| People v Wilkinson |
| 2014 NY Slip Op 05661 [120 AD3d 521] |
| August 6, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Keith Wilkinson, Appellant. |
Lisa H. Blitman, New York, N.Y., for appellant and appellant pro se.
Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco andSteven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Cacace, J.), rendered March 29, 2011, convicting him of murder in the second degree(two counts), robbery in the first degree, burglary in the first degree (two counts),criminal possession of a weapon in the second degree, and assault in the second degree(two counts), upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing, of that branch of the defendant's omnibus motionwhich was to suppress his statements to law enforcement officials.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The hearing court properly denied that branch of the defendant's omnibus motionwhich was to suppress his statements to law enforcement officials. Although thedefendant refused to sign the Miranda warning form (see Miranda vArizona, 384 US 436 [1966]), a defendant who refuses to sign a written waiver ofhis rights, including a Miranda rights card, may nevertheless orally waive his orher rights (see People vSaunders, 71 AD3d 1058, 1059 [2010]; People v Robinson, 287 AD2d398 [2001]; People v Spencer, 279 AD2d 539, 540 [2001]; see also People v Thornton, 87AD3d 663, 664 [2011]). Here, a detective testified, and the hearing court found, thatthe defendant said that he would not sign the form, but that he would talk to thedetectives. A review of the totality of the circumstances demonstrates that the defendant'sstatements were voluntarily made (see People v Winkfield, 90 AD3d 959, 960 [2011]; People v Seabrooks, 82 AD3d1130, 1130-1131 [2011]; People v Saunders, 71 AD3d at 1059-1060).
At trial, the County Court erred in admitting into evidence portions of a witness'sgrand jury testimony recounting inculpatory statements allegedly made by the defendant,under the past recollection recorded exception to the hearsay rule. "The requirements foradmission of a memorandum of a past recollection are generally stated to be that thewitness observed the matter recorded, the recollection was fairly fresh when recorded oradopted, the witness can presently testify that the record correctly represented his [or her]knowledge and recollection when made, and the witness lacks sufficient presentrecollection of the recorded information" (People v Taylor, 80 NY2d 1, 8 [1992];Matter of Saperston vHoldaway, 93 AD3d 1271, 1275 [2012]; Morse v Colombo, 31 AD3d 916, 917 [2006]). In light ofthe one-year gap between the time the witness allegedly heard the defendant's allegedinculpatory statements and the witness's grand jury testimony, the People failed toestablish that the [*2]witness's recollection of the matterwas "fairly fresh when recorded or adopted" during the grand jury proceeding (Peoplev Taylor, 80 NY2d at 8; see Calandra v Norwood, 81 AD2d 650, 651 [1981];see also Morse v Colombo, 31 AD3d at 917). Moreover, the witness's trialtestimony was equivocal as to whether her testimony in the grand jury correctlyrepresented her knowledge and recollection when given (see People v Fields, 89 AD3d861 [2011]; People vPacheco, 38 AD3d 686, 689 [2007]).
Since the proof of the defendant's guilt, without reference to the inadmissible grandjury testimony, was not overwhelming, "there is no occasion for consideration of anydoctrine of harmless error" (People v Crimmins, 36 NY2d 230, 241 [1975]; People v Parchment, 92 AD3d699, 700 [2012]).
In light of our determination, we need not reach the defendant's remainingcontentions. Skelos, J.P., Hall, Duffy and Barros, JJ., concur.