| People v Guilford |
| 2012 NY Slip Op 04475 [96 AD3d 1375] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James E.Guilford, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered May27, 2008. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]) based on the charge that he killedthe victim on or around February 6, 2007. The victim was the ex-girlfriend of defendant wholived with him in Syracuse and was the mother of his children. Within days after the victim'sdisappearance, defendant took the children to Georgia to stay with his mother. Detectives fromthe Syracuse Police Department (SPD) traveled to Georgia and interviewed defendant there onFebruary 20, 2007. Defendant returned to Syracuse on March 20, 2007, and was interrogated bySPD detectives over a period of 49 hours. Near the end of the interrogation, defendant told thedetectives that he wanted an attorney and that he wanted to speak with the Assistant DistrictAttorney. An attorney was appointed for defendant and, after meeting with his attorney as well asa break in the interrogation, defendant made statements to the detectives in the presence of hisattorney on March 23, 2007.
We reject defendant's contention that County Court erred in refusing to suppress thestatements that he made to SPD detectives in Georgia on February 20, 2007. According to thedecision of the suppression court, even assuming, arguendo, that defendant was in custody, thecourt determined that he knowingly and voluntarily waived his Miranda rights beforespeaking with the detectives. The evidence presented at the suppression hearing supports thatdetermination (see People v Sands,81 AD3d 1263, 1263 [2011], lv denied 17 NY3d 800 [2011]). We further agree withthe court that defendant's statement, "[w]hen I asked them if I needed to speak to an attorney,they just made it seem like I couldn't get one at that time" was not an unequivocal request forcounsel (see generally People v Hicks, 69 NY2d 969, 970 [1987], rearg denied 70NY2d 796 [1987]).
We reject defendant's further contention that the court erred in refusing to suppress the [*2]statements that he made to SPD detectives in Syracuse on March23, 2007. The court suppressed the statements that defendant made during the preceding 49-hourinterrogation. The court held that, although defendant was advised of his Miranda rights,under the totality of the circumstances the People did not meet their burden of proving thatdefendant's statements made during "this unprecedented and lengthy period were voluntary"beyond a reasonable doubt. We concur with the court that the length of the interrogation wasunparalleled and should in no way be condoned. With respect to the March 23, 2007 statements,however, the court determined that they were admissible because there was an eight-hour"definite, pronounced break" between the 49-hour interrogation and those statements. The courtexplained that any taint from the prior interrogation was dissipated by the break in theinterrogation, by the assignment of an attorney and opportunities to consult with that attorneybefore the March 23, 2007 statements were made, by defendant's removal from the interrogationroom and his opportunity to sleep the remainder of the night before being arraigned, and bydefendant's having made the statements in question while speaking with the detectives thefollowing morning in the presence of his attorney. We agree. In particular, we note that, once anattorney was appointed for defendant and defendant had the opportunity to consult with theattorney before again speaking with the detectives, in the presence of his attorney, it cannot besaid that the statements were involuntary or the "product of compulsion" (Miranda vArizona, 384 US 436, 466 [1966]).
Defendant failed to preserve for our review his contention that he was denied a fair trial byprosecutorial misconduct (see People vMilton, 90 AD3d 1636, 1637 [2011]) and, in any event, that contention is without merit.Any alleged misconduct was not so egregious as to deny defendant a fair trial (see People v Pringle, 71 AD3d1450, 1450-1451 [2010], lv denied 15 NY3d 777 [2010]; People v Foster, 59 AD3d 1008,1009 [2009], lv denied 12 NY3d 816 [2009]). Defendant further contends that hereceived ineffective assistance of counsel because his attorney should not have allowed him togive a statement to the detectives. Defense counsel was not ineffective, however, for making a"strategic decision to encourage defendant to cooperate in order to receive favorable treatment"(People v Carncross, 14 NY3d319, 332 [2010]). Indeed, the evidence at the suppression hearing established that defendantwanted to "cut a deal" and was in fact offered a sentence cap if he cooperated. We have reviewedthe remaining instances of alleged ineffective assistance of counsel raised by defendant andnevertheless conclude that he received meaningful representation (see People v Baldi, 54NY2d 137, 147 [1981]).
Centra and Sconiers, JJ., concur; Scudder, P.J., concurs in the following memorandum.
