| People v Cruz |
| 2016 NY Slip Op 03030 [138 AD3d 1310] |
| April 21, 2016 |
| Appellate Division, Third Department |
[*1](April 21, 2016)
| The People of the State of New York,Respondent, v Audelis Cruz, Appellant. |
Andrew Kossover, Public Defender, Kingston (Michael K. Gould of counsel), forappellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Lynch, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered November 7, 2013, upon a verdict convicting defendant of the crimes ofmurder in the second degree and petit larceny.
In February 2013, Anita Jacobs-Royer (hereinafter the victim) was discovered deadin her residence in the City of Kingston, Ulster County. An autopsy revealed that thevictim had been strangled and, by the time she was discovered, she had been dead forapproximately 48 hours. During the ensuing investigation, surveillance video wasrecovered showing the victim with defendant two days before her body was discovered,the victim's car was found abandoned behind the hotel where defendant had beenstaying, and defendant's wife reported to a police investigator that defendant had justgiven her a new camera and the serial number on the camera matched that found on anempty box in the victim's home. On February 10, 2013, defendant was arrested in NewYork City for a parole violation and was transported to the Department of Corrections inLong Island City, Queens County. During a subsequent interview, defendant admitted totwo officers from the Kingston Police Department that he strangled and killed thevictim.
In March 2013, defendant was indicted for the crimes of murder in the second degreeand petit larceny. After a pretrial Huntley hearing, County Court ruled that thestatements that defendant made to the investigators were voluntary. At the jury trial, theaudio recording of defendant's interview with the police was submitted as evidence andofficers were allowed to [*2]testify with regard totelephone calls that defendant had made to his family during the interview. Ultimately,defendant was convicted as charged and sentenced to an aggregate prison term of 25years to life. Defendant appeals, arguing only that County Court should not havepermitted the statements he made to the police to be introduced as evidence.
A statement by a defendant is involuntary and thus inadmissible if it is obtainedthrough "undue pressure" or "by means of any promise or statement of fact, whichpromise or statement creates a substantial risk that the defendant might falselyincriminate himself [or herself]" (CPL 60.45 [2] [a], [b] [i]; see People v Neal, 133 AD3d920, 922 [2015], lv denied 26 NY3d 1110 [2016]). It is the People's burdento prove beyond a reasonable doubt that statements were voluntary (see People v Mattis, 108 AD3d872, 874 [2013], lv denied 22 NY3d 957 [2013]). The issue is a factual oneresolved after consideration of the totality of the circumstances, and we accord deferenceto the trial court's credibility determinations (see People v Perkins, 124 AD3d 1062, 1063 [2015], lvdenied 26 NY3d 933 [2015]; People v Whitted, 117 AD3d 1179, 1181 [2014], lvdenied 23 NY3d 1026 [2014]).
At the Huntley hearing, Eric VanAllen—a detective with the KingstonPolice Department—testified that he and another detective, Richard Tierney,traveled from Kingston to Long Island City after learning that defendant had beenarrested on a parole warrant. VanAllen further testified that he introduced himself todefendant and advised that they would be taking him back to Kingston for questioningand defendant said, "let's talk now." Defendant was taken to a conference room wherehe, VanAllen and Tierney ate fast food together. VanAllen testified that when theyfinished eating, he read defendant his Miranda warnings from a card, askeddefendant whether he understood the warnings and whether he was willing to answerquestions. VanAllen testified that defendant agreed and answered their questions forapproximately 20 minutes before VanAllen left to get an audio recorder. The audiotapeof the interview was submitted to County Court for review.
During the remainder of the interview that lasted approximately 45 minutes,defendant was allowed to telephone his daughter and wife and was given breaks to usethe restroom and smoke cigarettes. When VanAllen asked defendant, "like I told youbefore . . . your Miranda warnings, you understand those,"defendant responded, "you really have to record this?" Defendant proceeded to explainthat he "just snapped" and strangled the victim from behind with his hands before tying ashoestring around her neck. Later, VanAllen asked defendant, "you still understand yourMiranda warnings?" and defendant responded, "Yeah I know that." During thetelephone call that was made in the officers' presence and included as part of theaudiotape, defendant told his wife, "That camera I got from somebody that I killed."Defendant acknowledged during the interview that the officers had treated him fairly andwith respect and that he was telling the truth.
We find that County Court properly denied defendant's motion to suppress hisstatements. The court credited VanAllen's testimony that the Miranda warningswere given but not recorded because they did not initially plan to question defendant inLong Island City and that once questioning was underway and the recording began, hedid not want to "stop the flow" of the interview to issue the Miranda warningsagain. At no point during the interview or during defendant's conversations with his wifedid defendant ever ask to speak with or retain an attorney (see People v Jabaut, 111 AD3d1140, 1141-1142 [2013], lv denied 22 NY3d 1139 [2014]; People v Cole, 24 AD3d1021, 1022 [2005], lv denied 6 NY3d 832 [2006]). Although VanAllentestified that defendant clearly appeared to be homeless and that defendant stated "that hehad been doing drugs for the past week or so," he described defendant as "mentallycoherent," and the audiotape [*3]recording does notevince otherwise. Accordingly, based on the totality of the circumstances, and giving therequisite deference to County Court's credibility determinations, we agree that the Peopleestablished that defendant waived his Miranda rights and that his statements werevoluntary (see People vDeAngelo, 136 AD3d 1119, 1120 [2016]; People v Nadal, 131 AD3d 729, 729-730 [2015], lvdenied 26 NY3d 1041 [2015]; People v Jabaut, 111 AD3d at 1142;People v Hughes, 280 AD2d 694, 695 [2001], lv denied 96 NY2d 801[2001]).
McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.