The People, Respondent,v.Jin Cheng Lin, Appellant.BriefN.Y.January 12, 2016To be argued by DE NICE POWELL (I 5 .\finutes Court of Appeals STATE OF NEW YORK PEOPLE OF THE ST ATE OF NEW YORK, Re.\J)(mdent, - against - JIN CHENG LIN, Defendant-Appel !ant. REPLY BRIEF FOR DEFENDANT-APPELLANT DE NICE POWELL Of Counsel June 4, 2015 APL-2014-00102 LYNN W. 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 .................................. I SUPPLEMENT AL ST A TEMENT OF FACTS ...................... I The Defense Summation ................................... I The Prosecutor's Summation ............................... 2 ARGUMENT POINT I WHEN THE POLICE INTERROGATED APPELLANT IN A SMALL WINDOWLESS ROOM FOR DAYS UNTIL HE BROKE DOWN AND CONFESSED, UNLAWFULLY DELAYED HIS ARRAIGNMENT FOR TWO DAYS, AND NEVER GA VE HIM ADEQUATE MIRANDA WARNINGS, THE PEOPLE FAILED TO PROVE THAT APPELLANT'S STATEMENTS WERE VOLUNTARY BEYOND A REASONABLE DOUBT AND THAT HE WAIVED HIS MIRANDA RIGHTS ................................ 3 A. The Court Has the Power to Review Whether the People Proved A Defendant's Statements Voluntary Beyond a Reasonable Doubt ..................... 4 B. The Police Delayed Arraignment In Order to Interrogate Appellant ................... 7 C. That Appellant Initially Gave a Different Account Does Not Disprove, Beyond a Reasonable Doubt, that Appellant Confessed Only After His Interrogators Broke His Will to Resist Their Coercion ............................... 1 I D. The People Failed to Prove That Appellant Knowingly and Intelligently Waived His Miranda Rights For the Police, Although He Immediately Invoked His Rights to Counsel and to Remain Silent When a Prosecutor Explained These Rights to Him In the Only Recorded Interrogation Session ............. 13 E. The Court's Refusal to Suppress Appellant's Statements, Which the Prosecutor Repeatedly Invoked to Urge the Jury to Convict Appellant, Was Not Harmless Beyond a Reasonable Doubt ............................. 1 7 POINT II BARRING DEFENSE COUNSEL FROM PRESENTING EVIDENCE RELEVANT TO THE KEY ISSUE OF WHETHER APPELLANT'S STATEMENTS WERE VOLUNTARY DENIED APPELLANT HIS DUE PROCESS RIGHTS TO A FAIR TRIAL AND TO PRESENT A DEFENSE ......... 19 POINT III BY RESUBMITTING ONLY FOUR COUNTS OF THE ORIGINAL VERDICT FOR THE JURY'S RECONSIDERATION AND INCORRECTLY EXPLAINING THE VERDICT'S "DEFECT" TO THE JURORS, THE COURT IMPROPERLY SPECULATED ABOUT THE JURY'S COLLECTIVE MENTAL PROCESS UNDERLYING THE "DEFECT" AND DENIED APPELLANT HIS RIGHT TO A JURY VERDICT UNINFLUENCED BY THE COURT'S VIEW OF THE EVIDENCE .................................. 26 CONCLUSION ......................................... 29 ii TABLE OF AUTHORITIES CASES: Arizona v. Fulminante, 499 U.S. 279 (1991) .................... 18,19 Chambers v. Mississippi, 410 U.S. 284 (1973) ..................... 25 Corley v. United States, 556 U.S. 303 (2009) ........................ 9 Crane v. Kentucky, 476 U.S. 683 (1986) .......................... 25 Dickerson v. United States, 530 U.S. 428 (2000) .................. 7, 12 Mallory v. United States, 354 U.S. 449 (1957) .................... 9, I 0 Miranda v. Arizona, 384 U.S. 436 (1966) ....................... 12,17 People v. Alex, 265 N.Y. 192 (1934) ........................... 7,11 People v. Anderson, 42 N.Y.2d 35 (1977) ...................... 5,6,12 People v. Aska, 91 N.Y.2d 979 (1998) ............................ 25 People v. Baker, 14 N.Y.3d 266 (2010) ........................... 25 People v. Bell, 38 N.Y.2d 116 ( 1975) ............................. 28 People v. Boyd, 256 A.D.2d 350 (2d Dept. 1998) ................... 21 People v. Bull, 218 A.D.2d 663 (2d Dept. 1995) .................... 21 People v. Carroll, 95 N.Y.3d 375 (2000) .......................... 25 People v. Caserta, 19 N.Y.2d 18 ( 1966) ........................... 24 People v. Cheng Lin, 105 A.D.3d 761 (2d Dept. 2013) ............... 11 People v. Combest, 4 N.Y.3d 341 (2005) .......................... 22 People v. Crimmins, 36 N.Y.2d 239 (1975) ........................ 17 People v. DeJesus, 42 N.Y.2d 519 (1977) ......................... 28 lll People v. Delee, 24 N.Y.3d 603 (2014) ........................... 27 People v. Goldstein, 6 N.Y.3d 119 (2005) ......................... 20 People v. Goodman, 69 N.Y.2d 32 (1986) ......................... 25 Peoplev.Guilford,21 N.Y.3d72(2013) ................. 5,6,12,17,23 People v. Haddock, 79 A.D.3d 1148 (2d Dept. 2010) ................ 22 People v. Hale, 245 A.D.2d 576 (3d Dept. 1997) .................... 20 People v. Holland, 48 N.Y.2d 861 ( 1979) ........................ 7, 10 People v. Hudy, 73 N.Y.2d 40 (1988) ............................. 25 People v. Huertas, 75 N.Y.2d 487 (1990) .......................... 20 People v. Loughlin, 76 N.Y.2d 804 ( 1990) ......................... 26 People v. Minor, 69 N.Y.2d 779 ( 1987) ........................... 21 People v. Pugliese, 26 N.Y.2d 478 (1970) ......................... 23 People v. Ramos, 99 N.Y.2d 27 (2002) ......................... 7, 11 People v. Ricco, 56 N.Y.2d 320 (1982) ...................... 20,21,22 People v. Rivera, 15 N.Y.3d 207 (2010) ........................... 28 People v. Rodriguez, 71N.Y.2d214 (1988) ........................ 28 People v. Rogers, 48 N.Y.2d 167 (1979) .......................... 10 People v. Tarsia, 50 N.Y.2d l ( 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 People v. Thomas, 22 N.Y.3d 629 (2014) .......................... 5,6 People v. Tucker, 55 N.Y.2d 1 (1981) ............................ 28 People v. Williams, 62 N.Y.2d 285 (1984) ....................... 14,15 People v. Yuki, 25 N.Y.2d 585 ( 1969) ............................ 23 lV People ex rel. Maxiam v. Brown, 77 N.Y.2d 422 (1991) .............. 7,9 Spano v. New York, 360 U.S. 315 (1959) ......................... 12 United States v. Middleton, 344 F .2d 78 (2d Cir. 1965) . . . . . . . . . . . . . . 10 STATUTES C.P.L. § 140.20 .............................................. 7,9 C.P.L. §310.50 ............................................ 26,28 C.P.L. §710.70 )') ........•..........•.....•••....