| People v Jin Cheng Lin |
| 2013 NY Slip Op 02267 [105 AD3d 761] |
| April 3, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jin Cheng Lin, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Karen Wigle Weiss of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lasak, J.), rendered July 14, 2008, convicting him of murder in the first degree (sixcounts), murder in the second degree (six counts), burglary in the first degree, andattempted robbery in the first degree, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing (Eng, J.), of that branch of thedefendant's omnibus motion which was to suppress his statements to law enforcementofficials.
Ordered that the judgment is modified, on the law, by vacating the convictions ofmurder in the second degree, vacating the sentences imposed thereon, and dismissingthose counts of the indictment; as so modified, the judgment is affirmed.
The hearing court properly denied that branch of the defendant's omnibus motionwhich was to suppress his statements to law enforcement officials. Approximately 28hours elapsed between the time the police arrested the defendant and the time thedefendant made the statement sought to be suppressed. While an undue delay inarraignment is properly considered when assessing the voluntariness of a defendant'sconfession, a delay in arraignment alone does not warrant suppression, as it is but onefactor in assessing the voluntariness of a confession (see People v Ramos, 99NY2d 27, 35 [2002]; People vDeCampoamor, 91 AD3d 669, 671 [2012]; People v Williams, 53 AD3d 591, 592 [2008]; see alsoPeople v Williams, 297 AD2d 325 [2002]). The record does not support thedefendant's claim that the police unnecessarily delayed his arraignment. Here, the delayin arraigning the defendant was attributable to the time it took the police to conduct athorough investigation and not to a strategically designed plan to permit the defendant tobe questioned outside the presence of counsel (see People v Williams, 297 AD2d325 [2002]; People v Irons, 285 AD2d 383 [2001]).
Moreover, the record supports the hearing court's finding that the defendantunderstood the import of the Miranda warnings (see Miranda v Arizona,384 US 436 [1966]) given to him (see People v Madrid, 52 AD3d 530, 531 [2008]; Peoplev Zadorozhnyi, 267 AD2d 263, 264 [1999]; People v Alexandre, 215 AD2d488 [1995]). Further, the defendant was provided with food, water, cigarettes, access to abathroom, and the opportunity to rest in between questioning sessions. Nothing in therecord suggests that physical force was used or threatened (see People v Mateo, 2NY3d 383 [2004], cert denied [*2]542 US 946[2004]; People v Petronio,34 AD3d 602 [2006]; People v Miles, 276 AD2d 566 [2000]; cf. Peoplev Anderson, 42 NY2d 35 [1977]). Accordingly, our "review of the totality of thecircumstances demonstrates that the defendant's statement[s] w[ere] voluntarily made"(People v Winkfield, 90AD3d 959, 960 [2011]; seePeople v Seabrooks, 82 AD3d 1130, 1130-1131 [2011]).
Contrary to the defendant's contention, and our dissenting colleague's position, thetrial court did not improvidently exercise its discretion in precluding the defendant fromintroducing into evidence at trial a videotape of an interview conducted by an AssistantDistrict Attorney from the Queens County District Attorney's Office on May 16, 2005.Trial courts are accorded wide discretion in making evidentiary rulings. However, "[a]court's discretion in evidentiary rulings is circumscribed by the rules of evidence and thedefendant's constitutional right to present a defense" (People v Carroll, 95 NY2d375, 385 [2000]). Nonetheless, the "right to present a defense does not give criminaldefendants carte blanche to circumvent the rules of evidence" (People v Hayes, 17 NY3d46, 53 [2011], cert denied 565 US —, 132 S Ct 844 [2011] [internalquotation marks omitted]). Indeed, a trial court has the discretion to exclude evenrelevant evidence if its probative value is outweighed by risks such as "undue prejudiceto the opposing party, confusing the issues or misleading the jury" (People v Aziziandavidi, 100AD3d 765 [2012] [internal quotation marks omitted]). Evidence of " 'slight, remoteor conjectural significance' will ordinarily be insufficiently probative to outweigh thesecountervailing risks" (People v Primo, 96 NY2d 351, 355 [2001], quotingPeople v Feldman, 299 NY 153, 169-170 [1949]). In the instant matter, we agreewith the trial court's determination, in effect, that the videotape's probative value wasoutweighed by potential prejudice to the People. Although the defendant claimed that thepurpose of admitting the videotape was to demonstrate his appearance and demeanorfollowing multiple days of interrogation, his physical appearance on the videotape didnot have any relevance to a material issue. It did not show that the defendant wassubjected to any coerciveness on the part of the police. Moreover, the trial court's offer tohave the jury view a still photograph culled from the videotape permitted the defendant ameaningful method by which to present to the jury his physical appearance on May 16,2005.
