The People, Respondent,v.Jin Cheng Lin, Appellant.BriefN.Y.January 12, 2016To be argued by DE NICE POWELL 15 /vfinutes Court of Appeals STATE OF NEW YORK PEOPLE OF THE ST ATE OF NEW YORK, Respondent, - against - JIN CHENG LIN, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT DE NICE POWELL Of Counsel October 20, 2014 APL-2014-00102 LYNNW.L.FAHEY APPELLATE ADVOCATES Attorney for Defendant-Appellant 111 John Street, 9th Floor New York, NY 10038 (212) 693-0085 FAX: (212) 693-0878 INDEX PRELIMINARY STATEMENT .................................. 1 QUESTIONS PRESENTED .................................... 3 STATUTORY PROVISIONS INVOLVED ........................ 4 SUMMARY OF ARGUMENT .................................. 6 I ...................................................... 6 II .................................................... 12 III ................................................... 15 STATEMENT OF FACTS ..................................... 17 Introduction ............................................ 1 7 The Huntley Hearing ..................................... 19 The May 13 Interrogation and Appellant's Prayer "For Help" ........................................ 19 The Arrest on May 14 After Further Interrogation of Appellant ......................................... 22 The Delayed Arraignment and Appellant's Continued Interrogation for the Next 28'h Hours ......... 24 Appellant's Invocation of His Rights When, at His Request, an Assistant District Attorney Explained the Meaning of"Attorney" and the "Right to Remain Silent" ........................................... 29 Additional Hearing Evidence ......................... 31 The Defense Case .................................. 32 Arguments and Decision ............................. 33 The People's Case at Trial ................................ 36 The Court's Preclusion of Appellant's Contemporaneous Notes and the Videotape Showing His Appearance on May 16 ........ 39 The Defense Case ....................................... 42 The Jury Charge ........................................ 43 The Appellate Division Decision ........................... 4 7 ARGUMENT POINT I THE PEOPLE FAILED TO CARRY THEIR HEAVY BURDEN OF PROVING THAT APPELLANT'S STATEMENTS WERE VOLUNTARY AND THAT HE WAIVED HIS MIRANDA RIGHTS WHEN THE POLICE INTERROGATED HIM IN A SMALL WINDOWLESS ROOM FOR DAYS UNTIL HE BROKE DOWN AND CONFESSED, UNLAWFULLY DELAYED ARRAIGNMENT FOR TWO DAYS DURING THAT EXTENDED INTERROGATION, AND NEVER GAVE HIM ADEQUATE MIRANDA WARNINGS ................. 49 A. The Persistent Interrogation in a Windowless Room Over a Span of Four Days ................................... 50 B. The Arraignment Delay ..................... 61 C. The Inadequate Miranda Warnings ............ 69 ii POINT II THE COURT DENIED APPELLANT HIS DUE PROCESS RIGHTS TO A FAIR TRIAL AND TO PRESENT A DEFENSE BY PRECLUDING EVIDENCE RELEVANT TO THE KEY ISSUE OF WHETHER APPELLANT'S CONFESSION WAS VOLUNTARY. . .................................. 77 POINT III BY RESUBMJTTING ONLY FOUR COUNTS OF THE ORIGINAL VERDICT FOR THE JURY'S RECONSIDERATION AND INCORRECTLY EXPLAINING THE VERDICT'S "DEFECT" TO THE JURORS, THE COURT DENIED APPELLANT HIS RIGHT TO A JURY VERDICT UNINFLUENCED BY THE COURT'S VIEW OF THE EVIDENCE .................................. 86 CONCLUSION ......................................... 95 iii TABLE OF AUTHORITIES CASES: Ashcraft v. Tennessee, 322 U.S. 143 (1944) ................. 6, 50, 58 Blackburn v. Alabama, 361U.S.199 (1960) .................... 51, 57 Chambers v. Mississippi, 410 U.S. 284 (1973) ..... 12, 15, 77, 82, 83, 84 Clewis v. Texas, 386 U.S. 707 (1967) . . . . . . . . . . . . . . . . . . . 7, 55, 58, 76 Crane v. Kentucky, 476 U.S. 683 (1986) ............. 12, 13, 15, 77, 78 Culombe v. Connecticut, 367 U.S. 568 (1961) ....... 6, 14, 50, 51, 55, 58 Dickerson v. United States, 530 U.S. 428 (2000) .................... 51 Duncan v. Louisiana, 391U.S.145 (1968) ...................... 15, 90 Haley v. Ohio, 332 U.S. 596 (1948) ........................... 55, 58 Jackson v. Denno, 378 U.S. 368 (1964) .................... 13, 75, 78 Johnson v. Zerbst, 304 U.S. 458 (1938) ....................... 11, 69 Lau v. Goord, 540 F. Supp.2d 399 (E.D. N.Y. 2008) ................. 89 Miranda v. Arizona, 384 U.S. 436 (1966) ...................... passim People v. Alex, 265 N.Y. 192 (1934) . . . . . . . . . . . . . . 7, 10, 61, 62, 63, 65 People v. Alex, 260 N.Y. 425 (1933) .......................... 81, 82 People v. Anderson, 42 N.Y.2d 35 (1977) ..................... passim People v. Aveni, 22 N.Y.3d 1114 (2014) .......................... 66 People v. Bell, 38 N.Y.2d 116 (1975) ............................. 90 People v. Blakeney, 88 N.Y .2d I 011 ( 1996) ....................... 77 People v. Cahill, 2 N.Y.3d 14 (2003) ............................. 88 iv People v. Carroll, 95 N.Y.3d 375 (2000) ................ 13, 15, 77, 84 People v. Caserta, 19 N.Y.3d 18 (1966) ........................... 