| People v Grigoroff |
| 2015 NY Slip Op 06517 [131 AD3d 541] |
| August 12, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Anthony Grigoroff, Appellant. |
Robert DiDio, Kew Gardens, N.Y. (Danielle Muscatello of counsel), forappellant.
Adam B. Levy, District Attorney, Carmel, N.Y. (David M. Bishop of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Putnam County(Reitz, J.), rendered December 14, 2010, convicting him of murder in the second degree,criminal possession of a weapon in the second degree, and attempted burglary in thesecond degree (two counts), upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing, of that branch of the defendant's omnibusmotion which was to suppress his statements to law enforcement officials.
Ordered that the judgment is reversed, on the law and as a matter of discretion in theinterest of justice, and a new trial is ordered.
The defendant, in the course of a 12-hour interrogation during which he wasinterviewed by multiple teams of police investigators, gave statements to the policeconcerning the homicide which is the subject of this case. Those statements indicatedthat the defendant, his identical twin brother, and an individual named Byron Mountainentered a parking lot outside of the Garrison Garage (hereinafter the garage) in PutnamCounty and parked their vehicle there with the intention of burglarizing an office locatedon the premises. The defendant remained in the vehicle while his brother served as alookout. Mountain was in the process of walking around the exterior of the garage whenan individual arrived in a tow truck and confronted Mountain. Mountain produced a gunfrom his waistband and shot the individual, who later died.
The defendant was charged with murder in the second degree (felony murder),criminal possession of a weapon in the second degree, and two counts of attemptedburglary in the second degree. Neither Mountain nor the defendant's identical twinbrother was charged with any crime relating to this incident. Prior to his trial, thedefendant moved to, inter alia, suppress the statements he made to police on the groundthat those statements were involuntarily obtained. After a hearing at which both thedefendant and police witnesses gave conflicting testimony, the court denied that branchof the defendant's motion.
At the defendant's trial, the primary evidence admitted against him was thestatements that he made to law enforcement officials. The defendant testified on his ownbehalf, maintaining [*2]that he was coerced into givingthe statements to the police and that he was innocent of the charges against him. The juryreturned a verdict of guilty on all counts.
On appeal, the defendant initially contends that the court should have granted thatbranch of his omnibus motion which was to suppress the statements that he made to lawenforcement officials. "It is the People's burden to prove beyond a reasonable doubt thatstatements of a defendant they intend to rely upon at trial are voluntary" (People v Thomas, 22 NY3d629, 641 [2014]; see Peoplev Guilford, 21 NY3d 205, 208 [2013]). "To do that, they must show that thestatements were not products of coercion, either physical or psychological" (People vThomas, 22 NY3d at 641). "The task is the same where deception is employed in theservice of psychologically oriented interrogation; the statements must be proved, underthe totality of the circumstances . . . [to be] the product of the maker's ownchoice" (id. at 641-642).
Here, the defendant testified at the suppression hearing that his police interrogatorsfailed to give him Miranda warnings (see Miranda v Arizona, 384 US 436[1966]) prior to questioning him, and that they repeatedly promised him that if he told thetruth he would be released and would serve no time in jail. However, the testimony of thelaw enforcement witnesses contradicted these aspects of the defendant's account. Thepolice witnesses testified that the defendant was given Miranda warnings prior tothe interrogation and that these warnings were repeated at various times throughout thequestioning. The police witnesses also denied that any promises were made to thedefendant. The hearing court found the defendant's version of the events unpersuasiveand specifically credited the testimony of the law enforcement officials.
The conflicting testimony adduced at the suppression hearing presented a credibilityquestion for the hearing court (see e.g. People v Granger, 122 AD3d 940, 940-941[2014]). In reviewing a hearing court's factual determinations based largely upon anassessment of credibility, the determination of the trier of fact is ordinarily accorded greatweight (see Matter of RobertD., 69 AD3d 714, 716 [2010]; cf. People v Bennett, 57 AD3d 912, 912 [2008]; Peoplev Lopez, 95 AD2d 241, 252 [1983]). Although, upon the exercise of our factualreview power, this Court may make its own findings of fact if it determines that thehearing court incorrectly assessed the evidence (see People v Lewis, 117 AD3d 751, 752 [2014]), wediscern no basis on this record to disturb the hearing court's factual determination (see People v Fox, 123 AD3d844, 845-846 [2014]; People v Granger, 122 AD3d at 940-941; People vLewis, 117 AD3d at 752).
