The People, Respondent,v.Nadine Panton, Appellant.

Brief

N.Y.June 2, 2016

APL-2015-00100 To be argued by T. CHARLES WON (15 minutes) _______________________________________________________ COURT OF APPEALS State of New York _______ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- NADINE PANTON, Defendant-Appellant. _______________________________________________________ RESPONDENT’ S BRIEF _______________________________________________________ ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent Bronx, New York 10451 Tel (718) 838-7097 Fax (718) 590-6523 JOSEPH N. FERDENZI PETER D. CODDINGTON T. CHARLES WON Assistant District Attorneys of Counsel _______________________________________________________ Date Completed: November 12, 2015 TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 THE FACTS The Indictment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Pre-Trial Hearing The People’s Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Defense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Arguments of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 The Court’s Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 THE TRIAL The People’s Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 The Defense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 The Verdict and the Sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 The Appeal to the Appellate Division. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 ARGUMENT POINT THE APPELLATE DIVISION PROPERLY DENIED DEFENDANT’S SUPPRESSION CLAIM BECAUSE IT WAS UNPRESERVED FOR APPELLATE REVIEW AS A MATTER OF LAW. THE CLAIM ALSO PRESENTS A MIXED QUESTION OF LAW AND FACT AND IS MERITLESS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 TABLE OF AUTHORITIES CASES Miranda v. Arizona, 384 U.S. 436 (1966).. . . . . . . . . . . . . . . . . . . . . . . . . . . passim Missouri v. Siebert, 542 U.S. 600 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 42 People v. Astor, 68 N.Y.2d 879 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 People v. Berg, 92 N.Y.2d 701 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 People v. Bethea, 67 N.Y.2d 364 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 People v. Bradford, 15 N.Y.3d 329 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 People v. Brown, 25 N.Y.3d 973 (2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 People v. Brown, 45 N.Y.2d 852 (1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Buckley, 75 N.Y.2d 843 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 People v. Caban, 5 N.Y.3d 143 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 People v. Ferro, 63 N.Y.2d 316 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 35 People v. Graham, 25 N.Y.3d 994 (2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 People v. Havrish, 8 N.Y.3d 389 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 People v. Keschner, 25 N.Y.3d 704 (2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Lanahan, 55 N.Y.2d 711 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 People v. McGee, 68 N.Y.2d 328 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 People v. Naradzay, 11 N.Y.3d 460 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 i People v. Panton, 114 A.D.3d 450 (1st Dept. 2014).. . . . . . . . . . . . . . . . . . . passim People v. Passino, 12 N.Y.3d 748 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 People v. Paulman, 5 N.Y.3d 122 (2005). . . . . . . . . . . . . . . . . . . . . . . 29, 31, 35, 37 People v. Rivers, 56 N.Y.2d 476 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 People v. Daniel, 122 A.D.3d 401 (1st Dept. 2014). . . . . . . . . . . . . . . . . . . . . . . . . 4 People v. White, 10 N.Y.3d 286 (2008). . . . . . . . . . . . . . . . . . . . . . . . 35, 36, 37, 39 Rhode Island v. Innis, 446 U.S. 291 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 STATUTES Criminal Procedure Law § 470.05(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Penal Law § 125.25(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Penal Law § 160.10(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ii COURT OF APPEALS STATE OF NEW YORK -----------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- NADINE PANTON, Defendant-Appellant. -----------------------------------------------------------------------X RESPONDENT’S BRIEF STATEMENT By permission of the Honorable Jonathan Lippman, granted upon reconsideration on April 8, 2015, Nadine Panton appeals from an Order of the Appellate Division, First Department, entered on February 6, 2014 (114 A.D.3d 450), which affirmed the judgment of the Supreme Court, Bronx County (Carter, J., at hearing; Donnelly, J., at trial and sentencing), rendered December 21, 2010, convicting defendant, after a jury trial, of Murder in the Second Degree (Penal Law § 125.25[3]), and Robbery in the Second Degree (Penal Law § 160.10[1]), and sentencing her to an indeterminate term of imprisonment of from 25 years to life, and a determinate term of imprisonment of 15 years plus 5 years of post-release supervision, respectively, to be served concurrently. The Order also modified, on the law, the judgment to the extent of vacating the DNA databank fee and reducing the amounts of the mandatory surcharge and the crime victim assistance fees (114 A.D.3d 450). Defendant is presently incarcerated pursuant to this judgment. 2 QUESTION PRESENTED Whether defendant’s post-Miranda written and video statements were properly admitted into evidence at trial. The Appellate Division decided that defendant’s claim that the detective had engaged in pre-Miranda custodial interrogation and that the subsequent post-Miranda written and video statements were tainted was unpreserved for appellate review, as a matter of law, because defendant had failed to raise it before the hearing court. 3 THE FACTS The Indictment Under Indictment Number 3237/2007, filed on August 17, 2007, the Bronx County Grand Jury charged defendant with acting in concert with another to commit the crimes of Murder in the First Degree, Murder in the Second Degree (2 counts), Robbery in the First Degree, and Robbery in the Second Degree (2 counts).1 Pre-Trial Hearing On September 8, 13-14, 16, and 20, 2010, the Honorable John W. Carter presided over a Huntley/Dunaway/Payton hearing for both defendant and her co- defendant Sparkle Daniel, and denied both defendants’ motions to suppress. The following relevant facts were elicited: The People’s Case On June 6, 2007, Detective James McSloy, a member of the Bronx Homicide Task Force, received a call from an anonymous woman who had information 1 Co-defendant Sparkle Daniel was tried separately and convicted of Murder in the Second Degree. The Appellate Division, First Department, reversed the judgment of conviction. People v. Sparkle Daniel, 122 A.D.3d 401 (2014). By permission of the Honorable Darcel D. Clark, a former Associate Justice of the Appellate Division, First Department, granted on January 22, 2015, the People have appealed the Appellate Division’s decision. The briefs have been filed with this Court. 