| People v Tavares-Nunez |
| 2011 NY Slip Op 06868 [87 AD3d 1171] |
| September 27, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JuanTavares-Nunez, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Brooke E. Barnes of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.),rendered March 5, 2009, convicting him of criminal sexual act in the first degree andendangering the welfare of an incompetent person, upon a jury verdict, and imposing sentence.The appeal bring up for review the denial, after a hearing (Demakos, J.H.O.), of that branch ofthe defendant's omnibus motion which was to suppress his statement to law enforcementofficials.
Ordered that the judgment is affirmed.
We agree with the defendant that his inculpatory statement to law enforcement officials madebefore the administration of Miranda warnings (see Miranda v Arizona, 384 US436 [1966]) should have been suppressed. The hearing evidence revealed that a police detective,Detective Echeverria, interviewed a witness who informed him that, earlier that day, he hadobserved the defendant, an employee whom he supervised, engaging in oral sexual conduct withan incapacitated resident of the nursing home where the defendant and the witness worked, andthat the defendant had been sent home early due to the incident. Detective Echeverria thenproceeded to the defendant's home, where he identified himself as a detective and advised thedefendant that he "needed to speak" with him. The detective informed the defendant that it was"inappropriate" to speak in the defendant's house, and that he "needed" to speak with thedefendant in the detective's office. The defendant asked the detective what he needed to talk tohim about, and the detective responded that he was a member of the Special Victims Squad andthat he needed to speak to him about an incident that happened at the defendant's place of work.The defendant agreed to accompany Detective Echeverria to the police station and, on the way tothe station, the detective advised the defendant that they would not be talking about the case inthe car. Once Detective Echeverria and the defendant arrived at the police station, the defendantwas placed in an "interview room," and the detective left to gather some paperwork. WhenDetective Echeverria returned, the defendant stated: "we're in your office, what do you want totalk about." Detective Echeverria explained that the defendant was at work that day and that"there was an incident and [the defendant] had to leave early because of this incident and that'swhat [they] would be talking about." The defendant then proceeded to make an inculpatorystatement, apologizing for his conduct.[*2]
Contrary to the People's contention, under the totality ofthe circumstances, the defendant was in police custody at the time he made the inculpatorystatement (see People v Baggett, 57AD3d 1093 [2008]; People vPayne, 41 AD3d 512, 513 [2007]; People v Vachet, 5 AD3d 700 [2004]; see also People vMacklin, 202 AD2d 445, 447 [1994]).
Further, the Supreme Court erred in concluding that the inculpatory statement was admissiblebecause it was spontaneous, and not the result of interrogation or its functional equivalent. "[T]hespecial procedural safeguards outlined in Miranda are required not where a suspect issimply taken into custody, but rather where a suspect in custody is subjected to interrogation"(Rhode Island v Innis, 446 US 291, 300 [1980]). "[T]he term 'interrogation' underMiranda refers not only to express questioning, but also to any words or actions on thepart of the police (other than those normally attendant to arrest and custody) that the policeshould know are reasonably likely to elicit an incriminating response from the suspect"(id. at 301; see People v Ferro, 63 NY2d 316, 322 [1984], cert denied 472US 1007 [1985]; People v Huffman, 61 NY2d 795, 797 [1984]; People v Rivers,56 NY2d 476, 480 [1982]). Statements made in response to such police words or actions areinadmissible in the absence of Miranda warnings (see People v Ferro, 63 NY2d at319).
In contrast, volunteered statements, meaning those that are "self-generated" (People vDunn, 195 AD2d 240, 244 [1994], affd 85 NY2d 956 [1995]) and " 'made withoutapparent external cause,' " are admissible even if the defendant was in custody and unwarned(People v Rivers, 56 NY2d at 480, quoting People v Stoesser, 53 NY2d 648, 650[1981]; see People v Maerling, 46 NY2d 289, 302-303 [1978]; People v Dunn,195 AD2d at 244). For a statement to fall within that category, "the spontaneity has to be genuineand not the result of inducement, provocation, encouragement or acquiescence, no matter howsubtly employed" (People v Maerling, 46 NY2d at 302-303; see People v Rivers,56 NY2d at 479).
