Opinion
2014-10-16
The PEOPLE of the State of New York, Respondent, v. Malik HASKINS, Appellant.
John T. Casey Jr., Troy, for appellant. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
John T. Casey Jr., Troy, for appellant. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, GARRY, ROSE and CLARK, JJ.
GARRY, J.
Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered January 6, 2012, upon a verdict convicting defendant of the crime of burglary in the second degree.
On December 12, 2010, upon returning to her home in the Town of Ulster, Ulster County, the victim observed an unknown car exit from her driveway, and she followed it out of curiosity. Pulling alongside the other car, she recognized both the passenger, whom she identified as defendant, and the female driver, defendant's girlfriend; the victim had known defendant for many years and considered him a family friend. The victim spoke briefly with defendant, asking if he was “looking for [her],” and observed a large flat screen television in the rear of the car. She then drove home and, upon arriving, discovered that the side door to her home had been forced open and her 42–inch flat screen television was missing. The victim called 911 to report the burglary; while waiting for the police to arrive, she received a call from an unidentified male, who directed her to a designated location, where she went and retrieved her television from defendant. Responding to the scene, police observed signs of a forced entry. The victim then returned with her television, and identified defendant as the individual who had returned it to her. Thereafter, following a jury trial, defendant was convicted as charged of burglary in the second degree and sentenced to a prison term of 12 years with five years of postrelease supervision. Defendant appeals.
Defendant challenges County Court's determination, following a Huntley hearing, that portions of statements he made to police at the station were admissible. In so holding, the court credited the testimony of a detective of the Town of Ulster Police Department. The detective testified that defendant willingly came to the police station upon being asked to do so, Miranda warnings were provided and, approximately five minutes later, he requested counsel and stopped talking. At that point all questioning ceased, and he was brought to the holding cell in the booking room for processing. Shortly thereafter, defendant's girlfriend, who had arrived separately at the station, was also brought into the booking room for processing, and she was seated in a chair outside the holding cell. While the girlfriend's pedigree information was being obtained, defendant asked what was going to happen, and officers advised him regarding the arrest and arraignment process, but they did not inquire in any manner about the burglary. Defendant then asked what would happen if he told them what had occurred and that his girlfriend had no involvement, to which another detective responded that it would be “too little, too late.” Defendant thereafter made additional statements. County Court held that defendant's statements up to the point of this response were admissible, and those made thereafter were not. At trial, the court permitted a 14–second redacted version of the booking room surveillance video to be played for the jury. Defendant argues that the court erred in denying his motion to suppress his statements made after invoking his right to counsel because they were provoked by police conduct in bringing his girlfriend into the booking area while he was being processed, and further erred in allowing the corresponding station house video at trial as it was entirely prejudicial, with no probative value.
As defendant requested counsel after being advised of his Miranda rights at the police station, any further police questioning was precluded ( see People v. Ramos, 99 N.Y.2d 27, 32–33, 750 N.Y.S.2d 821, 780 N.E.2d 506 [2002]; People v. West, 81 N.Y.2d 370, 373–374, 599 N.Y.S.2d 484, 615 N.E.2d 968 [1993]; People v. Dashnaw, 85 A.D.3d 1389, 1390–1391, 925 N.Y.S.2d 262 [2011], lv. denied17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94 [2011] ). However, “[n]otwithstanding this rule, statements made by a defendant who has invoked the right to counsel may nevertheless be admissible at trial if they were made spontaneously” (People v. Harris, 57 N.Y.2d 335, 342, 456 N.Y.S.2d 694, 442 N.E.2d 1205 [1982], cert. denied460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 803 [1983] ). Here, we agree with County Court that the People established beyond a reasonable doubt that, following his request for counsel, defendant's statements were not “the result of express questioning or its functional equivalent” (People v. Roberts, 12 A.D.3d 835, 836, 784 N.Y.S.2d 692 [2004], lv. denied4 N.Y.3d 802, 795 N.Y.S.2d 178, 828 N.E.2d 94 [2005] [internal quotation marks and citations omitted] ), but were, instead, spontaneous up until the “too little, too late” remark ( see People v. Maye, 18 A.D.3d 1026, 1028, 795 N.Y.S.2d 387 [2005], lv. denied5 N.Y.3d 808, 803 N.Y.S.2d 37, 836 N.E.2d 1160 [2005]; People v. Murphy, 51 A.D.3d 1057, 1058, 856 N.Y.S.2d 713 [2008], lv. denied11 N.Y.3d 792, 866 N.Y.S.2d 618, 896 N.E.2d 104 [2008] ). That is, his statements to that point were “neither induced, provoked nor encouraged by the actions of the police officers” in simply bringing the girlfriend into the booking room, an action consistent with their routine procedure (People v. Harris, 57 N.Y.2d at 342, 456 N.Y.S.2d 694, 442 N.E.2d 1205; see People v. Baker, 27 A.D.3d 1006, 1008, 811 N.Y.S.2d 803 [2006], lv. denied7 N.Y.3d 785, 821 N.Y.S.2d 814, 854 N.E.2d 1278 [2006] ). Defendant's subsequent remarks were properly suppressed, and appropriate limiting instructions provided. As to the booking video, we note that the trial testimony had already established the setting in which defendant's statements occurred. Although the probative value was limited, we do not find that the court abused its discretion in determining that the video of the statements was relevant to the burglary charge and, thus, in allowing a redacted segment to be played before the jury ( see People v. Cintron, 95 N.Y.2d 329, 332–333, 717 N.Y.S.2d 72, 740 N.E.2d 217 [2000]; People v. Scarola, 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728 [1988] ).