4 concerning a homicide of an elderly woman named Nellie Hocutt that had occurred in January of 2003. Upon looking through the homicide logs and comparing the details provided by the caller, Detective McSloy realized that the incident concerned a murder being investigated by Detective Nicholas Ciuffi. On June 11th, the detectives met with the caller, named Larissa Kirby, and ascertained that she knew specifics about the case that had not been released to the media; for example, Ms. Kirby knew that the victim had been forced to drink wine (McSloy: A68-A69, A72- A73, A75-A76, A85-A87; Ciuffi: A96-A96, A102-A103, A105-A106, A108).2 Ms. Kirby told the detectives that the culprits were defendant and Nadine Panton -- both of whom Ms. Kirby knew. One day, Ms. Kirby had overheard a telephone conversation between defendant and Daniel, in which they discussed the details of the case. She also gave the home addresses, cellular telephone numbers and physical description for the two suspects (McSloy: A69-A71, A74; Ciuffi: A106- A109). On July 19, 2007, Detectives McSloy, Ciuffi, Michael Mulroy, and Kevin Tracey went to Malcom X Boulevard in Brooklyn, New York, where Daniel resided. The detectives had obtained a physical description from Ms. Kirby, and also had a copy of Daniel’s driver’s license photograph from the Department of Motor Vehicles. 2 Numerical references preceded by “A” refer to defendant’s appendix. 5 Upon being notified by Detective Ciuffi that a female who fit Daniel’s description had left her residence, Detectives McSloy and Tracey approached the individual. After verifying that the individual, who became belligerent on the street, was Sparkle Daniel, the detectives handcuffed her and brought her to Bronx Homicide Task Force offices (McSloy: A76-A80, A182-A186; Ciuffi: A113-115, A146-A149, A151- A152). Afterwards, Detectives Tracey and McSloy went to defendant’s home on Sedgwick Avenue in the Bronx, equipped with a probation warrant that had been issued on April 17, 1997. When the detectives knocked on the door, defendant herself answered. The detectives identified themselves and were invited inside the apartment by defendant. When the detectives told defendant that she had a warrant and that she needed to accompany them to the court to clear it up, defendant willingly agreed to go to court. The detectives did not handcuff defendant, since she had agreed to accompany them (McSloy: A81-A83, A197-A199, A202-A206). Detective McSloy drove while defendant, who remained unrestrained, and Detective Tracy sat in the back of the vehicle. While stuck in traffic on the Major Deegan Expressway, Detective McSloy told defendant that they would not make it to the courthouse before 5 p.m., and thus, they would need to go to the detective’s office and head back to the courthouse when it re-opened after dinner. The detectives 6 took defendant to Bronx Homicide Task Force, and placed her inside the lineup room; defendant was not told that she was at the Bronx Homicide Task Force offices (McSloy: A83-A84, A203). Detective McSloy had no further conversation with defendant after taking her to the Bronx Homicide Task Force (McSloy: A84-A85). Meanwhile, upon concluding the interview with Daniel, Detective Ciuffi went to the lineup room where he found defendant, who was not restrained, waiting with Detective Mulroy. On top of the sheet where he later wrote defendant’s statement, the detective wrote down 9:12 p.m. -- the time that he had entered the room. Upon introducing himself, Detective Ciuffi asked defendant if she knew why she was present at the precinct; defendant replied she did not know the reason. When the detective stated that he was investigating a murder of an old lady, defendant responded that she did not understand (Ciuffi: A130-A131, A135-A136, A238- A239). Detective Ciuffi then said this is the homicide that he wanted to discuss and showed defendant a photograph of the victim at the crime scene. Defendant began to cry. After waiting for her to calm down and compose herself, Detective Ciuffi read her the Miranda warnings from a sheet; it was approximately 9:30 p.m. on July 19, 2007 (Ciuffi: A131, A135-A136, A238-A239, A252-A253). Afterwards, defendant stated that she understood her rights, and proceeded to 7 make a statement, which the detective wrote down. The detective reviewed the information with defendant and gave her an opportunity to correct the written statement. Defendant then signed the statement; Detectives Ciuffi and Mulroy also signed the statement. The written statement ended at approximately 10:24 p.m. Defendant also gave a video statement to Assistant District Attorney Chariott with Detective Mulroy present during the interview (Ciuffi: A131-A137). The detective did not recall himself or anyone else telling defendant that she could go home to her kids if she cooperated, nor that she would never see her kids if she did not claim that Daniel was the culprit (Ciuffi: A240-A241). The Defense Defendant, Nadine Panton, told the court that, on July 19, 2007, she lived in an one-bedroom apartment, located at Sedgwick Avenue, with three of her kids. During the early evening hours, she was watching television in her bedroom when she saw two figures enter the living room; one of them might have been Detective McSloy. Her two younger children were sleeping in the living room with her brother- in-law, and her oldest child was playing in the lobby (Panton: A258-A259, A266, A272-A276, A281). Defendant stated that one of the strangers said, “don’t worry . . . you have a 8 warrant for an arrest for an outstanding fine,” and she replied, “ok.” Defendant testified that when she asked about the whereabouts of her ten-year-old son, they told her that he was downstairs. Defendant claimed that the detectives told her that her son had let them into the apartment. Defendant told the court that, when her son came back upstairs, she asked if he had let the detectives into the apartment, and that he replied “no.” According to defendant, her son had pressed the safety lock to prevent the door from locking upon closing, so he could gain entrance when he came back upstairs (Panton: A259, A276). Defendant told the court that, initially, she questioned the validity of the warrant and asked why she previously had not been detained on the warrant. Defendant claimed that she agreed to go with the detectives after her brother-in-law told her to go see the judge and clear up the warrant and return home to the kids. Defendant told the court that she asked the detectives not to handcuff her in front of her kids, since it would scare them. The detectives purportedly agreed not to handcuff her if she willingly came with them; defendant said she consented. According to defendant, they left the apartment after approximately thirty minutes of the detectives trying to convince her that she had an outstanding warrant, and defendant asking not to be embarrassed in front of her kids and neighbors (Panton: A259-A260, A276-A278). 9 Defendant claimed that the detectives placed her alone and unrestrained in the back seat of their vehicle. According to defendant, while headed towards the courthouse, the detectives stopped the vehicle in front of a corner store and one of them went in the store and came back with two beers (Panton: A260-A261, A279- A281). According to defendant, when she asked why they were going in different direction from the courthouse, she was told that they were going to the office to review some paperwork; defendant told the court that she had, at first, been told that they were going to see a judge (Panton: A261, A282). Defendant claimed that she was placed inside a “cage,” which she described as “a square bar, big square bar in the middle of the floor.” After some time, defendant told the court that Detective McSloy took her out of the “cage” and placed her alone and unrestrained inside a room. Defendant testified that Detective Ciuffi later entered the room and said that there was no warrant and that he actually wanted to question her about a murder. According to defendant, Detective Ciuffi “scattered” photographs of an individual (with a bag over the head and bound to a chair) on the table, and