The People, Respondent,v.Nadine Panton, Appellant.BriefN.Y.June 2, 2016To be argued by ROBIN NICHINSKY (15 minutes requested) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - APL # 2015-00100 Bronx County Ind. No. 3237/07 NADINE PANTON, Defendant-Appellant. REPLY-BRIEF FOR DEFENDANT-APPELLANT Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street New York, NY 10005 rnichinsky@cfal.org (212) 577-2523 ROBIN NICHINSKY Of Counsel TABLE OF CONTENTS TABLE OF AUTHORITIES .. . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . 1 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT APPELLANT NADINE PANTON WAS UNLAWFULLY SUBJECTED TO CUSTODIAL INTERROGATION WITHOUT MIRANDA WARNINGS AND HER PRE- AND POST-MIRANDA STATEMENTS THAT FLOWED FROM THAT UNLAWFUL INTERROGATION IN A CONTINUOUS CHAIN OF EVENTS SHOULD HAVE BEEN SUPPRESSED AS A MATTER OF LAW. U.S. CONST. AMENDS. V, VI, AND XIV; N.Y. CONST. ART. I, § 6.. . . . . . . . . . . . . . . . . . . 1 (A) The Meritorious Miranda Issues Here Were Preserved, Or Alternatively, The Failure To Preserve Them Constituted Ineffective Assistance of Counsel. . . . . . . . . . . . 2 (B) The Appellate Division’s Decision Was Based Upon The Law.. . . . . . . . . . . . . . . . 6 (1) Custodial Interrogation.. . . . . . . . 7 (2) Crying As An Incriminating Statement. . 9 (3) Attenuation As A Matter of Law. . . . . 11 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . 13 i TABLE OF AUTHORITIES FEDERAL CASES Miranda v. Arizona, 384 U.S. 436 (1966).. . . . . . . . passim Murray v. Carrier, 477 U.S. 478 (1986). . . . . . . . . . . 5 Rhode Island v. Innis, 446 U.S. 291 (1980). . . . . . . . . 8 Missouri v. Siebert, 542 U.S. 600 (2004). . . . . . . . 9, 12 Strickland v. Washington, 466 U.S. 668 (1984).. . . . . . . 5 STATE CASES People v. Benevento, 91 N.Y.2d 708 (1998).. . . . . . . . . 5 People v. Brown, 25 N.Y.3d 973 (2015).. . . . . . . . . . . 6 People v. Chapple, 38 N.Y.2d 112 (1975).. . . . . . . . . . 12 People v. Clermont, 22 N.Y.3d 931 (2013). . . . . . . . . . 4 People v. Daniel, 122 A.D.3d 401 (2014).. . . . . . . . . . 4 People v. Dunbar, 24 N.Y.3d 304 (2014), cert. denied, __U.S.__, 135 S. Ct. 2052 (2015). . . . . . . . . . . . . 9 People v. Ferro, 63 N.Y.3d 316 (1984).. . . . . . . . . . . 8 People v. Garner, 174 A.D.2d 1028 (1991). . . . . . . . . . 9 People v. Harrison, 57 N.Y.3d 470 (1982). . . . . . . . 6, 11 People v. Henry, 95 N.Y.2d 563 (2000).. . . . . . . . . . . 5 People v. Keschner, 25 N.Y.3d 704 (2015). . . . . . . . . . 5 People v. Lombardi, 97 A.d.2d 278 (3d Dep’t 1983).. . . . . 9 People v. McCray, 51 N.Y.3d 594 (1980). . . . . . . . . . . 6 People v. McDonald, 1 N.Y.3d 109 (2003).. . . . . . . . . . 5 People v. Oathout, 21 N.Y.3d 127 (2013).. . . . . . . . . . 4 People v. Oden, 36 N.Y.2d 382 (1975). . . . . . . . . . 6, 11 People v. Paulman, 5 N.Y.3d 122 (2005). . . . . . . . . . . 12 People v. Rivera, 57 N.Y.2d 453 (1982). . . . . . . . . . . 10 People v. Steele, 277 A.D.2d 932 (4th Dep’t 2000).. . . . . 9 People v. Syville, 15 N.Y.3d 391 (2010).. . . . . . . . . . 5 People v. Turner, 5 N.Y.3d 476 (2005).. . . . . . . . . . . 5 People v. White, 10 N.Y.3d 286 (2008).. . . . . . . . . 11, 12 ii FEDERAL STATUTES U.S. Const. amends. V, VI, and XIV. . . . . . . . . . . . . 1 STATE STATUTES N.Y. Const. art. I, § 6.. . . . . . . . . . . . . . . . . . 1 C.P.L. § 470.35.. . . . . . . . . . . . . . . . . . . . . . 6 iii COURT OF APPEALS STATE OF NEW YORK ----------------------------------------: THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- APL-2015-00100 NADINE PANTON, : Defendant-Appellant. ----------------------------------------: PRELIMINARY STATEMENT This brief is submitted in reply to Respondent’s Brief [“R”], which was received on November 12, 2015. ARGUMENT POINT APPELLANT NADINE PANTON WAS UNLAWFULLY SUBJECTED TO CUSTODIAL INTERROGATION WITHOUT MIRANDA WARNINGS AND HER PRE- AND POST-MIRANDA STATEMENTS THAT FLOWED FROM THAT UNLAWFUL INTERROGATION IN A CONTINUOUS CHAIN OF EVENTS SHOULD HAVE BEEN SUPPRESSED AS A MATTER OF LAW. U.S. CONST. AMENDS. V, VI, AND XIV; N.Y. CONST. ART. I, § 6. Respondent challenges appellant’s arguments to suppress the statements that resulted from her unlawful custodial interrogation as unpreserved. Even if preserved, respondent claims the issues represent mixed questions of law and fact that this Court cannot consider and are, in any event, meritless. It is respondent’s arguments, however, that are without basis. The