•.... " •....... -k v COURT OF APPEALS ST ATE OF NEW YORK THE PEOPLE OF THE ST A TE OF NEW YORK, Respondent, -against- JIN CHENG LIN, Defendant-Appellant. PRELIMINARY STATEMENT This Reply addresses arguments made in Respondent's Brief SUPPLEMENTAL STATEMENT OF FACTS The Defense Summation Defense counsel argued, inter alia, that the People failed to prove appellant's statements were voluntary beyond a reasonable doubt (RA 1776- 1781, 1787-1793 ). 1 Counsel pointed out the extraordinary number of hours the police interrogated appellant in a precinct room of only 12 square feet, without a bathroom or phone (RA 1777-1778), and highlighted the People's failure to produce a "single receipt for any food" the police claimed they provided (RA Numbers in parentheses preceded by "A" refer to appellant's Appendix and by "RA" to Respondent's Appendix. 1778). Counsel mockingly asserted, "Well, he got plenty of rest and sleep. There are two hard chairs in there" (RA 1 778). Defense counsel argued that appellant repeatedly made false and involuntary statements "to try to get out of'' the precinct, end the interrogation, and "go home" (RA 1777-1779). He thought he "has to give them something they want" and make them "happy" (RA 1779, 1792); and he "made up 50 different stories trying to get the [police] to ... [l]et him go home" (RA 1791- 1 792 ), because he "kn[ ew] he [ wa ]s never getting out of that place unless he g[ ave] them something they want" (RA 1 792). The Prosecutor's Summation The prosecutor urged the jury to use appellant's "own word[ s] to convict him" (RA 1843). She contended that the police "acted properly at every stage of th[ e] investigation" (RA 1844) and that appellant "voluntarily made [his] statements in an attempt to protect himself'' (RA 1844 ). The prosecutor argued that, after questioning appellant on May 13, the police released him and he voluntarily returned the next day and made statements that purposely misdirected the police investigation toward Gong and the Fukienese man (RA 1846-1850). But when he learned that the police had contradictory information, he "switched to game plan B" (RA 1848) and "confessed" to killing both victims after he broke down and cried, but "once again [he] tr[ied] to minimize his culpability" (RA 1852-1853, 1858). He stated, "I had to stab Simon because he came out of his room and he was 2 crazy" (RA 1853) and wrote, "I came from behind, put the knife to [Cho' s] neck, and I turned the light off before she come home so she couldn't see me" (RA 1828). The prosecutor concluded that his statements, "taken together" with the forensic evidence, proved his guilt beyond a reasonable doubt (RA 1857). ARGUMENT POINT I WHEN THE POLICE INTERROGATED APPELLANT IN A SMALL WINDOWLESS ROOM FOR DAYS UNTIL HE BROKE DOWN AND CONFESSED, UNLAWFULLY DELA YEO HIS ARRAIGNMENT FOR TWO DAYS, AND NEVER GA VE HIM ADEQUATE MIRANDA WARNINGS, THE PEOPLE FAILED TO PROVE THAT APPELLANT'S STATEMENTS WERE VOLUNTARY BEYOND A REASONABLE DOUBT AND THAT HE WAIVED HIS MIRANDA RIGHTS. Appellant Jin Cheng Lin, a 23-year-old Chinese immigrant, was convicted of first-degree murder based primarily on statements he made during four days ofinterrogation in the same small, sparsely-furnished precinct room. Although the police arrested him on the second day of questioning, they delayed his arraignment for more than 24 hours, interrogating him until he broke down, sobbing uncontrollably, and confessed. On the fourth day, when 3 a prosecutor explained the words "attorney" and "remain silent," appellant immediately invoked his rights to counsel and silence. The People contend that the voluntariness of appellant's statements is a mixed question of law and fact beyond the review power of this Court. The police, according to the People, legitimately delayed appellant's arraignment to investigate his false claims implicating two accomplices, not to interrogate him further, and that the police needed days to break his will proved that his statements were voluntary. Ignoring appellant's immediate invocation of his rights when a prosecutor finally explained the words "attorney" and right to "remain silent," the People contend that appellant knowingly and intelligently waived his Miranda rights earlier, because witnesses testified that they could communicate with him in English, he had attended school in the United States for several years, and his statements demonstrated his fluency in English. Finally, the People contend that the statements were harmless given the forensic evidence. A. The Court Has the Power to Review Whether the People Proved A Defendant's Statements Vo I untary Beyond a Reasonab I e Doubt Contrary to the People's contention that the voluntariness of appellant's statements is a mixed question oflaw and fact (Respondent's brief, pp. 84-88), the Court has repeatedly held, as a matter oflaw, that the People failed to prove 4 the voluntariness of confessions resulting from the police subjecting a defendant to repeated interrogation over a prolonged period. For example, in People v. Anderson, 42 N.Y.2d 35, 38-39 ( 1977), the Court held, as a matter of law, that the People had failed to prove beyond a reasonable doubt that Anderson's inculpatory statement was voluntary when the police had held him at the precinct for about 19 hours, never "suggest[ing]" a "time for his release" until he made an inculpatory statement, and rotating teams of officers questioned him in a room containing a table and chair, where he was deprived of sleep and food. Id. at 37-41. Similarly, in People v. Guilford, 21 N.Y.3d 205, 208(2013 ), the Court held that the People had failed, as a matter of law, to prove a statement's voluntariness when the police had Guilford in a small precinct room furnished with a table, chairs, and a one-way mirror, where he remained for 4912 hours, was interrogated for all but brief intervals, was fed only once, and was not proven to have slept. Id. at 210. The Court held that the prolonged period of detention and interrogation, during which Guilford was deprived of basic human needs, was "designed to break [his] will to resist