told her that she knew the person. Defendant also alleged that the detective told her that she did not need an attorney because she was not being arrested. Defendant claimed that Detective Ciuffi ignored her requests to go home without 10 answering any questions, and to make a telephone call to her brother-in-law. She also cried (Panton: A261, A263, A282-A290). According to defendant, Detectives McSloy and Ciuffi told her that Daniel was blaming her for the crime, and that she had to make a statement accusing Daniel of the crime or defendant would spend the rest of her life in prison. While denying her involvement in the crime, defendant claimed that she agreed to accuse Daniel so she could return home. The detectives supposedly used the photographs to show defendant how the crime occurred. According to defendant, she was never read her rights, but instead, was told, after having made the statement, to initial and sign at the bottom of some paperwork (Panton: A262-264, A290-A300). Defendant claimed that she had to also make a video statement before she could go home. According to defendant, she repeated the story Detective Ciuffi had told her to tell about how it was Daniel who had committed the crime (Panton: A245, 300, 302-305). Arguments of Counsel In seeking to have the statements suppressed, defendant argued that they were not attenuated from the alleged Payton violation, and that she had not voluntarily and 11 knowingly waived her rights (A337).3 Defendant claimed that her statements, which she argued began at 9:12 p.m., was “one continuous event” from her alleged illegal arrest at 8 p.m. at her apartment. Defendant argued that the record failed to establish attenuation (A339). Defendant claimed that Detective Ciuffi had threatened her into waiving her rights and making a statement by telling her that “Sparkle had blamed her, and if she didn’t blame Sparkle, Sparkle would go home and she would go to jail and she would never she her kids again” (A339-340). Defendant also argued that the detective had not advised her of her Miranda rights. Defendant contended that the detective told her to initial and sign the paper without having her read it nor having it read to her (A340). The prosecutor pointed out that Detective Ciuffi gave a credible testimony that he advised defendant of her rights and that she acknowledged her understanding of them before he questioned her. Prior to her video statement, defendant was again advised of her rights, and expressed her understanding of them and her willingness to talk (A350-351). As for the Payton issue, the prosecutor noted the detectives’ testimony that they believed they had a legitimate probation warrant, and that defendant had allowed them to enter her apartment and had agreed to accompany 3 Defendant also argued that there was no probable cause to arrest her (A337). 12 them to the courthouse (A348-349). The Court’s Decision The hearing court found that defendant had permitted the detectives to enter her apartment. The court did not find defendant’s testimony that the detectives had snuck into her apartment to be credible (see Decision and Order dated September 27, 2010; A20-A21). The court also found “implausible” defendant’s claim that she had not voluntarily waived her rights, and that the detectives had told her to falsely accuse Daniel, in part, because “[i]n the video, the defendant is eager to talk and for the most part, appears to be calm and open” (A22). The court further stated that the “idea that [defendant] was told by detectives to implicate Sparkle Daniel so that she could go home is incredible given that [defendant] implicates herself in both the written and video statements and expresses great sorrow for what she did” (A22). The court held that defendant had voluntarily, knowingly, and intelligently waived her rights, and thus, that both the written and video statements were admissible (A21-A22). 13 THE TRIAL The People’s Case On January 10, 2003, Detective Nicholas Ciuffi, a then twenty-six-year veteran with the New York City Police Department, assigned to the Bronx Homicide Task Force, responded to a private house located at Laconia Avenue. At the location, the detective saw the victim, Nellie Hocutt, bound to a chair in the living room with a telephone cord and packaging tape. The victim also had a plastic bag over her head, and a red scarf tied around her neck. The detective also noticed a pillow by the victim’s feet and empty liquor bottles also on the floor (Ciuffi:A394, A396-A398). Two Pathmark shopping bags with food still inside them lay on the kitchen floor; a surveillance video at the local Pathmark store taken on January 9, 2003, showed the victim shopping (Ciuffi: A398-A399, A409, A413-A414). When the first police officers arrived at the scene, they found the front door locked. Both the front door and the side door by the driveway did not have damage, which indicated that the home was not forcibly entered (Ciuffi: A401, A413). The crime scene recovered a partial palm print from the wall by the stairway, and also two fingerprints from the base of the telephone, which was the missing the outlet cord 14 (Ciuffi: A402-A403, A407-A408, A420).4 Almost four years later, Detective James McSloy received a telephone call from an anonymous caller, whom the detective later learned to be Larissa Kirby, who claimed to have information concerning a homicide from few years in the past. The caller did not know when or where the crime occurred, but stated that defendant and Sparkle Daniel were the culprits, and gave their cell phone numbers and home addresses (Ciuffi: A433; McSloy: A449-A453; Kirby: A539, A546-A547). During a second telephone conversation few days later, the caller agreed to meet with Detective Ciuffi, who was investigating the homicide in question. On June 11, 2007, Detective Ciuffi met with Ms. Kirby, who identified defendant and Sparkle Daniel as the two culprits and provided their cell phone numbers and home addresses (Ciuffi: A433-A436; McSloy: A453-A454; Kirby: A539). Ms. Kirby, who was twenty-four years old at the time of trial, and worked as a service contractor at the airport, had been friends with Daniel and, through her, had also met defendant. During the early months of 2003, Ms. Kirby had a conversation with Daniel regarding an incident involving an old lady who lived on Laconia Avenue in the Bronx. Later, in the summer of 2003, Ms. Kirby saw a New York’s 4 The prints did not match those of defendant’s. Daniel’s fingerprints matched those found at the base of the telephone. The palm print belonged to the victim’s granddaughter (Ciuffi: A431, A441-A442, A503-A504). 15 Most Wanted program regarding the incident (Kirby: A524-526, A528, A530-A532, A561). Ms. Kirby attempted to call Daniel, who then was in Florida, to tell her about the program, but initially was not successful. When Daniel returned the call and heard the news, Daniel said she needed to talk to defendant. Instead of disconnecting the call with Ms. Kirby, Daniel mistakenly made a conference call to defendant with Ms. Kirby included in the conversation. Ms. Kirby secretly listened to the conversation. Although Daniel did not mention defendant’s name during the call, Ms. Kirby recognized defendant’s voice. Defendant did not want to discuss the incident, but she did tell Daniel that they would not get arrested because the police did not possess their fingerprints (Kirby: A532-A533, A552-A554, A563). In the spring of 2007, Ms. Kirby’s relationship with Daniel had soured when Daniel wrote a letter to Ms. Kirby’s imprisoned husband alleging that Ms. Kirby had committed adultery. Upset at Daniel, Ms. Kirby decided to call Crime Stoppers (Kirby: A535-A538, A560-A561).5 On July 19, 2007, Detectives Ciuffi, McSloy, Mulroy, and Tracey all went to 5 Ms. Kirby learned she potentially could receive $11,000 reward for the information she provided. She received vouchers for lunch and transportation from the Crime Victims Unit at the District Attorney’s Office. She also received almost $1500 in 2010 to pay her rent (Kirby: A530- A541, A559). Beginning at the age of thirteen, Ms. Kirby had several brushes with the law, the most serious of which resulted in her serving five years of probation (Kirby: A542-A546, A557-A558). 