Opinion
1918/13
05-18-2016
The People of the State of New York v. Gerald Vaughn, Defendant
Assistant District Attorneys Lawrence Piergrossi, Raymond Valerio, Pishoy Yacoub Attorney for Defendant, Marc S. DeMarco, Esq., 718-239-7070
Assistant District Attorneys Lawrence Piergrossi, Raymond Valerio, Pishoy Yacoub Attorney for Defendant, Marc S. DeMarco, Esq., 718-239-7070 Steven L. Barrett, J.
By letter dated March 24, 2016, defendant moves to suppress statements that he made in a Use of Force Witness Report regarding the use of force by fellow correction officers against inmate, Jahmal Lightfoot. For the following reasons, defendant's motion to suppress, or, in the alternative, for a hearing is denied.
Defendant is currently on trial with respect to the Lightfoot incident, which undisputedly took place on July 11, 2012 at approximately 10:40 p.m., and involved a use of force by five correction officers who were members of the Emergency Services Unit, inside a search pen in the Intake area of the George R. Vierno Center (GRVC), a jail on Rikers Island. Because defendant had not already filed a Use of Force Witness Report regarding the Lightfoot incident, on July 17, 2012, at 5:49 p.m., Florence Finkle, a Deputy Commissioner of the DOC, emailed defendant and directed him to complete a Use of Force Witness Report in connection with the Lightfoot incident. Specifically, Finkle directed defendant to include in his report any interaction he had with Lightfoot, any observations of other correction officers' interactions with Lightfoot, and anything he heard emanate from inside the search pen. At the conclusion of the email, Finkle stated "the original copy of your Use of Force Witness report is due in my office by 10:00 a.m. tomorrow" and that "if you have any questions, please contact me." On July 23, 2012, defendant submitted a Use of Force Witness Report regarding the Lightfoot incident. In response to Question 6 of the report, which asks the witness to describe the incident and the specific force used, defendant responded in pertinent part, "[a]t no time did I witness, use, or hear force being used against any inmates in GRVC. This writer had no interactions with inmate Lightfoot, Jamal on the above date" (7/11/12). Based on the alleged falsity of these statements, defendant is charged with falsifying business records in the first degree, offering a false instrument for filing in the first degree and official misconduct.
Department of Correction (DOC) staff who employ or witness force are required to prepare a Use of Force or Use of Force Witness Report on the day of the incident prior to leaving the facility, unless medically unable to do so. (See Directive 5006R-C at p. 10.)
Initially, defendant's motion is denied as untimely. On June 26, 2013, defendant was arraigned on the instant indictment and defendant's letter motion was not submitted until almost three years later, after jury selection had been completed and opening statements had commenced. Thus, defendant's motion falls well outside the 45 day statutory limit to file such motions and he has failed to establish good cause for his failure to raise this claim earlier. See CPL §§ 255.20(1) and (3).
On the merits, defendant's claim that the Finkle email caused him to be believe that he would be terminated from the DOC, and thus conferred use immunity upon his statements in the report, is unavailing. Initially, the statements contained in the report are not the type of statements that give rise to a Fifth Amendment claim which could result in their being immunized. In People v. Samuel, 29 NY2d 252, 257 (1971), the Court of Appeals upheld as constitutional the Vehicle and Traffic Law provision that requires a driver involved in an accident to remain at the scene, identify him or herself, and report the accident to the police. The Court held that such a reporting requirement did not violate an individual's privilege against self-incrimination In reaching this conclusion, the Court relied upon the fact that the purpose of the statute at issue was not to incriminate (the reporting requirement had an "incidental and limited risk of inculpation"), but rather, its purpose was to regulate a lawful activity to protect the public from significant harm. Id. at 262.