Next, defendant argues that County Court erred in admitting into evidence a redacted recording of the victim's 911 call as an excited utterance, because her call was made after she had time for reflection. “An out-of-court statement is properly admissible under the excited utterance [hearsay] exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication” (People v. Johnson, 1 N.Y.3d 302, 306, 772 N.Y.S.2d 238, 804 N.E.2d 402 [2003]; see People v. Edwards, 47 N.Y.2d 493, 496–97, 419 N.Y.S.2d 45, 392 N.E.2d 1229 [1979] ). “Among the factors to be considered in determining whether ... a statement is admissible [are] the nature of the startling event[,] the amount of time which has elapsed between the [startling] occurrence and the statement[,] and the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth” (People v. Johnson, 277 A.D.2d 702, 705, 717 N.Y.S.2d 668 [2000], lv. denied96 N.Y.2d 831, 729 N.Y.S.2d 451, 754 N.E.2d 211 [2001] [internal quotation marks and citation omitted]; see People v. Brown, 70 N.Y.2d 513, 519, 522 N.Y.S.2d 837, 517 N.E.2d 515 [1987]; People v. Auleta, 82 A.D.3d 1417, 1419, 919 N.Y.S.2d 222 [2011], lv. denied17 N.Y.3d 813, 929 N.Y.S.2d 801, 954 N.E.2d 92 [2011] ), although “ the time for reflection is not measured in minutes or seconds, but rather is measured by facts” (People v. Vasquez, 88 N.Y.2d 561, 579, 647 N.Y.S.2d 697, 670 N.E.2d 1328 [1996] [internal quotation marks and citations omitted]; accord People v. Johnson, 1 N.Y.3d at 306, 772 N.Y.S.2d 238, 804 N.E.2d 402; see also People v. Nelson, 266 A.D.2d 725, 726, 698 N.Y.S.2d 755 [1999], lv. denied95 N.Y.2d 801, 711 N.Y.S.2d 169, 733 N.E.2d 241 [2000]; see generally, Michael J. Hutter, Excited Utterances and Present Sense Impressions: Time to Reevaluate?, N.Y.L.J., Aug. 7, 2014 at 3, col. 1).
Here, the victim testified that, although she had followed defendant's car and had spoken with him, it was only after she returned home that she discovered that her home had been broken into and her television was missing, and she called 911 “right away.” In the 911 call, the obviously distressed victim exclaimed, “I was just robbed,” and explained her contact with defendant. As County Court correctly found, being the victim of a burglary is “a startling event” and the victim's call was made “under the stress and excitement of a startling event and [was] not the product of any reflection and possible fabrication” ( see People v. Prashad, 297 A.D.2d 352, 352, 746 N.Y.S.2d 402 [2002], lv. denied99 N.Y.2d 563, 754 N.Y.S.2d 215, 784 N.E.2d 88 [2002]; People v. Nelson, 266 A.D.2d at 726, 698 N.Y.S.2d 755; see also People v. Rodriguez, 306 A.D.2d 686, 688, 761 N.Y.S.2d 368 [2003], lv. denied100 N.Y.2d 624, 767 N.Y.S.2d 407, 799 N.E.2d 630 [2003]; compare People v. Cantave, 21 N.Y.3d 374, 381–382, 971 N.Y.S.2d 237, 993 N.E.2d 1257 [2013] ). Finally, contrary to defendant's argument, although the victim had spoken with defendant and had observed a television, the events preceding her discovery of the burglary did not constitute intervening events, allowing her an opportunity for studied reflection; such intervening events must necessarily occur following the startling event.