16 Malcom X Boulevard in Brooklyn, the address that Ms. Kirby had given for Daniel, where they placed Daniel in custody and took her to Bronx Homicide Squad offices. After transporting Daniel to the precinct, that same day, Detectives McSloy and Tracey went to Sedgwick Avenue to locate defendant. At the address, after the detectives knocked on the door, defendant opened it and consented to have the detectives come inside. Once inside the apartment, the detectives explained that defendant had an outstanding warrant and that she needed to come with them to resolve the warrant.6 Only defendant and a child were inside the apartment (Ciuffi: A435-A436; McSloy: A455-A458, A464-A465). Defendant agreed to accompany the detectives to the courthouse. She first called an upstairs neighbor to come and take the child. Defendant, who was not handcuffed, sat in the back seat with Detective Tracey. Upon telling defendant that the court would close soon, and thus, they would have to wait at the precinct, the detectives brought defendant to Bronx Homicide Task Force and placed her, 6 The probation warrant had been issued on April 17, 1997. Detective Ciuffi printed it from the E-Justice system on July 12, 2007. Detective Ciuffi believed that the warrant was active, since that is what the system had indicated. Defendant’s rap sheets, defense exhibit A at trial, showed that the warrant had been dismissed on July 17, 2001. Detective McSloy explained that one needed to check the actual court docket to determine absolutely whether a warrant was still valid (McSloy: A460-A464, A471-A474, A476; Ciuffi: A493-A494). 17 unrestrained, inside a lineup room (McSloy: A465-A469, A477).7 At approximately 9:12 p.m., Detective Ciuffi entered the lineup room and met defendant for the first time. Defendant sat by a table, while she was unrestrained, with Detective Mulroy also inside the room. Defendant replied ‘no’ when the detective asked her if she knew the reason for her presence at the precinct. Defendant again expressed ignorance when told that the detective was investigating a murder of an old woman. The detective then left the room and returned with a single crime scene photograph that showed a full body shot of the victim, and placed it on the table. Upon seeing the photograph, defendant became upset and started to cry. At approximately 9:30 p.m., after defendant had calmed down, Detective Ciuffi read her the Miranda warnings from a sheet. Defendant answered each of the questions and initialed and signed the Miranda warnings sheet (Ciuffi: A437-A452, A480-A481, A484-A485, A491-A496). Detective Ciuffi then asked questions and wrote down defendant’s answers as her written statement. It ended at approximately 10:24 p.m. At the end, Detective Ciuffi read the statement for defendant and gave her an opportunity to correct any errors (Ciuffi: A481-A483, A485-A486). The statement reads as follows: 7 Detective McSloy acknowledged that their intent was to bring defendant to Bronx Homicide Task Force to question her concerning the murder (McSloy: A465-A466, A471, A477) 18 Winter of 2003, Nadine and Sparkle went to Sparkle’s aunt’s house on Laconia, 218th Street, 2003, being the year. Approximately, any time after noon Sparkle’s aunt was not home. We went to old lady’s porch. I am not sure if old lady was coming in or going out. I think she was coming in. I helped her with the shopping. She was speaking with Sparkle, the front door was opened. Sparkle wanted to use the Lady’s phone to call her aunt. We went into the house. Sparkle introduced me to the lady. Sparkle told me not to talk too much because the old lady would tell Sparkle’s aunt everything we said. The old lady picked up the phone and tried to make a call for Sparkle. I am eager to leave. I asked the lady if I could call my mom. The lady dialed the number that I gave her and she said no one picked up the phone. After the phone calls, the lady had packages of groceries and I carried them to the kitchen and I put them by the refrigerator. I walked to the front and I noticed Sparkle was closing the front door. I was being noisy [sic] in the back peeking in the bags on the floor. The lady puts keys on side. Sparkle wanted to go upstairs with the lady. The lady said no. The lady looked nervous. I said to Sparkle, the lady looks scared of you. She was trying to con lady and look her and look in her purse [sic]. Sparkle asked to borrow money from the lady. The old lady said, I am going to go upstairs, you stay down here. Sparkle said, I am going to go upstairs and see where she keeps her money. She said she knew the old lady had more money than she was offering her. Sparkle told Nadine to follow the lady upstairs because she doesn’t trust me. The lady went upstairs and I followed her. The old lady was coming out of one of the rooms with her purse. I was half way up the stairs. I held her arm and brung her down the stairs so she wouldn’t fall and told her not to worry. She said I don’t like that little girl and I want her out of my house, I am going to tell her aunt. Sparkle was mad. I told her let’s go. Sparkle didn’t move. I was trying to calm lady down. Sparkle was going to talk to the lady while I searched the house upstairs. 19 I went up, peeked in the bedroom. I opened the drawers, looked inside. I didn’t take anything upstairs that I know of. I was up there searching for money. When I came downstairs, she had the lady tied up on the chair in the living room with white cord or phone cord, her feet were tied, she was tied to the chair around her chest. I was panicking because the lady was wet with something red, red wine. Her shirt was soaked. At first I thought it was blood. I started screaming and moved around the house trying to get out. I told her to leave the lady and come on. She wouldn’t stop pouring the wine telling her to drink it. I said you can’t force her to drink a whole bottle of wine. I went to the front door, but it was locked. I said, where is the keys, let’s go. Sparkle tapes the lady’s mouth. Sparkle grabbed the keys and put them in her pocket. Sparkle says she was not opening the door. Sparkle said, this bitch is going to tell my aunt everything. She picked up the pillow. I took it from Sparkles’ hand after she put it in the lady’s face. I flung it. I ran to the basement and told her, come, let’s go deep in the basement. And I screamed, come, Sparkle, let’s fucking go, the cops are coming. When I got to the corner of 219th Street, she came out. I told her to hurry up. I went home. Sparkle came with me, but didn’t go inside. She went to visit her aunt that lives on Eastchester and Givan. I took a bottle of liquor, probably whiskey from the house. Sparkle took the pocketbook and dumped everything on the floor. I was trying to pick everything up and put it back in the pocketbook. I never touched the lady one bit except to comfort her. When we left, the lady looked drunk and woozy. She was alive. She looked tired and tried to fight the way out of the thing she was tied up with. And then it states, Nadine adds, I don’t think it was tape around her mouth, it was a sock or a cloth. 