| People v Murphy |
| 2008 NY Slip Op 04002 [51 AD3d 1057] |
| May 1, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Kevin JosephMurphy, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered December 12, 2006, upon a verdict convicting defendant of the crime of murder in thesecond degree.
Defendant was arrested for allegedly stabbing another person. He was advised of hisMiranda rights and agreed to speak to the police. During the interrogation, he stated thathe wanted to speak to an attorney. The questioning was immediately stopped and the policeprovided defendant with a telephone. An officer informed defendant that the line wastape-recorded; the telephone was also labeled to that effect. Defendant then called his father and,during that call, also spoke with his sister. At trial, over defendant's objection and withoutcurative instructions, County Court allowed the People to play the entire tape-recording of that14-minute call on their direct case. At the jury's request, it was replayed during deliberations. Thejury found defendant guilty of second degree murder and he was sentenced to 25 years to life inprison.
Defendant contends that his statements to his sister should have been suppressed as theproduct of unlawful police interrogation following his invocation of the right to counsel. We donot agree. Under these circumstances, where defendant was put on notice that the telephone call[*2]would be tape-recorded by police, his statements must beconsidered to be spontaneous, and not "the result of 'express questioning or its functionalequivalent' " (People v Harris, 57 NY2d 335, 342 [1982], cert denied 460 US1047 [1983], quoting People v Stoesser, 53 NY2d 648, 650 [1981]; see People vEldridge, 213 AD2d 667, 668 [1995], lv denied 86 NY2d 781 [1995]).
However, for the following reasons, we conclude that the admission into evidence of theentire recording without any redaction, in conjunction with other circumstances at trial,constituted reversible error. Importantly, the recording contains repeated references to defendant'sinvocation of both his right against self-incrimination and his right to counsel. It is well settledthat a defendant's invocation of those rights during custodial interrogation may not be usedagainst him as part of the People's case-in-chief (see People v De George, 73 NY2d 614,618-619 [1989]; People v Conyers, 52 NY2d 454, 458-459 [1981]; People vAl-Kanani, 26 NY2d 473, 478 [1970]). The error was compounded when the People, duringtheir direct case, elicited testimony from a police officer regarding defendant's invocation ofthose rights (see People v Hunt, 18AD3d 891, 892 [2005]), and also when the People, upon cross-examination, questioneddefendant about his prior failure to come forward with an exculpatory version of events, therebyburdening defendant's exercise of his right to remain silent (see People v Conyers, 52NY2d at 458). Although no objection was made to either line of questioning, we cannot ignorethe potential for prejudice (see People vKnowles, 42 AD3d 662, 664-665 [2007]), particularly when considered in conjunctionwith the admission of the recording.
Notwithstanding the fact that County Court provided some curative instructions in its finalcharge to the jury, under all of the circumstances herein, and given that the evidence ofdefendant's guilt presented at the trial was not overwhelming, we are unable to conclude thatthere is no reasonable possibility that the evidence regarding defendant's invocation of his rightscontributed to his conviction (see People v Von Werne, 41 NY2d 584, 588 [1977];People v Knowles, 42 AD3d at 665; People v Hunt, 18 AD3d at 892-893).Accordingly, the judgment must be reversed and the matter remitted for a new trial.
The foregoing conclusion renders defendant's remaining contentions academic.
Carpinello, Rose, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is reversed, onthe law and as a matter of discretion in the interest of justice, and matter remitted to the CountyCourt of Albany County for a new trial.