| People v Jeremiah |
| 2017 NY Slip Op 01406 [147 AD3d 1199] |
| February 23, 2017 |
| Appellate Division, Third Department |
[*1](February 23, 2017)
| The People of the State of New York, Respondent, v Isaiah M.Jeremiah, Also Known as Eyes, Appellant. |
Teresa C. Mulliken, Harpersfield, for appellant.
John M. Muehl, District Attorney, Cooperstown (Jason P. Weinstein of New YorkProsecutors Training Institute, Inc., Albany, of counsel), for respondent.
Garry, J. Appeal from a judgment of the County Court of Broome County (Cawley, J.),rendered December 14, 2012, upon a verdict convicting defendant of the crimes of murder in thefirst degree, murder in the second degree (two counts), robbery in the first degree and criminalpossession of a weapon in the second degree.
After concerned relatives asked police to check on the victim's welfare, his dead body, with agunshot wound in the head, was found in an apartment in the City of Binghamton, BroomeCounty. Two days later, detective Carl Peters and investigator Charles Woody Jr. of theBinghamton Police Department traveled with other officers to Brooklyn. In the course of theinvestigation, they interviewed Kevin Kennedy, who ultimately gave a statement implicatingdefendant in the crime. Woody, Peters and two or three other officers went to the Brooklynapartment of the mother of defendant's girlfriend, who advised them that defendant was present.Peters spoke with defendant in the apartment before transporting him to the 79th Precinct inBrooklyn. Following an interview there, defendant was transported to Binghamton, where he wasinterviewed again that evening and the following morning. At the close of the morning interview,defendant provided a written statement in which he admitted that he had shot the victim, butclaimed to have done so accidentally.
Following a jury trial, defendant was convicted of murder in the first degree, two counts ofmurder in the second degree, robbery in the first degree and criminal possession of a weapon[*2]in the second degree. County Court sentenced him toconcurrent prison terms of 25 years to life upon his convictions for murder in the first degree andmurder in the second degree, 25 years with five years of postrelease supervision upon hisconviction for robbery in the first degree and 15 years with five years of postrelease supervisionupon his conviction for criminal possession of a weapon in the second degree. Defendantappeals.
We reject defendant's contention that his motion to suppress his written and oral statementsto police should have been granted. First, County Court properly found that Mirandawarnings were not required before police spoke with defendant in the Brooklyn apartment, as hewas not in custody. A defendant is subjected to custodial interrogation, triggering his or herrights under Miranda, when "a reasonable person innocent of any wrongdoing wouldhave believed that he or she was not free to leave" (People v Paulman, 5 NY3d 122, 129 [2005]; accord People v Ortiz, 141 AD3d872, 874 [2016]). Factors to be taken into account in this analysis "includ[e] the location,length and atmosphere of the questioning, whether police significantly restricted defendant'sfreedom of action, the degree of defendant's cooperation, and whether the questioning wasaccusatory or investigatory" (People vChaplin, 134 AD3d 1148, 1150 [2015] [internal quotation marks and citations omitted],lv denied 27 NY3d 1067 [2016]). A court's determination that a defendant was not incustody "is accorded great weight and will not be disturbed unless clearly erroneous" (People v Strong, 27 AD3d 1010,1012 [2006] [internal quotation marks and citation omitted], lv denied 7 NY3d 763[2006]).
The suppression hearing testimony established that the investigators had no reason to suspectthat defendant was in the Brooklyn apartment when they went there, planning to interview hisgirlfriend. After the mother advised them that defendant was sleeping in a bedroom, defendantwas asked to come out[FN1]and Peters spoke with him in the kitchen for about half an hour about his recent presence inBinghamton. Another detective stood at the other end of the kitchen for part of the interview,while the remaining officers searched the apartment with the mother's consent. Defendant wascooperative during the conversation. He was not placed in handcuffs or otherwise physicallyrestrained, no weapons were displayed, and the kitchen and apartment doors were not guarded orblocked. Several other people who were present in the apartment were permitted to speak withdefendant during the interview.
As for police testimony to the effect that defendant would have been stopped if he had triedto leave—which he did not do—"[a] police [officer's] unarticulated plan has nobearing on the question whether a suspect was in custody at a particular time . . .[and] the subjective intent of the officer . . . is irrelevant except insofar as it isconveyed to the individual" (People v Ripic, 182 AD2d 226, 234 [1992] [internalquotation marks, brackets and citation omitted], appeal dismissed 81 NY2d 776 [1993]).As there was no evidence that any intent to prevent defendant from leaving was communicated tohim, we find no error in County Court's conclusion that his statements during this conversationdid not result from a custodial interrogation (see People v Vieou, 107 AD3d 1052, 1053 [2013]; People v Hook, 80 AD3d 881,882-883 [2011], lv denied 17 NY3d 806 [2011]).