However, under the circumstances of this case, as the People correctly concede, theconvictions of murder in the second degree, and the sentences imposed thereon, must bevacated, and those counts of the indictment dismissed, because those charges areinclusory concurrent counts of the convictions of murder in the first degree (see People v Howard, 92AD3d 1219, 1220 [2012]; People v Villafane, 48 AD3d 712, 713 [2008]).
The defendant's remaining contentions are without merit. Rivera, J.P., Dickerson,and Cohen, JJ., concur.
Hall, J., dissents, and votes to reverse the judgment, grant that branch of thedefendant's omnibus motion which was to suppress his statements to law enforcementofficials, and order a new trial, with the following memorandum: I must respectfullydissent because, in my view, the statements made by the defendant to law enforcementofficials should have been suppressed, and the defendant was deprived of hisconstitutional rights to present a defense and to a fair trial.
This case involves the murders of Cho Man Ng, known as Sharon (hereinafterSharon), and her brother, Sek Man Ng, known as Simon (hereinafter Simon), whichoccurred on May 12, 2005, in Queens County. According to the evidence presented atthe suppression hearing, at approximately 7:00 a.m. or 8:00 a.m. on May 13, 2005,Detective Bernard Marshall and another detective went to the home of the defendant andasked him to accompany them to the precinct station house to discuss the murders. Thedefendant willingly went with the detectives to the station house.
At approximately 11:00 a.m. on May 13, 2005, Detective Philip Wong spoke to thedefendant, who was sitting in a "12 by 12" interview room with no window. DetectiveWong spoke to the defendant in English and in the Cantonese dialect of the Chineselanguage. Detective Wong interviewed the defendant six or seven times throughout thecourse of the day; no interview lasted [*3]longer than 10to 15 minutes.
The defendant told Detective Wong that he had known Sharon for approximatelyseven years, and had dated her for approximately five years. According to the defendant,he broke up with Sharon approximately one year earlier because she was cheating on himwith a married man. The defendant stated that on May 12, 2005, he went to Sharon andSimon's home, and after Simon answered the door and let him in, the defendant gaveSimon a gift to give to Sharon. The gift consisted of two seashell figurines.
At 10:00 p.m. on May 13, 2005, Detective Kevin Hui entered the interview room,where the defendant was speaking with Detective Wong and two other detectives. Afterfive minutes, the defendant asked to speak to Detective Hui alone. Detective Hui spoketo the defendant in the Cantonese dialect. At the beginning of the conversation, DetectiveHui instructed the defendant not to waste his time, and that if the defendant "wanted totalk, talk." The defendant asked Detective Hui what would happen if he "st[u]ck it out tothe end," or if he talked. The defendant also asked Detective Hui if they could work out adeal. Detective Hui replied that he was not the case officer, but that he would getsomeone to talk to the defendant. As Detective Hui walked out of the interview room, thedefendant stated that "he didn't want to squat for 60 years until he's 60 . . .maybe until 40." Detective Hui then informed the detectives and a Lieutenant Belluchi ofhis conversation with the defendant. However, Lieutenant Belluchi ultimately decided tolet the defendant go home.
