The People, Appellant,v.Ricky D. Gates, Respondent.BriefN.Y.April 24, 2018* Estimated time: 10 minutes To be argued by: John A. Cirando, Esq. Syracuse, New York> ): STATE OF NEW YORK r SUPREME COURT| APPELLATE DIVISION - FOURTH DEPARTMENT V €) THE PEOPLE OF THE STATE OF NEW YORK, ■ llll Respondent, againstJ RICKY GATES,nn Defendant/Appellane. :-l Indictment No. 15-274-14 si i’¬ll THE DEFENDANT/APPELLANT'S BRIEF 1 D.J. Sc J.A. CIRANDO, ESQS. Attorney for Defendant/Appellant 101 South Salina Street, Suite 1010 Syracuse, New York 13202 (315) 474-1285 iyf !|1 John A. Cirando, Esq. Bradley E. Keem, Esq. Elizabeth deV. Moeller, Esq. Of Counsel mf; d m ■ m ; ■■■; o; . : : ) I ' I ' ■ - k ■■■mmm kWV-:®wwm ■ ■ 8 f j : .ÿ * » - * I ■■i TABLE OF CONTENTS © 1PRELIMINARY STATELfflNT 2STATEMENT OF FACTS 7THE HUNTLEY HEARING3 8THE PEOPLE'S CASE. 16POINT I APPELLANT DID NOT PROPERLY WAIVE HIS MIRANDA RIGHTSJ 19POINT II THE POLICE LACKED PROBABLE CAUSE TO SEARCH APPELLANT'S VEHICLE * 22POINT III APPELLANT UNEQUIVXCALLY ASSERTED HIS RIGHT TO COUNSEL. > 24POINT IV. APPELLANT'S GUILTY PLEA WAS IMPROPERLY ENTERED. 28CONCLUSION l THE JUDGMENT OF CONVICTION SHOULD BE REVERSED AND THE INDICTMENT DISMISSED > ) i 1 i TABLE OF AUTHORITIES Cases Boykin v. Alabama, 395 U.S. 238, 243 [1969] Fare v. Michael C., 442 U.S. 707, 725 [1979] Miranda v. Arizona, 384 U.S. 436 [1966] People v. Baez, 95 A.D.3d 654, 655 People v. Barber, 124 A.D.3d 1312, 1314 [4th Dept.] People v. Carrier, 270 A.D.2d 800, 801 [4th Dept.]. People v. Conceicao, 26 N.Y. 3d 375, 382-383 People v. Cunningham, 49 N.Y.2d 203, 207 People v. DeBour, 40 N.Y.2d 210, 215, 223 People v. Devone, 15 N.Y.3d 106, 113 People v. Dunbar, 5 N.Y.3d 834, 835 People v. Glover, 87 N.Y.2d 838, 839 .... People v. Gomez, 5. N.Y.3d 416, 420.. People v. Goodman, 54 N.Y.2d 451, 457-458 People v. Haffiz, 19 N.Y.3d 883, 884 People v. Harris, 61 N.Y.2d 9, 18 . People v. Holiman, 79 N.Y.2d 181, 185 People v. Jones, 47 N.Y.2d 528. People v. Knapp, 124 A.D.3d 36, 41 [4th Dept.] People v. Lopez, 71 N.Y.2d 662, 666 . People v. Lubanski, 148 A.D.2d 947, 947 [4th Dept.] People v. Owens, 206 A.D.2d 303, 304 People v. Pangburn, 298 A.D.2d 989, 989 [4th Dept.] People v. Rodney, 85 N.Y.2d 289, 292 People v. Shaeffer, 56 N.Y.2d 448, 454 People v. Sougou, 26 N.Y.3d 1052, 1054 People v. Stroh, 48 N.Y.2d 1000 . People v. Tyrell, 22 N.Y.3d 359, 365 People v. Wallgren, 94 A.D.3d 1339, 1340 People v. White, 70 A.D.3d 1343, 1343 [4th Dept.] People v. Williams, 62 N.Y.2d 285, 288 People v. Yukl, 25 N.Y.2d 585, 589 Statutes Criminal Procedure Law §190.80 Criminal Procedure Law §33.30 . . Criminal Procedure Law §710.30..... 24 17 16,17,18| 18 16, 18 22,24 25 22 19,20,21 ■ 19 19 22 20 16, 18 ! 24 24 19 16 17,18 25,26 23,24 21 26 17, 18 23 24 23 24,25,26 19 15,25 17 16,18 4 4 2,3 ii QUESTIONS PRESENTED © Whether appellant properly waived his Miranda rights?1. Whether there was probable cause to search appellant's vehicle? 2. > Whether appellant unequivocally asserted his right to counsel? 3. Whether appellant's guilty plea was properly entered?4. © > & . • © 1 » iii 1 I STATE OF NEW YORK SUPREME COURT APPELLATE DIVISION - FOURTH DEPARTMENT| i * THE PEOPLE OF THE STATE OF NEW YORK, I Respondent, iagainst RICKY GATES, Defendant/Appellant. Indictment No. 15-274-14 : i THE DEFENDANT/APPELLANT' S BRIEF j PRELIMINARY STATEMENT This is an appeal under Indictment No. 15-274-14, from a judgment of conviction, entered August 6, 2015, in Jefferson J.) , for the crime ofCounty Court (Kim Martusewicz, POSSESSION/TRANSPORTING THIRTY THOUSAND OR MORE UNTAXED CIGARETTES and the traffic violation of SPEEDING [82/65], following an August 6, 2015, plea of guilty. Appellant was sentenced to a Conditional Discharge of three years, forfeiture of $18,835 cash, and $1,767 in uncashed checks 1 9 for the crime of POSSESSION/TRANSPORTING THIRTY THOUSAND OR MORE UNTAXED CIGARETTES. All surcharges were waived, and a DNA fee ofw $50 was imposed. Notice of Appeal was filed on August 26, 2015. 9 STATEMENT OF FACTS On or about January 2015, the Jefferson County Grand Jury returned Indictment No. 2015-0464, charging appellant with the J crime of POSSESSING/TRANSPORTING THIRTY THOUSAND OR MORE UNTAXED CIGARETTES and the traffic violation of SPEEDING [82/65] (10a- 11a). The Indictment alleged that on May 15, 2014, in Watertown,D appellant, while speeding, willfully possessed or transported for the purpose of sale, thirty thousand or more untaxed cigarettes 11 (10a). The People declared readiness for trial on February 25, 2015 (12a). The People provided the defense with a Criminal Procedure ! Law §710.30 Notice, and Discovery information (14a-38a). Appellant was arraigned on February 27, 2015 (39a). Defense counsel waived a full reading of the Indictment, and entered a plea of not guilty on appellant's behalf (40a-41a). » 1 3 On April 8, 2015, defense counsel submitted a Demand for U Discovery (46a-49a). The People responded on April 29, 2015, by: stating they were unaware of statements made by appellant to law jenforcement that were not included in the Criminal Procedure Law §710.30 Notice (50a); notifying appellant that all photographs and 2 I: s i drawings were available for inspection at the District Attorney's office (51a); notifying appellant that property and evidence / 0 collected in the case were available for inspection or review (51a); providing appellant with arrest reports and an additional copy of the Indictment (51a); stating they were unaware of any U Brady material (51a); making a Demand for Reciprocal Discovery (52a); and asserting they were ready for trial (52a). > On May 22, 2015, defense counsel submitted an Omnibus Motion (107a). Defense counsel requested: dismissal or modification of the Indictment on the grounds that the People insufficiently and (107a);defectively presented evidence to the Grand Jury suppression of tangible property obtained by means of an unlawful search and seizure (107a); suppression of any statement * involuntarily made by appellant (107a-108a); and Mapp, Sandoval, and Ventimiglia Hearings (121a-123a). The People responded on June > 12, 2015, by: having no opposition to a review of the Grand Jury minutes (126a); opposing any reduction of the Indictment (127a); opposing preclusion of statements made by appellant not included in the Criminal Procedure Law §710.30 Notice (127a); opposing a Mapp Hearing (128a); and not opposing Huntley, Sandoval, or Ventimiglia Hearings (128a-129a). The trial court, on July 10, 2015, determined that upon a review of the Grand Jury minutes it found that the evidence presented was legally sufficient as to all counts, and the 3 1 instruction on the applicable law was satisfactory (140a). The trial court found that the integrity of the Grand Jury was not impaired in any way, and the presentation was not conducted in a manner prejudicial to appellant (142a). The trial court did O acknowledge it was improper for the Prosecutor to have elicited statements concerning the interpretation of relevant law from Trooper Pelton during the Grand Jury Hearing (142a). The trial ) court determined, however, that the statement made by Pelton did not prejudice appellant because it encompassed a correct interpretation of the relevant law, and was part of the instructions on the law the Prosecutor already made to the Grand Jury prior to Pelton's colloquy (143a). The trial court denied © dismissal of the Indictment for lack of legally sufficient evidence and other defects (143a). The trial court ordered a Huntley Hearing, and scheduled Sandoval and Ventimiglia Hearings for prior to jury selection (145a). On July 11, 2014, appellant waived his right to a speedy trial and speedy presentment pursuant to Criminal Procedure Law §33.30 and §190.80 (146a). On July 20, 2014, a pretrial conference was held with the p trial court (147a). The People acknowledged there were no Sandoval issues due to appellant's lack of criminal history (150a). The People did discuss potential Ventimiglia issues concerning several of their proposed witnesses (150a). These witnesses were 4 ■■Li individuals who had made out checks to appellant, and had also been interviewed and provided statements relating to prior l purchases of tobacco from appellant (150a). The People indicated they would prepare a Ventimiglia Memorandum for the trial court regarding these proposed witnesses (151a). The trial court scheduled a Huntley Hearing for August 6, 2014 (154a). The People indicated they were removing any plea t offers after the pretrial conference concluded (154a). The People revealed their plea offer consisted of a plea of guilty to the crime of ATTEMPTED POSSESSION OR TRANSPORT FOR THE PURPOSE OF SALE ) a class A MisdemeanorGREATER THAN TEN THOUSAND CIGARETTES, (155a). The trial court stated if appellant was to accept this offer, the rest of the disposition would be: forfeiture of any s monies seized; a waiver of any surcharges; forfeiture all seized contraband; and a three year term of probation (155-156a). } Appellant indicated his desire to go forward with a jury trial (156a). On August 3, 2015, the People provided the trial court with a ): Ventimiglia Memorandum concerning the testimony of potential witnesses who were to testify to prior knowledge of appellant's cigarette sales (159a-160a). Specifically, Robert LaSalle and Kimberly Lutz would testify to their prior cigarette purchases from appellant (159a). 