80 People v. Cefaro, 23 N.Y.2d 283 (1968) ........................... 13 People v. Combest, 4 N.Y.3d 341 (2005) ....................... 14, 79 People v. Crimmins, 36 N.Y.2d 239 (1975) ..................... 74, 84 People v. DeJesus, 42 N.Y.2d 519 (1977) ......................... 91 People v. Faulkner, 77 A.D.2d 573 (2d Dept. 1980) ................. 89 People v. Goldstein, 6 N.Y.3d 205 (2005) ...................... 13, 78 People v. Guilford, 21N.Y.3d72 (2013) ....................... 51, 58 People v. Holland, 48 N.Y.2d 861 (1979) .................... 7, 62, 65 People v. Huntley, 15 N.Y.2d 72 (1965) ............ 8, 11, 13, 51, 70, 78 People v. Jackson, 41 N.Y.2d 146 (1976) ....................... 11, 70 People v. Jamerson, 99 A.D.2d 816 (2d Dept. 1984) ................. 89 People v. Jin Cheng Lin, 105 A.D.3d 761 (2d Dept. 2013) ............ 47 People v. Kennedy, 70 A.D.2d 181 (2d Dept. 1979) ................. 79 People v. Loughlin, 76 N.Y.2d 804 (1990) ...................... 87, 90 People v. Lowin, 36 A.D.3d 1153 (3d Dept. 2007) .................. 73 People v. Mateo, 2 N.Y.3d 383 (2004) ......................... 12, 76 People v. Mees, 47 N.Y.2d 997 (1979) ......................... 15, 91 People v. Miller, 6 N.Y.3d 295 (2006) ............................ 88 People v. Muhammed, 17 N.Y.3d 532 (2011) ...................... 86 People v. Petronio, 34 A.D.3d 602 (2d Dept. 2006) .................. 73 v People v. Prado, 4 N.Y.3d 725 (2004) ............................ 75 People v. Ramos, 99 N.Y.2d 27 (2002) . . . . . . . . . . . . . . . . . . 7, 61, 62, 65 People v. Ricco, 56 N.Y.2d 320 (1982) ........................ 78, 82 People v. Rivera, 15 N.Y.3d 207 (2010) .................... 17, 91, 92 People v. Robinson, 45 N.Y.2d 448 (1978) ........................ 89 People v. Rodriguez, 71N.Y.2d214 (1988) ..................... 15, 90 People v. Rodwell, 100 A.D.2d 772 (I 51 Dept. 1984 .................. 82 Peoplev.Rogers,48N.Y.2dl67(1979) ....................... 10,68 People v. Salemmo, 38 N.Y.2d 357 (1976) ........................ 86 People v. Scarola, 71 N.Y.2d 769 (1988) ................... 12, 75, 77 People v. Thomas, 22 N.Y.3d 629 (2014) .................. 6, 8, 12, 51 People v. Trappier, 87 N.Y.2d 57 (1995) ....................... 87, 89 People v. Tucker, 55 N.Y.2d 1 (1981) .................. 86, 87, 88, 92 People v. Yut Wai Tom, 53 N.Y.2d 44 (1981) ................... 15, 91 People v. Williams, 62 N.Y.2d 285 (1984) .................. 11, 70, 71 People ex rel. Maxiam v. Brown, 77 N.Y.2d 422 (1991) ............ 7, 61 Rogers v. Richmond, 365 U.S. 534 (1961) ................ 6, 50, 51, 77 Taylor v. Illinois, 484 U.S. 400 (1988) ............................ 77 Turner v. Pennsylvania, 338 U.S. 62 (1949) ..................... 55, 58 United States v. Filani, 74 F.3d 378 (2d Cir. 1996) ................ 6, 91 United States v. Murdock, 290 U.S. 389 (1933) .................. 15, 91 United States, ex rel. Caminito v. l'vfurphy, 222 F.2d 698 (1955) .............................. 58, 59, 60 vi Watts v. Indiana, 338 U.S. 49 (1949) .............. 6, 52, 54, 58, 66, 67 CONSTITUTIONAL PROVISIONS AND STATUTES N.Y. Const., art. I, §6 ................................ 6, 50, 76, 86 U.S. Const., Amend. V ........................................ 50 U.S. Const., Amend. VI ..................................... 6, 76 U.S. Const., Amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 76, 86 C.P.L. §60.45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 51, 77 C.P.L.§140.20 ............................................ 7,61 C.P.L. §310.50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 86, 89, 90, 92 C.P.L. §710.70 .............................................. 77 OTHER AUTHORITIES Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L. Rev. 1051 (April, 2010) . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . 52 Saul M. Kassin, et al, Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3 (February, 2010) .... 52, 53 Richardson, Evidence, [Prince, 11 '11 Edition] . . . . . . . . . . . . . . . . . . . . . 82 Welsh S. White, What is an Involuntary Confession Now?, 50 Rutgers L.Rev. 2001 (1998) .......................................... 53 vii COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STA TE OF NEW YORK, Respondent, -against- JIN CHENG LIN, Defendant-Appellant. PRELIMINARY STATEMENT By permission of the Honorable L. Priscilla Hall, Associate Justice of the Appellate Division, Second Department, granted on June 13, 2013 (A 1),1 appellant Jin Cheng Lin appeals from an order of that court, entered April 3, 2013 (A 2-11), which affirmed, as modified, a judgment of the Supreme Court, Queens County, rendered July 14, 2008, convicting him, after a jury trial, of murder in the first and second degrees (six counts each), burglary in the first degree, and attempted robbery in the first degree, and sentencing him to life 1 Numbers in parentheses preceded by "A" refer to the Appendix. imprisonment without the possibility