20 (Ciuffi: A486-A489). Later, defendant made a video statement, after being re-advised of her Miranda rights, in the presence of Assistant District Attorney Julia Chariott and Detective Mulroy (Chariott: A512-A514). At the end of the video statement, ADA Chariott showed the Miranda waiver form and the written statement to defendant, who admitted to having initialed and signed both documents (video statement).8 Detective Ciuffi did not make any promises to defendant before she made her statements. He did not tell defendant that she could return home after the statements. He did not recall telling defendant anything that Daniel had said in her statement or that Daniel was present at the precinct. Daniel and defendant were surprised when they saw each other in the holding cell after both had given video statements (Ciuffi: A490, A496-A497, A499-A500). Dr. James Gill, the Deputy Chief Medical Examiner and a certified expert in the field of anatomical and forensic pathology, detailed Ms. Hocutt’s autopsy report. Ms. Hocutt had died from asphyxiation caused by a cloth, a rag and plastic bag placed over head and secured around her neck. She had lacerations and bruises on her tongue, which is not unusual in victims who struggled as they suffocated. The autopsy results revealed presence of alcohol in her body, which supported the fact that she had been forced to drink wine before her death (Gill: A567, A575-A576, 8 A copy of the video statement will be forwarded to this Court upon request. 21 A578, A580, A585, A588). Ms. Hocutt was alive when the plastic bag was placed over her head as evidenced by the presence of condensation inside the bag. It would have taken minutes for her to suffocate to death. Ms. Hocutt also had methanol and ethyl alcohol, both of which are poisonous, inside her body. Dr. Gill could not state to a reasonable degree of medical certainty that a single individual alone could not have committed the acts against the victim. The victim was not physically incapacitated and could walk around and move her arms (Gill: A581, A583, A587). The Defense The defense presented no evidence. The Verdict and the Sentence The jury found defendant guilty of Count Two, Murder in the Second Degree (felony murder); and Count Five, Robbery in the Second Degree (aided by another). The jury acquitted defendant of Count One, Murder in the First Degree; Count Three, Murder in the Second Degree (intentional murder); and Count Four, Robbery in the First Degree (serious physical injury) (A700-A701). The court sentenced defendant to an indeterminate term of imprisonment of from 25 years to life, and a determinate 22 term of imprisonment of 15 years plus 5 years of post-release supervision, to be served concurrently (A724). The Appeal to the Appellate Division By an Order dated February 6, 2014, the Appellate Division, First Department, unanimously affirmed defendant’s conviction. The court held that “[d]efendant did not preserve her argument that the statements she made after receiving Miranda warnings should have been suppressed as the product of custodial interrogation before the warnings were administered.” People v. Panton, 114 A.D.3d 450, 451 (1st Dept. 2014) (citations omitted). The Appellate Division further decided that, 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. Id. 23 ARGUMENT POINT THE APPELLATE DIVISION PROPERLY DENIED DEFENDANT’S SUPPRESSION CLAIM BECAUSE IT WAS UNPRESERVED FOR APPELLATE REVIEW AS A MATTER OF LAW. THE CLAIM ALSO PRESENTS A MIXED QUESTION OF LAW AND FACT AND IS MERITLESS. Defendant contends that Detective Nicholas Ciuffi engaged in improper, pre- Miranda custodial interrogation by telling her that he wanted to discuss a murder of an old lady, and then displaying a photograph of the victim taken at the crime scene when defendant denied any knowledge of the crime. Defendant further argues that her subsequent, post-Miranda written and video statements should have been suppressed because they were not attenuated from the alleged violation. As the Appellate Division held (People v. Panton, 114 A.D.3d 450, 451 [1st Dept. 2014]), the claim is unpreserved for appellate review, as a matter of law. It also presents a mixed question of law and fact beyond review by this Court, and, in any event, is meritless. At the pre-trial hearing, defendant’s focus was on claiming that her statements should be suppressed because Detective Ciuffi allegedly had threatened her into waiving her rights, and also because the statements were not attenuated from the 24 Payton violation allegedly committed by the detectives. As defendant contends (see defendant’s brief, p. 46), defense counsel did argue that her statements were part of a “continuous flow of events” and that there was no attenuation. The argument, however, was made in the context of claiming that the statements should be suppressed as the fruits of an illegal arrest (A338-A339). Throughout the closing argument, defendant never argued that Detective Ciuffi had engaged in pre-Miranda custodial interrogation by telling her that he wanted to discuss a murder of an old lady, and then displaying a photograph of the victim taken at the crime scene (A336- A341). In her own closing arguments, the prosecutor responded only to defense arguments that the detective allegedly had threatened defendant into waiving her Miranda rights. The prosecutor did not comment on the propriety of showing the photograph to defendant. Therefore, this Court should not accept defendant’s insinuations that the prosecutor knew that defendant was arguing the issue currently on appeal at the hearing, and had responded to it (see defendant’s brief, p. 47), since it is not supported by the record. The papers defendant submitted to the hearing court, too, did not make the hearing court aware of the issue on appeal. In her Omnibus motion papers, defendant argued only “[t]hat upon information and belief the statements were not spontaneous, 25 were coerced from her under threats, and that she was not properly advised of [her] rights against self-incrimination. . . . any statements must be suppressed as the fruits of an illegal arrest not based upon probable cause” (A34; defense counsel’s affirmation, unnumbered p. 2). In her post-hearing Statement of Objections, defendant merely stated that one of the issues raised at hearing was whether she had been properly advised of her rights and had voluntarily waived them. She made no mention of having been coerced by having been shown the photograph (A355-A358; post-hearing Statement of Objections). Hence, contrary to defendant’s insinuation that the hearing court overlooked the argument (defendant’s brief, p. 37), no such argument was addressed because no such argument was made. Consequently, since defendant relied upon different arguments at the hearing, her claim on appeal that Detective Ciuffi had engaged in pre-Miranda custodial interrogation is unpreserved for appellate review, as a matter of law.9 See CPL § 9 Defendant contends that, if this Court finds the claim to be unpreserved, then trial counsel should be found to have rendered ineffective assistance of counsel (see defendant’s brief, p. 48). In rejecting this argument, the Appellate Division properly decided that the claim was “unreviewable on direct appeal because it involves matters not reflected in, or fully explained by, the record. Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claim may not be addressed on appeal” (Panton, 114 A.D.3d at 451 [citations omitted]). See People v. Brown, 45 N.Y.2d 852, 853 (1978). Moreover, in deciding whether a single omission, such as a decision not to raise an objection, constitutes an ineffective assistance of counsel, the consideration is whether the omission “involve[s] an issue that is so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it, and . . . the decision to forgo the contention could not have been grounded in legitimate trial strategy.” People v. Keschner, 25 N.Y.3d 704, 723 (2015) (citations omitted). Here, considering that the argument that the detective had engaged in pre- (continued...) 26 470.05(2); People v. Graham, 25 N.Y.3d 994, 997 (2015) (“Inasmuch as defendant made only a general motion for suppression and it cannot be said that the court expressly decided the issue that defendant raises on this appeal, preservation has not been established and that issue is, therefore, beyond our power to review”) (citations omitted); People v. Passino, 12 N.Y.3d 748, 749 (2009) (“The issues raised on appeal were not preserved for this Court’s review. Defendant did not raise any issue under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 [1966] at County Court, and that court’s ruling on the Miranda issue did not address any of the arguments defendant now makes”); People v. Astor, 68 N.Y.2d 879, 880 (1986) (“Defendant’s arguments based upon People v. Bethea [67 N.Y.2d 364] are not preserved”). Defendant implies that any shortcomings in this regard were overcome by the arguments made by co-defendant’s attorney (see defendant’s brief, pp. 45-47). Defendant, however, never stated that she adopted any of the arguments made by co- defendant, which, in any event, were based upon materially different facts. Following 9(...continued) Miranda custodial interrogation is meritless, as will be shown infra, it is understandable that counsel did not raise it as a basis for suppressing the statements. See People v. Caban, 5 N.Y.3d 143, 152 (2005) (“There can be no denial of effective assistance of trial counsel arising from counsel’s failure to make a motion or argument that has little or no chance of success”) (internal quotation marks and citation omitted). Indeed, the Appellate Division had further held that “to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards.” Panton, 114 A.D.3d at 451 (citations omitted). 27 a brief remark by Detective Ciuffi, co-defendant Daniel stated that she had spoken with the victim, whereas, here, Detective Ciuffi simply showed a photograph to defendant and she just cried. Consequently, defendant cannot rely upon co- defendant’s suppression arguments to claim that her issues on appeal are preserved for appellate review. See People v. Buckley, 75 N.Y.2d 843, 846 (1990) (“Defendant cannot rely on the request of a codefendant to preserve the claimed charge error”); People v. McGee, 68 N.Y.2d 328, 333-334 (1986) (“Here, however, defendant’s attorney neither joined in codefendant’s motion for severance nor made his own motion and, therefore, has not preserved the issue”). Nevertheless, if this Court were to decide that the instant issue is preserved for appellate review, the Appellate Division decision must stand since it presents this Court with a mixed question of law and fact. In an alternative holding, the Appellate Division decided that, 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 warning were administered, and her post-Miranda statements were attenuated from the display of the photo. Panton, 114 A.D.3d at 451. The Appellate Division also adopted the hearing court’s 28 determination that Detective Ciuffi’s hearing testimony was credible, and that defendant’s testimony ought to be rejected.10 It is well-established that this Court lacks jurisdiction to evaluate an issue on appeal that presents a question of law and fact. People v. Brown, 25 N.Y.3d 973 (2015); People v. Bradford, 15 N.Y.3d 329, 333 (2010). The issue of whether the police engaged in a custodial interrogation typically presents a question of mixed of law and fact, and the Appellate Division’s determination on the issue must be upheld unless it lacks factual support in the record. People v. Naradzay, 11 N.Y.3d 460, 468 (2008) (“Whether the police have engaged in custodial interrogation is a mixed question of law and fact”); People v. Paulman, 5 N.Y.3d 122, 129 (2005) (“Whether a suspect has been subjected to custodial interrogation presents a mixed question of law and fact over which this Court has limited powers of review. The determination of the Appellate Division must be affirmed unless there is no record basis for the conclusion it reached”) (citations omitted). Here, the Appellate Division’s holding is fully supported by the record. Nevertheless, the claim is meritless. When Detective Ciuffi first met defendant, she had been sitting in a lineup room, waiting with Detective Mulroy; she was not restrained. Upon introducing 10 Defendant had testified that she was threatened into making a statement, and that the detective had her sign the Miranda form only after she had made her written statement. 29 himself, Detective Ciuffi simply asked defendant if she knew why she was present at the precinct. Defendant replied that she did not know the reason. When the detective stated that he was investigating a murder of an old lady, defendant replied that she did not understand. The murder had occurred four years earlier and Detective McSloy, who had brought defendant to the precinct, had initially told her that she had needed to go the courthouse to clear up a warrant issued against her. Therefore, defendant, not surprisingly, had not grasped instantly that the detective was referring to Ms. Hocutt’s murder. To make defendant aware of why she was there, Detective Ciuffi placed a photograph of the victim taken at the crime scene on the table in front of defendant. When defendant started to cry, the detective patiently waited. Once she stopped crying and regained her composure, the detective read her the Miranda warnings. After defendant voluntarily agreed to talk, the detective asked questions about the homicide. The police are required to advise a suspect of her Miranda rights only when interrogating a person who is in police custody. See Miranda v. Arizona, 384 U.S. 436, 467-468 (1966). “The term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are 30 reasonably likely to elicit an incriminating response.” Paulman, 5 N.Y.3d at 129 (internal quotation marks and citation omitted); see Rhode Island v. Innis, 446 U.S. 291 (1980); People v. Ferro, 63 N.Y.2d 316 (1984). Upon entering the room, Detective Ciuffi merely informed defendant that he wanted to talk to her about a murder of an old lady, instead of the warrant Detective McSloy had earlier mentioned. He showed the victim’s photograph to defendant only after she claimed she did not understand what he was talking about. He showed the photograph so defendant would then be aware of whose murder he was going to question her about. While interviewing co-defendant Daniel first, Detective Ciuffi learned that Daniel knew the victim, who lived next door to Daniel’s aunt; indeed, on the day of the murder, the victim had allowed Daniel and defendant to enter her home to make a telephone call because Daniel’s aunt, whom they had come to visit, was not home (A158-A160). Daniel and defendant were also friends. Detective Ciuffi, thus, reasonably could have reasoned that defendant had been to Daniel’s aunt’s home on prior occasions and had seen the victim, and was familiar with her face. Moreover, the murder was highly publicized by the media -- that was how Ms. Kirby knew to contact the police. It certainly was possible that defendant herself might have seen