1 5 On August 6, 2015, a Huntley Hearing was held (1). Following the Hearing, the trial court denied the suppression of appellant's statements (73). Following this ruling, the People offered appellant the opportunity to plead guilty to the crime of POSSESSION OR TRANSPORTING THIRTY THOUSAND OR MORE UNTAXED in exchange for a sentenceCIGARETTES FOR THE PURPOSE OF SALE, that included: a three-year Conditional Discharge; a waiver of all $18,835 cash, $1,767 in un-cashedsurcharges; forfeiture of: checks, and forfeiture of all remaining miscellaneous contraband (74). Appellant would also be entitled to a Certificate of Reliefi > From Civil Disabilities (74). Appellant affirmed he had spoken with his attorney regarding © the proposed disposition, and had not been threatened or forced into entering a plea (76). Appellant was informed that by pleading guilty he waived: his right to a jury trial; the right to have the 5 People prove his guilt beyond a reasonable doubt; the right to testify on his own behalf; the right to confront the witnesses brought against him; and the right to bring witnesses on his own behalf (76-77). Appellant was also informed that entering a plea of guilty was the same as receiving a guilty verdict" after a jury trial (77). 1 3 Appellant stated he was a high school graduate (78). He also stated he was military veteran, having served ten years, and was a ■Q Federal police officer at Fort Drum for twenty-two years (77-78). 6 Appellant denied taking any drugs or alcohol in the past twenty- four hours (78). i Appellant entered a plea of guilty to the crime of POSSESSING OR TRANSPORTING THIRTY THOUSAND OR MORE UNTAXED CIGARETTES in full satisfaction of the counts alleged in Indictment No. 15-274-14 (78). Appellant admitted to possessing and/or transporting, on May 15, 2014, for the purpose of sale more than thirty thousand: cigarettes that were not taxed by the State Taxing Authority, in Watertown (78). Appellant was sentenced as previously indicated (81). The ; terms of the Conditional Discharge were to forfeit all money, contraband, and checks seized at the time of arrest and to obey all rules, laws and orders of the United States and of every State in the Union for a period of three years (81). Appellant executed < a Forfeiture Agreement (81-82, 90-91). The trial court waived any surcharges (82). The trial court also stated it would grant appellant a Certificate of Relief from Civil Disability (82). Appellant waived the completion of a Pre-Sentence Report Q (92). Notice of Appeal was filed and served on August '26, 2015 (3a- 5a). THE HUNTLEY HEARING Two witnesses testified on behalf of the People. Two exhibits were marked for identification and received into evidence by the 7 m People. No witnesses testified on behalf of the defense. One exhibit was marked for identification, but not received into# evidence on behalf of the defense. THE PEOPLE'S CASE H 1. TRAVIS SMITHERS (State Trooper). On May 15, 2014, at approximately 10:00 p.m., he conducted a traffic stop for a vehicle that was traveling 82 miles an hour inm a 65 mile an hour zone (4-5, 24). The stop occurred on Interstate 81 northbound between Exit 45 and 46, with the violation occurring C) near the Massey Street overpass (5). He identified the driver of the vehicle as appellant (5-6). When he first approached the vehicle, he noticed the rear & appeared to be sagging excessively, as if there was a heavy object in the rear or in the trunk (6, 25, 28). He also noticed, in plain view, several large bags filling up the rear driver's seat area on j the floor (7-6). He immediately noticed that the bags had sharp edges protruding from the inner wall of the bags, as if there was 3 some type of hard object inside (7, 25-26). He told appellant the rear of his car was pretty low, lower than what is normal (8). He asked appellant if he had any more luggage in the 'trunk of his ' I a vehicle (8). Appellant replied, "yes" (8). There were two passengers in the vehicle---appellant's cousin, Mr. Hubbard andHubbard's son (6, 31-34)./ 8 ;) When he made contact with appellant, he asked him where he was going (6-7, 25). Appellant told him he was traveling from Ohio after visiting family, and was on his way home to Great Bend (7). Everyone in the vehicle had an overly nervous demeanor (8). Appellant stated he had clothing in his luggage bags (8). He told "l appellant it looked like there were boxes inside of his bags (8, 26). Appellant told him there were clothes inside of the boxes (8- ) 9, 26). Appellant then said there were not clothes in the bags, and that, instead, there were presents for his family and children which he bought in Ohio (8-9). j After he inquired further about the contents of the bags, appellant stated there were toys in his bags (9, 26-27). Appellant further stated he had riding toys, specifically bicycles, for his ) children (9, 26-27). At this point, he was suspicious because appellant was constantly changing his answer as to what was actually in his bags (9, 34). While he was asking appellant these questions, the passengers in the vehicle were sitting quietly and staring straight ahead (10). At one point during the stop, appellant advised him he was a retired Federal police officer from Fort Drum, and requested to be on his way (10). He stated he believed this to be appellant requesting a break on the ticket, or a request for him to stop questioning and for appellant to be able to just leave (10). 