Scudder, P.J. (concurring). I agree with the majority that County Court properly refused tosuppress defendant's inculpatory statements made in the presence of counsel. I write separately,however, to clarify that, in my view, those statements are voluntary not only because they weresufficiently attenuated from statements determined to be involuntary (see generally People v Paulman, 5NY3d 122 [2005]; People v Bethea, 67 NY2d 364 [1986]; People v Chapple,38 NY2d 112 [1975]), but also, independently of the attenuation, because they were madefollowing consultation with his counsel and in the presence of his counsel.
I am mindful of People vConcepcion (17 NY3d 192 [2011]) and note that my analysis does not improperlyrecommend that we affirm the court's suppression ruling on a ground rejected by the suppressioncourt, or on a ground upon which it ruled in defendant's favor (cf. id. at 196; seegenerally People v LaFontaine, 92 NY2d 470, 474 [1998]). Indeed, Concepcion andLaFontaine are "only implicated when an appellate court affirms a case on a ground thatwas not decided adversely to the [defendant] at the trial level" (Concepcion, 17NY3d at 197). Here, the court explicitly addressed defendant's opportunities to consult withcounsel prior to making the statements and noted that the statements were made with the benefitof the assistance of counsel. Thus, I submit that, as part and parcel of its decision that thestatement was voluntary, the court implicitly determined that the assistance of counsel renderedthe statement voluntary, and thus [*3]decided that issue adverselyto defendant.
Although defendant was required to endure 49 hours of interrogation, he neverthelesseventually invoked his right to counsel, whereupon the police ceased the interrogation. Defendantconferred with his assigned attorney for a period of two hours that evening and for approximately15 minutes the following morning before again speaking to the police. With his counsel present,defendant told the police, "I killed her" and that he had placed the victim's body in a dumpster.
More than 50 years ago, the Supreme Court reiterated that "basic rights that are enshrined inour Constitution [are] that 'No person . . . shall be compelled in any criminal case tobe a witness against himself,' and that 'the accused shall . . . have the Assistance ofCounsel' " (Miranda v Arizona, 384 US 436, 442 [1966]). The Court established"procedural safeguards . . . to secure the privilege against self-incrimination"(id. at 444), in order to ensure that the right "to remain silent . . . or to speakwithout intimidation, blatant or subtle," (id. at 466) is not "put in jeopardy. . . through official overbearing" (id. at 442). The Miranda Courtwas clear: "[t]he presence of counsel . . . would be the adequate protective devicenecessary to make the process of police interrogation conform to the dictates of the privilege[against self-incrimination]. His [or her] presence would insure that statements made in thegovernment-established atmosphere are not the product of compulsion" (id. at 466). "Thepresence of counsel confers no undue advantage to the accused. Rather, the attorney's presenceserves to equalize the positions of the accused and sovereign, mitigating the coercive influence ofthe State and rendering it less overwhelming" (People v Rogers, 48 NY2d 167, 173[1979]). Here, defendant exercised his right to counsel and thereby safeguarded his right toremain silent or to speak without intimidation (see Miranda, 384 US at 466), and thus thecourt properly determined that defendant's statements were voluntary.
Lindley and Martoche, JJ., dissent and vote to reverse in accordance with the followingmemorandum.
Lindley and Martoche, JJ. (dissenting). We respectfully dissent. We agree with the majoritythat County Court properly refused to suppress the statements by defendant in Georgia todetectives from the Syracuse Police Department (SPD). We also agree with the majority that thecourt properly suppressed the statements made by defendant during his interrogation that lastedfrom 11:30 p.m. on Friday, March 20, 2007 to 1:00 a.m. on Monday, March 23, 2007, a total of49½ hours. We disagree with the majority, however, that the subsequent statements madeby defendant eight hours later on March 23 were voluntarily made and thus admissible becausethere had been a break in the interrogation and because defendant had been assigned an attorneyat his request, and was given the opportunity to consult with the attorney before making thesubsequent statements to the detectives, in the presence of his attorney.