The very next day, on May 14, 2005, at approximately 11:00 a.m., DetectiveMarshall picked up the defendant, who willingly returned to the station house. Atapproximately 11:40 a.m., Detective Marshall, speaking in English, advised thedefendant of his Miranda rights (see Miranda v Arizona, 384 US 436[1966]) by reading them to him from a form. The defendant wrote "yes" after all thequestions on the form and signed the form. The defendant then stated, among otherthings, that he had wanted to give Sharon the figurines before he left Sharon and Simon'sapartment.
After Detective Marshall spoke with the defendant for about an hour and a half, thedetectives spoke to other witnesses about when Sharon received the figurines. Onewitness stated that the figurines were in Sharon and Simon's apartment for several weeksbefore May 12, 2005.
Consequently, at about 5:00 p.m. on May 14, 2005, Detective Marshall told thedefendant that he had spoken to witnesses who said that the figurines were in Sharon andSimon's apartment prior to May 12, 2005. Detective Marshall spent approximately onehour with the defendant, and then left the interview room. At approximately 7:00 p.m.,Detective Marshall reentered the interview room, and the defendant gave a statement,which was reduced to writing. The defendant stated, in sum and substance, that he hadlived in the United States for nine years, went to Cardozo High School, and left school inthe 11th grade. When he came back from China, he started working at a Chineserestaurant named "Dot Ming" in Connecticut. While working at Dot Ming, the defendantmet a man named Gong. The defendant explained, in essence, that he helped Gong gainentry into Sharon and Simon's apartment so that Gong could rob them.
Specifically, the defendant stated that, at about 4:00 p.m. on May 12, 2005, he wentto Sharon and Simon's apartment; Simon answered the door and let the defendant inside.The defendant talked to Simon and stayed for about a half hour. As the defendant left, hewalked past a Fukienese man, who was standing next to the front door of the buildingand talking on a cellular phone. The defendant watched the Fukienese man walk into thebuilding. The defendant went home and waited for Gong to call him, but Gong nevercalled.
At approximately 9:30 p.m. on May 14, 2005, Detective Marshall informed thedefendant that he was under arrest. Detective Marshall then began to investigate Gongand the Fukienese man. On May 15, 2005, from about 1:00 a.m. to 2:30 a.m., DetectiveJohn Warner spoke to the defendant and tried to obtain more information about Gong.
At about 4:30 a.m. or 5:00 a.m., Detective Marshall was at his desk, trying to get[*4]some rest, when the defendant knocked on the doorof the interview room. The defendant stated to Detective Marshall, among other things,that he did not know that Sharon and Simon would be killed and that he was very scaredwhen he heard that Sharon and Simon were dead, which was why he had originally lied.That statement was reduced to writing and signed by the defendant and DetectiveMarshall.
From approximately 11:00 a.m. to 2:00 p.m. on May 15, 2005, Detective Marshalland Detective William Schmittgall interviewed the defendant. The defendant wasadvised of his Miranda rights and subsequently stated, "I would like to speak andexplain things." The defendant proceeded to give the detectives information about Gongand the Fukienese man.
After the interview, Detective Marshall and Detective Schmittgall visited the homeof Sharon and Simon. When they returned, they were informed that Simon made an entryin his online diary on May 12, 2005, indicating that the defendant came to his andSharon's apartment at about 3:00 p.m. asking for fishing poles.
At approximately 9:00 p.m. on May 15, 2005, Detective Marshall and DetectiveSchmittgall went into the interview room and told the defendant that they had just beento the hospital and had spoken to Simon, who was getting out of surgery. The detectivesfalsely told the defendant that Simon was alive. The detectives stated that Simon toldthem that the defendant came to his and Sharon's home looking for something specific.Detective Schmittgall then wrote the words "fishing poles" on a piece of paper, turned itupside down, and placed it on the desk in front of the defendant. The detectives told thedefendant to turn the paper over. When the defendant did so, his face became flushed.Detective Schmittgall stated to the defendant, "We know what is going on here," and thedefendant replied, "Then you know what happened."