custodial interrogation that caused appellant to break down and cry before finally receiving Miranda warnings and then immediately confessing, followed by a video confession less than 1 1 ½ hours later that same evening in the same precinct with the same officer by her side, was unlawful. Appellant’s unattenuated statements resulting from that interrogation should have been suppressed as a matter of law. (A) The Meritorious Miranda Issues Here Were Preserved, Or Alternatively, The Failure To Preserve Them Constituted Ineffective Assistance of Counsel Respondent acknowledges, inter alia, that counsel below argued appellant, “was not properly advised of [her] rights against self-incrimination,” disputed “whether she had been properly advised of her rights,” noted that her “statements, which she argued began at 9:12 p.m.” was “one continuous event” flowing from appellant’s arrest, and that “the record failed to establish attenuation” (R. 12, 25-26). But, according to respondent, appellant’s Miranda claims were unpreserved because they were made in the context of other legal arguments. Contrary to respondent’s charge, counsel’s arguments that appellant’s arrest was also illegal and her statements were involuntary, does not render her Miranda claims unpreserved. The record proves that appellant’s claim that she was interrogated without being advised of her Miranda rights, and that all of her statements flowed in a continuous chain of events resulting from this unlawful interrogation, was adequately preserved. It was preserved in counsel’s written submissions, where he emphasized the police failure to give Miranda warnings for almost 20 minutes after questioning began and the continuing chain of events; and in oral argument, where counsel set forth the facts 2 relating to the Miranda violation, as well as the other grounds for suppression. See Appellant’s Main Brief, at 7-8, 20-21, 24- 25. Counsel did not need to repeat co-counsel’s recitation of the caselaw and points as to the Miranda claim at their joint hearing, when he spoke right afterward. It was reasonable for counsel to not repeat those points since the court had just heard them, and he instead focused on the specifics of appellant’s claim; that is, that her custodial interrogation began, un-Mirandized, at 9:12, that warnings were not administered until 9:30, and that appellant’s statements, including the video, were part of one continuous chain of events. It was not a matter of, as respondent asserts, “joining in” with co-counsel’s motion (R. 28), but rather a continuation of the same discussion. The trial prosecutor understood this,1 as she addressed the facts relating to the Miranda issue as to both cases in her response (A. 350-51). Contrary to respondent’s contention, counsel thus did preserve the Miranda issue for this Court’s review. Should this Court nonetheless find the Miranda issue unpreserved, the failure to preserve the claim under the circumstances here would constitute ineffective assistance of counsel. There was no legitimate strategy for not preserving this issue that was fully apparent from the record, and that Nor were the facts of each case, as respondent claims,1 “materially different” (R. 27-28). To the contrary, the interrogation technique was strikingly similar, as noted in Appellant’s Main Brief, at 36-37. See also infra at 7. 3 served as the basis for reversal of appellant’s co-defendant’s appeal in the Appellate Division. See People v. Daniel, 122 A.D.3d 401 (2014); see also People v. Clermont, 22 N.Y.3d 931, 933 (2013)(case remanded on direct appeal, based upon ineffective assistance at suppression hearing); People v. Oathout, 21 N.Y.3d 127, 130 (2013)(errors constituted ineffective assistance without regard to prejudice, where, inter alia, counsel’s “performance and responses at the pretrial hearings demonstrated a complete lack of familiarity with the specific motions and relevant legal criteria”). It is evident from the record that there would have been no strategy to omit this claim. Counsel clearly understood the urgent need to suppress these statements. To that end, he sought suppression of these statements on much weaker Payton and voluntariness grounds – raising claims that required the court to reject police testimony as incredible and find appellant’s contrary testimony credible. That was a long-shot, at best. In contrast, the Miranda issue here relied entirely upon the uncontested testimony of Detective Ciuffi, a prosecution witness. Yet counsel would have missed the only viable2 opportunity to suppress these statements in a case that depended upon the admission of appellant’s confessions. Respondent notes the Appellate Division findings as to2 appellant’s credibility, and tries to re-argue that in the brief (R. 29-30, 34), but appellant’s Miranda-related claims of unlawful custodial interrogation, crying as an incriminat- ing statement, and lack of attenuation, rely solely upon the undisputed and credible testimony of Detective Ciuffi, a prosecution witness, and not at all on appellant’s testimony. 