self-incrimination" and rendered his post-arraignment statements involuntary as well. Id. at 212-215. Finally, in People v. Thomas, 22 N.Y.3d 629, 642 (2014), this Comi held, as a matter oflaw, that the People failed to prove Thomas's statements 5 voluntary beyond a reasonable doubt when the police interrogated and deceived him intermittently over the course of several days, interrupted by his receipt of psychiatric treatment. Id. at 63 7, 644-646. Here, as in Anderson, Guilford, and Thomas, the police interrogated appellant intermittently in a small, sparsely-furnished precinct room over the course of days. They arrested him on the second day, but instead of moving him to Central Booking for arraignment and the assignment of counsel, which there was no impediment to them doing, they kept him in the precinct for two more days, interrogating him intermittently. There was no evidence that appellant slept for any significant period of time after being returned to the precinct the second day. He became emotionally distraught on the third day, sobbing for 15 or 20 minutes when his interrogators challenged the truth of his earlier statements. The same officers interrogated him for nearly four more hours until, on the fourth day, they obtained his written confession to personally stabbing the victims, the primary evidence the People used to convict him of first-degree murder. Thus, the People failed, as a matter oflaw, just as they did in Anderson, Guilford, and Thomas, to prove appellant's statements were voluntary. 6 B. The Police Delayed Arraignment In Order to Interrogate Appellant The People's contention that the arraignment delay was necessary is unsupported by the record (Respondent's brief, pp. 87-88). A person arrested without a warrant must be arraigned upon an accusatory instrument "without unnecessary delay." C.P.L. § 140.20 ( 1 ). "(P]re-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 ( 199 l ). In New York City, a period of delay beyond 24 hours is presumptively "unnecessary" and illegal. Id. Prompt arraignment is not a mere formality. Among other things, it protects the defendant against unlawful confinement and the coercive effects of prolonged detention and interrogation in a police-dominated setting. People v. Ramos, 99 N.Y.2d 27, 36 (2002); Dickerson v. United States, 350 .S. 428, 435 (2000)("[C]ustodial police interrogation, by its very nature, isolates and pressures the individual"). V/hen the police unnecessarily delay arraignment, the delay has substantial bearing on whether the statement made during the delay was voluntary. People v. Holland, 48 N.Y.2d 861, 862-863 (1979); People v. Alex, 265 N.Y. 192, 195 (1934). Here, the undisputed facts support only one conclusion: the police delayed appellant's arraignment, isolating and detaining him in the precinct for more than 27 hours to interrogate him further and make their case against him 7 even stronger. It was not until he confessed to personally killing the victims that he was taken to Central Booking to begin the arraignment process. The hearing evidence showed that, at 8:30 p.m. on May 14, the police had probable cause to arrest appellant for murder when he told Detective Bernard Marshall that he assisted "Gong" and a "Fukienese man" to gain entry to the apartment and rob the Ngs. Indeed, Marshall arrested and booked him at 9:30 p.m. Instead of moving appellant to Central Booking so that he could be arraigned and assigned counsel, however, Marshall detained him at the precinct, where he and Detective William Schmittgall repeatedly interrogated him during the ensuing 271/i hours. In the final interrogation session, which began at 9:00 p.m. on May 15 and ended nearly four hours later on May 16, Marshall and Schmittgall challenged the truth of his prior statements, and 27112 hours after his arrest, finally obtained his written confession that he personally killed the Ngs. The People neither claim nor produced evidence that the extraordinary arraignment delay was due to an inability to complete the administrative tasks necessary for arraignment. Instead, they argue that appellant was to blame for the delay because he created a "false story of a planned robbery by Gong and the Fukienese man" (Respondent's brief, pp. 90, 99), and that the delay was "necessary and appropriate" to the apprehension of Gong and the Fukienese man, whom "only" appellant "could identify" (Respondent's brief, pp. 95-96). 8 The only element relevant to the reasonableness of arraignment delay, however, is the time needed to complete the administrative tasks necessary, such as recording the arrest, fingerprinting, and other preliminaries, to bring the defendant to court for arraignment. C.P .L. § 140.20, subd. 1; Brown, 77 N.Y.2d at 427. The desire to investigate Gong and the Fukienese man had no bearing on the reasonableness of the delay. Nothing prevented the police from investigating Gong and the Fukienese man without delaying appellant's . ') arraignment.- "(D]elay for the purpose of interrogation is the epitome of 'unnecessary delay."' Corley v. United States, 556 U.S. 303, 308 (2009)(quoting Mallory v. United States, 354 U.S. 449, 455-456 ( 1957)). In Mallory, 354 U.S. at 451- 452, the Supreme Court found arraignment delay to be "unnecessary" under the extant federal prompt arraignment statute, which, like C.P.L. § 140.20 ( 1 ), mandated arraignment upon the charges "without unnecessary delay." Police investigating a rape detained Mallory for several hours, during which they polygraphed and intermittently interrogated him until he confessed. Although they arrested him in the early afternoon based on "ample evidence from other sources," the officers continued to detain him at police headquarters. Id. at 455. Reversing the judgment, the Supreme Court wrote: We cannot sanction this extended delay, resulting in a confession, without subordinating the general rule of prompt arraignment to the discretion of arresting Notably, there was no evidence that anyone pursued Gong or the Fukienese man with appellant at all after 2:00 p.m. on May 15. 