9 9 He believed there to be suspicious criminal activity taking place, so he asked appellant if he could unzip the bags directly© behind him, and answer some questions (10). Appellant informed him he did not want to have his vehicle searched or his bags searched, % and he wished to leave (11). He told appellant it was completely his right to decline a search, but that he also believed there was a crime being committed at that moment and he wanted to investigate the crime further by having appellant step out of the vehicle and answer additional questions (11, 44). Appellant stepped out of his vehicle and walked in betweenI f the patrol car and his vehicle (11-12). Appellant was not placed in handcuffs (37). When appellant stepped out of his vehicle, he © noticed all of the pockets on appellant's pants were bulging (12). He asked appellant if he had any weapons on his person (12, 37). Appellant stated he did not (12). He told appellant just for I > safety purposes he was going to pat him down (12, 37). He did not find any weapons on appellant (12). He began to have a discussion with appellant concerning ther. contents of his bags (13). Appellant acknowledged that initially he did say there were clothes in his bags, then he said there were 1 presents, and later stated there were bicycles (13). He asked appellant again whether there were bicycles inside his bags (13). Appellant responded affirmatively (13). * 10 Then he went back to the vehicle to ask the passengers some questions (13). Appellant waited by the patrol car, while he ) approached the vehicle and began speaking with the passengers (13, 31-34). He asked the passengers whether the bags belonged to them (13-14). The passengers told him none of the bags were theirs, and ' all of the items in the vehicle belonged to appellant (14). They also stated that when they were in Ohio, appellant left them at an ) unknown residence for a short time, and it was not until he came back that all of the bags were in the vehicle (14). The passengers claimed to have no knowledge of the contents of the bags (14). > After speaking with the passengers, he returned to appellant to ask further questions (15). Appellant asked him if he could just be truthful, and then appellant stated he had cigarettes in the vehicle (15). He asked appellant whether the cigarettes were: taxed or untaxed (15). Appellant responded they were untaxed (15). Appellant stated he had approximately three hundred cartons of cigarettes in his vehicle (15-16). Appellant explained that he bought the cigarettes in Pembroke, and was driving them to his ) residence (16). Appellant did not own a store (16). Appellant was going to sell the cigarettes to his friends and family (16). Appellant informed him he was a quarter Mohawk, and also presented a tribal identification card (16). Appellant stated ATF previously informed him he was allowed to possess that amount of cigarettes because he was Native American (16). He asked appellant 11 i why he was traveling from Pembroke, rather than Akwesasne---acloser reservation (16). Appellant replied there were too manyO check points and border patrols coming from Akwesasne, and as a result, he wanted to avoid getting stopped and answering questions 0 (16-17). As they ended the conversation, two other State Troopers arrived---Trooper Burnash and Trooper Peffer (17). Due to theadmissions made by appellant, he searched the vehicle (17). He went to the driver side rear door, opened the door, and checked the bags (17). There were cartons of untaxed cigarettes inside off > the bags (17). He knew the cartons were untaxed because there was no tax stamp on the cartons (17). Between the trunk and the bags > there appeared to be approximatelyin the rear driver's side, three hundred cartons of cigarettes (18). At that time, he placed appellant under arrest, handcuffed * him, and began to empty his pockets (18). He found large amounts of cash and several wallets that were filled to the brim inside of > (18). He did not provide appellant withappellant's pockets Miranda warnings when he placed appellant under arrest (18). While emptying his pockets, he asked appellant how much cash he actually j J had in his pockets (18). The purpose of this question was to make they had the correct amount listed for inventory (18-19). Hesure asked appellant if the money in his pockets came from his : retirement, and why he did not keep his money in a bank (19). 