| People v Hirji |
| 2020 NY Slip Op 04320 [185 AD3d 1053] |
| July 29, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Areefeen Hirji, Appellant. |
Jeffrey Lichtman, New York, NY (Jason Goldman of counsel), for appellant.
Madeline Singas, District Attorney, Mineola, NY (Yael V. Levy and Monica M.C. Leiter ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (FrancisRicigliano, J.), rendered February 26, 2019, convicting him of manslaughter in the seconddegree, leaving the scene of an incident without reporting, reckless endangerment in the seconddegree, making a punishable false written statement, and reckless driving, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branchof the defendant's omnibus motion which was to suppress his statements to law enforcementofficials.
Ordered that the judgment is affirmed.
On February 23, 2017, the defendant, who was driving a white 2017 Honda Accord Sport,and Jonnathan Santos, who was driving a black 2015 BMW, were traveling side-by-side inadjacent lanes of the Long Island Expressway (hereinafter the Expressway) in excess of 110miles per hour when their vehicles made contact. The collision caused the BMW to startspinning, and it struck a third vehicle and a guardrail. The impact with the guardrail caused therear passenger door to open and Gianfranco Peralta, who was not wearing a seatbelt, was ejectedfrom the BMW and died at the scene. Santos was arrested at the scene and ultimately pleadedguilty to manslaughter in the second degree. The defendant never stopped, and a witness saw theHonda leave the Expressway at the next exit.
After a trial, the jury convicted the defendant of manslaughter in the second degree, leavingthe scene of an incident without reporting, reckless endangerment in the second degree, making apunishable false written statement, and reckless driving.
The defendant contends that his convictions of manslaughter in the second degree, leavingthe scene of an incident without reporting, reckless endangerment in the second degree, andreckless driving were against the weight of the credible evidence. In fulfilling our responsibilityto conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342,348 [2007]), we nevertheless accord great deference to the jury's opportunity to view thewitnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383,410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the recordhere, we are satisfied that the verdict of guilt on the counts of manslaughter in the second degree,leaving the scene of an incident without reporting, reckless endangerment in the second degree,and reckless driving was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
We agree with the Supreme Court's determination to deny the defendant's request for a juryinstruction on the statutory exemption to accomplice liability (see Penal Law§ 20.10), inasmuch as there is no evidence to support a finding that his conduct wasnecessarily incidental to Santos' crime (see People v Lee, 56 AD3d 1250, 1252 [2008]; People vDaddona, 181 AD2d 688, 689-690 [1992]; see generally People v Manini, 79 NY2d561, 569-571 [1992]).
We agree with the Supreme Court's determination denying the defendant's request for amissing witness charge, as the defendant failed to meet his burden of establishing that Santos, thecodefendant, would normally be expected to give noncumulative testimony favorable to thePeople (see generally People v Savinon, 100 NY2d 192, 196 [2003]; People vGonzalez, 68 NY2d 424, 427 [1986]; Buttice v Dyer, 1 AD3d 552, 552-553 [2003]).Indeed, the testimony of a codefendant who has pleaded guilty is "presumptively suspect," and aprosecutor would not normally be expected to call such a witness at trial (People v Rios,184 AD2d 244, 245 [1992]; see CPL 60.22; People v Bisnauth, 149 AD3d 860, 861-862 [2017]; People v Heidt, 95 AD3d 1234,1235 [2012]).
Contrary to the defendant's contention, the jury charge, which instructed the jury as toprincipal "or" accessorial liability, in the disjunctive, did not improperly amend the indictment,which charged the defendant with principal "and" accessorial liability, in the conjunctive. Therewas no requirement that the jury charge mirror the exact language of the indictment regardingprincipal and accessorial liability, because "there is no legal distinction between liability as aprincipal or criminal culpability as an accomplice" (People v Rivera, 84 NY2d 766, 769[1995]; see People v Duncan, 46 NY2d 74, 79-80 [1978]).
"The Miranda rule protects the privilege against self-incrimination and, because theprivilege applies only when an accused is compelled to testify, the safeguards required byMiranda are not triggered unless a suspect is subject to custodial interrogation" (People v Paulman, 5 NY3d 122,129 [2005] [internal quotation marks omitted]; see People v Berg, 92 NY2d 701, 704[1999]). "The standard for assessing a suspect's custodial status is whether a reasonable personinnocent of any wrongdoing would have believed that he or she was not free to leave" (Peoplev Paulman, 5 NY3d at 129; see People v Harris, 48 NY2d 208, 215 [1979]; People v Brown, 177 AD3d 763,764-765 [2019]). The issue of whether a suspect is in custody is generally a question of fact (see People v Reardon, 124 AD3d681, 683 [2015]), and does not turn on the subjective beliefs of the defendant (see Peoplev Yukl, 25 NY2d 585, 589 [1969]), or the subjective intent of the police officer (seePeople v Reardon, 124 AD3d at 683). "The factors to be weighed include the amount of timewhich the defendant spent with the police, the manner, if any, in which his [or her] freedom wasrestricted, the location and atmosphere of his [or her] questioning, the degree of cooperationwhich he [or she] exhibited, whether he [or she] was apprised of his [or her] constitutional rights,and whether the questioning was investigatory or accusatory in nature" (People vPetrovich, 202 AD2d 523, 524 [1994]; see People v Blake, 177 AD2d 636, 636[1991]).
Giving deference to the Supreme Court's credibility determinations (see People v Baggett, 57 AD3d1093, 1094 [2008]), the court's conclusion that the defendant was not in police custodybefore he was administered Miranda warnings (see Miranda v Arizona, 384 US436 [1966]) is supported by the record (see People v Gelin, 128 AD3d 717, 718 [2015]). The hearingtestimony established that the defendant voluntarily appeared at the police station to offerinformation about the accident, and was brought to an office where a detective asked himquestions about his involvement. During the interview, the defendant was not handcuffed andhad his cell phone with him (see Peoplev Brown, 177 AD3d 763, 765 [2019]). The questions were not accusatory or designed toelicit an incriminating response, and a reasonable, innocent person would not have believed thathe or she was in custody at the time (see People v Yukl, 25 NY2d 585 [1969]; People v Meyer, 119 AD3d 876 [2014]). Although a seconddetective subsequently entered the room, accused the defendant of lying, and confronted himwith evidence of his guilt, the fact that the questioning may have turned accusatory in nature didnot render the interview custodial given the other circumstances present in this case (seePeople v Brown, 177 AD3d at 765; People v Morris, 173 AD3d 1797, 1799 [2019]).
Accordingly, we agree with the Supreme Court's determination to deny that branch of thedefendant's omnibus motion which was to suppress his statements to law enforcement officialsmade prior to the administration of Miranda warnings. In light of the foregoing, we donot reach the defendant's remaining contention regarding the court's determination.
The record here does not support the defendant's contention that the prosecutor and theSupreme Court intimidated a defense witness into declining to testify (see People v Villacorta, 76 AD3d911 [2010]; People v Webb, 195 AD2d 614, 615 [1993]; cf. People vShapiro, 50 NY2d 747 [1980]). The prosecutor simply informed the witness that the Peoplewould not be calling him at trial because they had evidence that his grand jury testimony wasuntruthful. The prosecutor did not emphasize the warning to the point of intimidation, threaten toprosecute the witness for perjurious testimony, or otherwise interfere with the witness's "free andunhampered choice to testify" (People v Shapiro, 50 NY2d at 761).
The defendant's remaining contentions are without merit. Scheinkman, P.J., Miller, Malteseand Barros, JJ., concur.