of parole and lesser concurrent prison terms (Eng, J., at suppression hearing and decision; Lasak, J., at trial and sentencing). On August 28, 2014, this Court granted appellant leave to proceed as a poor person and assigned Lynn W. L. Fahey, of Appellate Advocates, as counsel on appeal. The first issue, that the People failed to prove beyond a reasonable doubt that appellant's statements were voluntary or that he validly waived his Miranda rights, was preserved by defense counsel's motion to suppress the statements and specific arguments advanced in support of suppression, and the court's decision denying suppression (A 327-371, 399-425). The second issue, that the court erroneously refused to permit defense counsel to enter a videotape and written notes in evidence to rebut the People's contention that appellant's statements were voluntary, was preserved by counsel's requests, which the court denied (A 443-453, 483-484, 493-494, 496, 510-523, 530-536, 635-636). The third issue, that the court. mishandled the jury's initial verdict, was preserved by defense counsel's objection and request that the court resubmit ali counts for further deliberations (A 643-645). 2 Appellant remains incarcerated pursuant to the judgment. l1e had no co- defendants. QUESTIONS PRESENTED 1. Did the People fail to carry their heavy burden of proving that appellant's statements were voluntary and that he waived his Miranda rights when the police interrogated him in a small windowless room for days until he broke down and confessed, unlawfully delayed arraignment for two days during that extended interrogation, and never gave him adequate Miranda warnings? 2. Did the court deny appellant his due process rights to a fair trial and to present a defense by precluding evidence relevant to the key issue of whether appellant's confession was voluntary? 3. By resubmitting only four counts of the original verdict for the jury's reconsideration and incorrectly explaining the verdict's "defect" to the jurors, did the court deny appellant his right to a jury verdict uninfluenced by the court's view of the evidence? 3 STATUTORY PROVISIONS INVOLVED C.P.L. §60.45 Rules of evidence; admissibility of statements of defendants 1. Evidence of a ... statement made by a defendant with respect to his participation or lack of participation in the offense charged, may not be received in evidence against him in a criminal proceeding if such statement was involuntarily made. 2. A confession, admission or other statement is "involuntarily made" by a defendant when it is obtained from him: (a) By any person by ... means of ... improper conduct or undue pressure which impaired the defendant's physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement; (b) By a public servant engaged in law enforcement activity ... (ii) in violation of such rights as the defendant may derive from the constitution of this state or of the United States. C.P.L. § 140.20 Arrest without a warrant; procedure after arrest by police officer 1. Upon arresting a person without a warrant, a police officer, after performing without unnecessary delay all recording, fingerprinting and other 4 preliminary police duties required in the particular case, must except as otherwise provided in this section, without unnecessary delay bring the arrested person or cause him to be brought before a local criminal court and file therewith an appropriate accusatory instrument charging him with the offense or offenses in question. * * * C.P.L. §310.50 Verdict; form; reconsideration of defective verdict * * * 2. If the jury renders a verdict which in form is not in accordance with the court's instructions or which is otherwise legally defective, the court must explain the defect or error and must direct the jury to reconsider such verdict, to resume its deliberation for such purpose, and render a proper verdict. If the jury persists in rendering a defective or improper verdict, the court may in its discretion either order that the verdict in its entirety as to any defendant be recorded as an acquittal, or discharge the jury and authorize the people to retry the indictment or specified count or counts thereof as to such defendant; provided that if it is clear that the jury intended to find a defendant not guilty upon any particular count, the court must order that the verdict be recorded as an acquittal of such defendant upon such count. 