9 officers in finding exceptional circumstances for its disregard. In every case where the police resort to interrogation of an arrested person and secure a confession, they may well claim, and quite sincerely, that they were merely trying to check on the infonnation given by him. . . . No[r] is there an escape from the . . . [rule requiring prompt arraignment] in that two other suspects were involved for the same crime. Presumably, whomever the police arrest they must arrest on "probable cause." It is not the function of the police to arrest, as it were, at large and to use the interrogation process at police headquarters in order to determine whom they should charge before a committing magistrate on probable cause. Id. at 455-456 (emphasis added). See also United States v. Middleton, 344 F.2d 78 (2d Cir. 1965)("Any period of delay becomes unreasonable if used, as here, to 'carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements' to support the arrests and ultimately the defendant's guilt"). Here, the police arrested appellant for Ngs' murders but continued to detain him in the same windowless precinct room and interrogate him, at "selected intervals [] at the[ir] whim," Holland, 48 N.Y.2d at 863, not only about his accomplices, but also about his own involvement in the crimes. Long after exhausting appellant's leads about Gong and the Fukienese man, they interrogated him further about his own culpability. Employing the "coercive influence" of prolonged interrogation in a police-dominated environment, Detectives Marshall and Schmittgall challenged his earlier statements until he confessed to stabbing the Ngs. People v. Rogers, 48 N.Y.2d 167, 173 ( 1979). 10 The facts permit only one inference: that the police delayed arraignment for the purpose of interrogating appellant and obtaining further damaging statements to strengthen their case against him. The dissenter in this case, Hon. L. Priscilla Hall, correctly concluded that the "delay in arraignment was strategically designed so that the defendant could be questioned outside the presence of counsel," which should have been accorded "substantial" weight in assessing the voluntariness of appellant's statement. People v. Cheng Lin, 105 A.D.3d 761, 769(2013 ); see alsQ Ramos, 99 N.Y.2d at 34; Alex, 265 N.Y. at 195. C. That Appellant Initially Gave a Different Account Does Not Disprove, Beyond a Reasonable Doubt, that Appellant Confessed Only After His Interrogators Broke His Will to Resist Their Coercion The People are also incorrect in arguing that appellant's "successful attempt at manipulating and misdirecting the investigation is ... proof that he was not subjected to any coercive techniques and did not have his will overborne" (Respondent's brief, pp. 98-100). That appellant claimed for a time that Gong and a Fukienese man were involved in the crime is irrelevant, since the police did not cease interrogating him until they had broken him and obtained the confession they wanted. This Court and others have long recognized that incommunicado interrogation during prolonged detention in a police-dominated setting is inherently coercive. 11 When no time for release is suggested, "elementary principles of psychology" convey to the suspect that the police ha[ve] the right to hold him as they [a]re doing, that he w[ill] be regarded as recalcitrant if he fail [ s] to answer their questions, that they ha[ ve] all the time in the world to query him and that, ifhe [i]s to be freed, it w[ill] be when his answers had satisfied them. Anderson, 42 N.Y.2d at 39; see also Dickerson, 530 U.S. at 435 ("custodial police interrogation, by it nature, isolates and pressures the individual"); Miranda v. Arizona, 384 U.S. 436, 455 (l 966)("Even without brutality, ... the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals"); Spano v. New York, 360 U.S. 315 (l 959)(defendant's will was overborne by official pressure, fatigue, and deceptive tactics over course of prolonged pre-arraignment detention and interrogation). Here, the police interrogated appellant for days, including many hours after his arrest. The only break, after the first day, was conditioned upon appellant's agreement to return the next morning. Once he did, he was not released again, but detained in the same windowless room, without even a cot or a bench to properly rest on between interrogations. Just as the police detained Guilford for days in the same interrogation room until he confessed, Guilford, 21 N.Y.3d at 209-211, here, the police detained appellant for days in a police-dominated setting without any suggestion of when his interrogators would release him from the inherently stressful and coercive environment until 12 he finally broke down, sobbing for 15 to 20 minutes when his interrogators challenged the truth of his earlier statements. It was only then that, in a complete about-face, he confessed to stabbing the Ngs. D. The People Failed to Prove That Appellant Knowingly and Intelligently Waived His Miranda Rights For the Police, Although He Immediately Invoked his Rights to Counsel and to Remain Silent When a Prosecutor Explained These Rights to Him In the Only Recorded Interrogation Session The People also contend that appellant "adequately understood the import of the Miranda warnings" because the five detectives who interrogated him in English had no "difficulty conversing" with him and because he "did not express any difficulty understanding the detective's questions and ... responded appropriately" (Respondent's brief, pp. 100-101 ). The record, however, shows that appellant spoke to Detective Kevin Hui in Cantonese, not English (A 46, 50) and to Detective Philip Wong in Cantonese as well as English (A 69). Indeed, the hearing court acknowledged that appellant was "not totally fluent" in English (A 417). That appellant had learned some basic, conversational English was not the issue. Rather, it was whether he understood the Miranda rights and specifically the words "attorney" and right to "remain silent," which were critical to any knowing and intelligent waiver of the Miranda rights. The hearing court's finding that he "was able to understand the 'immediate import of the warnings"' he was given on May 14 (A 3, 417-418) was belied by the prosecutor's recorded interaction with appellant, which unambiguously showed 13 that he had far too limited a command of English to understand the "immediate import" of the Miranda rights read to him in English. People v. Williams, 62 N.Y.2d 285, 289 ( 1984). When the prosecutor used precisely the same words the police had used three days earlier, appellant asked her to explain "attorney" and right to "remain silent," saying, "can explain don't too hard ... a lot a way easy I can do understand." When the prosecutor explained the critical words, appellant immediately invoked his rights, ending the interrogation. The People contend that the lower courts "could conclude" that appellant's failure to understand the word "attorney" might be "feigned" (Respondent's brief~ p. 112). But no lower court made any such finding. Moreover, had appellant understood his rights, he could have easily simply invoked them. That he did so only after the prosecutor explained the meaning of the key words was powerful evidence that, while he had some ability to communicate in English, he did not know the words that were critical to a knowing waiver of his Miranda rights. Obviously, if appellant did not understand the warnings read him on May 16, he could not have understood the identically-worded warnings Detective Marshall read him on May 14. Neither appellant's having attended school "in this country for several years," nor his having received the warnings in "English and Chinese" seven years earlier, could possibly overcome the videotape, which starkly demonstrated appellant's need for an explanation of key Miranda warning terms. Therefore, the record as a whole does not support 14 the lower courts' determination that appellant knowingly and intelligently waived his Miranda rights. Williams, 62 N.Y.2d at 289 ("administering Miranda warnings in a language not understood by the suspect would certainly be inadequate"). The People's other claims concerning appellant's ability to understand English are equally specious. They further contend that appellant wrote statements in "full sentences" thus "demonstrat[ing] a fluency in English" (Respondent's brief, p. 101). His written statement at 5:00 a.m. on May 15, however, amply demonstrates the baselessness of the People's claim: I told them how is Sharon [Cho] 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 [Sek]. 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 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 dea this is why I lien to the PRC at the first time. I told them this place because they said when I help them this time to get the money . they will pay me ?0000 in the other one big case. so, I just think this big case. because I know I'm going to the china I will need this money (A Marshall: 214- 215; A 679 [Defendant's Exhibit B] (spelling and grammatical errors in original)). That other statements were less incomprehensible suggests only that appellant received assistance in writing some of them. 15 The People also argue that the lower court was "entitled" to rely on appellant's lengthy tenure and his middle [sic] high school education in this country, his fluent conversation with non-police officials near the time of his confession [such as the CJA interviewer and correction officer Robert Reed] and the detectives' testimony about his command of [English] (Respondent's brief, p. 111). But Reed's contacts with appellant occurred more than a year and a half after the interrogations (A 308, 312) and there was no evidence that he or the CJA interviewer ever used the words "attorney" or right to "remain silent," key components of the Miranda rights, with him. Notably, when appellant was given Miranda warnings in January 1998, more than seven years earlier, he had an opportunity to read them in Chinese and an officer verbally explained them in Chinese as well (A 268, 272-277). There was no evidence that appellant remembered the specific contents of the Miranda warnings he had received at age 16 some seven years earlier. Finally, the People contend that the police were not required to reissue appellant his Miranda rights because he remained in "continuous" "custody" after he received and waived them on May 14 (Respondent's brief, p. 113 ). However, the failure to re-advise appellant of the Miranda rights - particularly when the detectives purposely delayed arraignment and were still challenging the truth of his earlier statements nearly 24 hours after telling him he was under arrest - also undermined the voluntariness of his confession. 16 In Miranda, the Supreme Court stated that giving the warnings serves two equally important purposes: 1) it informs the suspect in clear and unequivocal terms about his rights to counsel and to remain silent; and 2) it shows the suspect that his interrogators are prepared to honor these rights should he choose to exercise them. Miranda, 384 U.S. at 468. Accordingly, this Court has recognized the importance of re-advising a suspect of his rights during prolonged detention and interrogation. See Guilford, 21 N.Y.3d at 210, ftn. 3 (approving suppression court's finding that "the single set of warnings given at the outset of the interrogation" was "inadequate"); cf. People v. Tarsia, 50 N.Y.2d 1, 12-13 (1980)(statements made by defendant detained and interrogated over course of 11 hours held voluntary when, among other things, he was re-advised of his rights "periodically"). In the instant case, the prolonged post-arrest detention and intermittent interrogation sessions, none of which was preceded by a complete and correct set of Miranda rights, sent the unmistakable message to appellant that the police were willing to abuse their power and detain him at the precinct until his interrogators were satisfied with his answers and that he was powerless against that abuse of power. E. The Court's Refusal to Suppress Appellant's Statements, Which the Prosecutor Repeatedly Invoked to Urge the Jury to Convict Appellant, Was