| People v Engelhardt |
| 2012 NY Slip Op 02726 [94 AD3d 1238] |
| April 12, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Melissa S.Engelhardt, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Chemung County (Buckley,J.), rendered December 6, 2010, convicting defendant following a nonjury trial of the crime ofmanslaughter in the first degree.
In November 2009, police responded to defendant's residence after it was reported that her21-month-old stepson was found dead in his playpen. Defendant initially told police that whenthe infant arrived at her home on the day prior to his death, he was tired and had no appetite, butnothing unusual had occurred and it appeared to her that his death was the result of naturalcauses. Later, it was determined that the child's death was, in fact, caused by methanol poisoningand that traces of methanol were found on his drinking cup. During the ensuing investigation,police, with defendant's consent, took a computer from her home, conducted a forensicexamination on its hard drive and determined that an Internet search on poisoning had beenperformed on the computer shortly before the child's death. When the police again contacteddefendant, she refused to submit to any additional questioning about the child's death and statedthat her mother had told her that she was represented by Legal Aid.
The next day, defendant telephoned the detective in charge of the investigation, stated thatshe was, in fact, not represented by counsel and was willing to go to police headquarters toanswer additional questions concerning her stepson's death. At police headquarters, defendant[*2]was advised of her Miranda rights, waived them and,during the interview that followed, ultimately admitted to police that she had laced her stepson'sapple juice with windshield washer fluid shortly before he drank it on the night prior to his death.Based on this admission and other evidence developed by the police during their investigation,defendant was arrested and was later charged by indictment with murder in the second degreeand manslaughter in the first degree.
After defendant's motion to suppress was denied, County Court, in a nonjury trial, acquittedher of murder, but found her guilty of manslaughter in the first degree. Defendant wassubsequently sentenced to 20 years in prison and five years of postrelease supervision. She nowappeals, arguing that it was error not to suppress the statements she made to the police and thather sentence was harsh and excessive.
Defendant initially argues that County Court erred in denying her motion to suppressbecause, when she made her statement regarding the windshield washer fluid, she was in policecustody and had exercised her right to counsel. The "right to counsel indelibly attaches when anuncharged individual . . . , while in custody, has requested a lawyer in thatmatter" (People v Dashnaw, 85AD3d 1389, 1390 [2011], lv denied 17 NY3d 815 [2011] [internal quotation marksand citations omitted]; see People vLopez, 16 NY3d 375, 380 [2011]). The threshold question that first must be answered iswhether defendant was in police custody when she made the statements she sought to suppress.An individual's custodial status is dependent upon a number of factors, but the inquiry essentiallydistills to whether a reasonable person in the defendant's position, "innocent of any crime, wouldhave felt free to leave" police headquarters at the time he or she was being questioned (Peoplev Harris, 48 NY2d 208, 215 [1979]; see People v Paulman, 5 NY3d 122, 129 [2005]; People v McCoy, 89 AD3d 1218,1219 [2011]; People v Rhodes, 83AD3d 1287, 1288 [2011]).
Here, defendant acknowledges that she was not represented by counsel when she arrived atpolice headquarters and admits telling the police that she "wanted to come down and talk" aboutthe circumstances surrounding her stepson's death. She went to police headquarters voluntarilyand, while there, was not restrained or restricted in any way prior to telling the police that she putwindshield washer fluid in her stepson's drinking cup. In addition, prior to being questioned,defendant was again advised of her Miranda rights, waived them and only then wasinterviewed concerning the circumstances surrounding her stepson's death. Also, while beingquestioned, defendant was allowed to leave the interview room to speak with her mother, whohad accompanied her to police headquarters, and later left police headquarters with her mother toget something to eat. Only after the two women were gone for some 40 minutes did they returnand, once again, prior to being questioned, defendant was advised of her Miranda rightsand agreed to waive them. It was at that point in the interview that defendant ultimately admittedplacing an ounce of windshield washer fluid in her stepson's drinking cup. Based on these facts,we agree with County Court that defendant was not in police custody at the time she made thisstatement and her motion to suppress was properly denied (see People v Davis, 75 NY2d517, 523 [1990]; People v Casey, 37AD3d 1113, 1115 [2007], lv denied 8 NY3d 983 [2007]; People v Strong, 27 AD3d 1010,1012 [2006], lv denied 7 NY3d 763 [2006]).
Moreover, even if defendant were in custody, her right to counsel would not have attachedunless and until she stated unequivocally to the police that she was represented by counsel orasked that she be provided with legal representation before answering any further questionsregarding her stepson's death (see People v Glover, 87 NY2d 838, 839 [1995]). In thatregard, defendant claims that she made such a request when she stated while being questioned, "I[*3]don't want you to be mad at me, but I'm thinking about callinga lawyer." However, the fact that she told the police that she was contemplating contacting alawyer is not tantamount to declaring that she had a lawyer or wanted one to represent her. Sucha statement does not constitute an unequivocal assertion of her right to counsel and did not serveto invoke that right while she was being questioned by the police (see People v Davis,193 AD2d 1142 [1993]; People v Hart, 191 AD2d 991, 992 [1993], lv denied 81NY2d 1014 [1993]; People v Lattanzio, 156 AD2d 757, 759-760 [1989], lvdenied 76 NY2d 860 [1990]).
Finally, defendant's sentence was not harsh or excessive. As County Court appropriatelynoted, its decision to impose a substantial prison sentence, which was less than the maximum,was based primarily on the fact that defendant was criminally responsible for the death of a21-month-old child who had been entrusted to her care. In our view, extraordinary circumstancesdo not exist that would warrant that the sentence be reduced (see People v Hartman, 86 AD3d 711, 713 [2011], lv denied18 NY3d 859 [2011]; People vFlint, 66 AD3d 1245, 1246 [2009]).
Spain, J.P., Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.