5 SUMMARY OF ARGUMENT I Both the Due Process Clause of the United States Constitution and the New York Constitution forbid conviction by means of a defendant's coerced confession. U.S. Const. Amends. V, XIV; N.Y. Const., mi.!, §6; Rogers v. Richmond, 365 U.S. 534, 540-541 (1961 ); Ashcraft v. Tennessee, 322 U.S. 143, 154 (1944). A defendant's statement is involuntary when it is not the product of his "free and unconstrained choice." Culombe v. Connecticut, 367 U.S. 568, 602 (1961 ); C.P.L. §60.45, subd. 2 (a). Thus, when the police obtain a statement by overcoming a defendant's free will or critically impairing his capacity for self-determination, the statement must be suppressed on due process grounds. Rogers, 365 U.S. at 544; People v. Thomas, 22 N.Y.3d 629, 644-645 (2014 ). It has long been recognized that "[t]here is t01iure of the mind as well as the body; the will is as much affected by fear as by force." Watts v. Indiana, 338 U.S. 49, 52 (1949); see also Miranda v. Arizona, 384 U.S. 436, 448 (1966)("coercion can be mental as well as physical"). Consistent with numerous studies showing that prolonged interrogation exerts psychological pressure on a suspect, overcoming his desire to remain silent, courts have 6 repeatedly condemned unduly lengthy, incommunicado interrogation as violative of due process. Clewis v. Texas, 386 U.S. 707, 711 (1967); Miranda, 384 U.S. at 450-456. Additionally, over 75 years ago, stating that "[t]he law does not leave to the police discretion as to when a prisoner shall be arraigned," this Court held that an unnecessary arraignment delay must be considered in determining the voluntariness of a defendant's statement. People v. Alex, 265 N.Y. 192, 195 (1934); see also People v. Holland, 48 N.Y.2d 861, 862-863 (1979). An unlawful delay to procure a defendant's statement has "substantial bearing" on whether his statement was voluntary. People v. Ramos, 99 N.Y.2d 27, 34-36 (2002); Alex, 265 N.Y. at 195. Criminal Procedure Law§ 140.20, subd. 1, which mandates arraignment "without unnecessary delay," is designed, inter alia, to protect against unlawful confinement and ensure that the accused is advised of his rights. Ramos, 99 N.Y.2d at 36. Accordingly, "pre-arraignment detention [must] not be prolonged beyond a time reasonably necessary to accomplish the tasks [such as fingerprinting and booking the defendant] required to bring an arrestee to arraignment." People ex. rel. Maxian v. Brown, 77 N.Y.2d 422, 427 (1991). 7 In New York City, a delay beyond 24 hours is presumptively "unnecessary" and in violation of the law. Id. Finally, no custodial interrogation may be conducted until Miranda warnings - advising a defendant of the right to remain silent, that anything said can be used against him, the right to consult with an attorney before and during any questioning, and that one will be provided free of cost ifhe cannot afford one - are effectively and adequately conveyed to the defendant and the defendant knowingly, intelligently, and voluntarily waives his rights. Miranda, 384 U.S. at 442-443, 460, 468-496. In the instant case, the People failed to carry their heavy burden of proving beyond a reasonable doubt that appellant's statements were voluntary or that he waived his Miranda rights. Thomas, 22 N.Y.3d at 641; People v. Anderson, 42 N.Y.2d 35, 38 (1977); People v. Huntley, 15 N.Y.2d 72, 78 (1965). The police interrogation that spanned four days was inherently coercive. The police delayed arraignment, during which they continued to interrogate appellant, for the purpose of obtaining his confession. And they failed to adequately convey his Miranda rights; they were adequately conveyed only when he finally met with a prosecutor on day four, had "attorney" and the 8 right to "remain silent" explained to him, and immediately invoked his rights to an attorney and to remain silent. One day after the fatal stabbing of Cho Man Ng and her brother, Sek, the police picked up appellant, a 23-year-old immigrant from China who had a limited command ofEnglish. They placed him in a small, windowless precinct room, where they questioned him intermittently over period of 16 hours. They took him home only after securing his agreement to more interrogation, and picked him up again the next mon1ing for that purpose. On the second day of interrogation in the same windowless room, appellant admitted assisting two men - "Gong" and a "Fukianese man" - to gain entry to the Ngs' apartment. At that point, the police arrested him. But, instead of proceeding to arraignment, where he would be given counsel, they continued holding him in the same interrogation room for two more days, repeatedly subjecting him to further interrogation until he broke down, sobbing. They kept questioning him for four more hours, eliciting his confession to killing them. Without a "time for his release [ever]. . . suggested," appellant undoubtedly felt that the police "had all the time in the world to query him and that, ifhe was to be freed" from questioning in the windowless room, it would 9 only be "when his answers satisfied them." Anderson, 42 N.Y.2d at 39. Indeed, it was only after being subjected to multiple days ofinterrogation, that appellant, who had steadfastly maintained that he had merely helped men enter the Ngs' apartment, broke down and, in a complete about-face, admitted fatally stabbing the Ngs. Moreover, had the police not delayed appellant's arraignment, he would have been assigned a lawyer "to equalize the positions of the accused and sovereign," rendering