| People v Silvagnoli |
| 2017 NY Slip Op 04392 [151 AD3d 443] |
| June 6, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Roque Silvagnoli, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (William B. Carney of counsel),for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Stephen J. Kress of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J. at suppression hearing;Rena K. Uviller, J. at plea and sentencing), rendered November 20, 2012, convicting defendant,upon his plea of guilty, of manslaughter in the first degree, and sentencing him to a term of 18years, reversed, on the law, the motion to suppress defendant's statements granted, the pleavacated, and the matter remanded for further proceedings.
Even where two criminal matters themselves are not related, police may not question asuspect on one matter on which he or she is represented by counsel "in a manner designed toelicit statements on an unrelated matter" in which the suspect is not represented (People vCohen, 90 NY2d 632, 641 [1997] [internal quotation marks omitted]). The key inquiry iswhether the "impermissible questioning . . . was not discrete or fairly separable"(id. [internal quotation marks omitted]).
Here, the detective who questioned defendant in a homicide investigation acknowledged thatduring the questioning a "conversation came up" in which he told defendant that he knew about apending drug case against defendant in which he knew defendant was represented by counsel.Specifically, the detective recounted telling defendant that "you could say nothing, but that waskind of a dumb thing you did selling drugs to an undercover back in 2007," and asking if he wasso smart why he had sold drugs to an undercover officer.
Although the reference to the drug charges on which defendant was represented was briefand flippant, it was not, in context, innocuous or discrete and fairly separable from the homicideinvestigation. The detective told defendant during the questioning that he knew defendant wasinvolved in selling drugs at the location of the murder and that the killing was over a drug debt.The remarks regarding the pending drug case went to defendant's alleged participation in the drugtrade at the location of the homicide, the very activity out of which a motivation for killing thevictim arose. Indeed, it succeeded in eliciting from defendant a response that may fairly beinterpreted as incriminating himself in dealing drugs at the location, the alleged motivation andcontext out of which the homicide occurred. Accordingly, because questioning regarding thedrug case on which defendant was represented by counsel was intertwined with questioningregarding the homicide, defendant's statements should have been suppressed.
However, we find no other basis for suppression. As the dissent notes, the repeatedcomments made to defendant by the detective and his colleagues to the effect that defendantshould "tell [his] side of the story" immediately because if he were to wait until trial, "[no] one isgoing to believe" him and he would be "charged with murder, not . . . manslaughter"did not vitiate the Miranda warnings defendant had received (Matter of Jimmy D., 15 NY3d 417[2010]). Concur—Moskowitz, Gische and Kahn, JJ.
Sweeny, J.P., and Mazzarelli, J., dissent in a memorandum by Mazzarelli, J., as follows:Over two and one-half years after the homicide for which defendant was ultimately convicted, hewas arrested for an unrelated crime. Detective Eric Ocasio, the lead investigator in connectionwith the homicide, who suspected defendant of being its perpetrator, took custody of him afterthe arrest, and, after reading defendant his Miranda rights, which defendant waived,questioned him at the 9th precinct stationhouse over the course of three and one-half hours. Atthe end of the interrogation, defendant confessed to shooting the victim, who he stated was acustomer of his drug-dealing business in and around the Campos Plaza projects. According to thewritten statement, defendant came upon the victim at the projects, and reminded him of a $220drug debt owed by the victim to defendant. The victim gave him $20, spit in his face andassaulted him. Defendant went up to his girlfriend's apartment and then came back down, wherehe saw the victim holding a knife. Defendant retrieved a gun that he knew to be hidden in anearby garbage can. The victim walked towards him holding the knife and threatened to use it ifdefendant did not shoot him first. Defendant stated that he squeezed the trigger, not expecting thegun to fire since he had tested it previously and it hadn't worked. It did, however, and the victimfled.
