| People v Stephans |
| 2019 NY Slip Op 00473 [168 AD3d 990] |
| January 23, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Luander Stephans, Appellant. |
Robert DiDio, Kew Gardens, NY (Danielle Muscatello former of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Merri Turk Lasky, and Kayonia L. Whetstone of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Charles S.Lopresto, J.), rendered November 23, 2015, convicting her of bribery in the third degree andfalsely reporting an incident in the third degree, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing (Robert A. Schwartz, J.), of that branch ofthe defendant's omnibus motion which was to suppress her statements to law enforcementofficials.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interestof justice, and a new trial is ordered.
In the early morning hours of October 16, 2014, the defendant's husband went to a policeprecinct station house in Queens and reported that the defendant had assaulted him. A policeofficer spoke with the defendant by telephone, asked her to come to the station house, and toldher that she would be arrested. The defendant told him that she would come to the station housethe next day. Later that morning, Police Officer Raymond Persaud was assigned to the case andspoke with the defendant by telephone. Officer Persaud informed the defendant that he wasinvestigating an allegation made by her husband and that she needed to come to the stationhouse. The defendant and her husband went the station house and met with Officer Persaud. Theofficer separated the defendant and her husband, and placed the defendant in the squad interviewroom.
At a suppression hearing, Officer Persaud testified that after interviewing the defendant'shusband, he went into the squad interview room, introduced himself to the defendant, andthanked her for coming in. He then told her of the assault allegations against her, that he hadlearned that her alleged acts would also violate an existing order of protection, and that shewould be arrested. The defendant then told Officer Persaud that she and her husband had gotteninto an argument and that she did not mean to hit him, but when she swung her hand at his face,her ring might have cut his eye. Officer Persaud testified that although he asked the defendantquestions about "personal stuff," such as where she worked and where she was from, he had notquestioned the defendant about the alleged assault before she made this incriminatingstatement.
Officer Persaud further testified that after he and the defendant had conversed for anunspecified time, he told her that she was going to be placed under arrest, and that, as he wasabout to leave the interview room, the defendant offered him sex and money to "make thecharges disappear." According to Officer Persaud, he informed the defendant that he would needto speak to his superior and the assistant district attorney. Officer Persaud reported the incident tohis superior. The Internal Affairs Bureau (hereinafter Internal Affairs) was contacted and,approximately two hours later, officers from Internal Affairs came to the station house andplaced a recording device on Officer Persaud. Officer Persaud returned to the interview room,where the defendant continued to be detained, and recorded a conversation with her in which sherepeated the offer to give him money and sex in exchange for making the charges disappear. Onehour later, Officer Persaud returned to the interview room with his sergeant, and the sergeantinformed the defendant that she was being charged with bribery. Officer Persaud testified that thedefendant appeared surprised, and said that she had not been trying to bribe Officer Persaud, butwas "just trying to give him something for his kindness because he was kind to me." At no pointduring the four hours in which she was interviewed did Officer Persaud, or any other officer,advise the defendant of her Miranda rights (see Miranda v Arizona, 384 US 436[1966]).
Shortly after the conversation with Officer Persaud and the sergeant, the defendant wasmoved to a cell in the station house, and the following day she was arraigned on a felonycomplaint charging her with bribery of Officer Persaud and various charges relating to thealleged assault of her husband. The defendant was represented by an attorney at arraignment andwas released from custody.
A few days later, on October 20, 2014, the defendant called the precinct station house andreported to Detective Oliver Muir that while she was there on October 16, 2014, Officer Persaud"felt her breast, grabbed her private parts and asked her for $2500 in cash." She further reportedthat since that day, she had received numerous calls from Officer Persaud telling her "not to sayanything." The defendant's complaint was referred to Sergeant Latania Keith in Internal Affairs.Sergeant Keith contacted the defendant to set up an interview, and arranged to meet her thatevening at a coffee shop. Sergeant Keith and her partner met the defendant, who was alone, at thearranged location and conducted the interview in the back of the police vehicle. They did notadminister Miranda warnings, and, without the defendant's knowledge, recorded theinterview, which lasted just over an hour. The officers asked the defendant about the eventssurrounding the alleged assault of her husband and the defendant's interactions with OfficerPersaud at the station house. In response to their questions, the defendant described the argumentthat she had with her husband and how, at the station house, Officer Persaud began flirting withher and eventually told her that he could make the charges go away in exchange for sex andmoney. The defendant told the officers, among other things, that Officer Persaud had removedher to a room with no cameras, turned the lights off, touched her breasts, and placed his handinside of her pants.