After sobbing for 15 to 20 minutes, the defendant stated, in sum and substance, thatwhile inside Sharon and Simon's apartment, he had taken a knife from the kitchen, goneto Simon's room, held the knife to Simon's neck, and then had Simon tie himself up withduct tape. When Sharon arrived, the defendant, who had turned off the lights, got behindSharon and put a knife to her neck. At that point, Simon started "going crazy" and beganto break free. The defendant stabbed Simon, went back to Sharon, and stabbed her aswell.
On May 16, 2005, an Assistant District Attorney (hereinafter ADA) from the QueensCounty District Attorney's Office came to the station house and attempted to obtain avideotaped statement from the defendant. However, in that videotaped interview, oncethe defendant understood that he had a right to speak with a lawyer before speaking tothe ADA, the defendant asked for a lawyer and the interview ended.
After the suppression hearing, the hearing court denied that branch of the defendant'somnibus motion which was to suppress his statements to law enforcement officials. Thecourt, inter alia, found that the defendant had validly waived his Miranda rights,and that the defendant's deficiencies in the English language did not render hisstatements inadmissible. The court also found that the lengthy period of questioning andthe delay in the defendant's arraignment did not warrant suppression of the statements.
At the beginning of the trial, defense counsel informed the trial court that he wishedto introduce the videotape of the May 16, 2005, interview into evidence. Defense counselsought to introduce the videotape as evidence relating to the voluntariness of thedefendant's statements. The prosecutor objected to the introduction of the videotape intoevidence, maintaining that defense counsel was seeking to use the videotape to argue thatthe defendant did not understand English sufficiently to comprehend the Mirandawarnings. The prosecutor asked that, if the defendant was permitted to use the videotapeto make such an argument, then the People be permitted to introduce, as rebuttalevidence, the testimony of a detective who administered Miranda warnings to thedefendant in connection with a 1998 arrest. The prosecutor also asked to present, asrebuttal witnesses, a corrections officer who completed the defendant's initial screening,and a representative of the New York City Criminal Justice Agency who interviewed thedefendant in English prior to [*5]his arraignment in thiscase.
In addition, the prosecutor offered to stipulate that the defendant asked for a lawyeron the videotape. However, defense counsel was not satisfied with the proposedstipulation because he wanted to show the jury the defendant's physical and emotionalappearance at the time of the taping. The prosecutor offered to cull a still photographfrom the videotape, which would capture the defendant's appearance.
The trial court, after reviewing the videotape, precluded it from being admitted intoevidence on the ground that it was inadmissible hearsay.
At trial, the People sought to introduce the defendant's booking photograph intoevidence through the testimony of Detective Marshall. Detective Marshall testified thatthe photograph was a fair and accurate representation of the defendant's appearance fromMay 13, 2005, through May 16, 2005.
Defense counsel stated that, if the photograph was going to be admitted intoevidence, then the defense should be allowed to play the videotape for the jury, so thejury could see what the defendant actually looked like on May 16, 2005. The trial courtresponded that it would have the prosecutor cull a still photograph from the videotape.Defense counsel strenuously objected, arguing that it was extremely important for thejury to see the videotape, as the voluntariness of the defendant's statements was animportant issue in the case. The court responded that a still photograph would besufficient to show the defendant's appearance, and directed the prosecutor to cull a stillphotograph from the videotape. The defendant, however, did not use the still photographin the presentation of his case.
At trial, the defendant contended that he asked for a lawyer while in police custody,and was involuntarily held at the station house. In support of this position, the defendantsought to introduce into evidence notes that he made while at the station house on May13, 2005. In one of the notes, the defendant wrote, as translated from Chinese intoEnglish, "I was imprisoned for the whole day. For the whole day. That is how Americanpolice do. Freedom have not but say have. Yes but say no. No but say yes. He who isinvolved laughs so loudly, but he who not involved is harassed." Another note written bythe defendant states, as translated from Chinese into English, "Everyone say it is I. Do Ilook like a murderer? Will anyone help me? Heaven and earth help." Defense counselargued, inter alia, that the notes were admissible as relevant to the issues of whether thedefendant remained in the station house voluntarily and whether he wanted therepresentation of counsel. He also argued that the notes were relevant to the defendant'sstate of mind at the time the notes were made, and as to whether the defendant'sstatements were coerced. The trial court did not allow the notes to be admitted intoevidence.
