| People v Kennard |
| 2015 NY Slip Op 09729 [134 AD3d 1519] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJennifer K. Kennard, Appellant. |
Law Offices of Joseph D. Waldorf, P.C., Rochester (Joseph D. Waldorf of counsel),for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.),rendered February 5, 2015. The judgment convicted defendant, after a nonjury trial, ofrape in the second degree (six counts), rape in the third degree (two counts) andendangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, that part of the omnibus motion seeking to suppress defendant's statements isgranted, and a new trial is granted.
Memorandum: On appeal from a judgment convicting her following a nonjury trialof, inter alia, six counts of rape in the second degree (Penal Law § 130.30[1]), defendant contends that County Court erred in failing to suppress statements shemade to the police after she invoked her right to counsel. We agree. We therefore grantthat part of defendant's omnibus motion seeking to suppress any statements she made tothe police after her invocation of the right to counsel, and we grant a new trial.
On March 15, 2013, defendant was interviewed at the Irondequoit Police Departmentby two investigators, who had recently been informed by a 16-year-old boy thatdefendant, a teacher's aide at the boy's school, had engaged him in a sexual relationshipfor the previous two years. During the custodial interview, which was recorded on video,defendant waived her Miranda rights and repeatedly denied having sex with theboy. After answering questions for approximately an hour and 10 minutes, defendantsaid, "I think I need to talk to an attorney." In response, the first investigator stated,"Would you like to talk to one? If you think that, that's fine. That's up to you." Defendantreplied, "I need to," before going on to state that she would never have bad feelingstoward the boy and genuinely cared about him. The questioning then ceased, and the firstinvestigator allowed defendant to go outside with the second investigator and a femaleChild Protective Services worker to smoke a cigarette.
While defendant was smoking in the parking garage, the second investigator engagedher in a lengthy conversation. Unbeknownst to defendant, the conversation was beingdigitally recorded by the second investigator. During the conversation, defendant madenumerous admissions, all but confessing that she had engaged in sexual activity with theboy. She was thereafter arrested and charged with multiple counts of rape in the seconddegree, among other charges. Following indictment, defendant moved to suppress thestatements she made to the second investigator in the parking garage, contending thatthey were obtained in violation of her right to counsel. At the ensuing Huntleyhearing, the two investigators testified, and the recording of the interview was admittedinto evidence. Defendant did not testify or call any witnesses. The court denieddefendant's motion, ruling that she had not unequivocally invoked her right tocounsel.
It is well settled that "a suspect in custody who unequivocally requests the assistanceof [*2]counsel may not be questioned further in theabsence of an attorney" (Peoplev Harris, 93 AD3d 58, 66 [2012], affd 20 NY3d 912 [2012]; seePeople v Grice, 100 NY2d 318, 320-321 [2003]; People v Glover, 87 NY2d838, 839 [1995]). "Whether a particular request [for counsel] is or is not unequivocal is amixed question of law and fact that must be determined with reference to thecircumstances surrounding the request[,] including the defendant's demeanor [and]manner of expression[,] and the particular words found to have been used by thedefendant" (People vBarber, 124 AD3d 1312, 1313 [2015] [internal quotation marks omitted], lvdismissed 26 NY3d 965 [2015]; see People v Mitchell, 2 NY3d 272, 276 [2004]).
Here, we conclude that, although defendant's statement "I think I need to talk to anattorney" may not, standing alone, constitute an unequivocal invocation of the right tocounsel (see People vTwillie, 28 AD3d 1236, 1237 [2006], lv denied 7 NY3d 795 [2006];People v Davis, 193 AD2d 1142, 1142 [1993]), her subsequent statement "I needto"—made in reply to the first investigator stating "Would you like to talk to one?If you think that, that's fine. That's up to you"—removed any ambiguity and madeclear that defendant was requesting the assistance of counsel (see generally People v Porter, 9NY3d 966, 967 [2007]; Barber, 124 AD3d at 1313; Harris, 93 AD3dat 69).
We disagree with the hearing court that it is unclear exactly what defendant said tothe first investigator after he told her that she could talk to an attorney if she so desired.In our view, defendant can be heard to clearly say, "I need to." In any event, evenassuming, arguendo, that defendant instead said, "I'll need to," as the People suggest, weconclude that defendant's request for counsel was no less unequivocal, and that the courttherefore should have suppressed the statements defendant made to the secondinvestigator in the parking garage. We further conclude that the court's error in denyingthe suppression motion is not harmless because there is a "reasonable possibility that theerror might have contributed to defendant's conviction" (People v Crimmins, 36NY2d 230, 237 [1975]; seePeople v Huntsman, 96 AD3d 1390, 1392 [2012]; see generally People vDouglas, 4 NY3d 777, 779 [2005]).
We have reviewed defendant's remaining contentions and conclude that they lackmerit. Present—Smith, J.P., Peradotto, Lindley and Whalen, JJ.