12 Appellant claimed all of the money came from fixing cars, and that he did not believe in banks (19). His purpose in asking those questions was not to interrogate appellant (19). Instead, he asked out of curiosity because he was shocked by how much money appellant had (19-20). The question was also posed for inventory purposes, to ensure the money was going to be well tracked (20). Trooper Pelton took appellant to the Barracks for further S ! questioning, while the two other officers took the two passengers (22). He remained with the vehicle (22). At the Barracks, he performed an inventory search (21). The search revealed two hundred and eighty-five cartons of cigarettes, several logs of chewing tobacco, cash, and several checks (21). : There was between $18,000 or $19,000 in cash recovered from the vehicle (21). There was a lime green bag in the vehicle, which contained money, documents, receipts, and a ledger recording J 1 j individual sales (21). He next saw appellant at the Barracks being interviewed by Pelton (22). He observed the interview to be very relaxed and .: casual (22-23). 2. JONATHON PELTON (State Trooper). On May 15, 2014, he responded to a traffic stop in Watertown ; } (49). When he first arrived, he spoke with Trooper Smithers (People's HH Witness #1), who briefed him of the details of the 13 ' :» traffic stop (50). At that time, appellant was already in handcuffs and under arrest (50). He took custody of appellant and transferred him back to the Barracks (49-50). Before leaving the scene, he read appellant his Miranda rights off of a Miranda card (People's Exhibit #1) he carries with him (50-52, 59). Appellant acknowledged an understanding of those rights (52). He could not remember, if atm this time, appellant informed him he had an attorney, and a case on appeal from City Court (59). At the Barracks, he informed appellant he was in violation ofj%-J tax laws due to the large sum of untaxed cigarettes he possessed (52-53). Appellant was not handcuffed during the interrogation, Q and was offered soda and breaks (53). During the interrogation, appellant stated he believed he could legally possess the amount of cigarettes he had because he was Native American (53). Appellant stated that he checked with law enforcement, ATF, and Border Patrol, and believed he could 1 legally possess the cigarettes (53). Appellant thought he had around three hundred cartons of cigarettes in his vehicle at the time of the stop (54). Appellant explained that he purchased the cigarettes at an Indian Reservation in Pembroke (54). He also stated the passengers in the vehicle with him did not have anything to do with the untaxed cigarettes (54). 14 1 Appellant stated during the interrogation that he was a and asked if he should have aformer law enforcement officer, ! lawyer (54-55).. Specifically, appellant asked, "do you think I I need a lawyer?" (55) He responded by instructing appellant he was a law enforcement officer, and could not provide counsel or guidance to him, but if wanted a lawyer that was his right (55). He typed a written statement (People's Exhibit #2) based on 1 4. appellant's remarks, and had him review it (People's Exhibit #2) (55-56). The statement (People's Exhibit #2) included appellant's 5 Miranda rights, with his initials acknowledging each of those ■-rights (56-57). Appellant indicated to him he had indeed read and (56-57). Appellant was notunderstood each of those rights threatened or intimidated during the interview (58). I He acknowledged his investigation file contained a document which notified Trooper White and Assistant District Attorney 0! (60). On thisShaffer of his interrogation with appellant there contained a portion of notes that were not hisdocument, 1(60-61). These notes contained a reference to Michael Young, Esq. I (61). He stated appellant never asked him for an attorney, but did inform him of a case he had pending while being questioned about 0 Ihis criminal history (61). He stated someone could have placed this document in his investigation file (61). I ifAppellant exercised his constitutional right not to testify < at the Hearing. ;; 15 » 1» 1 POINT I 3APPELLANT DID NOT PROPERLY WAIVE HIS MIRANDA RIGHTS 1) The general rule is that a statement made by a defendant 5 during custodial interrogation is inadmissible absent a showing that the defendant received proper warnings, and made a valid waiver of his rights (Miranda v. Arizona, 384 U.S. 436 [1966]; People v. Jones, 47 N.Y.2d 528). Thus, when a defendant is in custody and is not given his custodial pre-interrogation warnings> before he is questioned, his constitutional rights are violated and his statements thereafter obtained must be suppressed (see * People v. Goodman, 54 N.Y.2d 451, 457-458). In determining whether an individual is in custody, the standard to be applied is whether a reasonable person, innocent of any crime, would have believed he y not free to leave under the given circumstances (People v.was Yukl, 25 N.Y.2d 585, 589). Subsequent convictions based upon confessions in violation of Miranda have been reversed as fruit of the poisonous tree (Miranda, supra, see People v. Barber, 124 A.D.3d 1312, 1314 [4th Dept.]