| People v Santos |
| 2013 NY Slip Op 08277 [112 AD3d 757] |
| December 11, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Pedro Santos, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley, Anthony J.Viola, Andre K. Cizmarik, and Zachary W. Silverman of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Sullivan, J.), rendered February 28, 2012, convicting him of murder in the seconddegree and criminal possession of a weapon in the fourth degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing, of thatbranch of the defendant's omnibus motion which was to suppress his videotapedstatement to law enforcement officials.
Ordered that the judgment is reversed, on the law, that branch of the defendant'somnibus motion which was to suppress his videotaped statement to law enforcementofficials is granted, and a new trial is ordered.
The defendant was charged with murder in the second degree and criminalpossession of a weapon in the fourth degree after he, either personally or acting inconcert with codefendant Yan Cifuentes, allegedly stabbed Yunior Maldonado upon thebelief that Maldonado was a member of a rival street gang. On appeal, the defendantcontends, inter alia, that the hearing court erred in denying suppression of his videotapedstatement to law enforcement officials, as his waiver of Miranda rights (seeMiranda v Arizona, 384 US 436 [1966]) was not voluntary, knowing, andintelligent.
"[O]n a motion to suppress inculpatory statements, the defendant bears the burden ofpersuasion, but the People must first establish the legality of the police conduct and thedefendant's waiver" of his or her Miranda rights (People v Kemp, 131AD2d 265, 267 [1987]; seePeople v Jenkins, 34 AD3d 833, 834-835 [2006]; People v Leftwich,134 AD2d 371, 372-373 [1987]). Whether a defendant knowingly and intelligentlywaived his or her rights to remain silent and to an attorney is determined " 'upon aninquiry into the totality of the circumstances surrounding the interrogation,' " includingan evaluation of the defendant's " 'age, experience, education, background, andintelligence' " (People vDunbar, 104 AD3d 198, 210 [2013], lv granted 21 NY3d 942 [2013],quoting Fare v Michael C., 442 US 707, 725 [1979]; see People v Reed,75 AD2d 650 [1980]). "The failure to adequately advise a suspect of his or her rights asrequired by Miranda requires suppression of even voluntary statements"(People v Dunbar, 104 AD3d at 213).
At the time of his arrest, the defendant, a Spanish-speaking native of the DominicanRepublic, was 17 years old, had completed only the tenth grade of high school, and hadno prior contact with law enforcement. After Detective Matthew Ross read the defendanthis Miranda rights [*2]in English from a formcard, the defendant indicated that he understood his rights and agreed to answerquestions. However, in response to direct questioning, the defendant informed DetectiveRoss that he did not understand English "that much." The defendant was questioned inEnglish and denied any involvement in the incident. Later, Detective GonzaloLondoÑo, who spoke Spanish and English, was brought into the interrogation.Again in response to direct questioning, the defendant stated that his understanding ofEnglish was limited. Speaking in Spanish to Detective LondoÑo, the defendantultimately admitted that he was present during the incident, and identified Cifuentes asthe one who fatally stabbed Maldonado.
At the suppression hearing, Detective Ross was questioned about the defendant'sproficiency in English. Detective Ross testified that, "[a]t least to have a basicconversation," he was satisfied that the defendant understood what he was saying.
Contrary to the People's contention, they failed to establish that the defendantcomprehended "the immediate import" of the Miranda warnings (People vWilliams, 62 NY2d 285, 289 [1984]; cf. People v Norris, 75 AD2d 650,651-652 [1980]). Moreover, providing the defendant with a Miranda rights cardwritten in Spanish or asking the Spanish-speaking detective to apprise the defendant ofhis Miranda rights "could have been accomplished with minimal effort"(People v Diaz, 97 NY2d 109, 116 [2001]; see People v Rodriguez, 208AD2d 871 [1994]; People vValle, 70 AD3d 1386 [2010]).
Under the circumstances of this case, the error in admitting the defendant'svideotaped statement into evidence at trial was not harmless beyond a reasonable doubt(see People v Hardy, 4NY3d 192, 198-199 [2005]; People v Schaeffer, 56 NY2d 448, 454 [1982];People v Harris, 93 AD3d58, 71-73 [2012], affd 20 NY3d 912 [2012]).
The defendant's remaining contentions either are without merit or have beenrendered academic in light of our determination. Austin, J.P., Sgroi, Cohen andHinds-Radix, JJ., concur.