We further reject defendant's claim that the admission of the recording of the 911 call violated his right to confront witnesses against him under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004]; see Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). First, we note that both the victim and the police dispatcher who received her call did testify at trial. Further, statements made in response to police inquiries for the primary purpose of enabling them to meet an ongoing emergency, rather than for providing evidence for a later prosecution, are deemed to be nontestimonial in nature and, thus, do not violate the Confrontation Clause ( see Davis v. Washington, 547 U.S. at 822, 126 S.Ct. 2266; People v. Nieves–Andino, 9 N.Y.3d 12, 14–15, 840 N.Y.S.2d 882, 872 N.E.2d 1188 [2007] ). Here, the victim's statements on the 911 recording were nontestimonial ( see People v. Kenyon, 108 A.D.3d 933, 937, 970 N.Y.S.2d 638 [2013], lv. denied21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 [2013]; People v. Shaver, 86 A.D.3d 800, 802, 927 N.Y.S.2d 226 [2011], lv. denied18 N.Y.3d 962, 944 N.Y.S.2d 491, 967 N.E.2d 716 [2012]; see also People v. Anderson, 114 A.D.3d 1083, 1085, 981 N.Y.S.2d 200 [2014], lv. denied22 N.Y.3d 1196, 986 N.Y.S.2d 417, 9 N.E.3d 912 [2014] ).
Following a Sandoval hearing, County Court held that the People would be allowed to inquire to a limited extent regarding defendant's prior convictions if he testified, finding that his robbery conviction from 2000 revealed that defendant was willing to place his own interests above those of society and that it went directly to his credibility, while finding some of the underlying facts were too dissimilar and prejudicial. Relative to another criminal conviction, inquiry was limited to establishing that there had been such a conviction, in 2009. Defendant did not object to these rulings, and we decline his request to take corrective action in the interest of justice, as no abuse of discretion is apparent ( seeCPL 470.15[6][a]; People v. Wilson, 78 A.D.3d 1213, 1215–1216, 910 N.Y.S.2d 276 [2010], lv. denied16 N.Y.3d 747, 917 N.Y.S.2d 628, 942 N.E.2d 1053 [2011]; People v. Jones, 70 A.D.3d 1253, 1254–1255, 895 N.Y.S.2d 591 [2010]; see generally People v. Hayes, 97 N.Y.2d 203, 207–208, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002]; People v. Walker, 83 N.Y.2d 455, 459, 611 N.Y.S.2d 118, 633 N.E.2d 472 [1994] ).
Finally, defendant did not preserve his claim that the sentence imposed constituted a penalty for exercising his constitutional right to a jury trial in that it was longer than the People's pretrial plea offer ( see People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017 [1990]; People v. Ward, 10 A.D.3d 805, 808, 782 N.Y.S.2d 158 [2004], lv. denied4 N.Y.3d 768, 792 N.Y.S.2d 12, 825 N.E.2d 144 [2005] ). In any event, we note that County Court did not consent to that offer, the disparity is not particularly significant, and the record contains no support for the conclusion that the sentence was retaliatory rather than based upon the seriousness of this offense and other relevant sentencing factors. We find no abuse of discretion or extraordinary circumstances warranting a reduction of the sentence in the interest of justice ( see People v. Snyder, 91 A.D.3d 1206, 1215, 937 N.Y.S.2d 429 [2012], lv. denied19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012], cert. denied ––– U.S. ––––, 133 S.Ct. 791, 184 L.Ed.2d 585 [2012]; People v. Molina, 73 A.D.3d 1292, 1293, 900 N.Y.S.2d 787 [2010], lv. denied15 N.Y.3d 807, 908 N.Y.S.2d 167, 934 N.E.2d 901 [2010] ).
ORDERED that the judgment is affirmed. PETERS, P.J., LATHTINEN, ROSE and CLARK, JJ., concur.