The defendant subsequently was charged by indictment with criminal contempt in the firstdegree, assault in the third degree, and harassment in the second degree, in relation to the allegedassault of her husband, bribery in the third degree based upon on her interactions with OfficerPersaud at the station house, and falsely reporting an incident in the third degree based upon herlater report of Officer Persaud's alleged conduct. Before trial, the People gave notice pursuant toCPL 710.30 (1) (a) of their intent to offer at trial the defendant's statement to Officer Persaud thatshe had not meant to strike her husband, and her statement to Officer Persaud and his sergeantthat she was not trying to bribe Persaud, but was only trying to give him something for hiskindness. The defendant moved, inter alia, to suppress those statements. At the suppressionhearing, the People argued that the subject statements were not the product of a custodialinterrogation, but instead were spontaneously offered by the defendant. The motion court agreed,and denied that branch of the defendant's motion which was to suppress those statements.
At trial, in addition to the statements of which the People gave notice pursuant to CPL710.30 (1) (a), Officer Persaud testified to numerous other statements the defendant made whileshe was in the interview room concerning the incident with her husband and the attemptedbribery of Officer Persaud, with no objection from defense counsel. Among other things, OfficerPersaud admitted that during his interview with the defendant, he called the defendant's cellphone from his own so that they would have each other's phone numbers and could communicatelater, and that before the officers from Internal Affairs arrived, he moved the defendant to anotherroom where he briefly turned off the lights while they were together. The conversation betweenOfficer Persaud and the defendant which was recorded by the recording device placed on OfficerPersaud by the officers from Internal Affairs was played for the jury.
The People also introduced into evidence at trial the unredacted audio recording of thedefendant's interview with Sergeant Keith and her partner, initially with the consent of defensecounsel. However, while the recording was playing for the jury, the trial court interrupted it andcalled a sidebar conference outside of the jury's presence. The court observed that the manner inwhich the officers were questioning the defendant shifted the burden of proof, and the questionsposed were improper since, at the time the interview was conducted, the defendant had chargespending against her and was represented by counsel. The court further observed that the factsunderlying the charges of bribery in the third degree and falsely reporting an incident in the thirddegree were "so intertwined that they are one in the same," and that the defendant should nothave been questioned in the back of a police vehicle without an attorney present. The court statedthat it found the recording "highly prejudicial," and that it was considering declaring a mistrial.Defense counsel then moved for a mistrial on the ground that the recording was prejudicial anddeprived the defendant of a fair trial. Ultimately, the court declined to declare a mistrial, but itinstructed the jury to disregard everything it had heard on the audio recording. Nonetheless,thereafter, Sergeant Keith testified as to certain statements made by the defendant during therecorded interview, with no objection by the defense.
The defendant testified at trial, inter alia, that Officer Persaud had touched her sexually andmade sexually explicit comments. The defendant testified that she was frightened, and tried toget out of the situation by offering to give Officer Persaud money and telling him that they couldhave sex the following week.
The jury acquitted the defendant of all counts relating to the alleged assault of her husband,but convicted her of bribery in the third degree and falsely reporting an incident in the thirddegree. The defendant appeals, arguing, among other things, that the Supreme Court erred indenying suppression of certain statements she made at the precinct, the evidence was legallyinsufficient to establish her guilt of bribery in the third degree, the admission of her statements toSergeant Keith violated her right to counsel, and she was denied the effective assistance ofcounsel.
The defendant contends that the Supreme Court erred in denying those branches of heromnibus motion which were to suppress the statement she made to Officer Persaud that she didnot mean to hit her husband, but her ring might have cut his eye, and the statement she made toOfficer Persaud and his sergeant that she was not trying to bribe Officer Persaud, but was justtrying to give him something for his kindness. The defendant asserts that the statements wereinadmissible because they were the product of a custodial interrogation and she was not advisedof her constitutional rights as required by Miranda v Arizona (384 US 436 [1966]).