In my examination of this case, I find that the delay in the defendant's arraignmentwas unnecessary and improper. The defendant was at the station house on May 13, 2005,for more than 12 hours, from approximately 7:00 or 8:00 a.m. until after 10:00 p.m.,when he was sent home. He returned to the station house the next day, on May 14, 2005,at around 11:00 a.m., was subject to various periods of interrogation throughout theentire day, and was ultimately placed under arrest at 9:30 p.m., more than 10 hours later.Instead of beginning the arraignment process and bringing the defendant into CentralBooking, the police held the defendant in custody at the station house for two more days,during which he had no access to a lawyer. The defendant was ultimately arraigned about28 hours after he was arrested.
Under CPL 140.20 (1), a person arrested without a warrant must, "withoutunnecessary delay," be processed and brought before a local criminal court, and anaccusatory instrument charging him or her with a crime must be filed (CPL 140.20 [1]).In essence, CPL 140.20 (1) requires that "a prearraignment detention not be prolongedbeyond a time reasonably necessary to accomplish the tasks required to bring an arresteeto arraignment" (People ex rel. Maxian v Brown, 77 NY2d 422, 427 [1991]).The Court of Appeals has recognized that "the steps leading up to arraignment cangenerally be accomplished well within 24 hours after arrest" (id. at 427).[*6]
The People have the heavy burden of provingthat the defendant's statements were voluntary beyond a reasonable doubt (see Peoplev Holland, 48 NY2d 861, 862-863 [1979]). An unnecessary delay in arraignment isone factor to be considered in determining the voluntariness of a confession (seePeople v Ramos, 99 NY2d 27, 34 [2002]; People v Hopkins, 58 NY2d 1079,1081 [1983]; People v Holland, 48 NY2d at 862-863). The Court of Appeals hasstated that if law enforcement officials deliberately delay the arraignment to procure aconfession, that fact has a substantial bearing on a claim of involuntariness (seePeople v Ramos, 99 NY2d at 34; People v Alex, 265 NY 192, 195 [1934]).
Upon my reading of the record, I find that the delay in the arraignment wasstrategically designed so that the defendant could be questioned outside the presence ofcounsel (see People v Alex, 265 NY at 195). The police could have initiated thearraignment process shortly after the defendant's arrest, and should have initiated it, atthe latest, on the morning of May 15, 2005, while also investigating Gong and theFukienese man. Their failure to do so strongly suggests that the defendant's arraignmentwas delayed for an improper purpose.
Moreover, considering the totality of the circumstances, including the improper delayin the defendant's arraignment and the lengthy period of police interrogation, I find thatthe People did not satisfy their heavy burden of proving, beyond a reasonable doubt, thatthe defendant's statements were voluntary (see People v Anderson, 42 NY2d 35[1977]). During his approximately-four-day period of police interrogation, the defendantmust have felt that the police had the right to hold him at the station house and that theyhad "all the time in the world" to question him (id. at 39). This conclusion issupported by the notes written by the defendant at the station house on May 13, 2005,which, although hearsay to the extent offered to prove the truth of the matters assertedtherein, are relevant to his state of mind (see People v Ricco, 56 NY2d 320, 328[1982]). Accordingly, in my view, that branch of the defendant's omnibus motion whichwas to suppress his statements to law enforcement officials should have been granted.
I am also troubled by the fact that, after the hearing court declined to suppress thedefendant's statements, the trial court precluded the defendant from introducing intoevidence the videotape of the May 16, 2005, interview. In my view, this was not onlylegal error, but deprived the defendant of his rights to present a defense and to a fair trial.A criminal defendant's right to present a defense "is a fundamental element of dueprocess of law" (Washington v Texas, 388 US 14, 19 [1967]), and is "among theminimum essentials of a fair trial" (Chambers v Mississippi, 410 US 284, 294[1973]).