his circumstances less overwhelming. People v. Rogers, 48 N.Y.2d 167, 173 (1979). The evidence unambiguously showed that the police delayed arraignment for a strategic reason - to continue interrogating appellant until he confessed. While a "desire to obtain evidence of guilt through confession may explain [arraignment] delay," however, it "furnishes no legal justification for it." Alex, 265 N.Y. at 195. The People never even claimed that the extraordinary delay here was due to an inability to complete the administrative tasks necessary for arraignment. Given the length of appellant's confinement and interrogation, exacerbated by the extraordinary arraignment delay, the People failed to prove beyond a reasonable doubt that his confession was voluntary. This alone wouid require suppression of his confession. 10 In addition, however, the People failed to prove beyond a reasonable doubt that appellant knowingly and intelligently waived his Miranda rights. Johnson v. Zerbst, 304 U.S. 458 (1938); Anderson, 42 N.Y.2d 35; People v. Jackson, 41 N.Y.2d 146, 153 (1976); Huntley, 15 N.Y.2d at 78. Detective Bernard Marshall read the Miranda rights to appellant, whose native language was Cantonese, in English on May 14, the second day of interrogation, and Detective William Schmittgall mentioned some of them the next morning. But the videotaped session with a prosecutor on the fourth day showed that appellant understood neither the word "attorney" nor the concept of his "right to remain silent." Indeed, as soon as they were explained to him, appellant immediately invoked both rights and the prosecutor tenninated the interview. Obviously, without an understanding of the words "attorney" and "remain silent," appellant could not have "grasped that he ... did not have to speak to the interrogator; * * * and that an attorney's assistance would be provided upon request, at any time, and before any questioning continued." People v. Williams, 62 N.Y.2d 285, 289 (1984)("[A]dministering Miranda warnings in a language not understood by the suspect would certainly be inadequate"); see also Miranda, 384 U.S. at 468-469. 11 The totality of the circumstances, Thomas, 22 N.Y.3d at 645, including the extraordinarily prolonged period of interrogation during which appellant was kept in a windowless room, without a bed; the unlawful arraignment delay; and the failure to provide Miranda rights he could understand, should have led to the suppression of appellant's confession. The People failed to carry their heavy burden of proving either that his statements were voluntary beyond a reasonable doubt or that he knowingly and intelligently waived his Miranda rights. II Evidence is relevant if "it has any tendency in reason to prove the existence of any material fact," and all relevant evidence is admissible "unless its admission violates some exclusionary rule." People v. Scarola, 71 N.Y.2d 769, 777 (1988). Even when its probative value is "substantially outweighed by the potential for prejudice," People v. Mateo, 2 N.Y.3d 383, 424 (2004); Scarola, 71 N.Y.2d at 777, or its admission would violate a rule against hearsay, the comi's discretionary power to exclude relevant evidence is circumscribed by the defendant's constitutional rights to a fair trial and to present a defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986); Chambers v. 12 Mississippi, 410 U.S. 284, 302 -303 (1973); People v. Carroll, 95 N.Y.3d 375, 385 (2000). In particular, a defendant is entitled to litigate the voluntariness of his statements before the jury, regardless of any pretrial ruling. Crane, 476 U.S. at 688-691; Jackson v. Denno, 378 U.S. 368 (1964); People v. Huntley, 15 N.Y.2d 72 (1965); C.P.L. §§710.70, 60.45; see also People v. Cefaro, 23 N.Y.2d 283, 286-287 (1968). A defendant is "allowed to attempt to disprove the People's theory and rebut their key assertions [citations omitted]." Carroll, 95 N.Y.2d at 386. Contending that appellant's confession was voluntary despite the extraordinary interrogation that produced it, the People relied on it heavily at trial. Nevertheless, the court precluded defense counsel from introducing evidence that was unquestionably relevant to establish its involuntariness - a videotape showing appellant's physical appearance and demeanor on the fourth day of his interrogation, and contemporaneous notes in which he not only complained of police mistreatment, but expressed an inability to protect himself against their abuse by praying for "help" from "heaven and earth." The court precluded the video as inadmissible hearsay. As defense counsel argued, however, it was admissible for a non-hearsay purpose, People 13 v. Goldstein, 6 N.Y.3d 119, 127 (2005), to show appellant's physical appearance and demeanor after days ofinterrogation in support of appellant's challenge to his confession as involuntary. See People v. Combest, 4 N.Y.3d 341, 349 (2005)(videotape of interrogation by police, displaying defendant's