Statements made in response to custodial interrogation are inadmissible in the absence ofMiranda warnings (see People vDunbar, 24 NY3d 304, 314 [2014]; People v Ferro, 63 NY2d 316, 322 [1984];People v Tavares-Nunez, 87 AD3d1171, 1172 [2011]). Here, contrary to the People's contention, under the totality of thecircumstances, the defendant was in police custody at the time that she made the statements(see People v Yukl, 25 NY2d 585, 589 [1969]; People v Tavares-Nunez, 87AD3d at 1172; People v Baggett, 57AD3d 1093, 1094 [2008]; People vPayne, 41 AD3d 512, 513 [2007]; People v Vachet, 5 AD3d 700, 701 [2004]).
We disagree with the Supreme Court's conclusion that the defendant's inculpatory statementconcerning the manner in which she might have hit her husband was admissible because it wasspontaneous and not the result of interrogation or its functional equivalent. "[T]he specialprocedural safeguards outlined in Miranda are required not where a suspect is simplytaken into custody, but rather where a suspect in custody is subjected to interrogation" (RhodeIsland v Innis, 446 US 291, 300 [1980]). "[T]he term 'interrogation' under Mirandarefers not only to express questioning, but also to any words or actions on the part of the police(other than those normally attendant to arrest and custody) that the police should know arereasonably likely to elicit an incriminating response from the suspect" (id. at 301[footnotes omitted]; see People v Tavares-Nunez, 87 AD3d at 1172). In contrast,"[v]olunteered statements are admissible provided the defendant spoke with genuine spontaneity'and not the result of inducement, provocation, encouragement or acquiescence, no matter howsubtly employed' " (People v Rivers, 56 NY2d 476, 479 [1982], quotingPeople v Maerling, 46 NY2d 289, 302-303 [1978]; see Rhode Island v Innis, 446US at 300; People v Tavares-Nunez, 87 AD3d at 1172). Here, considering the totality ofthe circumstances leading up to the subject statement, it cannot be said that the defendant'sstatement was genuinely spontaneous and not the result of provocation. Officer Persaud shouldhave known that in telling the defendant that she needed to come to the precinct station house inconnection with his investigation into the allegations her husband had made against her,allegations about which she had already been told she would be arrested, placing her in aninterview room, and then confronting her with the allegations and the evidence against her,including the existence of the order of protection, he was reasonably likely to elicit from thedefendant an incriminating response (see People v Ferro, 63 NY2d at 323; People vTavares-Nunez, 87 AD3d at 1173). Accordingly, the court should have granted that branchof the defendant's omnibus motion which was to suppress her statement to Officer Persaudconcerning the manner in which she may have hit her husband. Nonetheless, because the juryacquitted the defendant of the charges relating to the alleged assault, the error was not prejudicialand, standing alone, would not warrant reversal.
We agree with the Supreme Court's denial of that branch of the defendant's omnibus motionwhich was to suppress her statement that she was not trying to bribe Officer Persaud, but wasonly trying to give him something for his kindness. This statement, made several hours after theinterview with Officer Persaud, and in response to a statement by the sergeant, was spontaneousand not triggered by any police questioning or other conduct which reasonably could have beenexpected to elicit an incriminating response (cf. People v Rivers, 56 NY2d 476, 480[1982]; People v Whaul, 63 AD3d1182, 1183 [2009]; People vDavis, 32 AD3d 445, 446 [2006]; People v Brown, 161 AD2d 778 [1990]).
Next, the defendant contends that the evidence was legally insufficient to establish her guiltof bribery in the third degree. Viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient toestablish beyond a reasonable doubt that the defendant was guilty of bribery in the third degree(Penal Law § 200.00).
We agree with the defendant, however, that reversal is warranted based on the admission ofher statements to Sergeant Keith and her partner made in the back of their police vehicle.Contrary to the People's contention, the defendant's objection to the admission of the audiorecording of those statements is preserved for appellate review. Although defense counselinitially agreed to the admission of the audio recording, when the trial court stopped the playbackbefore the jury and determined that it was inadmissible, the court specifically recognized theviolation of the defendant's right to counsel, and stated that it was considering declaring amistrial. Defense counsel then moved for a mistrial on the grounds that the audio recording wasprejudicial and its playback before the jury deprived the defendant of a fair trial. The court heldthat admission of the audio recording violated a number of the defendant's constitutional rights,and it noted that defense counsel's failure to initially object to its admission was notdeterminative of the court's "obligation to conduct a fair trial in this matter." After ultimatelydenying the motion for a mistrial, and instructing the jury to disregard everything it had heard onthe audio recording, the court expressly stated that the admission of the audio recording "forwhatever Appellate purpose it's preserved for the appeal." The record thus establishes that thetrial court considered the very issues raised on appeal concerning the playback of the audiorecording, including the defendant's argument that the court should have granted her motion for amistrial in order to remedy the prejudice resulting from the jury hearing the recording(see CPL 470.05 [2]; People vDubarry, 25 NY3d 161, 169-170 [2015]). However, the defendant did not object to thetestimony of Sergeant Keith, in which she recounted portions of that same interview. Thus, thedefendant's argument on appeal is only partially preserved. Nonetheless, we exercise our interestof justice jurisdiction to reach the merits of the whole of her argument (see CPL 470.15[6] [a]).
