The People, Respondent,v.Nadine Panton, Appellant.BriefN.Y.June 2, 2016To be argued by ROBIN NICHINSKY (15 minutes requested) Court of §ppeals ~tatt of Jllttu !Jorlt THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - NADINE PANTON, Defendant-Appellant. APL# 2015-00100 Bronx County Ind. No. 3237 /07 BRIEF FOR DEFENDANT-APPELLANT ROBIN NICHINSKY Of Counsel Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street 28th Floor New York, NY 10005 rnichinsky@cfal. or1: (212) 577-2523 TABLE OF CONTENTS TABLE OF AUTHORITIES PRELIMINARY STATEMENT QUESTION PRESENTED SUMMARY OF ARGUMENT STATEMENT OF FACTS Introduction . The Joint Suppression Hearing The Arrests Daniel's Interrogation Appellant's Interrogation Appellant's Testimony . Suppression Hearing Arguments The Court's Decisions . Post-Hearing Statement of Objections The Trial Summations, Charge and Verdict Sentence The Appeals ARGUMENT Appellant's Affirmance Daniel's Reversal i iii 1 2 2 5 5 7 10 12 14 17 20 23 24 25 28 29 30 30 32 34 POINT APPELLANT NADINE PANTON'S STATEMENTS SHOULD HAVE BEEN SUPPRESSED AS THE PRODUCT OF CUSTODIAL INTERROGATION WITHOUT EFFECTIVE MIRANDA WARNINGS IN A CONTINUOUS CHAIN OF EVENTS NOT ATTENUATED FROM THE TAINT OF HER UNLAWFUL INTERROGATION. U.S. CONST. AMENDS. V, XIV; N.Y. CONST. ART. I, § 6. 34 A. B. c. Appellant Was Subjected to Pre-Miranda Custodial Interrogation That Elicited An Incriminating Response The Continuous Chain of Events Following Appellant's Custodial Interrogation This Issue Was Preserved by Counsel CONCLUSION ii 35 39 45 49 TABLE OF AUTHORITIES FEDERAL CASES Miranda v. Arizona, 384 U.S. 436 (1966) passim Missouri v. Siebert, 542 U.S. 600 (2004) 35, 39, 40, 42, 44 Murray v. Carrier, 477 U.S. 478 (1986) 48 Oregon v. Elstad, 470 U.S. 298 (1985) 40 Rhode Island v. Innis, 446 U.S. 291 (1980) 36 Strickland v. Washington, 466 U.S. 668 (1984) 48 STATE CASES People v. Benevento, 91 N.Y.2d 708 (1998) 48 People v. Bethea, 67 N.Y.2d 364 (1986) 5, 35, 40, 41, 42, 45 People v. Clermont, 22 N.Y.3d 931 (2013) 48 People v. Chapple, 38 N.Y.2d 112 (1975) 3, 5, 35, 40, 41, 42, 43, 45 People v. Conception, 17 N.Y.3d 192 (2011) 35 People v. Daniel, 122 A.D.3d 401 (1st Dep't 2014) 32, 33, 35, 36, 37, 44, 46, 47 People v. Dunbar, 24 N.Y.3d 304 (2014), cert. denied, U.S. 135 S. Ct. 2052 (2015) 40 People v. Ferro, 63 N.Y.2d 316, cert. denied, 472 U.S. 1007 (1985) 36 People v. Hager, 69 N.Y.2d 141 (1987) 38 People v. Huntley, 15 N.Y.2d 72 (1965) 45 People v. Huyler, 110 A.D.2d 1064 (4th Dep't 1985) 38 People v. LaFontaine, 92 N.Y.2d 470 (1998) 35 People v. McDonald, 1 N.Y.3d 109 (2003) 48 People v. Nesbitt, 20 N.Y.3d 1080 (2013) 48 People v. Panton, 114 A.D.3d 450 (1st Dep't 2014) 31, 35 iii People v. Paulman, 5 N.Y.3d 122 (2005) People v. Rivera, 57 N.Y.2d 453 (1982) People v. Turner, 5 N.Y.3d 476 (2005) People v. White, 10 N.Y.3d 286 (2008) FEDERAL STATUTES U.S. CONST. AMENDS. V, XIV STATE STATUTES N.Y. CONST. ART. I, § 6 C.P.L. § 450.90(1) C.P.L. § 470.35 (1) P.L. § 125.25 (3) P.L. § 160.01 (1) iv 3 f 4, 3 f 4 f 36, 32, 41, 24, 43, 33, 35, 42, 45 37, 38 48 31 f 3 5 f 44, 45 2, 34 2 f 34 2 35 1 1 COURT OF APPEALS STATE OF NEW YORK --------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- NADINE PANTON, Defendant-Appellant. --------------------------------------x PRELIMINARY STATEMENT APL # 2015-00100 By permission of the Honorable Jonathan Lippman, Chief Judge of the Court of Appeals, granted April 8, 2015, appellant Nadine Panton appeals from an order [M-11665] of the Appellate Division, First Department, entered on February 6, 2014, that modified,on the law, to the extent of vacating the DNA databank fee and reducing the amounts of the mandatory surcharge and crime victim assistance fees, and otherwise affirmed, a judgment of the Supreme Court, Bronx County, rendered on December 21, 2010, convicting appellant, after trial, of murder in the second degree (P.L. § 125.25(03)) and robbery in the second degree (P.L. § 160.01(01)), and sentencing her to an indeterminate prison term of 25 years to life and a determinate term of 15 years plus five years of post-release supervision, respectively, imposed concurrently, plus fees (Carter, J., at hearing; Donnelly, J. at trial and sentence) . 1 The Court has jurisdiction to entertain this appeal pursuant to C.P.L. § 450.90(1). The issue raised on this appeal was fully preserved below and presents a question of law. On May 7, 2015, this Court assigned Robert S. Dean as counsel on appeal. Appellant is currently incarcerated pursuant to the judgment herein. QUESTION PRESENTED WHETHER APPELLANT NADINE PANTON'S STATEMENTS SHOULD HAVE BEEN SUPPRESSED AS THE PRODUCT OF CUSTODIAL INTERROGATION WITHOUT EFFECTIVE MIRANDA WARNINGS IN A CONTINUOUS CHAIN OF EVENTS NOT ATTENUATED FROM THE TAINT OF HER UNLAWFUL INTERROGATION. U.S. CONST. AMENDS. V, VI, AND XIV; N.Y. CONST. ART. I, § 6. SUMMARY OF ARGUMENT This Court has been broadly protective of the rights of criminal defendants not to be subjected to non-Mirandized custodial interrogation, extending the reach of such protection beyond the dictates of federal law. In a series of cases, this Court has held that the subsequent administering of Miranda warnings will not legitimize post-Miranda custodial interrogation that occurs as part of a continuous chain of events. Here, appellant was deliberately confronted with 2 questioning followed by a graphic photograph intended to elicit an incriminating response. The confrontation succeeded, and appellant became "very upset" and cried. When she stopped crying, further questioning immediately resumed after Miranda warnings, with a video 85 minutes later, in the same precinct, with appellant sitting right next to one of her interrogators. Under this Court's precedents, all of her statements should have been suppressed. In People v. Paulman, 5 N.Y.3d 122, 130-31 (2005), this Court reaffirmed its ruling in People v. Chapple, 38 N.Y.2d 112 (1975), that administering Miranda warnings in the midst of a "single continuous chain of events" will not render the post-Miranda statements admissible. The Court set out the factors to be considered in determining whether there is a "continuous chain of events" under Chapple. These include: the time differential between the Miranda violation and the subsequent admission, whether the same police personnel were present and involved in eliciting each statement, whether there was a change in the nature or location of the statement, and the circumstances surrounding the violation, such as the extent of the improper questioning. Paulman, 5 N.Y.3d at 130- 31. In People v. White, 10 N.Y.3d 286 (2008), the Court cited Paulman in emphasizing that, "no one factor is determinative and each case must be viewed on its unique facts." The Court 3 held that "the absence of pre-Mirandized inculpatory statements alone cannot ... preclude an inquiry as to whether the pre-and post-Miranda sessions were part of a continuous chain of events .... " 10 N.Y.3d at 290. Because the defendant in White had only a five minute pre-Miranda exchange with police, followed by a 15 to 20 minute pre-Miranda break, the Court there found that after the "very brief pre-Miranda questioning," the defendant had returned to the status of one no longer under the influence of questioning. In contrast to White, appellant Nadine Panton was interrogated without Miranda warnings during an 18 minute period, during which time she was questioned and confronted with a graphic photo of the dead victim. Appellant became visibly "very upset" and cried in reaction to this interrogation; her reaction was then used against her as evidence at trial. When appellant stopped crying, Miranda warnings were given, and a full oral and written confession immediately followed in the same room, with the same officers, without any break. Eighty-five minutes later, in the same precinct with one of the same interrogation officers at her side, appellant again received Miranda warnings and gave a videotaped statement. Under this Court's analyses in Paulman and White, all of these statements should have been suppressed as part of a continuous chain of events resulting from the unlawful 4 custodial interrogation. It is evident that confronting appellant with questions and a graphic photo was a deliberate strategy intended to elicit the response that it did; her predictable reaction was used as incriminating evidence against her, and was followed by a sequence of interrogations that, as in Chapple and People v. Bethea, 67 N.Y.2d 364 (1986), constituted a continuous chain of events. Absent appellant's admissions, there was scant evidence left to connect appellant with this crime. STATEMENT OF FACTS Introduction Appellant Nadine Panton and co-defendant Sparkle Daniel were arrested separately on July 19, 2007, for the January 9, 2003, Bronx robbery and murder of Nellie Hocutt. At a joint suppression hearing, Detectives McSloy and Ciuffi testified that after informant Larissa Kirby called Crimestoppers in 2007, and identified Daniel and appellant as suspects in the crime, a computer search produced a 1997 probation warrant for appellant. The officers then used that warrant - which had been vacated seven years before - as a ruse to arrest appellant in her home so she could be interrogated about the murder. They did not give appellant Miranda warnings. 