My analysis in this regard starts with the general premise "that all relevant evidenceis admissible unless its admission violates some exclusionary rule" (People vScarola, 71 NY2d 769, 777 [1988]; see People v Alvino, 71 NY2d 233, 242[1987]; People v Pearce, 81AD3d 856, 856 [2011]). "Evidence is relevant if it has any tendency in reason toprove the existence of any material fact, i.e., it makes determination of the action moreprobable or less probable than it would be without the evidence" (People vScarola, 71 NY2d at 777; see People v Mateo, 2 NY3d 383, 424 [2004],cert denied 542 US 946 [2004]; People v Alvino, 71 NY2d at 241;People v Pearce, 81 AD3d at 856). Even where relevant evidence does notviolate an exclusionary rule, it may still be excluded in the exercise of the trial court'sdiscretion if its probative value is substantially outweighed by the potential for prejudice(see People v Mateo, 2 NY3d at 424; People v Scarola, 71 NY2d at 777).Moreover, a trial court's discretion in evidentiary rulings is circumscribed, not only bythe rules of evidence, but also by the defendant's constitutional right to present a defense(see People v Carroll, 95 NY2d 375, 385 [2000]; People v Diaz, 85 AD3d1047, 1050 [2011], lv granted 18 NY3d 882 [2012]; People v Pitt, 84 AD3d1275, 1276 [2011]).
Here, the videotape was relevant to the issue of whether the defendant's statementswere voluntary. The videotape shows the defendant's appearance and demeanor on May16, 2005, after three days of police interrogation. The defendant's appearance anddemeanor on May 16, 2005, shed light on whether the defendant was subjected tocoercive conditions during his period of police interrogation. Thus, the videotape isrelevant to whether the defendant confessed to the murders with a "free andunconstrained" state of mind (People v Kennedy, 70 AD2d 181, 185 [1979]).
Contrary to the trial court's determination, the videotape does not constitute [*7]impermissible hearsay, because it was introduced for anonhearsay purpose. "Hearsay is 'a statement made out of court . . . offeredfor the truth of the fact asserted in the statement' " (People v Goldstein, 6 NY3d 119, 127 [2005], certdenied 547 US 1159 [2005], quoting People v Romero, 78 NY2d 355, 361[1991] [internal quotation marks omitted]; see William Richardson, Evidence§ 200 at 176 [Prince 10th ed 1973]). The audio portion of the videotape simplyconsists of an ADA explaining to the defendant his Miranda rights and, once thedefendant comprehends that he has a right to speak to a lawyer, the defendant asking fora lawyer. At that point, the interview ends. The defendant did not seek to introduce thevideotape to prove the truth of any statements made therein. Rather, the defendant soughtto introduce the videotape to show his appearance and demeanor on May 16, 2005,which are relevant to the issue of the voluntariness of his statements. Since the videotapeis not being offered to prove the truth of the matters asserted therein, it does notconstitute hearsay (see People vAndrade, 87 AD3d 160, 164-165 [2011], cert denied 565 US—, 132 S Ct 1871 [2012]).
Moreover, in my view, the probative value of the videotape is not substantiallyoutweighed by any potential for prejudice (see People v Mateo, 2 NY3d at 424;People v Scarola, 71 NY2d at 777). In this regard, I cannot discern any potentialprejudice to the People in admitting the videotape into evidence. If the People believethat the videotape does not show that the defendant was subjected to coercive conditions,then they can make that argument to the jury. Indeed, if the People persuasively arguethat the videotape shows that the defendant was not malnourished and was in goodcondition on May 16, 2005, such an argument would strengthen their position that thedefendant's statements were made voluntarily.
The People maintain that the defendant is really seeking to use the videotape to showthat he did not have a sufficient understanding of the English language to comprehendthe Miranda warnings, while escaping the trial court's ruling that, if the videotapeis offered for such a purpose, then the People can present rebuttal evidence regarding thedefendant's understanding of English and that he received Miranda warnings inthe past.