Furthermore, contrary to the defendant's contention, the record of the suppressionhearing does not show, as a matter of law, that the duration and nature of the policeinterrogation completely undermined his constitutional right to remain silent (cf.People v Thomas, 22 NY3d at 642). Although the testimony of the law enforcementofficials indicated that the police utilized deceptive techniques during the course of thedefendant's interrogation, "[i]t is well established that not all deception of a suspect iscoercive" (People v Thomas, 22 NY3d at 642). Here, in light of the credibilityfindings of the hearing court, the record does not show "that the deception was sofundamentally unfair as to deny due process or that a promise or threat was made thatcould induce a false confession" (People v Tarsia, 50 NY2d 1, 11 [1980][citations omitted]; see People v Tankleff, 84 NY2d 992, 994 [1994]; People v Gelin, 128 AD3d717 [2015]; People vPinto, 103 AD3d 921, 922 [2013]).
The defendant's challenge to the legal sufficiency of the evidence is unpreserved forappellate review (see CPL 470.05 [2]; People v Finger, 95 NY2d 894[2000]). In any event, viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficientto establish the defendant's guilt beyond a reasonable doubt. In addition, there wassufficient evidence to satisfy the confession corroboration requirements of CPL 60.50(see People v Murray, 40 NY2d 327 [1976]). Upon the exercise of our factualreview power, we are satisfied that the verdict of guilt was not against the weight of theevidence (see CPL 470.15 [5]).
However, the judgment must be reversed and a new trial ordered based on theSupreme Court's error in admitting testimony regarding a separate shooting that occurredprior to the events underlying this case. In this regard, the People were permitted to elicittestimony to show that the defendant's identical twin brother shot an individual, less thantwo months before the [*3]incident at the garage, in anunrelated matter. Contrary to the People's contention, the defendant preserved hisobjection to this testimony by objecting on the specific ground now raised on appeal, andby asking for the testimony to be stricken and for a curative instruction (see CPL470.05 [2]).
"Evidence of uncharged crimes or crimes committed by a person other than thedefendant is generally inadmissible because it is highly prejudicial with little probativevalue" (People v Exum, 208 AD2d 557, 558 [1994]). Here, the evidence of theunrelated shooting was admitted in response to evidence introduced by the defense toshow that the defendant and his uncharged accomplices exhibited a calm demeanorshortly after the shooting at the garage and that such a demeanor was inconsistent withthe People's contention that they had been recently involved in a violent crime. ThePeople argued that evidence of the unrelated shooting was relevant to this case on theground that it showed that the defendant's identical twin brother had similarly exhibited acalm demeanor after he shot an individual at a bar on a prior occasion.
Evidence that the defendant's identical twin brother had perpetrated a separateshooting less than two months prior to the shooting in this case was highly prejudicial tothe defendant and had no bearing whatsoever on the defendant's culpability for thecrimes charged (see People v Thompson, 75 AD2d 830 [1980]; People vRoland, 40 AD2d 1007 [1972]). This evidence "served no purpose other than to raisean inference of guilt by association" (People v Roland, 40 AD2d at 1007-1008;cf. People v Williams, 45AD3d 1466, 1467-1468 [2007]). Accordingly, the Supreme Court erred inpermitting the People to elicit such evidence inasmuch as the unfair prejudice to thedefendant far exceeded its probative value (see generally People v Agina, 103 AD3d 739, 743[2013]).
We further conclude that the trial court erred in permitting the People to introducethe testimony of a witness who stated that she attended a party where she overheard thedefendant's identical twin brother make a statement indicating that he was involved in theshooting at the garage. The People failed to adequately demonstrate that this testimonyfell within an exception to the hearsay rule (cf. Tennessee v Street, 471 US 409[1985]; People v Bryant, 39AD3d 768 [2007]). In any event, the prejudicial effect of this testimony outweighedits probative value.
Under the circumstances of this case, these errors were not harmless. The onlyevidence linking the defendant to this crime consisted of the statements made by thedefendant to the police, which were contradicted by the defendant's testimony at trial andby the testimony of other witnesses and evidence presented by the defendant (cf. People v Ryan, 17 AD3d1, 6-7 [2005]). Given this conflicting evidence as to whether the defendant wasinvolved in the shooting at the garage, the evidence of his guilt was not overwhelmingand, thus, "there is no occasion for consideration of any doctrine of harmless error"(People v Crimmins, 36 NY2d 230, 241 [1975]). Even assuming that there wasoverwhelming evidence of guilt, we cannot conclude that there was no significantprobability that the jury would have acquitted the defendant had it not been for theseerrors (see People v Ayala, 75 NY2d 422, 431 [1990]; People v Agina,103 AD3d at 743). Accordingly, reversal is required and the matter must be remitted fora new trial.
In light of our determination, we need not reach the defendant's remainingcontentions. Chambers, J.P., Hall, Cohen and Miller, JJ., concur.