Defendant moved to suppress the statement. At the suppression hearing, Detective Ocasiotestified that defendant was in a gang or crew known as the Money Boys that hung out aroundCampos Plaza, and that multiple people had identified him as the shooter. Ocasio also learnedfrom a witness or witnesses that defendant and his crew fled from the scene immediately after theshooting. Ocasio was unable to locate defendant, who had another criminal case from 2007pending against him for allegedly selling cocaine to an undercover police officer about fivemonths before the shooting at the same location. On April 30, 2008, Ocasio went to SupremeCourt, where defendant had a scheduled court appearance in the 2007 drug case, hoping thatdefendant would show up. Although defendant's lawyer on that case was present, defendant wasnot.
Ocasio described the interrogation as taking place over three discrete sessions, beginningaround 4:00 p.m. and marked by breaks that took place at about 5:30 p.m. and again sometimebetween 7:00 and 7:30 p.m., until defendant gave his statement. During the first sessionDetective Ocasio elicited general background information about defendant to relax him and builda mutual rapport. During the next session, Ocasio confronted defendant with evidence compiledagainst him and charges that could be brought. Ocasio told defendant that several people hadidentified him as the perpetrator of the homicide, showing him the photo array from whichdefendant had been identified. Ocasio also showed defendant pictures of the victim and falselytold defendant that the victim had gurgled defendant's name before dying. Ocasio further tolddefendant that his cell phone had been traced to a cell tower in the area.
Nevertheless, defendant repeatedly denied killing the victim and said words to the effect of "Igot nothing to say about this. I've told you what I've got to say." However, Ocasio denied undercross-examination by defendant's counsel that defendant ever said, "I've answered your questions,but now I'm done talking."
Ocasio told defendant during the second session of the interrogation that he knew defendantwas involved in drug dealing at Campos Plaza. Ocasio testified that the subject of drug dealing atCampos Plaza came up "numerous times," that he told defendant that he knew the Money Boyswere selling crack, the victim was a drug user, and the killing was over a $20 drug debt. Further,Ocasio acknowledged that a "conversation came up" in which he told defendant that he knewabout the pending case in Supreme Court, and that he had told defendant that "you could saynothing, but that was kind of a dumb thing you did selling drugs to an undercover back in 2007,"to which defendant responded, in sum and substance, "[T]hat was just drugs. I'm talking aboutdrugs, right. I didn't have anything to do with this murder."
Although he could not recall every word and the precise phrases he used, Ocasio "severaltimes" told defendant that it would be a good idea to explain what happened. He told defendantthat the only issue was why he had done it, he could clear up his side of the story, and everyonedoes stupid things when they are young but what is really stupid "is if you've got nothing to sayabout what you've done." He further asked whether defendant was acting in self-defense and toldhim that if he was or if he did not intend to kill the victim, manslaughter, rather than a [*2]murder charge carrying a 25-year to life sentence, was a possibility,although he made no promise that defendant would get manslaughter. Toward the end of thesecond session Ocasio told defendant that he was going to be charged with murder, and "it's up toyou to say your side of the story . . . And I said if you went to a courtroom andyou're not going to say nothing, that's up to you." He also asked defendant words to the effect of"How you think it's going to look if you go to trial, you got no statement, you get up on thewitness stand and then for the first time you try to convince a jury of what happened? No one isgoing to believe you if you wait until then to do it."
Detective Ocasio gave defendant a second break, during which he left the interrogation roomto get defendant a meal. Ocasio left some photos of the crime scene and the victim on the tableand told defendant to "basically think about it." He returned about 10 to 20 minutes later withanother detective and discussed the case with defendant for another 10 to 15 minutes, reiteratingthat defendant was going to be arrested and charged with murder, "and that if he had to saysomething now would be the time." Ocasio and his colleague stepped back out for a briefmoment so Ocasio could use the restroom, and when they again returned, he saw that a photo ofthe victim had been placed face down on the table and defendant said, "I'll tell you how ithappened." Defendant then gave an oral statement, signed the written statement described aboveand, later that evening, after again being advised of and waiving his Miranda rights,recorded a video statement.