some of the medial publicity, and had recognized the victim as the neighbor of 31 Daniel’s aunt. Therefore, in displaying the photograph, the detective was not only asking if defendant knew of the murder, but also if she knew the deceased, neither of which is incriminating. Detective Ciuffi’s actions were not coercive. He did not accuse defendant of being the culprit, nor did he demand that defendant tell him what she knew about the murder. He merely remarked that this was the case he wanted to discuss. Detective Ciuffi also did not confront defendant with any proof that she had committed the murder. The detective did not tell defendant that Larissa Kirby had provided information to the police, nor that co-defendant Daniel was at the precinct and already had given a statement to the police. Under the circumstances, defendant had no reason to believe that the police had evidence of her guilt. Detective Ciuffi did not “leave the defendant with the impression that anything but an open admission would be futile.” See People v. Rivers, 56 N.Y.2d 476, 480 (1982); cf. People v. Lanahan, 55 N.Y.2d 711, 714 (1981). After being shown the photograph, defendant cried (an understandable reaction upon seeing someone you known), but she could just as easily have said “Yes, I know her,” or “No, I still don’t understand.” Neither crying or such statements are incriminating. Defendant, however, claims that Detective Ciuffi had interrogated her because 32 “[i]n 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” (defendant’s brief, p. 35) (citation omitted). When she told the detective that she did not understand what he was talking about, defendant claims that the detective “‘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” (defendant’s brief, p. 36). Detective Ciuffi told both Daniel and defendant, during their separate interviews, that he was investigating a murder of an old lady. With Daniel, Detective Ciuffi, upon his return after temporarily leaving the room, said to Daniel, “You know what I am talking about.” Daniel replied, “Yes,” and started talking about having gone to her aunt’s house on Laconia Avenue, and having asked “Ms. Nellie” to use her telephone. Detective Ciuffi stopped defendant and read the Miranda warnings to her. Whereas with defendant, Detective Ciuffi simply showed a victim’s photograph to defendant, who then cried. Once defendant regained her composure, the detective advised her of her rights. Here, Detective Ciuffi did not make any remarks in showing the photograph to defendant that called for a response from defendant. Unlike Daniel who had innocuously acknowledged having spoken to the victim, defendant made no remarks; 33 she just cried. Defendant did not say or act in any manner that would have even minimally raised the detective’s suspicion. In any event, Daniel was incorrectly decided because that defendant did not make any incriminating statement in response to interrogation. Moreover, defendant’s argument is based upon her hearing testimony that the hearing court found to be “implausible.” The hearing court credited Detective Ciuffi’s testimony that he had advised defendant of her Miranda rights before taking her statement. The court rejected defendant’s assertions that the detectives had threatened her into falsely accusing co-defendant Daniel and that the detectives had her sign and initial the Miranda form and the written statement without advising her of her rights (A21-A22). On appeal, the Appellate Division upheld the hearing court’s credibility determination. See Panton, 114 A.D.3d at 450. Consequently, defendant’s insistence that the detective acted in aggressive manner towards her and had thrown the victim’s photograph is erroneous and not supported by the record. Furthermore, the detective never testified that he intended to elicit an incriminating response from defendant by showing her the photograph. Indeed, instead of citing to any portion of the hearing record, defendant refers to the prosecutor’s summation remarks at trial (defendant’s brief, pp. 36-37, quoting A623). Nonetheless, the test for determining whether the detective’s actions were likely to 34 elicit a response is an objective one, and thus, what the detective may have hoped is not dispositive. See Paulman, 5 N.Y.3d at 129 (explaining that interrogation is any words or actions “that the police should know are reasonably likely to elicit an incriminating response”). Defendant’s reliance upon People v. White 10 N.Y.3d 286 (2008) and People v. Ferro, 63 N.Y.2d 316 (1984), to argue that the displaying of the photograph of the victim constituted an interrogation is misplaced (see defendant’s brief, p. 36). In Ferro, the defendant, who was held in a holding cell, refused to speak with the police, but instead, asked to talk to the District Attorney. The detective, however, brought the furs that had been stolen from the murder victim and placed them in front of the defendant. See Ferro, 63 N.Y.3d at 320-321. This Court held that the detective “should have known, in light of defendant’s prior request to speak to a District Attorney, that [showing defendant the furs] was reasonably likely to elicit from defendant an incriminating response.” Id. at 323. Unlike the furs stolen from a murder victim, the photograph was not evidence that defendant or her co-defendant had committed the crime. It merely showed whose murder the detective wanted to discuss. The murder victim was next-door neighbor to co-defendant Daniel’s aunt, and Daniel and the victim knew each other. Defendant was friends with Daniel, and they had originally intended to go to Daniel’s aunt’s 35 house on the day of the murder. As defendant reasonably could have been over to Daniel’s aunt’s house in the past, and considering the publicity the murder received, it was reasonable for Detective Ciuffi to assume defendant would know whose murder he was talking about once she saw the photograph (face of the victim). Unlike the furs in Ferro, the photograph should not have caused defendant to believe that the police had evidence of her guilt. In White, when the defendant asked why he had been placed in a lineup, the detective showed him a photograph of the victim. When the defendant asked, “What about him?” the detective replied that the victim “‘was killed, and he was either killed in cold blood, or there was reason for it.’ The detective then asked defendant if would ‘like to tell his side of the story,’ and he responded, ‘I’ll tell you everything.’” White, 10 N.Y.3d at 288. The issue in White was whether the defendant’s post-Miranda statements were attenuated from the Miranda violation, and thus, admissible. This Court did not discuss whether displaying the photograph alone or the exchange in its entirety constituted custodial interrogation. By contrast, here, upon showing the victim’s photograph to defendant, the detective did not ask defendant if she would like to tell her story. He merely told her that this was the homicide he wanted to discuss. The detective did not ask any questions until after reading the Miranda warnings to 36 defendant. As the Appellate Division held, even if the display of the victim’s photograph “constituted the functional equivalent of interrogation . . . [defendant’s] post-Miranda statements were attenuated from the display of the photo.” Panton, 114 A.D.3d at 451. In Paulman, 5 N.Y.3d at 130-131, this Court stated that the purpose of the inquiry into whether post-Miranda statements are admissible is “to assess [whether] there was a sufficiently definite, pronounced break in the interrogation to dissipate the taint from the Miranda violation. If so, the Mirandized