Not Harmless Beyond a Reasonable Doubt Finally, contrary to the People's contention (Respondent's brief, pp. 1 14-124 ), the erroneous denial of suppression cannot possibly be deemed 17 harmless beyond a reasonable doubt simply because appellant's fingerprints were at the scene and on duct tape. People v. Crimmins, 36 N.Y.2d 239, 240- 241 ( 1975). The prints alone were far from conclusive evidence, since appellant knew the Ngs and was inside their apartment for several hours earlier that day. His statements alone provided direct evidence that he stabbed them, burglarized their apartment, and attempted to steal money from them. Without those statements, the People would have been relegated to inferences based on circumstantial evidence. As the Supreme Court stated in Arizona v. Fulminante, 499 U.S. 279, 296 (1991 ), a "confession is like no other evidence. Indeed, 'the defendant's own confession is probably the most probative and damaging evidence that can be admitted against him .... "' Undoubtedly understanding the power appellant's confession had to persuade the jury to convict him, defense counsel and the prosecutor repeatedly focused the jury's attention on it during their closing remarks. Defense counsel stressed the People's failure to prove the statements' voluntariness in urging the jury to acquit and argued that appellant "made up 50 different stories trying to get the [police] to ... [l]et him go home" (RA 1791-1792). The prosecutor argued that the jury should convict based on appellant's "own word[s]," which, especially since "taken together" with the scientific evidence, proved his guilt (RA 1843, 1857). She also reminded the jury why Cho failed to identify him: because, as he wrote, "I came from behind, put the knife to her neck, and I turned the light off before she come home so she 18 couldn't see me" (RA 1828). See Fulminante, 499 U.S. at 297-298 (not harmless when prosecution emphasized the erroneously admitted confession in its opening and closing statements). The jury, which initially acquitted appellant of several first-degree murder counts, obviously did not find the People's evidence overwhelming. It was only after the court mishandled the initial verdict that the jury reversed itself and convicted him of those counts (see Point III of appellant's main brief). Had the statements been suppressed, the jury might well have acquitted appellant completely. Because it cannot be concluded that the jury's verdict was based solely on evidence other than appellant's erroneously admitted statements, the judgment must be reversed, the statements suppressed, and a new trial ordered. POINT II BARRING DEFENSE COUNSEL FROM PRESENTING EVIDENCE RELEVANT TO THE KEY ISSUE OF WHETHER APPELLANT'S STATEMENTS WERE VOLUNTARY DENIED APPELLANT HIS DUE PROCESS RIGHTS TO A FAIR TRIAL AND TO PRESENT A DEFENSE. Once appellant's inculpatory statements were admitted, the trial turned on their voluntariness. To show their involuntariness, defense counsel sought to present appellant's written notes, made the first day the police interrogated him, in which he complained that he was "imprisoned," said he was being held against his will at the precinct the "whole day," and asked "[h]eaven and earth" 19 to "help" him. These notes were important evidence of appellant's state of mind, reflecting his belief that the police were willing to hold him indefinitely and his feelings of powerlessness against that abuse. Counsel also sought to introduce a videotape showing appellant's demeanor and physical appearance on the fourth day ofhis interrogation. The court's exclusion of this significant evidence of involuntariness violated appellant's fundamental rights to due process, a meaningful opportunity to present a complete defense, and a fair trial. The People contend that the notes were irrelevant to appellanf s state of mind, that they were "self-serving" hearsay, and that the court properly precluded them because they would have led the jury to "speculate as to their meaning" (Respondent's brief, pp. 140-141, 144, 146 ). These contentions are wrong. First, defense counsel did not seek to enter the notes for the truth of any fact asserted in them. People v. Goldstein, 6 N.Y.3d 119, 127 (2005); People v. Huertas, 75 N.Y.2d 487, 491-492 (1990); People v. Ricco, 56 N.Y.2d 320, 328 (l 982)(defendant's out-of-court statement did not constitute inadmissible hearsay when not offered for the "truth of the matter asserted"). Citing appellant's complaint about mistreatment and plea for "heaven and earth" to "help" him, defense counsel contended that these portions were admissible as circumstantial evidence of appellant's "state of mind," (A 509- 513 ), not to establish that the police, in fact, "imprisoned" him. 20 A defendant's statement offered into evidence to prove his state of mind is not hearsay. Ricco, 56 N.Y.2d at 328; People v. Hale, 245 A.D.2d 576 (3d Dept. 1997)(defendant's statement to police at arrest for sexual assault was admissible to prove his state of mind and intent); see also People v. _Minor, 69 N.Y.2d 779, 780 (l 987)(when entrapment defense was raised, statements made to defendant were admissible to show inducement and defendant's state of mind); People v. Boyd, 256 A.D.2d 350, 351 (2d Dept. l 998)(defendant's testimony about his conversation with seller of allegedly stolen car was admissible to establish defendant's state of mind); People v. Bull, 218 A.D.2d 663 (2d Dept. 1995)(when rape victims tested positive for venereal disease, defendant's statement, made after learning that he was under investigation for sex crimes, volunteering to be tested was held admissible as evidence of defendant's innocent state of mind). Nor would appellant's complaint of police mistreatment have led to juror "speculation about [its] meaning" (Respondent's brief, p. 140). Rather, it was probative of appellant's state of mind, and his belief and fear that the police were willing to subject him to indefinite detention and interrogation, and his feeling of powerlessness to resist it. This evidence was obviously probative of his defense