On February 8, 2007, defendant filed a missing person report regarding his ex-girlfriend andthe mother of his three children. Although the relationship had ended, defendant and hisex-girlfriend were still living together and, immediately after making the missing person report,defendant left Syracuse to move to Georgia with the children. In the course of the investigationregarding the missing person report, the police identified defendant as a suspect in thedisappearance. On February 19, detectives from the SPD traveled to Georgia to speak withdefendant. Defendant voluntarily accompanied the detectives to a sheriff's station house inGeorgia, where he executed a Miranda waiver at 10:35 a.m. on February 20 and wasquestioned until 6:30 a.m. on February 21. In the course of that interrogation, defendant signed aconsent-to-search form for his vehicle and took a polygraph examination. He also consented to aDNA swab test.
Shortly thereafter, defendant moved back to Syracuse. On March 20, defendant agreed to[*4]speak to the SPD detectives and was taken to the SPD'sCriminal Investigation Division (CID). There, rotating teams of detectives interrogated defendantbetween March 20, 2007 at 11:30 p.m. and March 23, 2007 at 1:00 a.m. At the onset of theinterrogation, defendant was advised of, and waived, his Miranda rights. One of theinterrogating officers testified that, during the course of the 49½-hour interrogation,defendant was allowed to sleep "in the chair, on the floor, whatever he wanted to do," and wouldhave had a blanket "if he had asked for one." Nevertheless, the court credited defendant'stestimony at the suppression hearing that he never slept during that interrogation. Also during thecourse of that interrogation, defendant made numerous statements suggesting that he wasinvolved in the disappearance of his ex-girlfriend. For example, in the early morning hours ofMarch 21, he stated, "it makes me look guilty doesn't it?" Slightly later that morning, he stated,"I'm f. . .ed" and, "[i]f I were you guys, I wouldn't let me go." In the early morninghours of March 22, defendant made the following statements: "[I]t's hard as f[ ]," and "I'm gonnago to jail." Later that morning, he expressed his desire to go to jail and to kill himself. Finally, atabout 8:30 p.m. on March 22, the lead detective who supervised the interrogation informeddefendant that he would be charged with murder. According to the detective's hearing testimony,defendant told the detective that he wanted to "cut a deal basically to tell us where her body was"as long as the detective obtained an attorney for defendant and allowed him to speak to theAssistant District Attorney (ADA) with whom he had previously spoken. That ADA had spokento defendant for 45 minutes at about 7:30 p.m. on March 22. The ADA testified that hisconversation with defendant was a "last effort . . . to get him to open up." The ADAleft when his "last effort" appeared unavailing, but he shortly thereafter received a telephone callfrom the detective requesting that he return and make arrangements for defendant to obtaincounsel.
The ADA thereupon advised defense counsel that, if defendant revealed the location of thebody, his sentence would be capped at a term of incarceration of 18 years to life. Defense counselspoke to defendant, and then informed the SPD that defendant would not speak to them anyfurther that night. Defendant was booked and placed in a holding cell at approximately 1:30 a.m.on March 23 and, following his arraignment in the morning, he returned to the SPD.
Defense counsel testified that he was not told how long defendant had been interrogated andwas not shown any police reports. He further testified that defendant appeared "emotional anddistraught," although he could not recall whether defendant appeared fatigued. Defendanttestified that he offered to make a written statement after he told the police that he was so tiredthat he would sign anything they wrote. Immediately after defendant's arraignment at 9:30 a.m.on March 23, defendant advised defense counsel that he wanted to speak to the police and waswilling to reveal the location of the body. He was then returned to the CID and was placed in thesame room where he had been previously interrogated for 49½ hours. The lead detectivequestioned defendant in the presence of the ADA and defense counsel and, when the leaddetective asked, "What happened?" defendant responded, "I killed her."
Defendant moved to suppress, inter alia, all statements made in Georgia and in Syracuse,between March 20 and March 23, 2007. The suppression court concluded that the statementsmade to the SPD detectives in Georgia were admissible because defendant had knowingly andvoluntarily waived his Miranda rights and was not in custody. The suppression courtfurther concluded that the statements made by defendant during the course of the 49½-hourinterrogation between 11:30 p.m. on March 20, 2007 and 1:00 a.m. on March 23, 2007 weremade involuntarily and were inadmissible at trial. Specifically, the court determined that thePeople failed to meet their burden of proving that the statements "made during thisunprecedented and lengthy period" were voluntarily made beyond a reasonable doubt, citingGreenwald v Wisconsin (390 US 519 [1968]). The suppression court further determined thatthose statements "were obtained in violation of Miranda rights; were made involuntarilyin the 'traditional due process' and in [*5]contravention of CPL [ ]60.45," and could not be used against defendant at trial.