Here, the DOC directive that requires a correction officer who witnesses the use of force to prepare a Use of Force Witness Report clearly relates to the regulation of an activity that is often justified and thus lawful, and is not designed to incriminate. Although, on rare occasions such as the instant case, these reports can be used as the basis for filing criminal charges, it is much more likely that these reports will be used by the DOC to defend itself in civil litigation brought by injured correction officers or inmates, or even for some other administrative reason, such as to evaluate DOC policies and performance. Thus, this reporting requirement does not violate defendant's Fifth Amendment right against self-incrimination, and, ipso facto, any statements made therein are not entitled to use immunity. See Seabrook v. Johnson, 173 Misc 2d 15, 20-21 (Sup. Ct. Bx. Co. 1997)(Giamboi, J.)(DOC requirement to report a use of force by a correction officer not a violation of correction officer's Fifth Amendment rights); People v. Patterson, 169 Misc 2d 787, 792-93 (Sup. Ct. Kings Co. 1996)(Leventhal, J.)(NYPD rule requiring a police officer to promptly report the discharge of his/her firearm is not violative of the Fifth Amendment).
Even, assuming arguendo, that statements in Use of Force Witness reports give rise to a Fifth Amendment claim, such statements are entitled to use immunity only if they are made under the threat of discharge from employment for refusal to submit a report. Garrity v. New Jersey, 385 U.S. 493, 498 (1967). And here, contrary to defendant's assertion, there was nothing in Finkle's email that fairly can be construed as an explicit or implicit threat of termination for failure to submit the report. As even defendant acknowledges in his letter, Finkle did not explicitly threaten him with termination or discipline if he refused to submit a report or asserted a constitutional privilege. Moreover, Finkle's use of the word "directing" in her email, was just that — a direction by a superior to do something that she believed the rules required defendant to do. If defendant feared he could be terminated or there would be some adverse consequence for failing to submit the report, all he had to do was call Finkle as she invited him to do. This invitation went unheeded, and thus defendant cannot now complain that he believed he would be fired for failing to turn in his report. Because there is nothing in the Finkle email to suggest that defendant was explicitly or implicitly threatened with termination from employment for failing to submit the Use of Force Witness Report, his statements therein are not entitled to immunity. See People v. McLean, 128 AD3d 1095 (2d Dept. 2015); People v. Ellis, 77 AD3d 496 (1st Dept. 2010).
At trial, Michael Bardales, Deputy Director of Investigation for DOC, testified that defendant possibly could have been subject to administrative discipline, such as loss of vacation days, or even could have been terminated if he failed to file the report as per Finkle's directive. (T: 3453, 3466). However, thus far there has been no testimony at trial, and defendant has not submitted any affidavits in support of his letter motion, which would suggest that termination as a potential adverse consequence for disregarding Finkle's direction was conveyed to defendant. --------
Defendant's reliance on this Court's ruling in People v. Grabowski, 50 Misc 3d 186 (Sup. Ct. Bx. Co. 2015) is misplaced. In Grabowski, this Court suppressed statements made by a correction officer who had been questioned in a trailer on Rikers Island for one hour and twenty minutes by three investigators — a New York City Department of Investigation (DOI) Deputy Inspector General, and a DOC captain and correction officer assigned to DOI. After a lengthy discussion of the interview techniques utilized by DOI, the Court determined that when a correction officer makes a statement "in the field" (outside the circumstances of a formalized MEO-16 hearing at 80 Maiden Lane) a hearing was required to determine whether the correction officer had a subjective belief that the statement was compelled and whether any such belief was objectively reasonable. Id. at 197-98. Based on the attendant facts and circumstances, the Court found that Grabowski's statements to the investigators were entitled to use immunity.
Here, the statements at issue were not made during the course of an interview and thus the provisions of MEO-16 are clearly inapplicable. Furthermore, as stated above, defendant has not raised a genuine issue of fact with respect to whether there was anything explicit or implicit in the Finkle email that led him to believe that he would be terminated for refusing to submit his report and whether such a belief was objectively reasonable under the circumstances. Thus, a "Grabowski" hearing is not required.
Finally, and perhaps most significantly, even if defendant's statements in the Use of Force Witness Report were compelled by virtue of the Finkle email, they still would not be accorded use immunity. This is so because it is well-settled that "one who is granted immunity in return for his testimony receives no license to swear falsely with impunity while under the protection of that immunity." People v. Shapiro, 50 NY2d 747, 760 (1980); CPL § 50.10(1). Here, since it is charged that the statements by defendant in the Use of Force Witness Report are materially false, on this basis alone, they are not entitled to immunity and thus not subject to suppression..
Accordingly, defendant's motion is denied.
This is the decision, order and opinion of the Court.
Dated: May 18, 2016 Bronx, New York __________________________ Steven Barrett, AJSC