"It has long been the law in this State that any incriminating statement made in the absence ofcounsel by a defendant in response to interrogation relating to the criminal charge underinvestigation after he [or she] has been arraigned or indicted is inadmissible in evidence againstthe defendant" (People v Townes, 41 NY2d 97, 102-103 [1976]). Any interrogation afterformal criminal proceedings against a defendant have commenced would violate the defendant'sright to counsel and right to be free from testimonial compulsion (see People v Lopez, 16 NY3d 375,380 [2011]; People v Townes, 41 NY2d at 103; People v Waterman, 9 NY2d561, 566 [1961]). This includes statements made in the course of an interview concerning adefendant's complaint with respect to allegedly illegal police conduct in connection with thedefendant's arrest (see People v Roberson, 41 NY2d 106, 108-109 [1976]; People vTownes, 41 NY2d at 104). The officers investigating such a complaint are free to interviewthe defendant and make use of the product of that interview in connection with any inquiry intothe allegations of police misconduct, but the People are prohibited from using inculpatorystatements so elicited in the prosecution of the criminal charges against the defendant (seePeople v Townes, 41 NY2d at 105).
Here, the officers from Internal Affairs questioned the defendant about the eventssurrounding the very charges that were the subject of the criminal proceedings then pendingagainst her. Furthermore, to the extent that the People contend that those officers werequestioning the defendant about a separate crime for which she was not represented by counsel,that is, falsely reporting an incident in the third degree, their contention is unavailing. Althoughgenerally a defendant who is represented by counsel may be questioned about a different,unrepresented crime (see People vHenry, 31 NY3d 364 [2018]; People v Taylor, 27 NY2d 327, 329 [1971]), "thereare two categories of cases in which police questioning on an unrepresented crime may violate adefendant's right to counsel: (1) where the two matters are 'so closely related transactionally, or inspace or time, that questioning on the unrepresented matter would all but inevitably elicitincriminating responses regarding the matter in which there had been an entry of counsel'; and (2)where, although the matters are 'less intimately connected . . . the police [are] awarethat the defendant was actually represented by an attorney in one of the matters,' and 'theinterrogation actually entail[s] an infringement of the suspect's State constitutional right tocounsel by impermissible questioning on the represented crime' " (People vHenry, 31 NY3d at 368 [footnote and citation omitted], quoting People v Cohen, 90NY2d 632, 638, 640 [1997]). Here, the defendant's alleged bribery of Officer Persaud and herallegedly false reporting of his sexual misconduct during that same encounter were "soinextricably interwoven in terms of both their temporal proximity and factual interrelationship"as to render unavoidable the conclusion that any interrogation concerning the allegedly falsereport would inevitably elicit incriminating responses regarding the matter in which there hadbeen an entry of counsel (People v Townes, 41 NY2d at 104; see People v Carl,46 NY2d 806, 807-808 [1978]; People v Roberson, 41 NY2d at 108-109; People vVega, 81 AD2d 701, 702 [1981]). Furthermore, the police were aware that the defendant wasactually represented by an attorney and the interrogation actually entailed an infringement of herconstitutional right to counsel by impermissible questioning on the represented crimes (seePeople v Cohen, 90 NY2d at 638-642). Accordingly, the People should not have beenpermitted to introduce any of the defendant's statements that were elicited during that interview,including through the testimony of Sergeant Keith. This error cannot be considered harmlessbeyond a reasonable doubt as to the defendant's convictions of bribery in the third degree andfalsely reporting an incident in the third degree (cf. People v Crimmins, 36 NY2d 230,237 [1975]), and thus a new trial is warranted.