We agree with County Court that defendant knowingly and intelligently waived hisMiranda rights during his subsequent interviews with police in Brooklyn andBinghamton. At the end of the conversation in the Brooklyn apartment, the officers askeddefendant to [*3]accompany them to the 79th Precinct, and heagreed to do so.[FN2]Woody and Peters testified that defendant was placed in an interview room upon his arrival,where Woody attempted to read the Miranda rights from a form that listed the pertinentwarnings, followed by a summary statement to the effect that defendant understood his rights anda signature line. However, defendant interrupted before Woody was able to read the completelist, stating that he was willing to speak with police but did not "want anything to do with thepaper," which he said was not used by Brooklyn police. When Woody attempted to explain theform and complete the reading, defendant continued to insist that he was willing to talk but didnot want to use the form. At defendant's request, a Brooklyn detective was brought into the room.He explained that the form was simply a procedure used in Binghamton, but defendant continuedto object, and Woody eventually handed the form to defendant to read to himself. Defendantreviewed the form and then objected to the word "statement," which appeared in the text near theend of the document. He reiterated that he was willing to speak with officers but did not want touse the form or sign anything. Woody then set the unsigned form aside and began theinterview.
The interview was not recorded because, according to Peters, the necessary equipment wasnot available; County Court credited the account provided by Woody and Peters, and we defer tothat assessment (see People vCarter, 140 AD3d 1394, 1395 [2016], lv denied 28 NY3d 969 [2016]). Theystated that the total interview lasted for about 45 minutes, that the Miranda discussionoccupied the first 20 minutes of this time and that, despite defendant's interruptions, Woody wasable to verbally outline all of the Miranda rights contained on the form, although notnecessarily in the same order as they appeared on the document. The officers stated that theybelieved that defendant was able to read and understand the form because he took an appropriateamount of time examining it and because of his objection to a specific word in thetext.[FN3] His refusal to signthe form neither constitutes "an implicit invocation of his . . . Mirandarights" nor precludes a finding that he waived them (People v Carrion, 277 AD2d 480,481 [2000], lv denied 96 NY2d 757 [2001]; see People v Setless, 213 AD2d 900,900-901 [1995], lv denied 86 NY2d 740 [1995]). In view of the officers' testimony anddefendant's repeated statements that he wished to speak with police, we agree with County Courtthat he waived his Miranda rights (see People v Ortiz, 141 AD3d at 876).
As for defendant's subsequent statements, "[w]here a person in police custody has beenissued Miranda warnings and voluntarily and intelligently waives those rights, it is notnecessary to repeat the warnings prior to subsequent questioning within a reasonable timethereafter, so long as the custody has remained continuous" (People v Lowin, 36 AD3d 1153, 1154 [2007] [internal quotationmarks, brackets and citations omitted], lv denied 9 NY3d 847 [2007]; accord People v Booker, 141 AD3d834, 836 [2016], lv denied 28 NY3d 1026 [2016]). The police testimony establishedthat they transported defendant to Binghamton immediately after the Brooklyn interview and thatdefendant slept through most of the six-hour trip. Immediately after their arrival in Binghamtonat approximately 9:00 p.m., defendant was interrogated by Woody and another Binghamtondetective in a video-recorded interview that lasted for approximately [*4]three hours. Woody did not reread the Miranda rights, butreminded defendant at the outset of the interview that the same rights applied that had beenpreviously discussed, and stated that the form would not be presented to defendant again as hehad not wished to sign it earlier. The other detective asked defendant, "You did see and hear yourrights, right? You got to see that form? You understood it?" Defendant confirmed that he had. Asthe lapse of time between the Brooklyn and Binghamton interviews was not unreasonable anddefendant had remained in continuous custody, suppression of the evening Binghamton interviewwas not required (see People v Booker, 141 AD3d at 836; People v Manchester, 123 AD3d1285, 1288 [2014], lv denied 26 NY3d 931 [2015]; People v Lowin, 36AD3d at 1154).
