| People v Rodriguez |
| 2010 NY Slip Op 07792 [77 AD3d 975] |
| October 26, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ronald Rodriguez, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Douglas Noll and Andrea M.DiGregorio of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (St. George,J.), rendered November 12, 2008, convicting him of manslaughter in the second degree andcriminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.The appeal brings up for review the denial, after a hearing (Berkowitz, J.), of that branch of thedefendant's omnibus motion which was to suppress his statements to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant correctly contends in his supplemental pro se brief that the County Courtshould have granted his request to suppress his oral and written statements given to lawenforcement after he was issued Miranda warnings (see Miranda v Arizona, 384US 436 [1966]). "If the individual indicates in any manner, at any time prior to or duringquestioning, that he wishes to remain silent, the interrogation must cease" (id. at 473-474;see People v Ferro, 63 NY2d 316, 322 [1984], cert denied 472 US 1007 [1985]).Moreover, once invoked, the right to remain silent must be "scrupulously honored" (Mirandav Arizona, 384 US at 479; see People v Ferro, 63 NY2d 316 [1984]; People vKinnard, 62 NY2d 910 [1984]). In the event that a suspect invokes his or her right to remainsilent, interrogation must cease and the suspect "may not within a short period thereafter andwithout a fresh set of warnings be importuned to speak about the same suspected crime"(People v Ferro, 63 NY2d at 322; see People v Hernandez, 67 AD3d 703 [2009]). In this case, afterinitially agreeing to speak to the police, the defendant unambiguously and unequivocally invokedhis right to remain silent by, inter alia, stating that he wanted to keep his story to himself (cf.Berghuis v Thompkins, 560 US —, —, 130 S Ct 2250, 2260 [2010]; Peoplev Stanley, 292 AD2d 472 [2002]). Instead of scrupulously honoring the defendant's right toremain silent, the detectives conducting the interview continued to interrogate the defendant,urging him to tell the truth (see People vPearson, 20 AD3d 575 [2005]). Contrary to the defendant's contention, his latervideotaped statement, made after the readministration of Miranda warnings, taken in adifferent location and by a different interviewer from his initial statements, was admissible, as itwas taken after a definite, pronounced break in questioning sufficient to return the defendant tothe status of one who was not under the influence of the illegal questioning (see People v Celleri, 29 AD3d 707[2006]). The evidence of the defendant's guilt, without reference to the tainted statements, wasoverwhelming, and there is no reasonable possibility that the alleged error in admitting thetainted statements might have contributed to the defendant's conviction. Thus, any error washarmless beyond a [*2]reasonable doubt (see People vCrimmins, 36 NY2d 230, 237 [1975]).
The defendant argues that the County Court erred in failing to instruct the jury on the defenseof justification. However, contrary to his contention, the justification defense does not apply tothe charge of criminal possession of a weapon in the third degree (see People v Pons, 68NY2d 264, 266 [1986]; People v Almodovar, 62 NY2d 126, 130 [1984]; People v Johnson, 59 AD3d 638[2009]; People v Smith, 54 AD3d421, 422 [2008]), and no reasonable view of the evidence in this case supported such acharge with regard to manslaughter in the second degree (see People v Cox, 92 NY2d1002 [1998]; People v Butts, 72 NY2d 746 [1988]; People v McManus, 67 NY2d541, 549 [1986]; People v Fermin,36 AD3d 934 [2007]; People vMcGhee, 4 AD3d 485 [2004]; People v Rielly, 190 AD2d 695 [1993]).
The County Court properly declined to give the jury a missing witness charge. The defendantfailed to meet his burden of establishing his prima facie entitlement to a missing witness charge,as there was no evidence that the uncalled witnesses had knowledge of a material issue or couldprovide noncumulative testimony (see People v Gonzalez, 68 NY2d 424, 427 [1986];Buttice v Dyer, 1 AD3d 552 [2003]).
The defendant's remaining contentions are without merit. Prudenti, P.J., Angiolillo, Belenand Sgroi, JJ., concur.