4 Counsel’s mistake, if this were to be found unpreserved, as to the most crucial issue in this case – the admission of the incriminating statements that sealed appellant’s fate – would constitute ineffective representation 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 would have denied appellant “meaningful representation” under the New York Constitution, e.g., People v. Henry, 95 N.Y.2d 563 (2000); People v. Benevento, 91 N.Y.2d 708 (1998). This is exactly the sort of case where one blunder “could not have been grounded in a legitimate trial strategy” and was outcome-determinative. People v. Keschner, 25 N.Y.3d 704, 723 (2015); see People v. Turner, 5 N.Y.3d 476 (2005)(counsel ineffective for failing to object to submission of lesser included offense); see also Murray v. Carrier, 477 U.S. 478, 496 (1986)(even one significant blunder constitutes ineffectiveness if it deprives defendant of a fair trial). It would also be fundamentally unfair to suppress the statements in co-defendant Daniel’s virtually identical case of custodial interrogation without Miranda warnings and not appellant’s, due solely to the ineffective assistance of counsel in failing to move to suppress on this basis. Cf. People v. Syville, 15 N.Y.3d 391, 398 (2010)(“The Due Process Clause prohibits a defendant from being denied the right to appeal as a consequence of the violation of another constitutional right – the right to the effective assistance of counsel on direct appeal.”) (citations omitted). 5 Accordingly, this Court should reject respondent’s preservation claim and consider this issue on the merits. In the alternative, appellant’s case should be remanded for a suppression hearing with new, effective counsel. (B) The Appellate Division’s Decision Was Based Upon The Law Respondent also contends the issues here represent mixed questions of law and fact. To the contrary, the court’s decision here was based entirely upon the law, improperly applied. Under C.P.L. § 470.35, this Court has the power to review only questions of law. See, e.g., People v. Oden, 36 N.Y.2d 382, 385 (1975). As respondent notes, questions of custodial interrogation and attenuation typically represent mixed questions of law and fact not reviewable by this Court. But a question of law is nonetheless presented for this Court’s review when the minimum showing necessary to establish the legal standard has not been met. See People v. Brown, 25 N.Y.3d 973, 975 (2015)(discussing when a determination of reasonable suspicion involves a mixed question of law and fact or is based upon the law alone); People v. Harrison, 57 N.Y.3d 470, 477-78 (1982)(same); People v. McCray, 51 N.Y.3d 594, 601 (1980)(same). When, as here, “the facts and circumstances are undisputed, when only one inference can reasonably be drawn therefrom and when there is no problem as to credibility...,” the issue is a matter of law. Oden, 36 N.Y.2d at 384 (relating to the issue of probable cause)(citations omitted); Harrison, 57 N.Y.2d at 477 (delineating many circumstances where these rules apply). 6 (1) Custodial Interrogation Custodial interrogation was established in this case as a matter of law. Indeed, even the Appellate Division’s “alternate holding” “assum[ed] that the detective’s display to defendant of a crime scene photograph of the murder victim, shortly before giving warnings, constituted the functional equivalent of interrogation....” Id. at 451(emphasis added). That finding was amply supported by the record. Even though the Appellate Division finding only noted the photograph thrown onto the interrogation table right before appellant became “very upset and cried,” the photo of the dead victim was actually the culmination of a series of questions designed by these detectives to elicit an incriminating response. First, appellant was arrested on a warrant (that was an admitted ruse) in her home, taken into