It is well settled that even when a motion to suppress a statement as involuntarilymade has been litigated and decided, a defendant is not precluded "from attempting toestablish at a trial that evidence introduced by the people of a pre-trial statement made byhim should be disregarded by the jury or other trier of the facts on the ground that suchstatement was involuntarily made" (CPL 710.70; see People v Combest, 4 NY3d 341, 341 [2005];People v Kennedy, 70 AD2d at 185). Indeed, "the defendant may adduce trialevidence and otherwise contend that the statement was involuntarily made. In the case ofa jury trial, the court must submit such issue to the jury under instructions to disregardsuch evidence upon a finding that the statement was involuntarily made" (CPL 710.70).Thus, the defendant may present evidence at trial as to the voluntariness of hisstatements, even though that branch of his omnibus motion which was to suppress thestatements was denied.
Furthermore, the People's argument is undercut by the record, which reveals thatdefense counsel repeatedly maintained that he was not offering the videotape intoevidence for the purpose of demonstrating that the defendant did not sufficientlyunderstand English. In my reading of the record, defense counsel was not beingdisingenuous on this point. As I see it, the trial court should have admitted the videotapeinto evidence, while also permitting the People to present rebuttal evidence on the issueof the defendant's understanding of English. This would have protected the defendant'sright to present a defense, while allowing the People to rebut any implication that thedefendant did not understand the Miranda warnings given to him.
Additionally, contrary to the People's contention, a still photograph culled from thevideotape by the prosecutor is not an adequate substitute for the admission of thevideotape. Significantly, the trial court permitted the prosecutor, and not defense counsel,to cull a photograph from the videotape. Moreover, a still photograph can be verymisleading, as it captures only a moment in time. For instance, in one moment, aphotograph can capture the defendant's appearance in a way that he appears alert andrested. Conversely, in another moment, a photograph can capture the defendant'sappearance in a way that he appears depleted and malnourished. Thus, a singlephotograph may not accurately represent the defendant's appearance and demeanorduring the entire [*8]May 16, 2005, interview. As aresult, the videotape, as compared to a still photograph, is much better evidence of theway the defendant actually appeared and conducted himself during the May 16, 2005,interview.
By precluding the defendant from introducing the videotape into evidence, the trialcourt denied the defendant his right to present a defense (see People v Carroll, 95NY2d at 385-387), and, consequently, deprived him of his right to a fair trial (seeChambers v Mississippi, 410 US at 294). As the error was of a constitutionalmagnitude, the error "can be harmless only if the evidence of guilt, without reference tothe error, is overwhelming, and there is no reasonable possibility that the error mighthave contributed to the defendant's conviction" (People v Harris, 93 AD3d 58, 71 [2012]; see People vCrimmins, 36 NY2d 230, 241-242 [1975]). That is, the error must be harmlessbeyond a reasonable doubt (seePeople v Hardy, 4 NY3d 192, 198 [2005]).
In my view, although the evidence of guilt was overwhelming, there is a reasonablepossibility that the error contributed to the defendant's convictions. The videotape bearson the voluntariness of the defendant's confession, an issue which was sure to weighheavily with the jurors. The defendant was precluded from introducing the videotape forthe purpose of allowing the jury to see his appearance and demeanor on the fourth day ofpolice interrogation. This was particularly unfair since the People were permitted tointroduce the defendant's booking photograph into evidence, which Detective Marshalltestified was a fair and accurate representation of the defendant's appearance from May13, 2005, through May 16, 2005. The defendant did not have the opportunity to presentthe videotape to challenge this evidence. Thus, the jury was presented with anunbalanced view of the defendant's physical appearance during his final day of policeinterrogation. Moreover, it is reasonably possible that the videotape would have createddoubt in the minds of the jurors as to whether the defendant's confession was trulyvoluntary. Therefore, under these circumstances, there is a reasonable possibility that theerror might have contributed to the defendant's convictions.
Accordingly, I respectfully dissent, and vote to reverse the judgment, grant thatbranch of the defendant's omnibus motion which was to suppress his statements to lawenforcement officials, and order a new trial.