The suppression court further determined, however, that the statements made by defendanton March 23 after his arraignment were admissible because the statements were voluntarilymade. The suppression court determined that any taint from the 49½-hour interrogation hadbeen dissipated by "the break in interrogation; the assignment of counsel and opportunities toconsult with that counsel; and by Defendant's removal from the interrogation room andopportunity to sleep for the remainder of the night before being arraigned and returning to speakwith police in the presence of counsel the next morning." The court concluded that the roughlyeight-hour break was sufficient to attenuate any taint from the prior 49½-hour interrogationand that the statements were not obtained as a result of a continuous chain of events.
Preliminarily, we note that the People contend that defendant failed to preserve for ourreview his challenge to the legal standard to be applied on the ground that defendant failed toraise that challenge before the suppression court. We reject the People's contention for theobvious reason that defendant could hardly have been expected to predict the legal standard thatthe court would apply in its decision. With respect to the merits of his challenge to the legalstandard applied by the court, however, we conclude that there is no appreciable differencebetween the standard that he would urge upon this Court and that applied by the suppressioncourt. The suppression court ruled that the taint from the initial circumstances of theinterrogation was dissipated by the break in the interrogation, and by the assignment of counseland the presence of counsel when defendant made the subsequent statements that were ruledadmissible. In our view, the court's analysis properly considered the standards of the federal "fruitof the poisonous tree" cases relied upon by defendant (see e.g. Oregon v Elstad, 470 US298, 305-308 [1985]).
The suppression court and the majority conclude that two key factors attenuated defendant'sclear admission of guilt from his prior 49½-hour interrogation, i.e., the break in theinterrogation and the assignment and presence of counsel. In our view, under the circumstancesof this case neither of those factors is sufficient to create an adequate attenuation.
We begin our analysis with a discussion of the 49½-hour continuous interrogationconducted by rotating teams of police officers. The interrogation occurred inside a locked roomthat was 10 feet by 10 feet. Except for bathroom breaks, during which defendant wasaccompanied by a detective, defendant spent the entire 49½-hour period in the interrogationroom. As the suppression court stated in its findings of fact, the only food consumed bydefendant during his continuous interrogation was a single sandwich, which he consumed earlyin the evening on March 21. That was approximately 20 hours after he was taken into custodyand 40 hours before he confessed on the morning of March 23, a point that bears emphasis. Fromearly Saturday evening to Monday morning when he confessed, defendant ate not a morsel offood.
In addition, as the suppression court further stated in its findings of fact, there is no evidencethat defendant slept during his 49½ hours in the interrogation room. In fact, the People,who as noted had the burden of proving the voluntariness of defendant's statements beyond areasonable doubt (see People v Rosa, 65 NY2d 380, 386 [1985]), offered no evidencethat defendant slept while he was in the holding cell awaiting arraignment. The suppression courtset forth in its findings of fact that defendant had an "opportunity to sleep" in the holding cell, butthere was no evidence adduced at the hearing that defendant actually slept or that the conditionsin the holding cell were such that it was even possible for defendant to sleep. Thus, it appearsthat defendant may have been awake for 50 hours immediately preceding his confession. Thatdoes not take [*6]into account the fact that defendant was pickedup by the police at 10:30 p.m. on March 20 and probably had been awake for quite some time onthat day (see People v Anderson, 42 NY2d 35, 39 [1977] ["As (defendant) had beentransported to police headquarters an hour after midnight, his hours in the interrogation roommust be added to those which had elapsed since the time he had arisen from his bed on themorning of the day before"]).