Turning to defendant's interrogation on the following morning, which was alsovideo-recorded, two Binghamton officers reminded defendant that warnings had been given tohim the day before and began to reread them, but defendant interrupted, asked if it was necessaryto go through it all again and stated that he had previously read his own rights and wanted to readthem again. The officers gave the form to defendant and he appeared to read it and then turned itover without signing it, stating that he understood his rights and was willing to speak with theofficers. Shortly thereafter, he stated that he wished to write his own statement, which he thendid. We agree with County Court that, for the same reasons as those pertaining to the Brooklyninterview, defendant affirmatively waived his Miranda rights (see People v Ortiz,141 AD3d at 876; People v Carrion, 277 AD2d at 480; People v Setless, 213AD2d at 900-901).
We are unpersuaded by defendant's claim that his confession was rendered involuntary bydeceptive or coercive police tactics that were "so fundamentally unfair as to deny due process"(People v Tarsia, 50 NY2d 1, 11 [1980]; accord People v Carnevale, 101 AD3d 1375, 1380 n 3 [2012]). "Itis well established that not all deception of a suspect is coercive, [although] in extreme forms itmay be" (People v Thomas, 22NY3d 629, 642 [2014]). Here, none of the few minor deceptive remarks made by theinterrogating officers were nearly so "highly coercive" as to nullify a reasonable defendant'sjudgment or overbear his or her will (id.; see People v Scaringe, 137 AD3d 1409, 1412 [2016], lvdenied 28 NY3d 936 [2016]). Likewise, there was no evidence that the police behaved in "anunduly coercive or threatening manner" or made promises that might have unfairly induced afalse confession (People v Neal, 133AD3d 920, 923 [2015] [internal quotation marks and citation omitted], lv denied 26NY3d 1110 [2016]). As for the physical conditions of the interrogation, defendant was in policecustody in Brooklyn and Binghamton for a somewhat lengthy period that spanned an afternoon,an overnight and the following morning. However, the three intervals of actual interrogationduring this time—the longest of which was just over three hours—were relativelybrief, and he was provided with coffee, food, cigarettes and several opportunities to sleep (see People v Jin Cheng Lin, 26 NY3d701, 725 [2016]). Considering the totality of the circumstances (see People v Neal,133 AD3d at 922), the record supports County Court's determination that defendant's statementresulted from his "free and unconstrained choice" (People v Thomas, 22 NY3d at 641[internal quotation marks and citation omitted]; see People v Cruz, 138 AD3d 1310, 1312 [2016]).
Next, County Court did not abuse its discretion in denying defendant's motion to presentexpert testimony on false confessions. In the motion—made only a few days before trialwas then scheduled to commence[FN4]—defendant sought to present the trialtestimony of Allison Redlich, described as a nationally recognized expert in the field, "to educatethe jury regarding the psychological dynamics involved in false confessions" (internal quotationmarks omitted). In support of the application, defense counsel argued that the circumstancespresented a "classic [*5]scenario" for a false confession in thatdefendant allegedly suffered from certain cognitive and intellectual deficits and was subjected toa lengthy interrogation in unfamiliar surroundings in which police allegedly lied and madepromises and misrepresentations. Counsel asserted that Redlich would testify as to the impact ofa defendant's diminished intelligence in the context of certain police interrogation techniques,specifically including the Reid interrogation technique, and would also discuss other issuesduring questioning, including "the use of various props, themes and alternatives." Notably,defense counsel did not assert that any of these techniques, props or themes had been used here.Further, he did not assert that Redlich would offer any opinions regarding defendant's individualpersonality traits or the particular circumstances of his interrogation, other than to indicate thatRedlich would not offer an opinion on the ultimate issue of whether defendant's statements wereknowing, intelligent and voluntary.
Shortly after County Court denied the motion, the Court of Appeals handed down People v Bedessie (19 NY3d 147[2012]), in which, for the first time, the Court considered the admissibility of expert testimony onthe subject of false confessions. In Bedessie, the Court held that expert testimony on thepersonality and situational factors associated with false confessions may be helpful to a jury in aproper case, but is admissible only upon a showing that the proposed testimony is "relevant to thedefendant and interrogation before the court" (id. at 161). Cases followingBedessie have analyzed the relevancy of such proposed expert testimony based upon "thenature of the interrogation, the applicability of the science of false confessions to the defendantand the extent to which the People's case relie[s] on the confession" (People v Evans, 141 AD3d 120,126 [2016], appeal dismissed 28 NY3d 1101 [2016]; see People v Days, 131 AD3d 972, 979-981 [2015], lvdenied 26 NY3d 1108 [2016]). Applying these principles here, we find that the requiredshowing of relevancy was not made, and, thus, the motion was properly denied. As previouslynoted, defendant sought to have the expert give general testimony about the science of falseconfessions, but made no claim that defendant's individual circumstances would be addressed (see People v Boone, 146 AD3d458, 459-460 [2017]). As also previously discussed herein, the nature of defendant'sinterrogation was not unduly deceptive or coercive.