---guilty plea vacated and further 16 s proceedings ordered due, in part, to the improper denial of a Motion to Suppress).. A statement is admissible if the People can prove that there has been a knowing, intelligent, and voluntary waiver of the privilege against self-incrimination (People v. Rodney, 85 N.Y.2d 289, 292; People v. Knapp, 124 A.D.3d 36, 41 [4th Dept.]). The determination of whether a defendant waived his or her right to ; remain silent is determined by an inquiry into the totality of the circumstances, including the defendant's age, experience, education, background, intelligence, and capacity (People v. Williams, 62 N.Y.2d 285, 288; Knapp, supra at 31; see Fare v. Michael C., 442 U.S. 707, 725 [1979]). It is respectfully submitted, that the totality of the circumstances demonstrated that appellant was in custody and being interrogated during the course of the traffic stop (9-17, 24-38, i 50-53) (Miranda, supra). Appellant was initially stopped for a traffic violation (9- 17). In the course of this stop, Trooper Smithers (People's HH » Witness #1) began questioning appellant concerning the contents of his vehicle (9-17, 24-38). During the questioning, appellant Q,(10). Smithers asserted herequested to "be on his way" interpreted this statement to be appellant requesting for "his questioning to cease and for him to be able to just leave" (10). Requesting to leave, and having that request subsequently denied, 17 ■> constituted the beginning of custodial interrogation, and the attachment of appellant's Miranda rights (10) (Yukl, supra at 589;a see People v. Baez, 95 A.D.3d 654, 655---passengers were found toafter a traffic stop they were orderedbe in custody where, 1 outside of their vehicle to answer additional questions by police). Therefore, any statements made by appellant after he was in © custody, but before any Miranda warnings were given, should be suppressed (Goodman, supra at 457-458). Under the circumstances, appellant did not make a knowing, intelligent, and voluntary* waiver of his right to be silent until he was read his Miranda rights by Trooper Pelton (People's HH Witness #2) before leaving (Rodney, supra at 292; Knapp, supra at 41).the scene (50-53) Specifically, any statements made by appellant to Trooper Smithers (People's HH Witness #1) confessing to having untaxed cigarettes in his vehicle should be suppressed (15-16) (Rodney, supra at 292; Knapp, supra at 41). As such, it is respectfully submitted that the judgment of> conviction should be reversed, and the matter remitted for further proceedings because the trial court failed to suppress appellant's © statements, and appellant was denied meaningful choice as to whether he should plead guilty (10-16) (Miranda, supra; Barber, supra at 1314). 18 y ) POINT II THE POLICE LACKED PROBABLE CAUSE TO SEARCH APPELLANT'S VEHICLE 1 In the context of criminal law enforcement activities, whether a particular police intrusion on an individual's right to } privacy and security is reasonable depends on whether the degree of intrusion accords with the degree of objectively credible police suspicion arising from the circumstances (People v. DeBour, ) 40 N.Y.2d 210, 215, 223). DeBour (supra at 215, 223) identified four levels of interest or suspicion and paired each one with a )justified level of interference by police, At the first level, where police merely have "some objective credible reason" to approach a private citizen in a public place to request information not necessarily indicative of criminality, they may approach and ask basic, nonthreatening questions, including questions as to the person's identity, address, destination, and/or reason for being in the area (DeBour, supra at 213, 218-219, 223; People v. Hollman, 79 N.Y.2d 181, 185; People ! v. Wallgren, 94 A.D.3d 1339, 1340). -3 At the second level, "a founded suspicion that criminal activity is afoot" justifies, among other things, a request for consent to search the suspect's vehicle, and/or a trained canine sniff of the exterior of the vehicle (People v. Dunbar, 5 N.Y.3d 834, 835; see also People v. Devone, 15 N.Y.3d 106, 113). 19 At the next two levels respectively, "reasonable suspicion that a particular person committed, is committing or is about to commit a crime" justifies temporary detention for questioning, and "probable cause to believe that person has committed a crime" J justifies arrest (DeBour, supra at 223), ... If a suspect voluntarily consents to a search, police may conduct a search within the objectively reasonable scope of consent, regardless of whether police have reasonable suspicion or probable cause (People v. Gomez, 5. N.Y.3d 416, 420). It is respectfully submitted, in the case at bar, the police did not have probable cause to search appellant's vehicle (14a- 16a, 58a, 75a-78a, 17-19, 33-37). n Here, the police did not have reasonable suspicion to believe appellant committed, was committing, or was about to commit a crime (DeBour, supra at 223). Appellant