5 Daniel was already under interrogation when appellant was brought to the same Bronx precinct the evening of July 19, 2007. After securing statements from Daniel, Detectives Ciuffi and Mulroy used the same basic technique to interrogate appellant. As he had just successfully done with Daniel, Ciuffi asked appellant if she knew why she was there. When she said no, he told her he was investigating the murder of an old woman. When appellant continued to deny any knowledge about this, Ciuffi threw a photo of the dead victim on the table. Appellant became very upset and cried - a reaction later used against her at trial. Only then - 18 minutes after Ciuffi began the interrogation - were Miranda rights administered, and oral and written statements immediately followed. Eighty- five minutes later, in the same precinct with one of the same officers beside her, she was given Miranda warnings again and gave a videotaped statement. Suppression was denied in a written decision, dated September 27, 2010 (Carter, J.). The court ruled, inter alia, that ~the People concede that Nadine Panton was in custody at the precinct." But appellant's statements were found to be voluntary, and her hearing testimony as to how the police coerced her to confess was rejected as incredible, while the detectives' testimony was found credible. Based on the detectives' testimony, the court held appellant had waived her 6 Miranda right~ and her statements were voluntary and admissible. It did not address the issue of custodial interrogation or attenuation, as it did, at least in part, in a separate decision denying suppression in the Daniel case. In a separate trial held before the Honorable Ann M. Donnelly and a jury on November 29-30, December 2-3 and 6-8, 2010, the only evidence against appellant was her own admissions and Larissa Kirby's claims. There was no physical evidence nor eyewitnesses. The jury acquitted appellant of first-degree murder, intentional second-degree murder and first-degree robbery; but found her guilty of second-degree felony murder and second-degree robbery based upon an "aided by another" theory. On December 21, 2010, appellant was sentenced to 25 years to life in prison for second-degree felony murder, and 15 years for second-degree robbery, plus five years of post- release supervision, to be served concurrently, and mandatory fees. 1 The Joint Suppression Hearing Prior to the hearing, counsel argued in his omnibus motion, inter alia, that appellant's alleged statements to 1The indictment charged first-degree murder; second-degree intentional murder; second-degree felony murder; first-degree robbery(physical injury); second-degree robbery(acting in concert), and second-degree robbery (physical injury) . 7 police were "not spontaneous, were coerced from her under threats, and that she was not properly advised of [her] rights against self-incrimination" (Omnibus Affirmation, dated January 22, 2008, A. 34) . 2 Although appellant and Daniel's cases were severed for trial, the suppression hearing was conducted jointly (A. 56) 3 Detective James McSloy from the Bronx Homicide Task Force testified that he received a call from a female, later identified as Larissa Kirby, on June 6, 2007 (A. 68, 75-76) Kirby said she had information about the robbery of an elderly woman from years past, and identified Sparkle Daniel and Nadine Panton as the ones involved (A. 68-69, 72-73). McSloy determined Kirby was referring to the 2003 murder of Nellie Hocutt (A. 72-73, 87). Detectives Nicolas Ciuffi and Michael Mulroy had been assigned to the case (A. 73, 96- 97) . McSloy retrieved a Department of Motor Vehicle photo of Daniel, and an arrest photo of appellant (A. 74-75, 209-11). When Kirby called again a few days later, she provided more details, and agreed to come in for a meeting (A. 73-75). The next day, June 11, 2007, Kirby came in and met with McSloy and Ciuffi (A. 75-76) . 2 Parenthetical numbers preceded by "A" refer to pages of the Appendix. 3 Co-counsel objected to the joint hearing, stating that her client would be prejudiced because appellant was crying during the videotape and "is very sympathetic" (A. 56). Daniel was separately indicted, under Bronx indictment # 3241/07. 8 Ciuf f i testified that he had been assigned to the case on January 10, 2003 (A. 96-97). His partner Mulroy, who retired in April, 2010, was the "lead detective" on the case (A. 76- 78, 97, 164, 291). Mulroy did not testify. They went to the crime scene and interviewed witnesses (A. 97-99, 138-39); among other items, the forensic unit recovered fingerprints from the scene (A. 100). For four years, Ciuffi looked at suspects and periodically requested fingerprint comparisons, but there were no matches (A. 100-01, 162-63) A broadcast on "New York's Most Wanted" yielded no leads (A. 101-02, 139-40). Crimestoppers, which Kirby had originally contacted, offered a $2000 reward for information about the murder, and the N.Y.C. Mayor's reward brought the total to $12,000 (A. 104). On June 11, 2007, Ciuffi and McSloy met with Kirby (A. 105) Kirby told them details that had not been divulged before: that the victim had been forced to drink wine and was bound with packaging tape (A. 106-08, 141-42, 233). Kirby said four years before Daniel had called her and said she was having trouble sleeping because she and appellant had killed an old woman on Laconia Avenue (A. 107). Shortly after, Kirby eavesdropped on a conversation about the crime between Daniel and appellant, when Daniel called appellant thinking she had 9 hung up on Kirby (A. 107, 250). Kirby had no direct conversations with appellant (A. 233-34) . After their meeting, Ciuffi ran Kirby's fingerprints to assess her "possible involvement with this incident" (A. 107) He said Kirby's prints did not match those found at the scene (A. 107, 251) . 4 Ciuf f i ran a criminal history check on the suspects and "probably ran the warrant" on appellant (A. 236) . He did not contact the court to check if it was still outstanding (A. 237) . McSloy, a former member of the Warrant Squad for over ten years, received the decade-old warrant (A. 75, 206-07). McSloy knew the only way to verify a warrant is to "pull the docket from the court papers itself," but he did not do that (A. 202) . A NYSIS "rap sheet" indicated that the warrant had been vacated in 2000 (A. 202, 207) . 5 The Arrests On July 19, 2010, McSloy and Detective Kevin Tracey accompanied Ciuffi and Mulroy to Daniel's address in Brooklyn 4 Ciuffi also arranged for the Daily News to publish an article stating new leads had come up in the case, and had Kirby make "controlled phone calls" to Daniel to see if she would make incriminating statements (A. 109- 12). Several "controlled calls" were made by Kirby, and one of them involved a conversation with Daniel about the murder (A. 111-12). These calls were not able to independently verify that appellant was involved in the crime (A. 233-34). The tapes of the calls were not admitted in evidence (A. 354). 5 The ADA noted that the rap sheet had been generated after appellant's arrest (A. 207). 