demeanor and protestation, was relevant to jury's determination of whether defendant's statement was voluntary). Moreover, hearsay rules, even if otherwise applicable, cannot trump a defendant's due process right to present relevant evidence critical to his defense. Chambers, 410 U.S. at 302-303. Appellant's notes were also relevant to his state of mind during the prolonged interrogation, his perception of the willingness of the police to abuse their power, and his subjective inability to withstand the interrogation's inherently coercive effects. The court precluded them in response to the People's hearsay objection, relegating the defense to proving the "coercive" interrogation atmosphere through "cross-examination of the detectives." But whatever "coercive atmosphere" the detectives might be willing to acknowledge was no adequate substitute for the notes showing appellant's subjective perception that the police were bent on detaining and interrogating him indefinitely until he confessed. 14 As a result of the court's rulings, appellant was denied a fair opportunity to rebut the People's key contention that his murder confession was voluntary, and therefore the fair trial due process guaranteed him, including the right to present evidence critical to his defense. Crane, 476 U.S. at 690; Chambers, 410 U.S. at 302-303; Carroll, 95 N.Y.2d at 386. III "[F]undamental to the American scheme of justice" is the right to a jury trial, Duncan v. Louisiana, 391 U.S. 145, 148-149, 154 (1968), which includes the right to jury deliberations not "intruded upon by outside" influences, including those exerted by the court. People v. Rodriguez, 71 N.Y.2d 214, 218 n 1 (1988). Thus, while a trial court confronted by a defective verdict must "explain the defect or error" and direct the jury to resume deliberations to reconsider and render a "proper verdict," C.P.L. §310.50, subd. 2, it may not influence the jury to render a particular verdict by telegraphing its view of the evidence to the jury. See United States v. Murdock, 290 U.S. 389, 394 ( 1933); People v. Yut Wai Tom, 53 N.Y.2d 48, 56-61 (1981); People v. Mees, 47 N.Y.2d 997, 998 (1979). 15 These fundamental precepts were violated when, in response to the jury's initial verdict, the court instructed them, incorrectly, that all three first- degree murder counts of which they had acquitted appellant were "inconsistent" with their guilty verdict on a count of second-degree intentional murder as to one victim, and directed them to reconsider their verdict as to these four counts. Only one of the acquittals was actually inconsistent with the verdict on the second-degree murder count the court resubmitted. The jury's initial verdict clearly demonstrated however, that it was confused in general about the charges submitted to it. Therefore, the court should have resubmitted all of the counts to the jury, given a correct explanation of the verdict's defect, and permitted the jury to resolve its confusion. The court did not have the authority to do what it did here: selectively resubmit counts that did not renderthe verdict legally defective and incorrectly tell the jury that they did. By its mishandling of the initial verdict, the court violated its statutory duty to correctly explain the verdict's defect and improperly signaled to the jury its view of the evidence. As a result, it impermissibly interfered with the deliberative process, undermining appellant's right to a jury trial in which the 16 jury's deliberations are uninfluenced by "outside factors." People v. Rivera, 15 N.Y.3d 207, 211 (2010). STATEMENT OF FACTS Introduction Appellant, a 23-year-old immigrant from China who had a demonstrably limited command of English, was questioned in the murder of Cho Man Ng and her brother, Sek, on four consecutive days in a small, windowless precinct interrogation room. Around midnight on the first day of interrogation, the police released him after securing his agreement to return to the precinct the next day for further questioning. They picked him up again the next morning and he remained in the precinct thereafter. On the second day of interrogation, the police gave appellant Miranda rights in English only. They arrested him after he admitted assisting two others to gain entry into the Ngs' apartment. Rather than arraigning him, however, they continued interrogating him in the small room. On the third day, the police gave appellant incomplete Miranda warnings and suggested that he remained under an "obligation" to answer their questions. Late that day, he finaliy broke down, sobbing. Without any break 17 in the inten-ogation, and without re-advising him of his Miranda rights, the police continued to inten-ogate him until he confessed to personally stabbing the Ngs. Early on the fourth day, more than 24 hours after his an-est, appellant provided a written account of the murders that included detail suggested by his interrogators. As soon as he was brought before a