was initially stopped for '> a traffic violation (14a-16a, 58a, 4-5). In the course of this stop, Trooper Smithers (People's HH Witness #1) began questioning appellant regarding the contents of his vehicle,J more specifically, the contents of his luggage (7-13). He also requested for appellant to consent to a search of his vehicle ) (11). Appellant did not consent (11). Appellant was cooperative by answering all questions posed by Smithers during the course of the traffic stop, including stepping ) (2-48). Smithersout of his vehicle when requested to do so 20 » '1 believed he obtained reasonable suspicion when appellant appeared to be overly nervous and responded with inconsistent answers as to what items were in his luggage (7-11). However, this was not sufficient, under Debour (supra at 223), to establish reasonable I suspicion as to whether appellant had "committed, is committing or (DeBour, supra at 223; see People v.is about to commit a crime" Owens, 206 A.D.2d 303, 304---subjective evaluations such as ) ;"fidgeting," or hesitancy upon making eye contact"nervousness," are not sufficient to request to search luggage). Therefore, Smithers did not have probable cause to continue to detain D appellant for further questioning (DeBour, supra at 223, Owens, supra at 304). Moreover, it was only during the course of additional !questioning, outside of appellant's vehicle, that appellant stated 1he was transporting cigarettes in his vehicle (16-18). Upon hearing this information, Smithers' initiated a roadside search of appellant's vehicle (17-19). However, these statements made by appellant, when viewed in totality, were not voluntary, and i therefore, could not be the foundation for establishing reasonable suspicion to search appellant's vehicle (see POINT I,' supra). in the case at bar,It is respectfully submitted that, iSmithers did not have reasonable suspicion to believe appellant had committed, was committing, or was about to commit a crime at the time of the initial traffic stop (DeBour, supra at 223). 21 1 Therefore, Smithers' search of appellant's vehicle was unlawful and this Court should suppress any evidence seized from them unlawful search (83a-107a, 17-21). :) POINT III APPELLANT ONEQUIVICALLY ASSERTED HIS RIGHT TO COUNSEL.3 It is well established that a suspect in custody must unequivocally request the assistance of counsel in order to ) trigger his indelible right to counsel (People v. Glover, 87 N.Y.2d 838, 839). When a defendant in custody unequivocally requests the 3:3 assistance of counsel, any purported waiver of that right obtained in the absence of counsel is ineffective (Glover, supra at 839; People v. Cunningham, 49 N.Y.2d 203, 207). Whether a particular request is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances : ‘ surrounding the request including the defendant's demeanor, manner of expression, and the particular words found to have been used by the defendant (Glover, supra at 839).3 In order to trigger the indelible right a suspect in custody must assert a desire not to respond to questions without counsel > 270 A.D.2d 800, 801 [4th Dept.]). Once the(People v. Carrier, 22 defendant requests the assistance of counsel, the police are obligated to scrupulously honor that request (People v. Stroh, 48 N.Y.2d 1000). Thus, the mere requesting of counsel or the evincing Sof an intent to retain counsel, by a defendant is sufficient to render defective any further questioning by police as to the crime > with which the defendant is charged (People v. Shaeffer, 56 N.Y.2d 448, 454; People v. Lubanski, 148 A.D.2d 947, 947 [4th Dept.]). 1 It is respectfully submitted that in the case at bar, appellant unequivocally invoked his right to counsel, and Trooper . Pelton (People's HH Witness #2) incorrectly determined that appellant had not asserted his indelible right to counsel. As appellant was denied a meaningful choice as to whether hesuch, »should plead guilty (54-61) (Lubanski, supra at 947). Pelton asserted that appellant never specifically requested for an attorney during the course of the interrogation. However, Pelton stated appellant did inform him of a current pending case, and that appellant inquired as to whether he needed a lawyer (54- 55, 61). ) didAlthough Pelton maintained that appellant not he did acknowledge thatspecifically request for an attorney, ■Oattached to his notes from the interrogation of appellant was the name of an attorney (60-61). This inquiry, combined with Pelton's interrogation notes, demonstrated that Pelton's recollection was flawed, and that appellant likely requested counsel, or at the 23 very least had indicated the name of his attorney (54-61) (Carrier, supra at 801).9 It is respectfully submitted that appellant's question regarding whether he needed a lawyer, and Pelton's interrogation m notes, when viewed in totality, constituted the unequivocal assertion of his indelible right to counsel (54-61). Accordingly, the judgment of conviction should be reversed, and the matter a remitted for further proceedings (Lubanski, supra at 947). POINT IV APPELLANT'S GUILTY PLEA NAS IMPROPERLY ENTERED. ; > The trial court has the constitutional duty to ensure that a defendant's guilty plea is "entered voluntarily, knowingly, and> intelligently" (People v. Sougou, 26 N.Y.3d 1052, 1054; People v. Haffiz, 19 N.Y.3d 883, 884). 