| People v Garnes |
| 2015 NY Slip Op 03381 [127 AD3d 1104] |
| April 22, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Aikio Garnes, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Denise A. Corsí of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and JillOziemblewski of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Dowling, J.), rendered March 28, 2012, convicting him of burglary in the first degree,kidnapping in the second degree (four counts), criminal possession of a forgedinstrument in the second degree, and criminal impersonation in the first degree, upon ajury verdict, and imposing sentence. The appeal from the judgment brings up for reviewthe denial, after a hearing (McKay, J.), of those branches of the defendant's omnibusmotion which were to suppress his statement to law enforcement officials andidentification testimony.
Ordered that the judgment is reversed, on the law, those branches of the defendant'somnibus motion which were to suppress his statement to law enforcement officials andidentification testimony are granted, the counts in the indictment charging kidnapping inthe second degree are dismissed, and the matter is remitted to the Supreme Court, KingsCounty, for further proceedings on the counts of the indictment charging burglary in thefirst degree, criminal possession of a forged instrument in the second degree, andcriminal impersonation in the first degree.
The defendant correctly contends that his conviction of four counts of kidnapping inthe second degree must be vacated by virtue of the merger doctrine. Under thecircumstances of this case, the merger doctrine precludes the convictions of kidnappingin the second degree because the restraint of the complainants was essentially incidentalto and inseparable from the count of burglary of which the defendant was convicted(see People v Cain, 76 NY2d 119, 124-125 [1990]; People v McFarlane, 106AD3d 836 [2013]; People v Alston, 279 AD2d 583, 584 [2001]). Thus, theconvictions of four counts of kidnapping in the second degree must be vacated, and thosecounts of the indictment dismissed.
Moreover, the defendant correctly contends that the hearing court erred in denyingthose branches of his omnibus motion which were to suppress a statement that he madeto law enforcement officials and lineup identification testimony. "A defendant'sunequivocal invocation of counsel while in custody results in the attachment of the rightto counsel, indelibly so, meaning that, as a matter of state constitutional law, a defendantcannot subsequently waive the right to counsel unless the defendant is in the presence ofan attorney representing that defendant" (People v Harris, 93 AD3d 58, 66 [2012], affd 20NY3d 912 [2012]; see People v Grice, 100 NY2d 318, 320-321 [2003];People v Cunningham, 49 NY2d 203, 205 [1980]). The defendant, who was incustody, invoked his right to [*2]counsel prior to waivinghis Miranda rights (see Miranda v Arizona, 384 US 436, 444 [1966]) andgiving a statement to law enforcement officials. Since the defendant gave a statement tothose officials in the absence of counsel, and after the right to counsel had indeliblyattached, the Supreme Court should have suppressed the statement.
Similarly, the defendant's right to counsel was also violated when police officersconducted a lineup without apprising the defendant's attorney and affording the attorneya reasonable opportunity to participate (see People v Mitchell, 2 NY3d 272, 274-275 [2004]). Sincethere was no independent source hearing conducted in connection with an in-courtidentification of the defendant by one of the complainants, the Supreme Court mustconduct a hearing, unless waived by the defendant, to determine whether there was anindependent source for the in-court identification or, conversely, whether thatidentification was tainted by the improperly conducted lineup, and thereby renderedinadmissible (see People v Jackson, 74 NY2d 787, 789 [1989]; People vCoates, 74 NY2d 244, 249 [1989]; People v Cofield, 260 AD2d 395 [1999];People v Wright, 63 AD3d547, 548 [2009]).
The Supreme Court also erred in permitting the introduction of evidence of prioruncharged crimes. The evidence was not admissible under the identity exception to theMolineux rule (see People v Molineux, 168 NY 264 [1901]), whichgenerally excludes such evidence. Additionally, the Supreme Court's limiting instructionwas insufficient to cure the prejudice caused by the erroneous admission of this evidence(see People v Barbato, 82AD3d 1112, 1113 [2011]; People v Wilkinson, 71 AD3d 249, 257 [2010]).
The evidence of the defendant's guilt without the erroneously admitted evidence wasnot overwhelming and, therefore, the error cannot be deemed harmless. Accordingly, anew trial is required (see People v Crimmins, 36 NY2d 230 [1975]).
In light of our determination, we need not reach the defendant's remainingcontentions. Rivera, J.P., Dickerson, Chambers and Barros, JJ., concur.