10 (A. 76-77, 113, 143, 182-83) After a confrontation on the street, Daniel was arrested (A. 76-80, 114-15, 148-49, 183-90, 212-13). Ciuffi and Mulroy took her to the Homicide Task Force for interrogation (A. 80, 115-16). She was picked up at 5:10 p.m., and they all arrived at the precinct about 45 minutes later (A. 194-96). McSloy then went out again to find appellant, soon arriving at her apartment on Sedgewick Avenue (A. 81, 195-97 I 204). According to McSloy, he knocked on appellant's apartment door (A. 82, 199). He identified himself and asked to come in, and appellant "invited" or "let us in" (A. 82, 199). McSloy told appellant he had a warrant for her arrest, and "that we needed to go to the court to clear it up" (A. 82, 197-99). Counsel asked McSloy if he would have allowed appellant to refuse to come with him; he replied, "I would have told her she need[s] to clear up her warrant" (A. 199). Counsel asked, "You would have told her she had to come with you, right?," and McSloy replied, "Correct" (A. 199). "So," counsel asked, "she wasn't free to leave at that point?" "At that point, no." (A. 199). McSloy admitted that he used the warrant as a ruse to compel appellant to come with him to be questioned at the Homicide Task Force about the murder (A. 82-83, 201-02). In the police car, McSloy drove and Tracey sat in the back with appellant (A. 83-84). When appellant asked, McSloy 11 told her they were not going to get to court in time, so "she has to come back to my off ice until court opens up some time after dinner" (A. 84, 203). This was not "entirely true"; he wanted her questioned about the homicide (A. 84, 203). They went straight to the Bronx Homicide Task Force, as planned, and placed appellant in a lineup room so she could be questioned by Ciuffi and Mulroy (A. 209). He did not administer Miranda warnings. Daniel's Interrogation Ciuffi arrived with Sparkle Daniel at Bronx Homicide between 6 and 6:30 p.m., and she was put in an interview room (A. 116-17, 152-56, 234). It was 6:55 p.m., according to the header on Ciuffi's note pad, when he and Mulroy began questioning her (A. 122-23, 156-57). Ciuffi asked Daniel if she knew why she was there; when she said, "No," he said they were investigating the death of an old woman (A. 117, 156-59) Ciuffi then stepped out for a few minutes to give Lieutenant O'Toole information on appellant so McSloy and Tracey could find her (A. 118, 157, 161, 173, 234-35). Daniel stayed with Mulroy (A. 157) . When he came back, Ciuffi asked if Daniel now knew what he was talking about, and she said, "Yes" (A. 118, 157-58). She said she had gone to her aunt's house on Laconia Avenue; when her aunt was not home, she asked if she 12 could use Nellie Hocutt's phone (A. 118, 158, 245). Asked if he felt this conversation might lead to incriminating statements, Ciuffi said, "I certainly hoped so" (A. 119). At 7:10 p.m., Ciuffi read Daniel her Miranda rights for the first time (A. 118-19, 158). Daniel then twice described the crime; the first time Ciuffi just took notes, until 7:57 p.m. (A. 120-23, 170, 218- 20). After Ciuffi told Daniel that he did not believe her claim that appellant committed the crime alone, Daniel gave a second statement, from 8:05 to 8:27 p.m., that Ciuffi wrote down and Daniel signed (A. 176-77, 216-17, 219-21, 228). There was a seven minute gap between the statements, during which time he may have stepped out with Mulroy and learned about appellant's arrest (A. 216-17, 221). Daniel later made a videotaped confession to ADA Chariott, in Ciuffi's presence (A. 121, 174, 228). There was a tape recorder in the precinct, but it was not used (A. 173). They gave Daniel Chinese food and soda, and let her take bathroom breaks (A. 125, 174, 191-95). They later learned Daniel's fingerprints matched the ones found on the telephone in the Hocutt home (A. 126-27). 13 Appellant's Interrogation After Daniel's second statement, Ciuffi and Mulroy went in to interview appellant, who was brought in while they were interrogating Daniel (A. 126, 130, 172, 218-19). Appellant was put in the lineup room with Mulroy before Ciuffi got there (A. 130-31, 134). There was no testimony as to what they talked about. When he arrived, Ciuffi wrote down 9:12 p.m. on the header of his note pad (A. 136) . Ciuf f i engaged appellant in "some conversations" before he advised her of her rights (A. 238). He asked, "again," as he had with Daniel, whether appellant knew why she was there (A. 131, 238). Ciuffi first testified that appellant said she did not know, but on cross he could not recall exactly what she said (A. 131, 238). Ciuffi then told appellant, as he had Daniel, that they were investigating the homicide of an elderly woman (A. 131, 238). Appellant responded, in "sum and substance," that she did not know what he was talking about (A. 131) . Faced with appellant's denials, Ciuffi continued: "this is what I want to speak to you about," and he "showed her a crime scene photo of the victim" (A. 238-39) . Appellant "became very upset and she was crying" (A. 239, 253). When she finished crying, Ciuffi administered Miranda warnings for the first time, at 9:30 p.m. - about 18 minutes from when Ciuffi 14 first arrived in the room (A. 131, 135-36, 253). Appellant signed the Miranda form and then immediately gave an oral and written statement (A. 131-36). Ciuffi was "sure I asked questions during the course of her stating the events. I'm sure I would ask questions along the way" (A. 132) . Ciuffi denied telling appellant that Daniel had accused her of the murder, or that she should not be "stupid," and that if she did not accuse Daniel she would be arrested (A. 240-41). He did not recall saying or hearing that appellant could go home if she accused Daniel (A. 240) . He recalled talking about appellant's kids, but not that she could go home to them if she cooperated (A. 240). Ciuffi believed he said that if she didn't have any involvement she should say so (A. 240). Appellant was not free to leave, but Ciuffi claimed that whether she would be arrested "depended upon the interview" (A. 239). They went through the whole account of what happened that day (A. 132-33). In her written statement, appellant accused Daniel of tying Hocutt up and forcing wine down her throat while appellant was upstairs looking around, and appellant said she tried to stop Daniel when she came down (A. 133-14; see A. 37-38). Appellant tried to get out of the house but the front door was locked and Daniel took the key (A. 37-38) She ended up running out through the basement door, with 15 Daniel leaving soon after (A. 37-38) . When appellant left the house, taking some liquor with her, Hocutt was still alive and struggling to get free (A. 37-38) . After they reviewed the three-page written statement, appellant signed it (A. 134-35) It was about 10:24 p.m. (A. 136). In contrast to the description of Daniel alone eating Chinese food, there was no testimony of what transpired from the time when appellant's written statement ended to the time of the video, which occurred after Daniel's video statement. Appellant's videotape took place in a small room in the same precinct, as she sat in the corner on one side of a desk next to Detective Mulroy, with ADA Chariott sitting across from them (A. 137) . A male video technician was also in the room. The videotape began with Chariott administering the Miranda warnings at 11:49 p.m., and appellant cried at several points (See Videotape statement, People's Exhibit 1) . 6 In the beginning of the video, appellant seemed tearful, and Mulroy could be seen taking a roll of toilet paper that is in front of appellant and putting it behind a large clock on the desk. At the beginning of the video, Mulroy asks appellant to tell the prosecutor "her friend's" name and appellant complies. At a later point, at about 1:08 a.m., he also asks appellant why she did not call the police. Appellant responds 6A DVD of this tape will be provided to the Court under separate cover. 