In Ashcraft v Tennessee (322 US 143 [1944]), Justice Black, writing for a majority ofthe United States Supreme Court, considered the admissibility of a confession made following acontinuous 36-hour interrogation conducted by rotating teams of police officers. The Courtconcluded that the interrogation was "so inherently coercive that its very existence isirreconcilable with the possession of mental freedom by a lone suspect against whom its fullcoercive force is brought to bear" (id. at 154). The Court continued, "It is inconceivablethat any court of justice in the land, conducted as our courts are, open to the public, would permitprosecutors serving in relays to keep a defendant witness under continuous cross[-]examinationfor thirty-six hours without rest or sleep in an effort to extract a 'voluntary' confession"(id.). We recognize that Ashcraft predates the seminal ruling of the United StatesSupreme Court in Miranda v Arizona (384 US 436 [1966]) and that, here, defendant, asfound by the suppression court, waived his right to counsel. Thus, defendant and the suspect inAshcraft were not in identical situations, given that the suspect in Ashcraft wasnot afforded the opportunity to have counsel present at his questioning. Despite that distinction,we note the Court's condemnation of a lengthy and continuous interrogation.
Indeed, research has shown that the possibility of a false confession increases based on thesetting and length of the interrogation (see Gutierrez, You Have The Right To [PleadGuilty]: How We Can Stop Police Interrogators From Inducing False Confessions, 20 S CalRev L & Social Justice 317 [Spring 2011]). In fact, as noted in the above-referenced article, in astudy of 125 confessions proven to be false, the mean interrogation time was 16.3 hours, which issubstantially longer than the 4-hour interrogation time that is otherwise recommended(id. at 338-339). As the author notes, "the long interrogation time combined withisolation, hunger, and sleep deprivation can lead to false confessions" (id. at 339). Evenin the post-Miranda cases, the United States Supreme Court has "consistently indicatedthat the Due Process inquiry must focus on the propriety of the interrogation methods, not thereliability of the particular confession" (White, What Is An Involuntary ConfessionNow?, 50 Rutgers L Rev 2001, 2022 [Summer 1998]).
While the majority concludes, as do we, that the 49½-hour continuous interrogationconducted here offends basic principles of due process, we part ways with respect to whether "theconnection between the lawless conduct of the police and the discovery of the challengedevidence has 'become so attenuated as to dissipate the taint' " (Wong Sun v United States,371 US 471, 487 [1963]; see People v Stith, 69 NY2d 313, 317-318 [1987]; People vRogers, 52 NY2d 527, 532-533 [1981], rearg denied 54 NY2d 753 [1981], certdenied 454 US 898 [1981], reh denied 459 US 898 [1982]). With respect to theapproximately eight-hour "break" in interrogation, the issue is whether "a definite, pronouncedbreak in the interrogation . . . may be said to have returned [the defendant], ineffect, to the status of one who is not under the influence of questioning" (People vChapple, 38 NY2d 112, 115 [1975]). In our view, the relatively brief "break" ininterrogation, following a continuous 49½-hour interrogation, was not sufficient to returndefendant to the status of one who is not under the influence of questioning. We consider notonly the extraordinary and draconian length of the interrogation, but we also consider the factthat defendant may have believed himself "so committed by a prior statement that he [felt] boundto make another" (People v Tanner, 30 NY2d 102, 106 [1972]). In United States vBayer (331 US 532, 540 [1947], reh denied 332 US 785 [1947]), the United StatesSupreme Court discussed that latter theory as follows: "[A]fter an accused has once let the cat outof the bag by confessing, no matter what the inducement, he is never thereafter free of the [*7]psychological and practical disadvantages of having confessed. Hecan never get the cat back in the bag. The secret is out for good."
Although defendant did not directly inculpate himself in his statements during the49½-hour interrogation, there is no question that he made statements that were indicative ofhis involvement in the crime. Notably, his final statement at the end of the 49½ hours ofinterrogation was, "I'll give everybody what they want [in exchange for a plea deal and anattorney]," a statement that strongly suggests that defendant believed that he had no choice but toconfess to the crime in order to receive a favorable plea deal and an attorney. In our view, thepolice exploited defendant's lengthy detention in such a way that it can be said to have"produced" his later inculpatory statements (Rogers, 52 NY2d at 535). This is not a casein which the defendant was released from the strictures of an interrogation during which he madeno inculpatory remarks, and then made a "subsequent unprompted decision to make a statement"(People v Kinnard, 62 NY2d 910, 912 [1984]; see People v Dunn, 83 AD3d 1421 [2011], lv denied 17NY3d 794 [2011]). As the United States Supreme Court noted in Ashcraft, persistentquestioning, continuing hour after hour by relays of officers, along with the deprivation of sleep,"is the most effective torture and certain to produce any confession desired" (Ashcraft,322 US at 150 n 6 [internal quotation marks omitted]).