that his inculpatory statements, which were made while detained in a precinct room and interrogated over the course of several days, were involuntary. That the statements assisted the defense to prove its case did not render them self-serving hearsay. A defendant's statement is self-serving if it is made 21 in contemplation of potential future use to his benefit. See for example People v. Haddock, 79 A.D.3d 1148 (2d Dept. 201 O)(defendant's exculpatory statement were self-serving). As the People acknowledge, appellant's notes were written to himself without any expectation of future use. He neither "ask[ ed] that they be delivered to another, nor did he [] keep them for himself so that he could deliver them to anyone" (Respondent's brief, p. 144). This compellingly demonstrates that he did not memorialize his fear and feelings of powerlessness as part of a contrived scheme to claim that his later statements were involuntary. Therefore, the notes complaining about police mistreatment were reliable, non-hearsay evidence of appellant's state of mind. Appellant's decision not to testify did not render the notes irrelevant (Respondent's brief~ pp. 141-144 ). He need not have testified personally to raise the compelling involuntariness issue this record and his notes obviously supported. People v. Combest, 4 N.Y.3d 341, 347-348 (2005) (a defendant may attempt to establish his pre-trial statement "should be disregarded by the jury" as "involuntarily made"); C.P.L. §710.70. Nor did the notes need "corroborat[ion] by any independent source" (Respondent's brief, pp. 144-145). Ricco, 56 N.Y.2d at 328. In any event, ample evidence corroborated his statement that the police "impris011ed" him the "whole day" against his will. The officers picked him up at about 7:30 a.m. and took him to a precinct room where teams of detectives questioned him intennittently over the ensuing 16 hours. He was allowed to leave only after he agreed to return the next morning. 22 Citing People v. Yuki, 25 N.Y.2d 585 (1969), and People v. Pugliese, 26 N.Y.2d 4 78 ( 1970), the People argue that appellant was not in "custody'' when he wrote the notes because custody "does not depend upon the [defendant's] subjective belief," but "solely on ... what a reasonable innocent person in the defendant's position would believe" (Respondent's brie , p. 145). Whether appellant was in "custody" so as to trigger the reading of his Miranda rights, however, was irrelevant to appellant's perception and fear that the police would detain him indefinitely or his subjective feelings of powerlessness. See People v. Guilford, 21 N.Y.3d 205, 208-215 (2013 )(voluntariness of a defendant's statement must be determined by the totality of the circumstances, including the characteristics of the accused and the details of the interrogation). Defense counsel was entitled to prove appellant's subjective belief that the police would abuse their power to detain and question him, and his resulting feelings of powerlessness - evidence the jury could properly use in assessing whether his statements were voluntary. The People similarly contend that the videotape was properly precluded as inadmissible hearsay (A 496; Respondent's brief, p. 132). Again, however, defense counsel did not seek to enter it for its hearsay content. Rather, he properly sought to show appellant's demeanor and appearance on May 16, the fourth day of questioning. Contrary to the court's view that cross-examination of the detectives was adequate, the video was clearly the best evidence of the effects the inherently coercive process had on appellant. It would have provided the jury with relevant evidence that could not be accurately and 23 completely portrayed by photographs, as the People contend for the first time on appeal, much less the detectives' testimony. A single, still photograph from the videotape culled by the prosecutor - the only option the court allowed - was far from an adequate substitute for the jury viewing the videotape for itself. See People v. Caserta, 19 N.Y.2d 18, 21 (l 966)(two-dimensional still photographs can be misleading). Viewing the video through their prosecutor's prism, the People claim it shows appellant looking "comfortable and relaxed," not "drained or exhausted" (Respondent's brief, p. 133). But it was for the jury to determine - based on its independent, neutral view of appellant's demeanor, appearance, tone, and conduct in the video - how appellant appeared. The People obviously understood the powerful effect visual evidence depicting appellant's appearance would have had on the jury, since they entered appellant's arrest photograph into evidence to establish his appearance on the fourth day he was subject to interrogation. With that photo, but not the video the defense desperately wanted the jurors to see, the issue of the statements' voluntariness was unfairly skewed in the People's favor. The People once again raise the false specter of the video "misleading" the jury and "open[ing] the door" to evidence that appellant had been Mirandized in Cantonese seven years earlier (Respondent's brief~ pp. 36-137). But defense counsel repeatedly disclaimed any intention of using the video to raise an argument that could have opened that door (A 448-449, 492-493). It certainly provided no justification for refusing in advance to admit the video, 24 especially since the court could have instructed the jury to consider it only as to appellant's demeanor and appearance, an instruction the jury would be presumed able to follow. People v. Baker, 14 N.Y.3d 266, 274(201 O); People v. Goodman, 69 N.Y.2d 32, 41 (1986). Therefore, admitting the videotape posed no potential to "mislead[]" or "sidetrack" the jury (Respondent's brief, pp. 136-13 7), grounds not even relied upon by the trial court in excluding the videotape (A 496). The court's preclusion of the notes and videotape constituted an abuse of discretion as matter oflaw. See People v. Carroll, 95 N.Y.2d 375, 386-387 (2000) (abuse of discretion as a matter oflaw to bar evidence that rebutted key prosecution contention); People v. Hudy, 