Further, the People's case was not premised exclusively or primarily upon defendant'sstatement (see People v Roman, 125AD3d 515, 515-516 [2015], lv denied 26 NY3d 1091 [2015]). The People presentedthe testimony of Kennedy, who stated that he was present at the time of the shooting and thatdefendant shot the victim and warned Kennedy afterward not to talk about it, as well as thetestimony of a fellow inmate who said that defendant told him that he had shot the victim in theface so that he could rob him. Under these circumstances, evidence that defendant had certaincognitive and intellectual deficits, without more, was not enough to establish that the proposedexpert testimony was "relevant to this defendant or [his] interrogation" (People vBedessie, 19 NY3d at 149; seePeople v Joubert, 125 AD3d 686, 686 [2015], lv denied 25 NY3d 1166 [2015];People v Rosario, 100 AD3d660, 661 [2012], lv denied 20 NY3d 1065 [2013]).
Defendant next contends that County Court improperly usurped the province of the jury in itsresponse to a note submitted during deliberations. The note asked whether defendant could stillbe found guilty of robbery if the jury found that he was an accomplice. The court read the note todefense counsel and the prosecutor, indicated that its proposed response was "yes," and asked fortheir feedback. After a brief discussion, both counsel agreed that the court's proposed answer wasappropriate. Defendant's present challenge was raised for the first time upon this appeal and isunpreserved. As the court fulfilled its "core responsibility," there was no mode of proceedingserror (People v Kisoon, 8 NY3d129, 134 [2007]; accord People vWoodrow, 89 AD3d 1158, 1159 [2011], lv denied 19 NY3d 978 [2012];see CPL 310.30; People v LaDuke, [*6]140 AD3d1467, 1469 [2016]). "Accordingly, preservation was required, and we decline to take correctiveaction in the interest of justice" (Peoplev Lee, 129 AD3d 1295, 1299 [2015] [citations omitted], lv denied 27 NY3d1001 [2016]).
Finally, as the People concede, the judgment must be modified, as the two counts of murderin the second degree upon which defendant was convicted are inclusory concurrent counts of thecount of murder in the first degree. Defendant was convicted of murder in the first degree upon acount of intentional felony murder pursuant to Penal Law § 125.27 (1) (a) (vii) and(1) (b), and was also convicted of two counts of murder in the second degree consisting ofintentional murder pursuant to Penal Law § 125.25 (1) and felony murder pursuantto Penal Law § 125.25 (3). The second-degree murder charges were submitted tothe jury as lesser included offenses, but the jury was not instructed to consider these charges onlyif it found that defendant was not guilty of murder in the first degree. In such circumstances, "[a]verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser countsubmitted, but not an acquittal thereon" (CPL 300.40 [3] [b]). Accordingly, the convictions formurder in the second degree must be reversed and the corresponding counts of the indictmentmust be dismissed (see People vMiller, 6 NY3d 295, 303-304 [2006]; People v Cherry, 46 AD3d 1234, 1238 [2007], lv denied 10NY3d 839 [2008]; People v Horton,46 AD3d 1225, 1227-1228 [2007], lv denied 10 NY3d 766 [2008]).
McCarthy, J.P., Lynch, Devine and Mulvey, JJ., concur. Ordered that the judgment ismodified, on the law, by reversing defendant's convictions of murder in the second degree undercounts two and three of the indictment; said counts dismissed and the sentences imposed thereonvacated; and, as so modified, affirmed.
Footnote 1:The testimony was unclear as towhether defendant was called out of the bedroom by the officers or the mother.
Footnote 2:Defendant was handcuffedduring this trip for the officers' safety and was in custody at this time; however, he was not askedany pertinent questions and made no statements that the People sought to rely upon at trial.
Footnote 3:Defendant's ability to read andwrite was later confirmed by the fact that he provided a handwritten statement the following day.
Footnote 4:The trial was later adjourned fora different reason.