| People v Sedunova |
| 2011 NY Slip Op 03268 [83 AD3d 965] |
| April 19, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Natasha Sedunova, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Lori Glachman ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (D'Emic, J.),rendered April 16, 2009, convicting her of manslaughter in the first degree, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branchof the defendant's omnibus motion which was to suppress her videotaped statement.
Ordered that the judgment is reversed, on the law, that branch of the defendant's omnibusmotion which was to suppress her videotaped statement is granted, and the indictment isdismissed, without prejudice to the People to re-present any appropriate charges to another grandjury (see People v Gonzalez, 61 NY2d 633 [1983]; People v Beslanovics, 57NY2d 726 [1982]); and it is further,
Ordered that after service upon him of a copy of this decision and order, the official havingcustody of the defendant's person is directed to produce her, forthwith, before the Supreme Court,Kings County, at which time that court shall issue a securing order pursuant to CPL 470.45,either releasing the defendant on her own recognizance or fixing bail or committing her to thecustody of the New York City Department of Correction pending resubmission of the case to agrand jury and the grand jury's disposition thereof (cf. CPL 210.45 [9]). Such securingorder shall remain in effect until the first to occur of any of the following: (a) a statement to theSupreme Court by the People that they do not intend to resubmit the case to a grand jury, (b)arraignment of the defendant upon an indictment filed as a result of resubmission of the case to agrand jury, (c) the filing with the Supreme Court of a grand jury dismissal of the case followingresubmission thereof, or (d) the expiration of a period of 45 days from the date of this decisionand order, provided that such period may, for good cause shown, be extended by the SupremeCourt, Kings County, to a designated subsequent date if such be necessary to accord the People areasonable opportunity to resubmit the case to a grand jury.
The defendant's contention that the evidence was legally insufficient to disprove herjustification defense beyond a reasonable doubt is unpreserved for appellate review (seeCPL 470.05 [2]; People v Hawkins,11 NY3d 484, 492 [2008]; People vWalker, 78 AD3d 1082, 1083 [2010]; People v Bianco, 51 AD3d 940, 940 [2008]). In any event, viewingthe evidence in the light most favorable to the prosecution (see People v Contes, 60NY2d 620, 621 [1983]), we find that it was legally sufficient to disprove the defendant'sjustification defense (see People vBrooks, 32 AD3d 616, 617 [2006]; People v [*2]Johnson, 281 AD2d 232 [2001]; People v Rose, 215AD2d 875, 876 [1995]). Moreover, upon our independent review of the evidence pursuant toCPL 470.15 (5), we are satisfied that the jury's rejection of the justification defense was notagainst the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
However, we agree with the defendant's contentions that the hearing court should havegranted that branch of her omnibus motion which was to suppress her videotaped statement. Therelevant facts are as follows: On the morning of September 5, 2004, the defendant summoned thepolice to the apartment she shared with her husband. She initially informed them that when sheawoke she found her husband lying face down unconscious on the floor. As part of theirpreliminary investigation, the police transported her to the local precinct station house. At thestation house, prior to the administration of Miranda warnings (see Miranda vArizona, 384 US 436 [1966]), the defendant made several inculpatory statements todetectives during the course of a 20-minute conversation that began at 2:00 p.m. After thedetectives advised the defendant of her constitutional rights at about 2:20 p.m., the defendantcompleted a written statement, which also included inculpatory statements. There is no indicationas to how long it took for the defendant to finish her written statement. At approximately 4:40p.m., the defendant was also interviewed on videotape by an assistant district attorney(hereinafter the ADA) following another administration of Miranda warnings.
Although the hearing court suppressed her statement made prior to the administration ofMiranda warnings and determined that her written statement was inadmissible on theground that it was tainted by her prior unwarned statement, the hearing court also should havesuppressed her videotaped statement. Where, as here, a defendant in custody has madeinculpatory statements without the benefit of Miranda warnings, statements made afterthe administration of Miranda warnings are admissible only if there is a definite,pronounced break in questioning sufficient to return the defendant to the status of one who is notunder the influence of questioning (seePeople v Paulman, 5 NY3d 122, 130-131 [2005]; People v Chapple, 38 NY2d112, 115 [1975]). Given the relatively brief time differential between the Mirandaviolation and the subsequent statements, the evidence indicating that the defendant remainedcontinuously in the presence of the detectives from the time she made her pre-Mirandastatements until the completion of the ADA's videotaped interview, and the fact that thestatements appear to have all been made in the same location, there was no definite pronouncedbreak in the interrogation (see People vCelleri, 29 AD3d 707, 708 [2006]; People v Kollar, 305 AD2d 295, 299-300[2003]).
We further note that the this Court may not review the People's alternative argument that thevideotaped statement was admissible because the hearing court erroneously suppressed thedefendant's statement made prior to the administration of Miranda warnings (seeCPL 470.15 [1]; People v LaFontaine, 92 NY2d 470, 474 [1998]; People vGoodfriend, 64 NY2d 695, 697-698 [1984]).
Moreover, the erroneous admission of the defendant's videotaped statement was notharmless. Here, the evidence of the defendant's guilt without regard to the error was notoverwhelming, as the videotaped statement was a primary part of the People's case (seePeople v Crimmins, 36 NY2d 230, 237 [1975]; People v Kollar, 305 AD2d at 300).
As the defendant was acquitted of murder in the second degree, double jeopardy precludes aretrial on that count of the indictment (see People v Gonzalez, 61 NY2d at 635).Moreover, since the defendant was convicted of manslaughter in the first degree as alesser-included offense of the murder count of the indictment, the indictment should bedismissed with leave to the People to re-present any appropriate charges to another grand jury(id. at 634; see People v Beslanovics, 57 NY2d at 727).
In light of our determination, we need not reach the defendant's remaining contentions.Mastro, J.P., Angiolillo, Balkin and Sgroi, JJ., concur. [Prior Case History: 22 Misc 3d1133(A), 2009 NY Slip Op 50413(U).]