16 that she tried to help the woman, and cries again. During the video Mulroy's leg is visible from the chair just inches away from appellant, on the same side of the desk with her. 7 Appellant's Testimony Nadine Panton testified on her own behalf. She described her arrest, where the officers walked into her apartment, told her they had a warrant for her arrest, and said that she had to accompany them down to court (H. 211-23, 226, 237, A. 258- 61). They said that if they got to court before 8 p.m., it could be cleared up quickly and she could then go home (A. 259-60). She asked the officers not to handcuff her in front of the children, who were crying (A. 259-60). They agreed, if she came quietly (A. 260) . The detectives then escorted appellant to their car, one walking in front and one in back of her, and took her to the homicide department on Simpson Street (A. 260) . At the precinct, appellant was first placed in a ncage" (A. 261, 279, 282-84). McSloy then brought her to another room, saying they just wanted her to look at paperwork before she saw the judge (A. 261, 283). 7 In summation at trial, the prosecutor notes that Mulroy sat next to appellant during the video, and that at one point he "has like an outburst," and asks "why didn't you call the cops then?" (A. 626) . ADA Chariott also confirmed that a video technician was in the room (A. 514). 17 Finally, a "very mean" detective - Ciuf fi - came in and said she was not there for a warrant, but for questioning about a homicide (A. 263, 285). Appellant said that she didn't know anything about a homicide, did not want to speak with him, and wanted to go home (A. 262, 285-87). He said you are not going anywhere (A. 285-87) . She asked to make a phone call; she wanted to call her brother-in-law (A. 287). Appellant said Ciuff i told her she could only go home if she made a statement (A. 263, 287). She asked about what, and he showed her some pictures of a person bound to a chair and asked if she knew who that was (A. 263, 289). She said "no" and started to cry (A. 263, 289-90). He said she did know (A. 289-90). At the hearing, the prosecutor asked appellant if it was true she did not know who the dead person was (A. 289-90). When appellant said that was true, the ADA replied, "But you started crying" (A. 290). Appellant said she was being questioned against her will (A. 290). The prosecutor continued challenging appellant, ing that Ciuffi "slaps a bunch of pictures on the table, which include a person with a bag over their head, dead ... And he want[s) to talk to you, and you start crying?" (A. 290). Appellant said she was scared (A. 290). She had just been told that she wasn't going anywhere, and was being told, "what I did and what I didn't 18 do" (A. 290). She was also told that Daniel was sitting in the next room "stuffing her face" with Chinese food and "she didn't give a shit about me" (A. 291). McSloy rubbed her back and told her everything was going to be okayi Ciuffi was the aggressive one, banging the table and saying she was never going to see her kids again (A. 294) . Appellant did not want to make a statement but she was told she could not go home unless she did (A. 262, 294). So she gave a statement, with the officers telling her what to say (A. 291-92, 302-03, 306). Ciuffi told her what Daniel had said and showed her how the crime was committed through the pictures (A. 251, 291-92, 299). She was not actually there (A. 292, 299, 302). After she was done, the detective brought out some paperwork, including a statement and the Miranda sheet, for her to sign (A. 264-65, 295-96, 300). She initialed and signed the papers without reading them (A. 264-65, 300). He then told her the last thing she needed to do was a video, so she did (A. 264, 300-01). She was told her rights again by the ADAi she did not tell the ADA what the officers told her (A. 302-03). She said what the officers had told her to say (A. 305-07) . They told her to pull herself together and not cry during the video and she tried (A. 303). But she was confused 19 and cried during the video, because she was scared (A. 303, 3 08) . Suppression Hearing Arguments Daniel's counsel argued that Daniel's statements were taken in violation of Miranda and were involuntary under federal and state law (A. 313) . He argued, inter alia, that Daniel was interrogated when Ciuf f i said, "Do you know why you are here?," when he stated he was investigating the murder of an old woman, and when he asked if Daniel knew what he was talking about (A. 318) . Ciuffi had his pad with him; he knew his queries would elicit an incriminating response and they did (A. 318-19, 323). Counsel argued that Ciuffi intentionally withheld Miranda warnings until after an incriminating statement had been made, and Daniel's statements were part of a continuous chain of events, without any pronounced break, and must be suppressed (A. 318-34). Panton's counsel argued immediately after Daniel's counsel concluded (A. 336) . He raised three issues, including probable cause, a Payton issue, and "whether or not there is evidence that the defendant knowingly and unlawfully - I mean, knowingly and willingly and intelligently waived her rights against self-incrimination before she made any statements to the District Attorney or to Detective Ciuffi" (A. 337) . 20 Counsel contended that after appellant was arrested in her home using the invalid warrant, "she was immediately taken to the homicide office. She made a statement - I believe the statement started at 9:12 P.M. un-Mirandized, and then at 9:30, she was Mirandized and, thereafter, allegedly made a statement to her - to Detective Ciuffi and later to A.D.A. Char[]iott, all of which followed quite rapidly behind the illegal arrest .... " (A. 339). He argued that, "there is no attenuation in the record. It was one continuous event" (A. 339) . He added that the Miranda rights before the video were equally ineffective: "And aside from A.D.A. Char[]iott advising the defendant of her rights on the videotape, which Courts have held is not sufficient in and of itself to constitute attenuation, that aside from that, there was no other indication of any sort of attenuation whatsoever" (A. 33 9) Counsel reviewed appellant's testimony of coercion, and argued that rendered her statements involuntary (A. 339-40) He noted the dispute over how the rights were executed and asked "to suppress the statements on those grounds also" (A. 340) The prosecutor argued the police had probable cause to arrest both women (A. 342). Ciuffi admitted that his "initial introduction and comment to [Daniel] were not Mirandize[d]" 21 (A. 344). The prosecutor reviewed his questions to Daniel and her responses and statements, including the videotape (H. 344- 48) . She argued that Daniel knowingly and voluntarily waived her rights and her statements should be admissible (A. 348) As to appellant, the prosecutor acknowledged that the police had an arrest warrant, but still claimed appellant went voluntarily to the precinct (A. 348-49). She noted that right after Daniel's statements, Ciuffi went into appellant's interview room at the precinct (A. 346) . As she had done with Daniel, the prosecutor reviewed in detail Ciuffi's interactions with appellant, and how Ciuffi "goes in there and he once again writes a heading at the top of the page because now he is going to interview what is the second suspect in a cold homicide .... " (A. 350). Ciuffi notes it's "7/19/07 at 2112 P.M.," and "He said that they begin talking. He indicates to her - he asked her if she knows why she is there. It's again about the death of an old lady. And that Nadine begins to make a statement to him, at which point he reads Ms. Panton her Miranda Warnings" (A. 350). The prosecutor noted that on the warnings sheet, it indicated appellant said "yes" and a "yeah" to the warnings (A. 350) . That sheet was signed at 9:30 p.m., and "he goes on once again to take a statement from her" (A. 351). When the 11:15 video of Daniel was complete, appellant had her turn, and was 22 Mirandized at 11:49 p.m. on the 88-minute video (A. 351). Unlike her argument as to Daniel, the prosecutor did not argue that appellant was left alone for any period (in Daniel's case, while the officers interrogated appellant) or given dinner and a soda as Daniel was (A. 346-47) . She accused appellant of fabricating her hearing testimony (A. 353). The prosecutor concluded by arguing there was also probable cause for appellant's arrest, and that "Detective Ciuffi executed a knowing and voluntarily [sic] waiver of her rights with her .... ," followed by her written statement and then the Mirandized video (A. 353). The prosecutor argued that, "therefore, the statement with regard to her should also be admissible" (A. 