Finding that the People's witnesses testified in a forthright and credible manner, SupremeCourt concluded that defendant's statements were not improperly elicited and denied his motionto suppress. The court characterized Ocasio's reference to the pending case arising out ofdefendant's sale of drugs to an undercover officer, for which defendant was represented bycounsel, as a "flippant comment" that "was part of his interrogation strategy," but concluded that"there was nothing untoward" in it. The court noted that, although "the crimes occurred withinthe same geographical area and are, generally, drug-related," they were not intertwined, sinceOcasio "did not ask defendant questions regarding his pending matter nor was the open drug casethe focus of the interrogation." Accordingly, any incriminating response would have involved theseparate drug case.
The court further held that defendant's statements to the effect that he had "nothing to say"when denying committing the crime was not an unequivocal invocation of his right to remainsilent that negated the effect of his prior waiver of Miranda. Further, Ocasio did notmislead defendant regarding his right to remain silent but merely told him that a jury would findany explanation more credible if he did not give it for the first time at trial. Thereafter, defendantpleaded guilty to manslaughter in the first degree in full satisfaction of the indictment and wassentenced to a prison term of 18 years with five years of post-release supervision.
Defendant argues on appeal that his right to counsel was violated when Detective Ocasioquestioned him on a prior drug offense, for which charges were pending and for which Ocasioknew he was represented by counsel, in an effort, as alleged by defendant, to leverage thosecharges into an admission of guilt for the homicide. The leading case on which defendant basesthis argument is People v Cohen (90 NY2d 632 [1997]). In that case, police took thedefendant into custody after recovering a weapon that had been stolen from a garage during aburglary, and that was later used during the robbery of a convenience store in which a clerk wasshot to death. The detectives who conducted an interrogation of the defendant a few days afterthe homicide were aware that the defendant was already a suspect in the garage burglary and thathe was represented by counsel in connection with that investigation. In fact, counsel hadspecifically warned the detectives not to question the defendant in connection with the burglary.Nevertheless, throughout the interrogation, the detectives interspersed questions about theburglary with questions about the subsequent robbery and homicide, resulting in the defendant'sconfession to the latter crimes.
In suppressing the statement, the Court of Appeals identified three separate categories ofinstances where questioning about a matter for which the defendant has retained counsel isintermingled with questioning about a separate matter for which there is no representation. In thefirst, "the two criminal matters are so closely related transactionally, or in space or time, that[*3]questioning on the unrepresented matter would all butinevitably elicit incriminating responses regarding the matter in which there had been an entry ofcounsel" (90 NY2d at 638). The second category involves "interrogations concerning crimes lessintimately connected, but where the police were aware that the defendant was actuallyrepresented by an attorney in one of the matters" (id. at 640). A third category involvesquestioning of a suspect who is in custody with respect to a matter for which he or she isrepresented by counsel (id.).
In cases falling under the first and third categories, no questioning may be conducted withrespect to even the unrepresented matter (id. at 638-639). In Cohen, the Courtfound that the police questioning implicated the second category. Applying precedent,particularly People v Ermo (47 NY2d 863 [1979]), the Court observed that questioningon a represented matter is permissible, so long as it is "discrete or fairly separable" from, and not"so interrelated and intertwined with," the questioning on the other matter (Cohen at 641[internal quotation marks omitted]). Further, it is "critical" to a finding that questioning wasimpermissible "that the police purposely 'exploited concededly impermissible questioning' inorder to obtain a confession in the unrepresented matter" (id. [emphasis omitted], quotingErmo, 47 NY2d at 865). The Court found that the questioning of the defendant wasimproper because, despite their knowledge that the defendant was represented in connection withthe investigation into the garage burglary, they deliberately joined it with the homicide in aneffort to exploit the former crime and "engaged in their most forceful and heated questioning inconnection" with the represented crime (id. at 642). As the Court stated,"Unquestionably, their pointed questioning on the garage crimes, impliedly signifying knowledgeof the damning connection between that matter and the . . . homicide, was designedto add pressure on defendant to confess" (id.).
The questioning in this case also falls under the second category identified in Cohen.However, I disagree with the majority's conclusion that it rises to the standard set forth in thatcase. First, while Detective Ocasio testified that he discussed "drug dealing at Campos" withdefendant numerous times, there is no basis in the record to conclude that Ocasio brought up theactual crime for which defendant was arrested more than once. To the extent that Ocasioexplored in more general terms a possible drug-selling relationship between defendant as sellerand the victim as the buyer, it is clear from the record that this was an effort to signal todefendant that he knew defendant had a motive to shoot the victim. This strategy in no waydepended on Ocasio's emphasizing the drug transaction between defendant and an undercoverofficer. Accordingly, I agree with the hearing court's characterization of the reference to therepresented matter as a "single, flippant, comment."
That being the case, the questioning about the charged crime could not have been"completely interrelated and intertwined and not discrete or fairly separable" from thequestioning about the homicide (Cohen, 90 NY2d at 642 [citations and internal quotationmarks omitted]). Further, because the statement was so isolated, it could not have comprised astrategy "designed to add pressure on defendant to confess" (id. at 642). In contrast toCohen, in which the detectives clearly tried to link the burglary, which resulted in thetheft of the gun, and the robbery in which that very gun was used to kill a clerk, there is nolinkage between the undercover sale and the homicide, such that Ocasio could be said to havehad a purposeful strategy in mentioning the sale.
I agree with the majority to the extent it concludes that defendant's Miranda warningswere not vitiated when Detective Ocasio advised defendant to tell his side of the story to him lesthe not be believed when he told it for the first time to the jury. People v Dunbar (24 NY3d 304[2014], cert denied 575 US &mdash, 135 S Ct 2052 [2015]), on which defendant relies,dealt with an improper, scripted statement prior to the issuance of Mirandawarnings that directly undermined those warnings by encouraging the defendant to takeadvantage of what would be his only opportunity to speak before he went to court. Here, Ocasionever suggested to defendant that it would behoove him to speak rather than remain silent.Indeed, defendant had already waived his right to remain silent and instead adamantly denied thathe was involved in the homicide. Ocasio's statements merely indicated that this full-throateddenial would reflect poorly on defendant's overall credibility at trial if he adopted a trial strategyof admitting his involvement but seeking to excuse it because of the need to defend himselfagainst the victim's advance with a knife. In my [*4]opinion, therewas nothing improper about that. Further, as held in Matter of Jimmy D. (15 NY3d 417 [2010]), it is a "novel theory"that waiver of properly administered Miranda warnings may subsequently be vitiated bymisleading representations about the right to counsel during the course of the interrogation (15NY3d at 424).
Finally, although the majority does not reach it, I disagree with defendant's argument that heeffectively retracted his Miranda waiver when he said words to the effect of "I've told youwhat I've got to say." After Miranda warnings have been administered and a suspectagrees to talk to police, any subsequent invocation of the right to remain silent and forquestioning to cease must be "unequivocal" (People v Barrios, 259 AD2d 407, 407 [1stDept 1999], lv denied 93 NY2d 966 [1999]). Here, read in its proper context, defendant'sstatement, as Ocasio related it, was merely intended to reiterate that he denied killing the victim.In no way did it convey the message that he was invoking his right to remain silent and thatOcasio should stop questioning him (seePeople v Cole, 59 AD3d 302, 302 [1st Dept 2009], lv denied 12 NY3d 924[2009] ["I have nothing to say to you" was not unequivocal invocation of the defendant's right tocut off questioning "when viewed in the context of defendant's full statement denyinginvolvement in the robberies"]; People vLowin, 36 AD3d 1153, 1155 [3d Dept 2007], lv denied 9 NY3d 847 [2007] [thedefendant's statement "I'm done talking, okay, because that's what happened" merely reflected thedefendant's unwillingness to change his story]). It bears repeating that Ocasio explicitly deniedthat defendant had stated that he had answered all of the detective's questions and was donetalking.
For the foregoing reasons, I would affirm the judgment of conviction.