The relatively brief break afforded to defendant after he essentially agreed to confess to thecrime did not provide defendant with any freedom. Instead, he remained in his holding cellbefore he was taken to City Court for arraignment, whereupon he was immediately questioned byone of the same detectives who was involved in the 49½-hour interrogation. As noted, thereis no evidence that defendant was provided food or that he slept during the eight hours he was inthe holding cell. Under the circumstances, that "break" could hardly have "attenuated"defendant's statements immediately following arraignment from the prior coercive andextraordinarily lengthy interrogation.
We also reject the majority's reliance on the fact that counsel was present when defendantmade his directly inculpatory statements. First, although defendant was represented by counselduring his post-arraignment statements, defendant was given comparatively little time to speak todefense counsel and in fact testified that he was concerned that the attorney was a disguisedpolice officer, a suspicion that, given the rotating teams of police interrogators during the49½-hour period, appears somewhat reasonable. There is no indication in the record thatdefense counsel was aware of the length of the interrogation and the fact that defendant had madeimplicitly inculpatory statements.
In addition, the presence of counsel did nothing to improve defendant's cognitivefunctioning, which necessarily was adversely affected by the prolonged lack of food and sleep."The potential effect on human beings of the lack of such elemental needs as sleep andsustenance requires no elaboration. Case law repeatedly has emphasized the vital effect that theresultant 'slowly mounting fatigue' may be expected to have on a person's judgment and will"(Anderson, 42 NY2d at 40, quoting Spano v New York, 360 US 315, 320 [1959],remittitur amended 7 NY2d 729 [1959]; see Greenwald, 390 US at 521[defendant had no food for 12 hours while in custody]; Sims v Georgia, 389 US 404, 407[1967] [defendant had no food for eight hours while in custody]).
As Justice Brennan and two other dissenters noted in a slightly different context inMcMann v Richardson (397 US 759, 778 [1970, Brennan, J., dissenting]), we shoulddecline to "attach talismanic significance to the presence of counsel" where otherwise coercivepressures have been brought to bear upon a defendant. Certainly, the presence of counsel duringhis post-arraignment interrogation is a factor to be considered, but we conclude that the presenceof counsel alone [*8]cannot, following a 49½-hourcontinuous interrogation proceeded by a brief break nullify the coercive effect of the priorinterrogation. We agree with the reasoning of the Supreme Court of Iowa, as follows:"Consultation with an attorney would not insulate defendant from the psychologicalconsequences of the promises made" to him (State v Kase, 344 NW2d 223, 226 [1984]).
In our view, the specific circumstances of this case militate strongly in favor of suppressionof the statements that followed the 49½-hour interrogation. In Anderson (42 NY2d35), the Court of Appeals considered the involuntariness of a confession under the totality of thecircumstances and looked at the following factors: the length of the continuous interrogation (19hours), the deprivation of sleep during that period, the use of rotating teams of officersconducting prolonged and persistent questioning, and the isolation of defendant from friends andfamily during that period (id. at 39-40). The only factor in Anderson thatdistinguishes it from this case is that the defendant in Anderson was not made aware ofhis right to counsel until the interrogation had been underway for 13 hours. Again, while weagree that the waiver of Miranda rights and the ultimate presence of an attorney arefactors to be considered in determining the voluntariness of a confession, we conclude that theydo not outweigh all of the other factors considered in Anderson.
Finally, we consider whether the failure to suppress defendant's confession constitutesharmless error. Confessions " 'are probably the most probative and damaging evidence' that canbe introduced against the defendant" (People v Carmona, 82 NY2d 603, 614 [1993]).That does not mean, however, that the admission of an inadmissible confession can never beharmless error. Here, there was significant circumstantial evidence implicating defendant in thecrime. We cannot conclude, however, that there is no reasonable probability that the confessioncontributed to his conviction (cf. id. at 614-615; People v Watson, 90 AD3d 1666, 1667 [2011]). We conclude,therefore, that defendant's statements made on March 23 immediately following his arraignmentshould have been suppressed, and we would grant a new trial. Present—Scudder, P.J.,Centra, Lindley, Sconiers and Martoche, JJ.