We also agree with the defendant that a new trial is warranted on the ground that thedefendant was deprived of the effective assistance of counsel. The defendant has demonstratedthat trial counsel failed to provide meaningful representation (see People v Baldi, 54NY2d 137, 147 [1981]). Specifically, the defendant demonstrated the absence of "a reasonableand legitimate strategy under the circumstances and evidence presented" (People vBenevento, 91 NY2d 708, 713 [1998]) for defense counsel's stipulation to admission of arecording of the entire interview between the defendant and Sergeant Klein and her partner, andhis failure to object to Sergeant Klein's testimony recounting the same interview, or OfficerPersaud's testimony in which he recounted numerous statements made by the defendant, of whichthe People failed to provide notice as required by CPL 710.30 (1) (a). We disagree with ourdissenting colleague's conclusion that there was an obvious and legitimate trial strategy inadmitting this evidence. The admission of this evidence cannot be viewed as a strategy intendedto place the defendant's version of events before the jury without having the defendant testify,since the defendant testified herself at trial as to her version of what occurred with OfficerPersaud, and there is no indication in the record that the decision for the defendant to testify wasa last-minute change in strategy. Moreover, defense counsel himself effectively acknowledgedthe absence of any legitimate strategy in admitting this evidence when he moved for a mistrialbased upon the admission of the audio recording. Under the circumstances, counsel's errorsdeprived the defendant of meaningful representation and a fair trial (see People v Cleophus, 81 AD3d844, 846 [2011]; People vDanraj, 75 AD3d 651, 651-652 [2010]).
In light of our determination, we do not reach the defendant's remaining contentions. Sgroi,Miller and Brathwaite Nelson, JJ., concur.
Dillon, J.P., dissents, and votes to affirm the judgment, with the following memorandum: Attrial, the People and the defendant stipulated to admit into evidence a copy of an audio recordingof the defendant's interview with officers from the Internal Affairs Bureau regarding herallegations of sexual misconduct by Officer Persaud. A portion of the recording was played to thejury before the Supreme Court stopped the playback of the recording on the ground that themanner in which the officers were questioning the defendant shifted the burden of proof. Thecourt struck the entire recording from evidence and issued a curative instruction to the jury. Onappeal, the defendant challenges the admission of the recording into evidence in the firstinstance. However, defense counsel stated on the record that the recording was "also part of thedefense." Thus, the defendant, by failing to object at trial to admission of the recording intoevidence and, in fact, consenting to its admission cannot now raise this objection on appeal as itis unpreserved for appellate review (seePeople v Mancusi, 161 AD3d 775 [2018]; People v Gajadhar, 38 AD3d 127, 132-133 [2007], affd 9NY3d 438 [2007]). Further, the defendant's argument on appeal that the court should haveordered a mistrial is based on grounds different than the grounds she advanced at trial, and istherefore unpreserved for appellate review (see CPL 470.05 [2]; People v Dunn,85 NY2d 956, 957 [1995]). In any event, the court providently exercised its discretion in denyingthe defendant's request for a mistrial, and instead striking the evidence and issuing a curativeinstruction (see People v Ortiz, 54 NY2d 288, 292 [1981]; Hall v Potoker, 49NY2d 501 [1980]; People v Richardson, 175 AD2d 143, 144 [1991]). The jury ispresumed to have followed the curative instructions (see People v Hall, 266 AD2d 160,161 [1999]; People v Coursey, 250 AD2d 351 [1998]).
The defendant's argument that her trial counsel was ineffective because he stipulated toadmitting into evidence the audio recording of the defendant's interview with Sergeant Keith andher partner is unavailing. The defendant's statements on the recording set forth her version of herinteraction with Officer Persaud. Thus, defense counsel's decision to stipulate to the admission ofthe recording into evidence demonstrated an obvious and legitimate trial strategy (see Peoplev Benevento, 91 NY2d 708, 711 [1998]). The obvious trial strategy by counsel was to allowthe jury to hear the defendant refute in her own words the allegations of bribery, without beingsubjected to any cross examination. Playing the recording for the jury, had the Supreme Court notstricken it sua sponte, might have obviated the need for the defendant to testify in her defense,which is a well-considered and sometimes complicated decision made by defendants and theircounsel during jury trials.
I concur with my colleagues as to the remaining issues presented on appeal.