1 i A valid plea encompasses a waiver of the right to trial by jury, the privilege against compulsory self-incrimination, and the right to confront one's own accusers (Boykin v. Alabama, 395 U.S.: © 238, 243 [1969]; People v. Harris, 61 N.Y.2d 9, 18). A trial court, however, is not required to engage in any particular litany, including the enumeration of all the rights waived during1 the course of a plea allocution (People v. Tyrell, 22 N.Y.3d 359, 365). © 24 u 1 The trial court is responsible for ensuring that the accused has a full understanding of what the plea connotes and of its 1 consequences, and may discharge this duty through direct inquiry, or by determining that the defendant has consulted with defense counsel about the constitutional consequences of a guilty plea > (Tyrell, supra at 365). Various factors encompass the effectiveness of a guilty plea ) (People v. Conceicao, 26 N.Y. 3d 375, 382-383). Factors to be considered include: the nature and terms of the agreement the reasonableness of the bargain; the age and experience of the accused; the competency, experience and actual participation by defense counsel; whether before sentencing defendant asserts his innocence or undermines his guilty; the pace of the proceedings; ) and whether it appears from the Record at the time of pleading or sentencing that defendant misunderstood or misapprehended the plea j (Conceicao, supra at 382-383). Acceptance of a plea when the factual recitation does not establish one of the requisite elements of a crime is reversible J 71 N.Y.2d 662, 666; People v. White,error (see People v. Lopez, 70 A.D.3d 1343, 1343 [4th Dept.]). A personal recitation by )defendant, ensures to the trial court that the defendant understands the nature of the charge and that the plea is knowingly, voluntarily, and intelligently entered (Lopez, supra). If the defendant's recital does not clearly spell out the crime to 25 II which the plea is offered then the court should proceed with further inquiry to accept the guilty plea as a valid one (People v. Pangburn, 298 A.D.2d 989, 989 [4thDept.]). Where the court fails to rectify an ambiguous allocution and accepts a plea without further inquiry, the defendant may challenge the sufficiency of the allocution on direct appeal not withstanding that a formal post-allocution Motion was not made :> 5 (Lopez, supra at 666). that in the case at bar,It is respectfully submitted, appellant did not knowingly, intelligently, and voluntarily enter© his plea of guilty (78-79, 89-91). Though no particular litany is required during a plea » allocution, here the trial court failed in ensuring that appellant, before pleading guilty, had a full understanding of his plea (76-79) (Tyrrell, supra at 365). The trial court in conducting S the colloquy failed to ask appellant questions which required a narrative response (76-79). Appellant's mere answer of "yes" or "no" to a series of questions elicited by the trial court waiving> important rights, without answering a single question in a narrative fashion cast serious doubt as to whether appellant > grasped the nature and consequences of his guilty plea (76-79) (Tyrell, supra at 365). Moreover, in regard to the factual ■J-allocutions, appellant merely agreed with the trial court's) recitation of the facts (76-79). Without a personal recitation by 26 1 appellant, it was unknown whether he truly committed each and every element of the offense charged (76-79). Moreover, it must be stressed that appellant was deprived of a meaningful choice in deciding whether to plead guilty due to not receiving proper Miranda warnings, police failing to establish . probable cause before searching his vehicle, and denying his indelible right to counsel during the interrogation (see POINT I- I III, supra). Therefore, it is respectfully submitted that appellant's guilty plea was not knowingly, intelligently, and voluntarily entered (76-79, 89-91). As such, appellant's guilty ) plea should be vacated (76-79, 89-91). O ) 27 # CONCLUSION THE JUDGMENT OF CONVICTION SHOULD BE REVERSED AND THE INDICTMENT DISMISSED 3 ) Respectfully submitted, / •) ©VL, K ©B.J. & J.A.'CIRANDO, ESQS. // Attorneys for Defendant/Appellant 101 South Salina Street, Suite 1010 Syracuse, New York 13202 (315) 474-1285 © John A. Cirando, Esq. Bradley E. Keem, Esq. Elizabeth deV. Moeller Of Counsel Esq. > Dated: November 16, 2016 y © 1 © 28 > * p g a 8 1 it § § -*r.I 1 -V n .* ■Vs ■:- :-Vs S I : V: ••••. V > :? :T s } ■; ) ■: