| People v Rivera |
| 2015 NY Slip Op 04517 [128 AD3d 1100] |
| May 27, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Wilfredo Rivera, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Robert J. Masters, JohnM. Castellano, Johnette Traill, and Laura T. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Griffin, J.), rendered April 29, 2013, convicting him of burglary in the second degree,grand larceny in the fourth degree, and possession of burglar's tools, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing, ofthat branch 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, the count in the indictment charging the defendant with possession ofburglar's tools is dismissed, and a new trial is ordered on the counts in the indictmentcharging burglary in the second degree and grand larceny in the fourth degree.
The defendant was charged with burglary in the second degree, grand larceny in thefourth degree, and possession of burglar's tools, after he allegedly entered the victim'shome via the bedroom window of the victim's infant daughter while the home wasunoccupied. On appeal, the defendant contends that the hearing court erred in denyingthat branch of his omnibus motion which was to suppress his videotaped pre-arraignmentstatement to law enforcement officials, as his waiver of Miranda rights (seeMiranda v Arizona, 384 US 436 [1966]) was rendered invalid by the preamble readto him by the district attorney's detective investigator who conducted the pre-arraignmentinterview.
At issue is whether the preamble effectively vitiated, or at least neutralized, the effectof the subsequently delivered Miranda warnings (see People v Dunbar, 24 NY3d304, 316 [2014]). Before the defendant was read his Miranda rights, thedetective investigator said to him (1) "if you agree to speak with us, you may, if youwish, explain what you did and what occurred at that date, time, and place," (2) "[i]f. . . you have an alibi . . . and you want to tell us where youwere, we will ask that you please give us as much information as you can, including thenames of any people you were with," and (3) "[i]f you agree to speak to us and yourversion of the events of that day differs from what we have heard, you may, if you sochoose, tell us your story." Thus, a clear implication was conveyed to the defendant thathe ought to speak to the detective investigator and the assistant district attorney present atthe interview in order to set forth his version of events so that they could be investigated.As such, the preamble here, as in Dunbar, rendered the subsequentMiranda warnings inadequate and ineffective in advising the defendant of hisrights (see People v Dunbar, 24 NY3d at 316; cf. People v Jones, 46 Misc 3d 1214[A], 2015 NY Slip Op50059[U] [Sup Ct, [*2]Queens County 2015]).
Under the circumstances of this case, the error in admitting the defendant'svideotaped pre-arraignment statement into evidence at trial was not harmless beyond areasonable doubt (see People vHardy, 4 NY3d 192, 198-199 [2005]; People v Dunbar, 104 AD3d 198, 214 [2013], affd24 NY3d 304 [2014]).
We note that the People correctly concede on appeal that the defendant's convictionof possession of burglar's tools is not supported by legally sufficient evidence.
The defendant's arguments regarding the legal sufficiency and weight of the evidenceas to the other counts of the indictment on which the defendant was convicted arewithout merit.
The defendant's arguments that certain remarks made by the prosecutor during hisopening statement and summation deprived him of a fair trial and that certainphotographic evidence should not have been admitted into evidence are withoutmerit.
The defendant's argument regarding pre-arraignment delay is unpreserved forappellate review (see CPL 470.05) and, in any event, without merit. Dillon, J.P.,Leventhal, Chambers and Maltese, JJ., concur.