prosecutor who explained the word "attorney" and the "right to remain silent" to him, appellant invoked his rights. The hearing comi ruled that appellant's confession was voluntary and that he had properly waived his Miranda rights, and the People introduced his confession in evidence at his first-degree murder trial. The court precluded the defense from introducing either the videotape of appellant's interview by the prosecutor or his contemporaneous notes in Chinese to show his mental state during the extended interrogation. The jury initially acquitted appellant of three counts of first-degree murder, but reversed itself and convicted him of all counts after the court incorrectly told it that the acquittals were inconsistent with its finding on another count and resubmitted only those four counts for reconsideration. 18 The Huntley Hearing On May 12, 2005, Cho Man Ng and her brother, Sek, were fatally stabbed in their Queens apartment. On May 13, the police started interrogating appellant; on May 16, interrogation ceased after an Assistant District Attorney explained what an attorney and the right to remain silent meant and appellant immediately invoked those rights. The May 13 Interrogation and Appellant's Prayer For "Help" Between 7:00 and 8:00 a.m. on May 13, 2005, one day after the fatal stabbing of the Ngs, Detectives Bernard Marshall and Schindler arrived at appellant's home and informed him that they were investigating the murders. Appellant, who had a small scratch on his forehead that he said was from a kitchen accident, agreed to accompany them to the precinct (A 186-188, 192- 193 ). There, the detectives escorted him to a 12 by 12, windowless room, sparsely furnished with only desks, chairs, and an apparently one-way viewing window through which the police could observe him. He was given water and remained, uncuffed, in the room (A Marshall: 187-188; Det. John Warner: 171 ). 19 Beginning at about 11 :00 a.m., without giving appellant Miranda rights, Detective Phillip Wong questioned him in the first of six or seven interrogation sessions that day (A Wong: 61-62, 77-81, 84; Marshall: 131-132). That session lasted about 15 minutes (A Wong: 79). Wong later questioned appellant "at least" five or six more times, each time for 10 to 15 minutes (A Wong: 78, 80-81 ). Appellant was uncuffed and permitted to smoke, but aside from eating in the precinct's lunchroom and using the bathroom, he remained in the interrogation room all day (A Wong: 67-68, 101-102). Appellant told Wong, who spoke to him in Cantonese and English, that he was born in June, 1981. He and Cho Ng had dated for about five years. The relationship ended about a year earlier, when he discovered that she had been "cheat[ing] on him with a married man, Kevin Lee" (A Wong: 63; 674 [People's Exhibit #2)). Thereafter, appellant went to China, but he returned to the United States in March of2005 and Cho visited him twice in his apartment in April (A Wong: 63-64). Shortly after 4:00 p.m. on the day ofCho's murder, appellant said, he went to her apartment, where she lived with her brother, Sek, to give her some sea shell figurines. He spoke to Sek for about 30 minutes before returning home, where he remained, watching television with his brother Jimmy (A Wong: 63-64, 67; 674 [People's Exhibit #2]). 20 At about I 0:00 p.m., Detective Kevin Hui entered the interrogation room, where Detectives Wong and Jae Shim were questioning appellant, who was "scribbling" or"doodling" on paper in Chinese (A Hui: 16-19; Wong: 68- 69). In appellant's "doodles," which were translated into English and admitted into evidence at the hearing, he complained that the police were holding him at the precinct against his will (A Wong: 71-72; Marshall: 194-195; A 655-673 [People's Exhibits ##IA, IB, 6A, 6B]). He wrote: I was imprisoned for the whole day For the whole day, that is how American police do, Freedom * * * have not but say have Yes but say no, no but say yes, He who is involved, laughs so loudly, but he Who not involved is harassed. * * * Everyone say it is I, Do I look like a murderer? Will anyone help me, Heaven and earth help .... (A 182, 315, 655-664 [People's Exhibit #IA]). Appellant asked to speak to Hui, who spoke English and Cantonese, alone. After Wong and Shim left the room, Hui told appellant "not to waste" his time and said that, "if he wanted to talk" and knew the killer's identity, he should "talk" before the kiiler fled the country (A Hui: 21 ). Guaranteeing that 21 the killer would not flee, appellant asked about making "a deal" if he admitted that he "left[] and two minutes later rang the doorbell again." Sek "wouldn't come back down to check who it was" (A Hui: 21-23). Hui said he could not make any deal because he was not in charge of the case, but would speak to that detective (A Hui: 23). As Hui left the room, appellant asked to use the bathroom and said he did not want to sit in jail until he was "40" or "60" years old (A Hui: 