police custody, and placed in an isolated interrogation room to be questioned about this murder. Before appellant’s questioning even began, Detectives Ciuffi and Mulroy had successfully employed virtually the same technique, almost word-for-word, to extract a confession from Sparkle Daniel, who had accused appellant of the murder only minutes before. As with Daniel, Ciuffi began by asking if appellant knew why she was there. When she said no, she was told it was about the murder of an old woman. When, even more recalcitrant than Daniel, appellant “in sum and substance” continued to deny any knowledge of what the detective was referring to, she was then confronted with, “This is what I want to speak to you about,” as a photo of the asphyxiated victim was 7 thrown onto the table (A. 131, 239-39). These credible and undisputed facts were relayed by Ciuffi himself at the hearing. The only fair, logical and objective inference to be drawn from these facts is that appellant Nadine Panton was subjected to custodial interrogation. See People v. Ferro, 63 N.Y.3d 316, 322 (1984)(quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). Respondent’s attempts to portray this as some kind of mild-mannered open inquiry, where the officer “merely informed” appellant that he wanted to talk with her about the murder and showed her the gruesome photo only “so defendant would then be aware of whose murder he was going to question her about” (R. 31), is not a reasonable inference to be drawn from these facts.3 Under the legal standards established in Ferro, 63 N.Y.3d 316; Rhode Island v. Innis, 446 U.S. 291; and Miranda v. Arizona, 384 U.S. 436 (1966), the tactics here constituted classic interrogation. In Miranda, the Supreme Court condemned just the type of interrogation that occurred here, where the defendant is isolated in a “police-dominated atmosphere,” where the defendant is at a psychological disadvantage as police intimidate and dominate her. 384 U.S. at 445, 450-51, 457-58. The questioning employed by Ciuffi of, “do you know why you are here” and “this is what I want to talk to you about,” are Respondent also asserts that “defendant claims that the3 detective ‘pursued’ her by his persistent questioning” (R. 33)(emphasis added). But it was actually Ciuffi’s own admis- sions at trial that he “pursued” appellant by displaying the photo after she denied knowing what he was talking about, not defendant’s words (A. 439-40). 8 traditional interrogation tactics. See People v. Steele, 277 A.D.2d 932, 932 (4 Dep’t 2000)(interrogation to ask, “Do youth know why you’re here?”); People v. Garner, 174 A.D.2d 1028, 1028 (1991)(interrogation to ask defendant, “if he knew why he had been arrested”); People v. Lombardi, 97 A.d.2d 278, 280 (3d Dep’t 1983)(interrogation to say, “Well, don’t you know what this is about?”). This scenario also mimics the “question first” technique condemned in Missouri v. Siebert, 542 U.S. 600 (2004) – where the police first interrogate the suspect into incriminating herself before giving ineffective Miranda warnings. Cf. People v. Dunbar, 24 N.Y.3d 304 (2014), cert. denied, __U.S.__, 135 S. Ct. 2052 (2015)(“preamble” to Miranda warnings so undermined the warnings as to render them ineffective). Despite respondent’s assertions otherwise, the confrontational nature of Ciuffi’s questions and the throwing down of the photo was custodial interrogation. Even if this were generally a mixed question of law and fact, as respondent claims (R. 29), there is no reasonable inference other than custodial interrogation that is supported by these facts. (2) Crying As An Incriminating Statement Although appellant’s statements were not attenuated from her unlawful custodial interrogation regardless of whether her act of crying is deemed incriminating, see infra at 11-12, the First Department’s finding that it was not incriminating was error as a matter of law. Yet respondent continues to mistakenly 9 assert that “[n]either crying” nor other hypothetical reactions to the photo he proposes, “are incriminating” (R. 32, 38). Crying, as with any nonverbal act, can be incriminating. 