While a police officer's brief response to a defendant's query as to the basis of an arrest, orsimilar inquiry, often does not amount to the functional equivalent of interrogation (see e.g. People v Davis, 32 AD3d445, 445-446 [2006]; People v Harrison, 251 AD2d 681, 682 [1998]; People vWest, 237 AD2d 315 [1997]; People v Pryor, 194 AD2d 749, 749-750 [1993]), here,considering the totality of the circumstances leading up to the defendant's statement, we cannotsay that, viewed objectively, the statement was genuinely "self-generated" and not the product of"an external cause" (see People v Stoesser, 53 NY2d at 650). The defendant was told byDetective Echeverria that he "needed" to speak to him, and was twice told that they would notspeak until they reached the detective's office. Once they reached the office, the defendant, whohad already been told that the subject of the interview was an incident that happened at work,observed that they were now in the detective's office and again asked what the detective neededto talk to him about. It is clear that the defendant expected that the interview had begun, and wasnot seeking information as to the general subject of the conversation, having already received thatinformation. In other words, the facts indicated that an interrogational environment existed(see People v Lanahan, 55 NY2d 711, 712 [1981]; People v Stoesser, 53 NY2d at650; cf. People v Bryant, 87 AD2d 873, 874 [1982] ["The record is devoid of any factswhich would tend to indicate that an interrogational environment existed at the time defendant'sstatement was made"], affd 59 NY2d 786 [1983]). Moreover, Detective Echeverria'sstatement to the defendant, explaining that there was an incident at work and that the defendanthad to leave early from work as a result of the incident was not, for example, a mere recitation ofa charge upon arrest. Rather, it revealed to the defendant that the detective had spoken toindividuals at the nursing home, who were aware, one of them having witnessed the incident, ofthe defendant's conduct (cf. People v Lucas, 53 NY2d 678, 680 [1981] [statement notspontaneous where it was made after police officer informed defendant that the District Attorneyhad obtained a statement from his alleged accomplice, accusing him of murder]). Notsurprisingly, the detective's revelation prompted the defendant to apologize for his conduct.
In sum, from an objective standpoint, it was natural for the defendant to have believed thatthe interview with Detective Echeverria had begun and, not having been advised of his right toremain silent or to counsel, to respond to the detective's statement that they were going to talkabout an incident at work that caused him to leave early, with a statement relevant to thatincident. In other words, the detective's explanation and "the atmosphere in which it was uttered"(People v Bryant, [*3]87 AD2d at 874-875), was of sucha nature that the detective should have reasonably anticipated that it would evoke a responsefrom the defendant. Prior to responding to the defendant's statement "we're in your office, whatdo you want to talk about," there was "both time enough . . . and clear reason" togive the defendant Miranda warnings (People v Ferro, 63 NY2d at 323). Becausethe detective failed to do so before engaging in the functional equivalent of interrogation, thedefendant was deprived of his constitutional rights, and the statement should have beensuppressed (see People v Ferro, 63 NY2d 316 [1984]; People v Lucas, 53 NY2dat 680; People v Howard, 47 NY2d 988, 989 [1979], affg 62 AD2d 179 [1978];People v Robinson, 38 AD3d572, 573 [2007]; People v Moore, 96 AD2d 1044, 1044-1045 [1983]).
In addition, although "[t]he nature and proper scope of cross-examination is a mattergenerally left to the sound discretion of the hearing court" (Matter of Andre S., 51 AD3d 1030, 1033 [2008]), here, theSupreme Court improvidently exercised its discretion in preventing defense counsel fromcross-examining Detective Echeverria as to whether the defendant was free to leave the precinctat the time the statement was made. The determination of whether a defendant is in custody at thetime of an interrogation does not turn upon the subjective intent of the police officer (seeUnited States v Mendenhall, 446 US 544, 555 n 6 [1980]; People v Joy, 114 AD2d517, 520 [1985]), but, rather, concerns "what a reasonable person, innocent of any crime, wouldhave thought had he or she been in the defendant's position" (People v Hardy, 77 AD3d 133, 141 [2010]; see People vYukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]). Nevertheless, thesubjective intention of the police officer regarding whether a defendant is free to leave is relevant"insofar as that may have been conveyed to the [defendant]" (United States vMendenhall, 446 US at 555 n 6; see People v Bell, 182 AD2d 858, 859 [1992];People v Joy, 114 AD2d at 520). Thus, defense counsel should have been permitted toexplore whether any intention on the part of the detective to hold the defendant in custody wascommunicated, verbally or otherwise, to the defendant (see generally People v Pearce, 81 AD3d 856, 856 [2011] ["'(e)vidence is relevant if it has any tendency in reason to prove the existence of any material fact'"], quoting People v Scarola, 71 NY2d 769, 777 [1988]).
Nonetheless, we find that these errors were harmless. At trial, the defendant's janitorialsupervisor testified that he had been inspecting one of the floors of the nursing home when henoticed a bucket and mop unattended in the hallway outside a door which was slightly ajar. Hetestified that he looked inside the room and saw the defendant engaging in oral sexual conductwith an incapacitated resident of the nursing home. He then reported the incident to the nursingsupervisor. The two supervisors testified that the defendant admitted to them that he had engagedin oral sexual conduct with the victim. Under these circumstances, the evidence of thedefendant's guilt, without reference to his pretrial statement, was overwhelming, and there wasno reasonable possibility that the error in admitting the statement might have contributed to thedefendant's conviction. Accordingly, the errors were harmless beyond a reasonable doubt (seePeople v Crimmins, 36 NY2d 230, 237 [1975]). Skelos, J.P., Eng, Austin and Miller, JJ.,concur.