrative concerns" are not subject tosuppression (People v Rodney, 85 NY2d 289, 293 [1995] [internal quotationmarks and citation omitted]), neither the parties' arguments nor the video discloses anysuch pedigree questions or responses following defendant's valid invocation of his rightto counsel at 3:41 a.m. As for spontaneous declarations, it is established law that, evenafter the right to counsel has attached, a defendant's statements are not subject tosuppression if they were "not the result of inducement, provocation, encouragement oracquiescence, no matter how subtly employed" (People v Maerling, 46 NY2d289, 302-303 [1978]; accord People v Burns, 281 AD2d 704, 705 [2001], lvdenied 96 NY2d 826 [2001]). It is well established that the police bear no obligation"to silence a chatterbox" (Peoplev Taylor, 1 AD3d 623, 624 [2003], lv denied 1 NY3d 602 [2004][internal quotation marks, brackets and citation omitted]). "The test is not whetherdefendant, through hindsight, claims that the police intended to provoke an incriminatingresponse; rather, County Court, using an objective standard, must determine whetherdefendant's statement can be said to have been triggered by police conduct that shouldreasonably have been anticipated to evoke a statement from defendant" (People vPayne, 233 AD2d 787, 788 [1996] [citation omitted]).
With a few exceptions, the video reveals that defendant's statements in the periodpreceding the reading of his Miranda rights were made without any triggeringwords or conduct by the police. As the officers played no role in soliciting them, thesestatements constitute spontaneous declarations and should not have been subject tosuppression (see People vWilhelm, 34 AD3d 40, 53 [2006]; People v Sturdivant, 277 AD2d 607,607-608 [2000], lv denied 95 NY2d 970 [2000]). However, at three pointsfollowing defendant's successful invocation of his right to counsel, officers asked himquestions that should reasonably have been anticipated to elicit responses. The first suchexchange occurred between 03:47:49 a.m. and 03:48:10 a.m., when defendant respondedafter an officer asked him what he thought would occur as a result of refusing a chemicaltest. The second occurred between 03:50:01 a.m. and 03:50:09 a.m., when defendantconfirmed his last drinking location in response to a question by one of the officers. Thethird occurred between 04:01:05 a.m. and 04:06:23 a.m., when an officer askeddefendant several questions about chemical testing and the events of the evening. [*3]Defendant's responses to these inquiries cannot be said tobe spontaneous. Thus, his statements during these three time periods and thecorresponding portions of the video were properly suppressed.
As to portions of the video in which defendant was not speaking, evidence obtainedfrom a defendant following invocation of the right to counsel is subject to suppressionwhere it constitutes "a communicative act that disclose[s] the contents of defendant'smind" (People v Gibson, 17NY3d 757, 759 [2011] [internal quotation marks and citation omitted]; seePeople v Berg, 92 NY2d 701, 704 [1999]). Generally, a defendant's physicalcharacteristics and appearance are not considered to be communicative in nature (seeSchmerber v California, 384 US 757, 763-764 [1966]; People v Havrish, 8 NY3d389, 393 [2007], cert denied 552 US 886 [2007]; People v Berg, 92NY2d at 704). Here, portions of the video in which defendant is silent show only hisphysical condition and appearance and do not disclose any communicative statementsmade after he had invoked his right to counsel. Whether any of these video segmentsmay ultimately be deemed admissible at trial depends on other considerations notpresented here, but there is no basis for their suppression as communicative statements(see e.g. People v Haskins,121 AD3d 1181, 1183 [2014]; People v Raco, 168 AD2d 806, 807 [1990],lv denied 77 NY2d 910 [1991]; compare People v Robles, 180 Misc 2d512, 521 [Crim Ct, Bronx County 1999]; People v Anderson, 150 Misc 2d 339,344 [Nassau Dist Ct 1991]).
Finally, as to defendant's refusals to submit to chemical tests, we note the legaldistinction between admitting evidence of the test refusals and admitting defendant'saccompanying statements and/or the video depictions of such statements. An individualsuspected of driving while intoxicated is allowed a limited right to counsel for thepurpose of deciding whether to submit to a chemical test (see People v Smith, 18 NY3d544, 549-550 [2012]; People v Vinogradov, 294 AD2d 708, 709 [2002]). Toinvoke this limited right, a suspect must make "a specific request for an attorneyvis-à-vis this decision" (People v Curkendall, 12 AD3d 710, 715 [2004], lvdenied 4 NY3d 743 [2004]; see People v Washington, 107 AD3d 4, 9 [2013],affd 23 NY3d 228 [2014]). When defendant requested counsel at 3:41 a.m., hehad been read two chemical test warnings and had refused to submit both times. Thethird warning and refusal followed defendant's request for counsel. Upon review, andconsidering both the timing and the phrasing of defendant's request, it does not appearthat he was seeking advice relative to the testing, but, instead, was asserting his right tocounsel in a broad and general manner. As defendant's invocation of his right to counsellacked the requisite specificity, the fact that he refused to submit to chemical testing oneach occasion is admissible (see People v Curkendall, 12 AD3d at 715;People v Vinogradov, 294 AD2d at 709). However, this rule does not alter theprotections afforded by law relative to his statements or the video depiction of same, asset forth above, after he invoked his right to counsel.
McCarthy, J.P., Lynch, Devine and Clark, JJ., concur. Ordered that the motion tostrike is granted. Ordered that the order is modified, on the law, by reversing so muchthereof as suppressed all statements made by defendant during the booking process andas suppressed the entire video of the booking process; suppress only thosestatements—and the corresponding portions of the video—as reflected inthis Court's decision; and, as so modified, affirmed.
Footnote 1:The parties agree thatthe time stamps appearing on the video deviate slightly from the actual time at whichevents occurred; in the interest of clarity, all time references herein refer to the timestamps on the video. The full video begins upon defendant's entry to the booking room,at 3:21 a.m., and continues for several hours thereafter. However, defendant receivedMiranda warnings at 4:23 a.m., and the People concede that he validly invokedhis right to counsel in response. They do not seek to introduce any of his statements orportions of the video thereafter, and our analysis deals only with the period between 3:21a.m. and 4:23 a.m.
Footnote 2:Following submission ofdefendant's brief and appendix, the People moved to strike the appendix on the groundthat its contents were not part of the record that had previously been properly served,certified and submitted in compliance with Rules of the Appellate Division, ThirdDepartment (22 NYCRR) § 800.7 (b). The motion is granted, and neitherthe appendix nor any references thereto in the briefs were considered in deciding thisappeal.