3 54) . The Court's Decisions On September 22, 2010, the trial court issued a decision denying suppression to Sparkle Daniel (A. 23). The court found that as to Ciuffi's pre-Miranda questions, "It would make sense that Ciuffi, who had no prior contact with Daniel, would ask her if she was aware why she was at the precinct" (A. 31) . Even if this was custodial interrogation, the court cited this Court's decision in People v. White, 10 N.Y.3d 286 (2008), in finding that Ciuffi's leaving the room during the interrogation dissipated any taint, "particularly in light of 23 the brevity of the exchange and the fact that Daniels responded, No" (A. 31) . On September 27, 2010, the court also denied suppression to appellant (A. 10) . It found the officers' testimony credible, and appellant's testimony incredible (A. 13). The court found probable cause to arrest appellant based upon Kirby's information, and no Payton violation (A. 19, 21). It acknowledged the officers never intended to take appellant to the courthouse, and used the warrant as a ruse to take her in for questioning on the homicide (A. 20) . It noted McSloy said she "voluntarily accompanied them" (A. 20) . The court found that the police conceded appellant was in custody at the precinct (A. 21) . It noted appellant "argues that she did not voluntarily waive her Miranda rights" (A. 21). It rejected as implausible appellant's testimony that she was coerced into signing the Miranda form and fabricated a story so she could return to her children (A. 21-22) . It found her statements voluntary and admissible (A. 21-22). Post-Hearing Statement of Objections After the court's decision, counsel filed a "Statement of Objections," with three main points (A. 355). Within the second point, counsel raised several issues: "was the defendant properly advised of her rights against self- 24 incrimination by law enforcement officers and did she understand her rights and thereafter knowingly and voluntarily waive those rights prior to making any statements?" (A. 357; emphasis added) . Counsel emphasized that "the defendant objects to the court's rulings on points one and two," recognizing those rulings "were subject to credibility issues .... " (A. 357). He went on to specifically address the third Payton issue (A. 357). The Trial At appellant's separate trial, Ciuffi and Mulroy reiterated their suppression hearing testimony, omitting Daniel's arrest and statements. Ciuffi also described the crime scene and the 45 photographs in evidence (A. 398-431) This included the photo Ciuf f i put on the interrogation table when appellant "became upset and started to cry" (A. 440, 494) . Ciuffi said he believed the warrant was active when he pulled it (A. 493). As at the hearing, Ciuffi said appellant denied knowing why she was there when asked. When Ciuffi told her he was investigating the death of an elderly woman, in "sum and substance" she said she did not know what he was talking about (A. 439-40, 493-94). Asked if he ended the conversation there or pursued it, Ciuffi replied, "I pursued it" (A. 439) . He 25 then placed the photo on the table and appellant became "very upset and crying" (A. 440-41, 494-95). After she stopped crying, Miranda warnings were given (A. 441). Ciuffi confirmed that the fingerprints at the scene belonged to Daniel, not appellant, and a partial palm print at the scene belonged to Nellie Hocutt's granddaughter (A. 491- 92, 502-03). Appellant's written statement to Mulroy and Ciuffi, and the videotape before Mulroy and ADA Julia Chariott were admitted in evidence (A. 513, 516, 518; see 486-89). At the beginning of the video, Chariott administered the Miranda warnings (A. 514). She had no interaction with Panton before or after the video (A. 514-15). Larissa Kirby testified to her friendship with Daniel since 2001 (A. 525-27). Through Daniel, Kirby met appellant a few times but they were not friends (A. 528-30) . Kirby said that Daniel told her she was involved in an incident involving an old lady on Laconia Avenue in the Bronx between January and June of 2003 (A. 530-31). In August 2003, Kirby saw an episode of "New York's Most Wanted" on television about the murder of an old lady in the Bronx who was strangled and forced to drink wine (A. 531) . She said the next day she called Daniel, who was then living in Florida, to tell her about it (A. 531-33, 550-52). 26 Kirby said that after she spoke with Daniel about what she saw on the news, Daniel told her she had to call appellant (A. 532-33, 563). But instead of hanging up on Kirby, when Daniel called appellant she somehow accidentally conferenced Kirby in on her call (A. 533-39). Kirby silently listened in (A. 534, 554). Kirby said she recognized appellant's voice answering the call, although her name was not used (A. 534, 554, 167). She heard Daniel speak about the news on TV (A. 534). Appellant did not want to talk about it over the phone (A. 534). Daniel said she had a bad feeling, that they were going to get caught (A. 534). Appellant told Daniel they would not get caught "because we never been arrested and they don't have our fingerprints"; later she said "her" fingerprints (A. 534, 554). Daniel argued that it was on NY's Most Wanted and appellant said not to worry, it was not "America's Most Wanted" (A. 534, 554). Kirby did not tell anyone about this call until she contacted the police in 2007, after Daniel wrote a letter to Kirby's husband saying that Kirby was cheating on him (A. 536- 38, 556, 560-67). She also collected a $12,000 reward and received vouchers for food, rent, phone and transportation (A. 540-42, 556-59). Kirby had been arrested in 2003 and 2007 (A. 542-46, 558). She also forged some papers stating she was Kim 27 Kirby, her husband's ex-wife, when Kim didn't want to sign divorce papers. She was helped in this by her then-friend, Sparkle Daniel (A. 645-46, 556-58). Medical examiner Dr. James Gill performed the autopsy (A. 572) . Hocutt died from asphyxiation, or lack of oxygen (A. 575, 583-85). Dr. Gill "couldn't say to a reasonable degree of medical certainty" that the victim's physical condition "would have required more than one person" to maneuver her into a chair and tie her up (A. 586) . After Gill's testimony, both sides rested, and counsel's motion to dismiss was denied (A. 589-92) . Summations, Charge and Verdict In summation, counsel urged the jury to reject Kirby's testimony as incredible (A. 603-07). Other than Kirby's story, there was no evidence to link appellant to this crime: no fingerprints, no physical evidence, no connection to Hocutt (A. 603). The only other evidence was appellant's own statements, which counsel submitted were tricked out of her and involuntary (A. 603, 607). In her summation, the prosecutor admitted that McSloy used a "ruse" to get appellant out of her home, and that "cops sometimes lie" (A. 619). She noted that during interrogation, after Ciuffi "slaps" down Hocutt's photo "confronting Nadine 28 Panton with a picture of Nellie that quite frankly is offensive" (A. 623), appellant began to cry (A. 620). Ciuffi did it, she admitted, to elicit a confession: "He did it. He did it to upset her. You're absolutely right. If that's what you think he did it for, you're correct. He wanted to upset her. And get a reaction and he did" (A. 623). The prosecutor went on, "And now he's get [sic] her thinking oh boy, I better come up with something here. There's a problem. They know. We're caught. Got to explain" (A. 623). After that, "We don't stop there" ; they went on to get the videotaped statement too (A. 623-24). The jury found appellant not guilty of first degree murder (count 1), intentional second-degree murder (count 3), and first-degree robbery based upon serious physical injury (count 4) (A. 700-01) . It found her guilty of second-degree felony murder (count 2) and second-degree robbery (aided by another) (count 5) (A. 700-01). Sentence Appellant was sentenced on December 21, 2010, to the maximum sentence of 25 years to life for second-degree murder, and 15 years for second-degree robbery, to run concurrent, 29 plus five years of post-release supervision (A. 724) . Stating that, "the physical evidence proves that one person cannot have done" this alone (A. 722), the court recommended appellant never be released on parole (A. 724). imposed "mandatory fees and surcharges" (A. 724) The Appeals Appellant's Affirmance It also Appellant appealed her convictions to the Appellate Division, First Department in a brief filed on March 14, 2013. In the brief, she raised four points, including that appellant was subjected to custodial interrogation without effective Miranda warnings in a continuous chain of events. Respondent in his brief argued, inter alia, that appellant's custodial interrogation claim was only "partially preserved" (RB. at 24). He acknowledged that the court had found appellant was in custody at the precinct, but maintained that Ciuffi's questions did not constitute interrogation, nor a "question first" technique (RB at 27-28) . Nor, he argued, was showing appellant the crime scene photo coercive (RB at 29) . Respondent also argued that even if Ciuff i did engage in pre-Miranda custodial interrogation, appellant's act of crying was not incriminating and did not compel her to make the post- 30 Miranda statements, which were not tainted by any pre-Miranda custodial interrogation (RB at 29-30) . In a decision dated February 6, 2014, the Appellate Division, First Department modified appellant's convictions to the extent of vacating the DNA databank fee and reducing the mandatory surcharge and crime assistance fees, but otherwise affirmed her convictions. People v. Panton, 114 A.D.3d 450 (1st Dep't 2014) (A. 3). The court ruled, inter alia, that appellant did not preserve her Miranda claim. Id. at 451. In any event, it added: As an alternative holding, we find that suppression was not warranted. Even assuming that the detective's display to defendant of a crime scene photograph of the murder victim, shortly before giving the warnings, constituted the functional equivalent of interrogation, defendant made no incriminating statements until after the warnings were administered, and her post-Miranda statements were attenuated from the display of the photo (see People v. White, 10 N.Y.3d 286 ... [2008]). 114 A.D.3d at 451 (A. 4). The court found that appellant's ineffective assistance of counsel claims as to the Miranda issue "unreviewable" on direct appeal and, "to the extent the existing record permits review," appellant received effective assistance under the state and federal standards. Id. at 451 (citations omitted) (A. 5). Appellant's application for leave 31 to appeal to this Court was denied on May 2, 2014 (Graffeo, J.) . On November 6, 2014, the Appellate Division, First Department reversed Daniel's conviction based upon the Miranda violation in her case. See People v. Daniel, 122 A.D.3d 401 (1st Dep't 2014) (A. 6). After leave to appeal to this Court was granted to the prosecution on January 9, 2015, by dissenting Justice Clark of the Appellate Division, First Department, appellant moved before this Court for reconsideration of her leave denial. In an order dated April 8, 2015, Chief Judge Jonathan Lippman granted appellant reconsideration and, upon reconsideration, granted leave to appeal (A. 2). Daniel's Reversal The Appellate Division First Department reversed Sparkle Daniel's conviction based upon the Miranda violation. 122 A.D.3d 401 (1st Dep't 2014) (A. 6). The court found that custodial interrogation had occurred. While not finding Daniel's pre-Miranda statement to be incriminating, the Court nonetheless suppressed all of Daniel's statements and ordered a new trial, relying on this Court's decision in People v. Paulman, 5 N.Y.3d 122, 130 (2005) (A. 8-9). The court discussed the factors identified in Paulman for determining whether a continuous chain of events followed the 32 custodial interrogation here. Daniel, 122 A.D.3d at 403 (A. 8). It found there was no time differential between the Miranda violation and the post-Miranda interview that immediately followed, there was no change in the location or nature of the interrogation, and the defendant had never indicated a willingness to speak with the police before the Miranda violation (A. 8). Although the pre-Miranda statement was brief and was not an admission of criminal conduct, the court found Daniel's unwarned statements •plainly tended to incriminate her .... " Id. at 404 (A. 8). The court did not consider whether the taint extended to the videotape statement, as it was not raised below. 122 A.D.3d 404-05 (A. 8- 9) . In dissent, Justice Clark found the taint of the pre- Miranda statements sufficiently dissipated because she did not consider Daniel's pre-Miranda statement incriminating, and found the pre-Miranda interrogation brief. 122 A.D.3d at 406 (A. 9-11) . 33 ARGUMENT POINT APPELLANT NADINE PANTON'S STATEMENTS SHOULD HAVE BEEN SUPPRESSED AS THE PRODUCT OF CUSTODIAL INTERROGATION WITHOUT EFFECTIVE MIRANDA WARNINGS IN A CONTINUOUS CHAIN OF EVENTS NOT ATTENUATED FROM THE TAINT OF HER UNLAWFUL INTERROGATION. U.S. CONST. AMENDS. V, XIV; N.Y. CONST. ART. I, § 6. Appellant Nadine Panton was confronted by questioning and a graphic photo intended to elicit an incriminating response, and only later given Miranda warnings as part of a continuous interrogation strategy by the police. After this confrontation, appellant became "very upset" and "was crying," was given Miranda warnings immediately after she stopped crying, and the interrogation immediately resumed. From the beginning of the interrogation until the Miranda warnings, 18 minutes had passed. During the immediately following interrogation, appellant gave a full statement to police followed soon after by a videotaped statement, after Miranda warnings, but in the same precinct sitting next to one of the same interrogating officers. All of these statements, elicited in violation of Federal and State Constitutional law, were part of a single continuous chain of events following appellant's unlawful custodial interrogation without Miranda warnings, and must be 34 suppressed. See, e.g., Missouri v. Siebert, 542 U.S. 600 (2004); Miranda v. Arizona, 384 U.S. 436 (1966); People v. White, 10 N.Y.3d 286 (2008); People v. Paulman, 5 N.Y.3d 122 (2005); People v. Bethea, 67 N.Y.2d 364 (1986); People v. Chapple, 38 N.Y.2d 112 (1975). A. Appellant Was Subjected to Pre-Miranda Custodial Interrogation That Elicited An Incriminating Response There is no question that appellant was subjected to custodial interrogation. The trial court's decision noted both that the detectives possessed a warrant for appellant's arrest, and that the prosecution "concede[d]" that appellant "was in custody at the precinct" (A. 21) . The Appellate Division noted "no basis for disturbing the court's credibility determinations." People v. Panton, 114 A.D.3d 450, 451 (1st 2014). Under these circumstances, the finding that appellant was in custody when at the precinct must stand. See C.P.L. § 470.35 (1); People v. Conception, 17 N.Y.3d 192 (2011); People v. LaFontaine, 92 N.Y.2d 470 (1998). Appellant was also interrogated. In co-defendant Daniel's case, the Appellate Division found interrogation where the questioning was strikingly similar, but even less intense because there was no photo used. See People v. Daniel, 122 A.D.3d 401. This finding is consistent with well-established 35 law. See also Miranda, 384 U.S. at 444 (defining custodial interrogation as "questioning initiated by law enforcement officials after a person had been taken into custody"); Rhode Island v. Innis, 446 U.S. 291, 301 (1980) ("Interrogation," includes "any words or actions on the part of the police that the police know are reasonably likely to elicit an incriminating response."); White, 10 N.Y.3d at 288, 292 (where defendant shown photo of victim and told, "he was ... either killed in cold blood, or there was a reason for it," this exchange was d~emed an "unwarned custodial interrogation" as a matter of law); People v. Ferro, 63 N.Y.2d 316, cert. denied, 472 U.S. 1007 (1985) (displaying stolen furs obtained from co- defendant found reasonably likely to, and did, elicit incriminating response) . As in Daniel, Ciuffi came into the interview room and asked appellant if she knew why she was there. When she said no, Ciuffi told her, as he had with Daniel, that he was investigating the death of an old woman. In Daniel's case, Ciuffi walked out of the room for a few minutes and then asked if she knew about it now. In appellant's case, he "pursued" her by first saying, "this is what I want to speak with you about" and then throwing a picture of the dead woman down on the table, hoping to elicit an incriminating response - and he did. The prosecutor relied on this in summation, arguing at 36 appellant's trial that Ciuffi threw down that photo intending "to upset her .. He wanted to upset her. And get a reaction and he did" (A. 623) . While the trial court did not decide the issue in appellant's case, and the Appellate Division wrongly found it unpreserved, 8 see infra at pp. 45-48, as in the Daniel case, Ciuffi and Mulroy's questioning of appellant thus constituted custodial interrogation. Further, appellant's reaction to the photo here was an incriminating statement subject to suppression. As the prosecutor herself argued at the suppression hearing: "He said they begin talking. He indicates to her - he asked her if she knows why she is there. It's again about the death of an old lady. And that Nadine begins to make a statement to him, at which point he reads Ms. Panton her Miranda warnings" (A. 350; emphasis added) . A nonverbal response can be suppressed if elicited through unlawful custodial interrogation, as the response was here. See People v. Rivera, 57 N.Y.2d 453, 454 (1982) ("any pertinent communication whether made by statement or conduct, in response to the interrogation, is inadmissible at trial.") 8The Appellate Division also declined to reach the Miranda issue in the interest of justice; as an alternative holding, it denied suppression, doing so "[e]ven assuming that the detective's display to defendant of a crime scene photograph of the murder victim, shortly before giving the warnings, constituted the functional equivalent of interrogation .... " (A. 4). 37 In Rivera, the defendant's conduct in moving toward a window where a gun was found was held to be in response to custodial interrogation and violated Miranda. The Court stated that the "protections afforded a criminal suspect's right to remain silent are of no less force when the suspect has been wrongly induced to communicate through conduct than when he has made an oral statement (see Schmerber v. California, 384 U.S. 757, 761, n.5, 763-64) ." 57 N.Y.3d at 455-56. "Inasmuch as defendant's conduct was clearly communicative, and was instigated in violation of the strictures of Miranda, the trial court erred." Id. at 456; see also People v. Hager, 69 N.Y.2d 141, 142 (1987) ("[e]vidence is 'testimonial or communicative' when it reveals a person's subjective knowledge or thought processes"); People v. Huyler, 110 A.D.2d 1064, 1064-65 (4th Dep't 1985) (evidence defendant shed a tear was wrongfully admitted "to communicate precisely the same incriminating meaning as the excluded oral statement"). Plainly, the prosecutor considered appellant's pre- Miranda crying incriminating and used it as evidence against her at trial. She also confronted appellant with it on cross at the suppression hearing, saying Ciuffi, "slaps a bunch of pictures on the table, which include a person with a bag over 38 their head, dead ... And he want[s] to talk to you, and you start crying?" (A. 290). After police confronted appellant with these questions and then the photo, clearly intending to elicit an emotional reaction, and the prosecutor then used appellant's tears at the hearing and at trial as evidence of guilt, the prosecution should not be heard now to argue that the evidence was not incriminating. In sum, appellant's crying was an incriminating statement that resulted from her unlawful custodial interrogation. Accordingly, it must be suppressed. B. The Continuous Chain of Events Following Appellant's Custodial Interrogation The Miranda warnings given to appellant after Ciuffi and Mulroy confronted her with the photo were ineffective, and appellant's post-Miranda statements must also be suppressed as part of a continuous chain of events that began with her illegal interrogation. In Missouri v. Siebert, 542 U.S. 600, 612 (2004), the Supreme Court rejected a "question first" technique in which Miranda warnings were intentionally withheld until an incriminating statement was obtained. The "object of question- first is to render Miranda warnings ineffective by waiting for a particularly opportune time to give them after the suspect 39 has already confessed," and under those circumstances, the warnings cannot "function effectively" as Miranda requires. 542 U.S. at 611-12; cf. People v. Dunbar, 24 N.Y.3d 304 (2014), cert. denied, U.S. , 135 S. Ct. 2052 (2015) (a "preamble" to Miranda warnings so undermined the warnings as to render them ineffective) . In People v. Chapple, 38 N.Y.2d 112 (1975), this Court held that giving Miranda warnings in the midst of a continuous interrogation renders the post-Miranda statements inadmissible. As the Court emphasized, for Miranda warnings to be effective, they "must precede the subjection of a defendant to questioning. Later is too late, unless there is such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning." Chapple, 38 N.Y.2d at 115 (emphasis in original). After the Supreme Court limited the exclusion of post-Miranda statements in Oregon v. Elstad, 470 U.S. 298 (1985), this Court continued to adhere to its decision in Chapple and found that as a matter of state constitutional law, Chapple continues "to govern the admissibility of statements obtained as a result of continuous custodial interrogation" in New York. People v. Bethea, 67 N.Y.2d at 366, 368 (1986). 40 Almost a decade after Bethea, in People v. Paulman, 5 N.Y.3d 122 (2005), the Court considered whether two statements following Miranda warnings were admissible where they followed an unwarned statement that resulted from unlawful custodial interrogation. The Court reaffirmed its ruling in Chapple that when an unwarned statement gives rise to a Mirandized statement, it will be suppressed if part of a "single continuous chain of events." 5 N.Y.3d at 130. To determine whether there was such a continuous chain, Paulman set forth several factors to consider: (1) the time differential between the Miranda violation and the subsequent statement; (2) whether the same police were present and involved in eliciting each statement; (3) whether there was a change in location or nature of the interrogation; and (4) the circumstances of the violation, including the extent of the improper questioning and whether the defendant, prior to questioning, had indicated a willingness to speak to police. Id. at 130-31. The purpose of the inquiry is to assess whether there was a "definite, pronounced break in the interrogation" sufficient to dissipate the taint from the Miranda violation, and no one factor is determinative. Id. at 131. In Paulman, there had been a change in police personnel, and the statements took place at different locations, with different interrogation methods. 5 N.Y.3d at 131. There was 41 also a break in the questioning, and the defendant had indicated a willingness to speak with police before questioning began. Id. at 131. Under these circumstances, the Court found the statements in question did not flow as part of a "continuous chain of events." Id. at 133. In contrast, the Paulman Court compared the situations in Bethea and Siebert. In Bethea, the defendant had not expressed a desire to speak with police when he was asked where he got the gun that was found on him, there was little break between the unwarned statement in the police van and, once at the precinct, the warned statement, nor was there any change in the nature or tenor of the questioning. In Siebert, the unwarned interrogation was conducted in the same stationhouse, the questioning was "systematic, exhaustive and managed with psychological skill" and the "warned phase" proceeded after only a 15 to 20 minute pause. 