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.”). Tellingly, the trial prosecutor here extensively relied upon appellant’s crying as evidence of her guilt. At the hearing, she repeatedly confronted appellant with the incriminating nature of this evidence. When appellant denied knowing the victim, the ADA asserted: “But you started crying” (A. 290). She later challenged appellant that the detective “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). At the hearing argument, the prosecutor related: “Nadine begins to make a statement to him, at which point he reads Ms. Panton her Miranda warnings” (A. 350). The detectives understood appellant’s cries to be an incriminating statement, and that was precisely why her crying triggered Miranda warnings. Finally, at the trial itself, the prosecutor used appellant’s crying against her in summation, which respondent now attempts to downplay by arguing that a prosecutor “is expected to argue that all inferences should be drawn against defendant to prove defendant’s guilt....” and, incredibly, that it was so “inconsequential” to counsel, “he did not even address it in his summation” (R. 28, 39). The reason the prosecutor 10 emphasized the crying and counsel did not was the same – because it incriminated appellant. The fact that appellant’s crying was used to incriminate her at trial is the best evidence of its true nature, and respondent’s claim otherwise is not a reasonable inference to be drawn from these facts. To find this crying not incriminating simply because it was not a typical verbal response, as the First Department found, was error as a matter of law. (3) Attenuation As A Matter of Law After incorrectly holding that crying was not incriminating, the Appellate Division compounded its error by failing to examine whether appellant’s post-Miranda statements were attenuated. While attenuation generally represents a mixed question of law and fact, as respondent noted, that does not apply where, as here, the minimum showing necessary to establish attenuation as a matter of law was not met. See, e.g., Harrison, 57 N.Y.3d at 477-78; Oden, 36 N.Y.2d at 384. In People v. White, 10 N.Y.3d 286, 290 (2008), this Court 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. Even assuming arguendo that appellant’s crying was not incriminating, that should not have ended the court’s inquiry into whether appellant’s post-Miranda statements were attenuated from the initial tainted interrogation. Yet it did. That was an error of law, not fact. 11 Moreover, as argued in Appellant’s Main Brief, see 39-44, there were insufficient facts to support attenuation as a matter of law, as there was no break in the interrogation, where detectives immediately elicited post-Miranda statements from appellant in the same room, with the same detectives taking notes on the same sheet of paper, without any break, immediately after appellant stopped crying. Eighty-five minutes later, still in the same precinct with one of the same interrogation officers seated closely beside her and even speaking up at times, appellant gave a videotaped statement in the same continuous chain of events. See People v. Paulman, 5 N.Y.3d 122 (2005); People v. White, 10 N.Y.3d 286; see Missouri v. Siebert, 542 U.S. 600. The trial prosecutor did not even bother to explain appellant’s actions between the initial and videotaped statements (as he did with Daniel, who was given Chinese food and relaxed as Ciuffi interrogated appellant), failing to meet the prosecution’s burden of proof on this issue. See White, 10 N.Y.3d at 290. There can thus be no reasonable inference that the post-interrogation Miranda warnings returned appellant “to the status of one who is not under the influence of questioning,” People v. Chapple, 38 N.Y.2d 112, 115 (1975), under the minimal standards required to establish attenuation as a matter of law. The Appellate Division’s determination that, as a matter of law, appellant’s nonverbal act of crying did not constitute an incriminating statement, and that the absence of a pre-Miranda incriminating statement then precluded a post-Miranda 12 determination as to attenuation, were legal errors that should be reviewed and reversed by this Court. * * * For all of the above reasons, as well as those in Appellant’s Main Brief before this Court, the Appellate Division affirmance should be reversed, and the conviction vacated and the case dismissed, or a new trial ordered. In the alternative, the case should be remanded for a hearing. CONCLUSION FOR THE REASONS STATED ABOVE AND IN THE PRINCIPAL BRIEF, THE APPELLATE DIVISION'S ORDER APPELLANT SHOULD BE REVERSED OR, IN THE ALTERNATIVE, A HEARING SHOULD BE ORDERED. Respectfully submitted, ROBERT DEAN CENTER FOR APPELLATE LITIGATION Attorney for Defendant- Appellant ROBIN NICHINSKY Of Counsel December 2015 13