| People v Cleverin |
| 2016 NY Slip Op 04955 [140 AD3d 1080] |
| June 22, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Gilbert Cleverin, Appellant. |
Lynn W. L. Fahey, New York, NY (Anna Pervukhin of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove andCamille O'Hara Gillespie of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Dwyer, J.), rendered July 18, 2012, convicting him of robbery in the second degree(three counts) and criminal possession of stolen property in the fifth degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after ahearing (Sullivan, J.), of that branch of the defendant's omnibus motion which was tosuppress his statements to law enforcement officials.
Ordered that the judgment is reversed, on the law, the defendant's motion to suppresshis statements to law enforcement officials is granted, and a new trial is ordered.
The defendant was charged, inter alia, with robbery in the second degree andcriminal possession of stolen property in the fifth degree based on allegations that hepersonally, or acting in concert with others, committed robberies in two stores inBrooklyn. The defendant contends that the hearing court erred in denying that branch ofhis omnibus motion which was to suppress his statements to law enforcement officialsbecause his waiver of Miranda rights (see Miranda v Arizona, 384 US436 [1966]) was not voluntary, knowing, and intelligent due to his mental disability andextremely limited language and comprehension skills.
"[F]or a statement to be admissible, the People must prove a voluntary, knowing, andintelligent waiver of the privilege against self-incrimination" (People v Aveni, 100 AD3d228, 236 [2012] [citation omitted]; see People v Rodney, 85 NY2d 289, 292[1995]; People v Williams, 62 NY2d 285, 288 [1984]). "Whether a defendantknowingly and intelligently waived his or her rights to remain silent and to an attorney isdetermined upon an inquiry into the totality of the circumstances surrounding theinterrogation" (People vSantos, 112 AD3d 757, 758 [2013] [internal quotation marks omitted]; seePeople v Williams, 62 NY2d at 288), including the defendant's "age, experience,education, background, and intelligence, and . . . whether he [or she] has thecapacity to understand the warnings given him [or her], the nature of his [or her] FifthAmendment rights, and the consequences of waiving those rights" (Fare v MichaelC., 442 US 707, 725 [1979]). Where a "person of subnormal intelligence" isinvolved, "close scrutiny must be made of the circumstances of the asserted waiver"(People v Williams, 62 NY2d at 289).
[*2] "A defendant's mental deficiency weighs against theadmissibility of an elicited confession, so that any such confession must be measured bythe degree of the defendant's awareness of the nature of the rights being abandoned andthe consequences of the decision to abandon them" (People v Dunn, 195 AD2d240, 242 [1994], affd 85 NY2d 956 [1995]). A suspect of "subnormalintelligence" may effectively waive his or her Miranda rights "so long as it isestablished that he or she understood the immediate meaning of the warnings"(People v Williams, 62 NY2d at 287), that is, "how the Miranda rightsaffected the custodial interrogation" (id. at 289). Therefore, it must be shown thatthe suspect "grasped that he or she did not have to speak to the interrogator; that anystatement might be used to the subject's disadvantage; and that an attorney's assistancewould be provided upon request, at any time, and before questioning is continued. Whatwill suffice to meet this burden will vary from one case to the next" (id.).
Contrary to the People's contention, the totality of the circumstances surrounding theinterrogation establish that the defendant did not voluntarily, knowingly, and intelligentlywaive his Miranda rights. At the suppression hearing, the defendant presented thetestimony of a forensic psychologist who examined him on December 31, 2008, and onOctober 29, 2010, performed psychological tests, tested the defendant's understanding ofthe Miranda warnings, and reviewed the defendant's educational andpsychological history. The defendant's expert testified that the defendant gave his history,reporting that he had emigrated as a child from Haiti, that English was not his firstlanguage, and that he had been placed in special education in this country. Thepsychologist testified that the defendant's IQ score was 53, and characterized him asbeing mildly mentally retarded or having borderline intellectual functioning. Tests furtherrevealed that the defendant's score on a reading test was at the kindergarten level. Thepsychologist further noted that her educational evaluation of the defendant wasconsistent with his records from a residential school for children with cognitive andintellectual deficits that he had attended, as his IQ score was consistently between 40 or50 and he had been diagnosed as moderately mentally retarded, mentally retarded, orwith borderline intellectual functioning. The psychologist's evaluation was alsoconsistent with Kings County records, which reflected that an evaluation of thedefendant between the ages of 12 and 14 revealed that he had emigrated from Haiti,spoke only Creole until age 13, had an IQ of 46, and was diagnosed as being moderatelymentally retarded. The Kings County records further noted that the defendant was anonreader of both English and Creole, and that his listening comprehension skills wereseverely deficient. The psychologist further testified that she tested the defendant'sunderstanding of the Miranda warnings and that the defendant did not understandthe phrase, "you have the right to remain silent and to refuse to answer any questions,"and did not understand the phrase "you have the right to consult an attorney beforespeaking to the police and to have an attorney present during any questioning now or inthe future."
The People's expert did not provide an opinion about whether the defendant hadbeen able to understand the Miranda warnings. Rather, the People's expertmaintained that the Miranda warnings have become a part of the national culture,so that people who live in this country can understand the main meaning and immediateimport of the warnings without necessarily knowing the exact meaning of the words. ThePeople's expert further opined that being mentally retarded did not preclude thepossibility of understanding the Miranda warnings and waiving those rights.
We conclude, based upon the totality of the circumstances, that the People failed tomeet their burden of establishing beyond a reasonable doubt that the defendantknowingly, voluntarily, and intelligently waived his Miranda rights, and thus, thehearing court should have suppressed the defendant's statements on that ground (see People v Knapp, 124 AD3d36 [2014]; People vSantos, 112 AD3d 757 [2013]; People v Aveni, 100 AD3d 228 [2012]).
The error in admitting the defendant's statement was not harmless beyond areasonable doubt because the evidence of the defendant's guilt, without reference to theerror, was not overwhelming, and there was a reasonable possibility that the error mighthave contributed to the defendant's conviction (see People v Jones, 47 NY2d 528[1979]; People v Markman, 83 AD2d 644 [1981]; People v MacKenzie,78 AD2d 892 [1980]; People v Brathwaite, 76 AD2d 931 [1980]; seegenerally People v Crimmins, 36 NY2d 230, 237 [1975]).
[*3] The defendant's remaining contention has beenrendered academic in light of our determination. Dillon, J.P., Balkin, Hinds-Radix andConnolly, JJ., concur.