5 N.Y.3d at 133-34. The situation here was akin to that described in Siebert and Bethea. Appellant's Miranda warnings did not return her "to the status of one who is not under the influence of questioning." Chapple, 38 N.Y.2d at 115. It is clear that appellant had a strong emotional reaction to the photo that was understood as incriminating, and became overwrought and very upset. There is no evidence that she completely recovered from this intentionally induced emotional state by 42 the time Miranda warnings were given. After she received those warnings, questioning continued in the same room, with the same officers. Eighteen minutes passed from the initial questioning and repeated denials, to the slapping down of the photo, and appellant's very upset and crying reaction, to when she stopped crying and received Miranda warnings. Under these circumstances, there was no definite pronounced break during which appellant "may be said to have returned, in effect, to the status of one who is not under the influence of questioning." Chapple, 38 N.Y.2d at 115. Nor had appellant indicated any prior willingness to talk. The questioning here was also deliberate and carefully planned: first with the ruse of the warrant to bring appellant into the precinct for questioning without Miranda warnings; and then the repetition, almost word-for-word, of the successful Daniel interrogation strategy. Then, when despite that strategy appellant was still recalcitrant, she was subjected to the dramatic technique of having the photo thrown down before her, admittedly intended to break down her resistance, which it did. These facts sharply distinguish this case from White, 10 N.Y.3d 286 (2008). In White, this Court held that whether a pre-Miranda statement is incriminating is just one factor to consider in determining whether a post-Miranda statement 43 should be suppressed. In White, the defendant had only a five minute pre-Miranda exchange with police that was not incriminating, followed by a 15 to 20 minute pre-Miranda break while the defendant had a cigarette and drank a soda. Given these facts, this Court found that the defendant had returned to the status of one no longer under the influence of questioning. In contrast to White, appellant's questioning was longer, more intense, psychologically planned and orchestrated as in Siebert, and the post-Miranda statements followed immediately after the warnings. Appellant then made a videotape 85 minutes later, in the same precinct with interrogating Detective Mulroy sitting right next to her. 9 In the beginning of the video, Mulroy even coached her to say Sparkle Daniel's name. Toward the end, he confronted her with why she did not call the police. During the video, he put the toilet paper she was apparently using as tissue when she cried, out of the way. Unlike even in Daniel, where the officers left the interview room to go interrogate appellant, and during that time Daniel ate Chinese food and drank soda, there was no evidence appellant was ever left alone. There is no evidence what was going on with appellant from the time her statement ended at 10:24 p.m. 9 In the video, Mulroy' s leg is visible in a chair right next to appellant the entire time she spoke. 44 until the video began at 11:49 p.m. See People v. Huntley, 15 N.Y.2d 72, 78 (1965) (People have burden of proving voluntariness of a defendant's statement "beyond a reasonable doubt"); see also White, 10 N.Y.3d at 290 (the same burden of proof rests on the prosecutor) . Under these circumstances, the prosecution cannot prove attenuation as a matter of law, and all of these statements must be suppressed as part of a single continuous event that arose from appellant's unlawful custodial interrogation, in violation of Miranda and the law of this state as interpreted by this Court's decisions. See Miranda, 384 U.S. 436; People v. White, 10 N.Y.3d 286 (2008); People v. Paulman, 5 N.Y.3d 122 (2005); People v. Bethea, 67 N.Y.2d 364 (1986); Chapple, 38 N.Y.2d 112. C. This Issue Was Preserved by Counsel This issue was preserved by trial counsel multiple times: in his omnibus motion, suppression hearing arguments, and post-hearing Statement of Objections. In his omnibus motion, counsel stated appellant "was not properly advised of her rights against self-incrimination" (A. 34) . At the joint suppression hearing, co-counsel first vigorously argued the Miranda violation and the lack of attenuation. Appellant's counsel then immediately followed 45 with his argument. In doing so, he stated the facts relevant to the Miranda issue, referring to appellant's "un-Mirandized" statement in the precinct and the statements that followed, which he characterized as occurring in a "continuous flow of events." He reiterated that appellant "made a statement - I believe the statement started at 9:12 P.M., un-Mirandized, and then at 9:30, she was Mirandized and, thereafter, allegedly made a statement to her - to Detective Ciuffi and later to A.D.A. Charriott, all of which followed quite rapidly behind the illegal arrest .... " (A. 339). The arrest was at 8 p.m., and counsel repeated: "And her statement began at 9:12 at the homicide office with Detective Ciuffi. So, as far as I can see, Your Honor, there is no attenuation in the record. It was one continuous event" (A. 339) . As to the Miranda warnings on the video, he argued: "Courts have held is not sufficient in and of itself to constitute attenuation, that aside from that, there was no other indication of any sort of attenuation whatsoever" (A. 339) . In her suppression hearing argument, the prosecutor addressed the Miranda facts with respect to both defendants. The trial court's decision in Daniel denied the Miranda claim on the grounds that Ciuffi's questions did not constitute interrogation and that Cuiffi's brief absence from the interrogation room constituted a sufficient break in the 46 proceedings (A. 31). The same court in appellant's decision did not address the Miranda violation. But given the Daniel decision, it would have denied appellant's claim had it addressed it anyway. While counsel may not have articulated his claim as specifically as co-counsel before him, co-counsel had already cited the pertinent legal cases and points. Counsel re-stated the facts relevant for appellant: that appellant's interrogation began, un-Mirandized, at 9:12, that warnings were not administered until 9:30, and that all appellant's statements, including the video, were part of one continuous event. The prosecutor understood she needed to address the Miranda issue as to both cases and she did. Only in hindsight does the prosecutor now argue this was unpreserved. Counsel also continued to maintain his objection in his Statement of Objections submitted after the suppression hearing. Although he did not revisit the details, counsel preserved his objection in his second point when he noted, ~second, was the defendant properly advised of her rights against self-incrimination by law enforcement officers and did she understand her rights and thereafter knowingly and voluntarily waive those rights prior to making any statements?" (A. 357; emphasis added). As counsel acknowledged, appellant's credibility played a role in the 47 court's decision, but her credibility was relevant only as to whether she understood her rights. It did not affect whether, based upon the detectives' testimony alone (which the court found credible), appellant was not properly advised of her rights and subjected to unlawful custodial interrogation in a continuous chain of events. Counsel's objection sufficiently preserved that issue for this Court's review. Should this Court nonetheless find the issue not preserved, that failure here would constitute ineffective assistance of counsel. There was no legitimate strategic reason not to preserve this meritorious issue that is fully apparent from the record. See, e.g., People v. Nesbitt, 20 N.Y.3d 1080 (2013); People v. Clermont, 22 N.Y.3d 931 (2013); see also Murray v. Carrier, 477 U.S. 478, 496 (1986) (one significant blunder can constitute ineffectiveness); People v. Turner, 5 N.Y.3d 476 (2005) (same). This violated appellant's rights under the Sixth and Fourteenth Amendments, see Strickland v. Washington, 466 U.S. 668, 686-88 (1984); People v. McDonald, 1 N.Y.3d 109, 113 (2003), and denied her "meaningful representation" under the New York Constitution, ~, People v. Benevento, 91 N.Y.2d 708 (1998). Accordingly, appellant's statements must be suppressed. 48 CONCLUSION FOR THE REASONS ARGUED ABOVE, APPELLANT'S STATEMENTS SHOULD BE SUPPRESSED AND THE INDICTMENT DISMISSED OR A NEW TRIAL ORDERED. Respectfully submitted, ROBERT S. DEAN Attorney for Defendant-Appellant /) ,,0 / ' //,/ ' p"' ' / /'CtLJLt4-- ! ?LL~~L Of Counsel Q Robin Nichinsky July, 2015 49