statement is admissible at trial despite the prior, unwarned statement.” This temporal demarcation is not the sole factor to be assessed in a determination of whether the pre-Miranda statement has tainted a post-Miranda statement. There are other factors in play. In White, this Court declared that “the absence of any incriminating response to . . . police questioning can be one of several factors supporting a conclusion that post-Miranda confessions are not tainted.” White, 10 N.Y.3d at 291. This Court decided that the defendant’s pre-Miranda statement that, “I’ll tell you everything” -- made after the police officer asked if the defendant wanted to tell his story -- was not incriminatory. Id. at 288, 291 (“Defendant here made no statement that was either inculpatory or related to the shooting until after the Miranda warnings had been properly administered by [Det.] Byrne and after he had properly waived his Miranda 37 rights”). Here, the Appellate Division decided, as a factual matter, that defendant had not made any incriminating statements until after the detective had given her the Miranda warnings. Panton, 114 A.D.3d at 451. Indeed, contrary to the defendant’s statement, “I’ll tell you everything,” in White, defendant’s act of crying, here, did not convey that she possessed any knowledge about the victim’s murder. Defendant contends that her crying was testimonial and communicative, and thus, obtained in violation of her rights (see defendant’s brief, pp. 37-39). “[W]hile an accused may not be compelled to provide the State with evidence of a testimonial or communicative nature, a person can be forced to produce real or physical evidence.” People v. Berg, 92 N.Y.2d 701, 704 (1999) (internal quotation marks and citations omitted). “Under the Fifth Amendment, evidence is deemed testimonial [or communicative] when it reveals defendant’s subjective knowledge or thought processes--when it expresses the contents of defendant’s mind.” People v. Havrish, 8 N.Y.3d 389, 395 (2007). Defendant offers no explanation as to how her tears upon seeing the photograph of the victim revealed anything incriminating about defendant. The tears, for all they told, could simply have been a natural response to seeing a photograph of a dead woman whom the defendant had known. They certainly gave no indication 38 that defendant possessed any intimate knowledge of the murder or that she had any involvement in it. Defendant argues that the trial prosecutor, however, considered it to be incriminating and used it as evidence against her at both the hearing and at trial (see defendant’s brief, pp. 37-39). Defendant, however, fails to explain how advocacy by the prosecutor, who is expected to argue that all inferences should be drawn against defendant to prove defendant’s guilt beyond a reasonable doubt, can objectively establish that her crying was incriminating. The weakness of defendant’s argument can be gleaned from the fact defense counsel saw the crying as so inconsequential that he did not even address it in his trial summation (A601-A613).11 In White, this Court explained that “[a]lthough the same police personnel were involved in eliciting each pre- and post-warned statement, and there was no change in the location of the interrogation, the brevity of the initial exchange is significant under Paulman.” White, 10 N.Y.3d at 292. Here, Detective Ciuffi merely told defendant that he wanted to discuss a murder of an old lady, and then showed her the victim’s photograph when defendant said she did not understand. The detective had 11 During his trial summation, in describing the events prior to defendant’s statement to Detective Ciuffi, defense counsel stated simply, “. . . [Detective] Ciuffi apparently at some point takes out a photograph from the homicide scene and says, do you know this lady? She says no, I don’t know this lady. He then proceeds to advise her of her rights . . .” (A609). 39 not engaged defendant in a lengthy conversation preceding the displaying of the photograph, nor did he ask any questions until he advised her under Miranda. Moreover, Detective Ciuffi patiently waited while defendant finished crying and regained her composure before beginning any interrogation process. Attempting to distinguish White, defendant contends that the questioning, here, was “longer, more intense, psychologically planned and orchestrated as in [Missouri v. Siebert, 542 U.S. 600 (2014)], and the post-Miranda statements followed immediately after the warnings” (defendant’s brief, p. 44). In Missouri v. Siebert, 542 U.S. 600 (2004), the United States Supreme Court characterized the pre-Miranda questioning as being “systematic, exhaustive, and managed with psychological skill,” where, after having arrested the defendant at 3 a.m., the police deliberately “questioned her without Miranda warnings for 30 to 40 minutes, squeezing her arm and repeating ‘[the victim] was also to die in his sleep,’” until defendant admitted that “she knew that [the victim] was meant to die in the fire.” Siebert, 542 U.S. at 604- 605, 616. Defendant offers no explanation regarding how Detective Ciuffi simply telling defendant that he wanted to talk to her about a murder of an old lady, and then showing the victim’s photograph when defendant expressed confusion, is analogous to what happened in Siebert. Defendant merely argues that the questioning was 40 “deliberate and carefully planned: first with the ruse of the warrant to bring [defendant] into the precinct for questioning without Miranda warnings . . .” (defendant’s brief, p. 43). Defendant fails to recognize that, in White, the defendant had been in custody for almost 19 hours and had been placed in a lineup, which prompted the defendant to ask the detective why he was at the precinct and the subsequent questioning. Yet, this Court did not perceive the detective’s questioning to have begun until he actually asked a question of defendant, since it characterized the questioning to be brief. Thus, the events prior to Detective Ciuffi’s introductory remarks to defendant should not be considered in assessing how long the initial discussion lasted. Defendant’s claim that “[t]here is no evidence that she completely recovered from this intentionally induced emotional state by the time Miranda warnings were given” (defendant’s brief, pp. 42-43) is refuted by the record. At the suppression hearing, Detective Ciuffi testified that he waited until defendant regained her composure before he read her the Miranda warnings and began the questioning; the warnings were read approximately 18 minutes after he first entered the room. Defendant erroneously claims that the “situation here was akin to that described in Siebert and Bethea” to argue against attenuation (defendant’s brief, p. 42). In both Siebert and People v. Bethea, 67 N.Y.2d 364 (1984), the defendants had fully 41 confessed during the pre-Miranda questioning. The post-Miranda statements were merely a repeat of the earlier unwarned statements. See Siebert, 542 U.S. at 606; Bethea, 67 N.Y.2d at 367. By contrast, here, defendant had not made any incriminating statements prior to the warnings. Defendant certainly had not made a full confession. Accordingly, the Appellate Division’s decision should be affirmed. 42 CONCLUSION THE JUDGMENT APPEALED FROM SHOULD BE AFFIRMED IN ALL RESPECTS. Respectfully submitted, ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent By: ____________________ Joseph N. Ferdenzi ____________________ Peter D. Coddington ____________________ T. Charles Won JOSEPH N. FERDENZI PETER D. CODDINGTON T. CHARLES WON Assistant District Attorneys of Counsel NOVEMBER 2015 43