73 N.Y.2d 40, 55-57 ( 1988) (same, when evidence not merely collateral); cf. People v. Aska, 91 N.Y.2d 979, 981 ( l 998)(no abuse in barring evidence that was irrelevant and collateral to any matter "bearing on the guilt or innocence of the defendant"). The notes and video would have countered key evidence against appellant his statements and the police testimony that they were voluntary. Moreover, neither the notes nor the videotape would have unfairly prejudiced the People. The court's erroneous rulings denied appellant his fundamental rights to due process and a "meaningful opportunity to present a defense." Crane v. Kentucky, 4 76 U.S. 683, 690 (1986); see also Chambers v. Mississippi, 410 U.S. 284, 294 (1973) ("The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations"); Carroll, 95 N.Y.2d at 385 ("A court's discretion in evidentiary rulings is circumscribed 25 by the rules of evidence and defendant's right to present a defense"). Thus, the judgment must be reversed and a new trial ordered. POINT III BY RESUBMITTING ONLY FOUR COUNTS OF THE ORIGINAL VERDICT FOR THE JURY'S RECONSIDERATION AND INCORRECTLY EXPLAINING THE VERDICT'S "DEFECT" TO THE JURORS, THE COURT IMPROPERLY SPECULATED ABOUT THE JURY'S COLLECTIVE MENTAL PROCESS UNDERLYING THE "DEFECT" AND DENIED APPELLANT HIS RIGHT TO A JURY VERDICT UNINFLUENCED BY THE COURT'S VIEW OF THE EVIDENCE. The jury's initial verdict demonstrated its obvious confusion about the counts, which had overlapping elements, and what the People were required to prove before appellant could be found guilty. In keeping with People v. Loughlin, 76 N.Y.2d 804, 806 ( 1990), defense counsel properly urged the court to resubmit the case to the jury for further deliberation. Instead, the court speculated about the source of the jury's confusion, selectively re-submitted only some counts, and incorrectly told the jurors that these counts were inconsistent or repugnant. By doing so, the court violated its statutory duty to correctly explain the verdict's defect, C.P.L. §310.50, subd. 2, and improperly signaled its apparent view of the evidence. The People argue that it "appear[s] that the jury found both that the defendant had not intentionally killed [Sek] and had intentionally killed [him]," raising the "possibility" that the verdicts as to counts two, four, five, and eight 26 were repugnant, and therefore the court "reasonably infer[ red] that the jury appeared to have concluded that the People did not establish that defendant intentionally killed [Sek]" (Respondent's brief, p. 165, 171 ). It is equally "possible," however, that the jury acquitted appellant of counts two [intentional murder of Sek in furtherance of first-degree burglary] and four [intentional murder of Sek in furtherance of an attempted robbery] because it found insufficient proof that the killing was in furtherance of those crimes. Therefore, counts two and four should not have been resubmitted to the jury, and the court should not have instructed the jury that the acquittals on those counts were inconsistent with its conviction on count eight. It was only in conjunction with the convictions on counts 10 and 12, charging second-degree felony murder of Sek, that any repugnancy or inconsistency arose. But the court failed to explain this defect to the jury or to resubmit these counts to the jury for further consideration. As the People concede, "many possible combinations of potential inconsistencies" existed in the initial verdict (Respondent's brief, p. 159). The court should, therefore, have resubmitted all of the counts to the jury, as defense counsel argued, with a correct explanation of how the various counts were repugnant or inconsistent. Instead, the court improperly resolved the jury's apparent confusion about the charges by assuming or guessing about its source and selectively re-submitting only some counts for re-consideration with incorrect instructions that these counts were inconsistent. See People v. Delee, 24 N.Y.3d 603, 608 (2014)(it is "inappropriate forthe reviewing court 27 to 'attempt to divine the jury's collective mental process'" in considering whether a verdict is repugnant; quoting from People v. Tucker, 55 N.Y.2d 1, 4 ( 1981 )). By doing so, the court not only violated its duty, pursuant to C.P.L. 310.50, sub. 2, to correctly explain the verdict's defect. It also impermissibly telegraphed to the jury its view that, to be acceptable, the acquittals had to conform to its guilty verdict on count eight, the intentional murder of Sek. People v. Rodriguez, 71 N.Y.2d 214, 218 n 1 (1988)(jury trial right encompasses right to jury deliberations not intruded upon by outside influences, including those exerted by the court); People v. DeJesus, 42 N.Y.2d 519, 523-524 (l 977)("Since the presence of the Judge is likely to be equated with the majesty of the law itself,* * * 'care must be taken to guard against an opinion that might be seized upon by the jury and eventually prove decisive'"; quoting from People v. Bell, 38 N.Y.2d 116, 120 (1975)). The People maintain that the "jury may well have believed that the court was telling it that it could not convict defendant on the intentional second- degree murder count" (Respondent's brief, p. 171-172). But, that possibility does not cure the error and the possible harm to appellant's right to jury deliberations conducted without any "outside influences." People v. Rivera, 15 N.Y.3d 207, 211 (2010). The jury might well have rendered a different verdict had the court re-submitted the entire case with correct instructions. Therefore, the error cannot be deemed harmless, and the judgment must be reversed and a new trial ordered. 28 CONCLUSION FOR REASONS SET FORTH IN APPELLANT'S MAIN BRIEF AND THIS REPLY, THE JUDGMENT MUST BE REVERSED, HIS STATEMENTS SUPPRESSED, AND A NEW TRIAL ORDERED (POINT I), OR THE JUDGMENT REVERSED AND A NEW TRIAL ORDERED (POINTS II AND III). DE NUCE POWELL Of Counsel June4,2015 Respectfully submitted, LYNN W. L. FAHEY Attorney for the Defendant- Appellant Appellate Advocates 111 John Street - 9th Floor New York, New York 10038 29