| People v Rodriguez |
| 2015 NY Slip Op 07520 [132 AD3d 781] |
| October 14, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Daniel Rodriguez, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant.
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(Firetog, J.), rendered May 7, 2012, convicting him of murder in the second degree,assault in the first degree, and assault in the second 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 a videotaped statementhe made to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant was convicted, after a jury trial, of murder in the second degree,assault in the first degree, and assault in the second degree after he acted in concert withcodefendant Devone Sanders to set fire to a residential building, causing the death of onevictim and injuring two others.
On February 22, 2010, at approximately 10:50 p.m., the defendant, who was incustody, waived his Miranda rights (see Miranda v Arizona, 384 US 436[1966]) and gave an oral statement to Detectives Rodriguez and Belissimo. After givingthe oral statement, the defendant agreed to make a videotaped statement. The nextmorning, at 5:47 a.m., the defendant answered questions from Assistant District AttorneyDiIngines, in the presence of Detective Rodriguez, while being videotaped. After fiveminutes, the defendant invoked his right to remain silent. At 8:30 a.m., DetectivesRodriguez and Belissimo returned to the interview room, and, without giving thedefendant further Miranda warnings, showed the defendant a videotapedstatement given earlier by another suspect which inculpated the defendant. After showingthe defendant the videotaped statement, Detective Rodriguez questioned the defendantfor 10 to 15 minutes (hereinafter the pre-9 a.m. questioning), and then asked thedefendant to reconsider making a videotaped statement, and the defendant agreed to doso. That interrogation ended at 9:00 a.m. At 11:00 a.m., the Assistant District Attorney,in the presence of Detective Rodriguez, re-administered the Miranda warnings,and the defendant gave a full videotaped statement (hereinafter the second videotapedstatement).
On appeal, the defendant contends that the hearing court erred in refusing to suppressthe second videotaped statement because that statement was tainted by the pre-9 a.m.questioning.
[*2] "[W]here an improper,unwarned statement gives rise to a subsequent Mirandized statement as part of a 'singlecontinuous chain of events,' there is inadequate assurance that the Mirandawarnings were effective in protecting a defendant's rights, and the warned statementmust also be suppressed" (People v Paulman, 5 NY3d 122, 130 [2005], quotingPeople v Chapple, 38 NY2d 112, 114 [1975]). In determining whether asubsequent statement made after Miranda warnings were given was part of a"single continuous chain of events," the court considers various factors including"whether the same police personnel were present and involved in eliciting eachstatement; whether there was a change in the location or nature of the interrogation; thecircumstances surrounding the Miranda violation, such as the extent of theimproper questioning; and whether, prior to the Miranda violation, defendant hadindicated a willingness to speak to police" (People v Paulman, 5 NY3d at130-131). The purpose of the inquiry is to determine whether there was a "definite,pronounced break in questioning sufficient to return the defendant to the status of onewho is not under the influence of questioning" (People v Sedunova, 83 AD3d 965, 967 [2011]; see People v Celleri, 29 AD3d707, 708 [2006]; People v Johnson, 79 AD2d 617, 618 [1980]; see alsoPeople v Paulman, 5 NY3d at 131; People v Chapple, 38 NY2d at 115).
Here, the statement made by the defendant during the pre-9 a.m. questioning, whichthe Supreme Court suppressed, and the second videotaped statement were part of a singlecontinuous chain of events inasmuch as during the pre-9 a.m. questioning, DetectiveRodriguez asked the defendant to make a further videotaped statement when heinterrogated the defendant in violation of his constitutional rights. Therefore, during thetwo-hour break, the defendant was never returned to the status of one who was not underthe influence of questioning (see People v Celleri, 29 AD3d at 708), but wasanticipating the arrival of the Assistant District Attorney to continue the interrogation.Moreover, Detective Rodriguez, who elicited the 10- to15-minute statement thedefendant made during the pre-9 a.m. questioning without having been again given hisMiranda warnings, was present during the subsequent videotaped interrogation,and both interrogations were conducted in the same interview room (see People vPaulman, 5 NY3d at 130-131; People v Celleri, 29 AD3d at 708).Considering these factors and the nature and extent of the Miranda violation, wecannot conclude that there was a definite, pronounced break between the defendant's firstand second videotaped statements sufficient to return the defendant to the status of onewho was not under the influence of questioning (see People v Chapple, 38 NY2dat 115; People v Sedunova, 83 AD3d at 967; People v Celleri, 29 AD3dat 708).
Accordingly, the Supreme Court should have suppressed the defendant's secondvideotaped statement.
However, reversal is not required since the People presented overwhelming proof ofthe defendant's guilt, including the defendant's prior untainted statements, hiscodefendant's trial testimony, and two surveillance videos corroborating thecodefendant's account of the crimes. There is no reasonable possibility that the admissionof the second videotaped statement affected the verdict (see People v Paulman, 5NY3d at 134; People v Celleri, 29 AD3d at 708; People v Pearson, 20 AD3d575, 577 [2005]).
The defendant's contention regarding the Supreme Court's Sandoval ruling(see People v Sandoval, 34 NY2d 371 [1974]), is unpreserved for appellatereview (see People vMantock, 117 AD3d 753 [2014]) and, in any event, is without merit (see People v Monk, 50 AD3d925, 926 [2008]).
The defendant's request for a missing witness charge was properly denied since thetestimony of the uncalled witness would have been merely cumulative (see People v Smith, 49 AD3d904, 905-906 [2008]; People v Miller, 282 AD2d 691 [2001]).
Contrary to the defendant's contention, he has not demonstrated that his trial counselwas ineffective under either federal or state constitutional standards (see Strickland vWashington, 466 US 668, 687 [1984]; People v Caban, 5 NY3d 143 [2005]; People vBaldi, 54 NY2d 137 [1981]; People v Salcedo, 150 AD2d 624 [1989]). Therecord establishes that defense counsel provided meaningful representation as a whole(see People v Benevento, 91 NY2d 708, 712 [1998]; People v Cruz, 127 AD3d987 [2015]; People vAnderson, 24 AD3d 460 [2005]). Rivera, J.P., Roman, LaSalle and Barros, JJ.,concur.