23-24 ). After Hui related what appellant had said to his Lieutenant, Detective Marshall and his supervisor decided to send appellant home because "everybody was tired" (A Hui: 24; Marshall: 196). At about midnight, Detective Marshall drove appellant home; appellant agreed to return to the precinct in the future for further questioning (A Marshall: 192). The Arrest on May 14 After Further Interrogation of Appellant The next day, May 14, Detective Marshall called appellant and, as agreed, picked him up at 11 :00 a.m., brought him back to the precinct, and placed him in the same windowless interrogation room (A Marshall: 197- 198). Forty minutes later, reading the Miranda rights to him in English, Marshall told him that they included the "right to consult an attorney before 22 speaking to the police," to "remain silent until you have had an opportunity to consult" with an attorney, and to "refuse to answer questions." Marshall also told him that, ifhe could not "afford an attorney one will be provided" to him "without cost" (A Marshall: 198-201 ). Without asking Marshall to clarify any of the rights, appellant agreed to waive them and signed a written waiver (A Marshall: 200-202; 676 [People's Exhibit #7]). Marshall and Detective Schindler then intenogated him for 1 Yz to two hours (A Marshall: 202). During this session, appellant again described his relationship with Cho and mentioned the figurines he had given her on the day of her death (A Marshall: 202-203). Thereafter, Marshall questioned appellant for various lengths of time, confronting him with new infonnation about the murders (A Marshall: 204- 205, 207-208). Starting around 5:00 p.m., Marshall intenogated him for about an hour, confronting him with information that Cho had the figurines several weeks before her murder, rather than receiving them on the day of her death, as appellant had previously claimed (A Marshall: 205, 207-208). Marshall intenogated appellant again from about 7 :00 p.m. to 8 :30 p.m., again confronting him about the figurines (A 208). This time, appellant said that a man named "Gong," whom he had met while working in Connecticut, 23 had committed the murders with a Fukienese man. Gong had shown appellant a gun and said he needed money to purchase additional weapons and a car to commit an unrelated crime. Appellant told him that Cho had money in her apartment and gave him her address after Gong promised him money. Appellant refused to enter the apartment, but told Gong he would help him gain access. On May 12, as planned, appellant went alone to Cho's apartment at about 4:00 p.m. He left thirty minutes later and saw a Fukienese man enter the building. Appellant went home and never heard from Gong again (A Marshall: 209-211). After appellant completed a written statement at about 9:30 p.m., Detective Marshall prepared an arrest form and informed appellant that he was under arrest for "assisting in this robbery" (A 211 ). The Delayed Arraignment and Appellant's Continued Interrogation for the Next 28Y2 Hours Although the police arrested appellant at 9:30 p.m. on May 14, they did not take him to Central Booking to begin the arraignment process. Beginning at about 1:00 a.m. on May 15, 3Y:z hours after the arrest, Detective John Warner and another detective interrogated appellant in English for about 1 Y:z hours in the same interrogation room about the identity and 24 whereabouts of Gong and the Fukienese man (A Warner: 154-157). Appellant responded that he met Gong, who was Asian, two or three times at a Connecticut business, and that Gong told him that he and the Fukienese man had robbed a bookie in New Hampshire (A Warner: 157, 162-165). Contacting various law enforcement agencies and searching electronic files, Detective Marshall unsuccessfully looked for Gong and the Fukienese man (A Marshall: 211 ). At 4:30 a.m. on May 15, after sleeping "for a while" on a "couple of chairs" in the interview room (A Marshall: 213, 254-255, 258), appellant knocked on the interrogation room door, getting Marshall's attention, and said he wanted to "talk" (A 213). He provided a written statement, in which he said he did not know that Gong and the Fukienese man intended to kill Cho and Sek. Needing money to return to China, he told Gong that Cho hid money in her apartment (A 214-215). In a written statement made at 5 :00 a.m., in which he referred to Cho as "Sharon" and Sek as "Simon," appellant wrote: I told them how is sharon the money to put to the small box and the table like makeup boxs, ring boxs but I never know them will kill sharon and simon. I though them go inside with the guns becuse He till me befor he did the samething in profession and he sew me the guns befor. After it they su pos giv me the phone call and me went to know what is hapene 25 too. How many they get? and how they are? Becuse I very went to know they don't get any hurt. But the did not give me the phone call. So I'm very scared when I hear sharon and simon