| People v Hernandez |
| 2020 NY Slip Op 02100 [181 AD3d 530] |
| March 26, 2020 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Pedro Hernandez, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Ben A. Schatz ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), forrespondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Erin A. Kulesus of counsel), forChief Defenders Association of New York, amicus curiae.
Simpson Thacher & Bartlett LLP, New York (Mark Stein of counsel), for TheInnocence Project Inc., amicus curiae.
Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered April18, 2017, convicting defendant, after a jury trial, of murder in the second degree andkidnapping in the first degree, and sentencing him to concurrent terms of 25 years to life,unanimously affirmed.
The court properly denied defendant's suppression motion. There is no basis fordisturbing the hearing court's factual determinations. The hearing record establishes that,under the totality of circumstances, defendant's statements made before he receivedMiranda warnings were not the product of custodial interrogation, because areasonable innocent person in defendant's position would not have thought he was incustody (see People v Yukl, 25 NY2d 585 [1969], cert denied 400 US851 [1970]). Defendant voluntarily accompanied the detectives to a New Jersey policestation, where he was not locked into the facility, handcuffed or restrained, and he waspermitted to move around in a manner that was inconsistent with a custodial setting. Thedetectives repeatedly told defendant he was free to leave. In the context of all thesurrounding circumstances, those explicit assurances were not undermined when, onseveral occasions, the detectives expressed their preference that defendant complete theinterview before he left or spoke to his wife, and defendant voluntarily opted to continue.Furthermore, the interview was never hostile or accusatory.
The court also correctly determined that defendant made a knowing and intelligentwaiver of his Miranda rights. The evidence, including the videotape ofdefendant's ultimate interview by an Assistant District Attorney as well as experttestimony presented by both sides, supports the conclusion that defendant was not somentally ill, lacking in intelligence, or impaired by medication that he was incapable ofintelligently waiving his rights (see People v Williams, 62 NY2d 285 [1984]). Aninterchange between defendant and the interviewing Assistant, in which defendant askedintelligent questions about his right to counsel and received appropriate answers,demonstrates defendant's ability, rather than inability, to understand his rights.
The verdict was based on legally sufficient evidence and was not against the weightof the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). Initially, we find that defendant'sconfession was corroborated to the limited extent required by CPL 60.50. That statute issatisfied by the production of "some proof, of whatever weight, that a crime wascommitted by someone" (People v Chico, 90 NY2d 585, 589 [1997]). Here, theunexplained disappearance in 1979 of six-year-old Etan Patz, who has not been locatedor heard from since, presented strong circumstantial evidence that he was kidnaped andmurdered (see People v Lipsky, 57 NY2d 560, 571-572 [1982]).
Next, we find that defendant's confession to law enforcement was reliable andtruthful. Defendant offered certain details without any prompting, such as offering Etan asoda, that were consistent with other evidence. Defendant also led detectives to the placewhere he thought he had left the body, but expressed uncertainty because of the presenceof a door; detectives later learned that the owner had installed the door after 1979.Defendant made generally similar admissions to civilians over a period ranging fromshortly after Etan's disappearance to immediately after he confessed to the authorities.Defendant's account was consistent with his admissions at a religious retreat, where hetold fellow participants that he had strangled a boy while working at a store, and placedhis body in a bag, which he put with the trash. After his confession to law enforcement,defendant also admitted to his wife and daughter that he had killed a boy, and told anurse that he had choked a person 33 years earlier. Any inconsistencies withindefendant's confession, or between that confession and his admissions to civilians, orbetween his various statements and other evidence in the case, were sufficientlyexplained. The evidence does not support defendant's claim that he gave a falseconfession due to a susceptibility resulting from mental impairment. Aside from the factthat defendant volunteered essentially the same admission to civilians, the evidenceshowed that defendant lived as a well-functioning, employed family man for many years,and the jury could have reasonably rejected the expert testimony introduced by defendantregarding his mental condition. Furthermore, there is no evidence that the facts stated indefendant's confession were contaminated by police suggestion or otherwise.
We also find that evidence regarding the possible culpability of an alternative suspectwas too weak to affect the weight of the evidence establishing defendant's guilt.Although the other suspect was a convicted child molester, his admission that on the dayEtan disappeared, he had sexually molested a boy named "Jimmy," whom he brought tohis apartment and then put on a subway to his aunt's home, had little connection with thefacts of this case.
The evidentiary rulings challenged on appeal were provident exercises of discretionthat did not impair defendant's right to present a defense or any other constitutional right(see Crane v Kentucky, 476 US 683, 689-690 [1986]). Defendant had an ampleopportunity to introduce evidence about the above-discussed alternative suspect, and theevidence offered by defendant relating to yet another possible suspect was so remote asto be irrelevant (see People vDiPippo, 27 NY3d 127, 135-136 [2016]). With regard to hearsay evidenceoffered by both sides, the court properly concluded that the evidence offered by thePeople was admissible, not for its truth, but for legitimate nonhearsay explanatorypurposes (see People v Tosca, 98 NY2d 660 [2002]), while the evidence offeredby defendant was not admissible on that, or any other basis (see People v Burns, 6 NY3d793, 795 [2006]). The court also providently exercised its discretion in precludingexpert testimony on the effect on memory of a lengthy passage of time, because theproposed testimony was within the jurors' ordinary experience and knowledge. We reachsimilar conclusions as to the other evidentiary issues raised on appeal, includingdefendant's constitutional claims.
The court provided a meaningful response to a jury note on the subject of thevoluntariness of confessions (see generally People v Almodovar, 62 NY2d 126,131 [1984]; People v Malloy, 55 NY2d 296, 302 [1982], cert denied 459US 847 [1982]). Given the precise wording of the note, the court's brief response wascorrect. Even assuming, without deciding, that the court should have added instructionson the circumstances whereby a statement may or may not be attenuated from a priorstatement found to be involuntary, there is no reasonable possibility that the verdictwould have been different had those instructions been given (see People v Petty, 7 NY3d277, 286 [2006]; People vJones, 3 NY3d 491, 497 [2004]), in light of the strong evidence that defendant'sconfession to the Assistant District Attorney was fully attenuated from all of hisconfessions to the police, as well as being corroborated by defendant's variousconfessions to civilians.
The court providently exercised its discretion in denying, without an evidentiaryhearing, defendant's CPL 330.30 (2) motion to set aside the verdict on the ground thatthe jury had been improperly influenced by extraneous information (see People v Samandarov, 13NY3d 433, 436-438 [2009]). Defendant did not provide affidavits from anyone withfirst-hand knowledge of the material facts. While affidavits in support of such a motionmay be based on information and belief, here the "information" in a defenseinvestigator's affidavits was limited to news media accounts, along with statements by ajuror and an alternate that failed to support, or contradicted, defendant's theory ofimproper influence. None of this information was sufficient to require a hearing (seeid.). Defendant acknowledged his inability to provide more information, and he wasnot "entitled to a hearing based on expressions of hope that a hearing might reveal theessential facts" (People vBrooks, 134 AD3d 574, 576 [1st Dept 2015], affd 31 NY3d 939[2018]). Furthermore, defendant did not demonstrate that the extraneous informationallegedly made known to the jury had any effect on its deliberations, or that it wasinherently prejudicial.
We perceive no basis for reducing the sentence.
We have considered and rejected defendant's remaining claims.Concur—Friedman, J.P., Kern, Oing and González, JJ.
Motion to file amicus curiae brief granted, and the brief deemed filed.