The People, Respondent,v.Jin Cheng Lin, Appellant.BriefN.Y.January 12, 2016To be argued by ANASTASIA SPANAKOS (TIME REQUESTED: 20 MINUTES) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against JIN CHENG LIN, Defendant-Appellant. W444444444444444444444444444444444444444444444444444 BRIEF FOR RESPONDENT W444444444444444444444444444444444444444444444444444 RICHARD A. BROWN District Attorney Queens County Attorney for Respondent 125-01 Queens Boulevard Kew Gardens, New York 11415 (718) 286–5810 ROBERT J. MASTERS JOHN M. CASTELLANO ANASTASIA SPANAKOS Assistant District Attorneys Of Counsel APRIL 24, 2015 Queens County Indictment Number 1705/05 TAB LE OF CONTENTS Page No. TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 THE HUNTLEY HEARING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 The People’s Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 The Defense Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 The Court’s Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 THE TRIAL.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 The People’s Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 The Defense Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 THE PRECLUDED EVIDENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Defendant’s Unsolicited Written Notes. . . . . . . . . . . . . . . . . . . . . . . 68 Defendant’s Invocation of His Right to Counsel. . . . . . . . . . . . . . . . 72 The Verdict. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 POINT ONE THE APPELLATE DIVISION’S DETERMINATION THAT DEFENDANT’S CONFESSION WAS VOLUNTARY IS AMPLY SUPPORTED BY THE RECORD AND, AS A MIXED QUESTION OF LAW AND FACT, IS BEYOND FURTHER REVIEW. MOREOVER, THE OVERWHELMING INDEPENDENT FORENSIC EVIDENCE RENDERED ANY POSSIBLE ERROR IN ADMISSION OF THE CHALLENGED STATEMENTS HARMLESS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 A. As the Voluntariness of Defendant’s Confession Constitutes a Mixed Question of Law and Fact, It Is Subject to Only Limited Review in This Court To Determine Whether There is Record Support for the Lower Courts’ Determinations. . . . . . . . . . . . . . . . . . . . . . . . . 84 B. The Appellate Division’s Finding That, under the Totality of the Circumstances, Defendant’s Confession Was Voluntary Is Supported by the Record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 C. Even If Any Error Occurred, it Was Harmless Because the Evidence of Defendant’s Guilt Was Overwhelming Even Without His Confession. . . . . . . . . . . . 114 POINT TWO THE COURT DID NOT ABUSE ITS DISCRETION OR VIOLATE DEFENDANT’S RIGHT TO PRESENT A DEFENSE WHEN IT PRECLUDED HEARSAY EVIDENCE IN THE FORM OF THE VIDEOTAPE OF HIS POST-STATEMENT REQUEST FOR A LAWYER AND HIS UNSOLICITED HANDWRITTEN SCRIBBLES JOTTED DOWN ON THE FIRST DAY OF QUESTIONING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 POINT THREE DEFENDANT’S CHALLENGE TO THE COURT’S RESPONSE TO THE INITIAL VERDICT IS LARGELY UNPRESERVED FOR APPELLATE REVIEW AND WHOLLY WITHOUT MERIT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 A. Factual Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 B. Defendant’s Argument That the Acquittals Were Repugnant to Counts Ten and Twelve and His Argument That the Court Signaled its View of the Evidence to the Jury Are Not Preserved for this Court’s Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 ii C. The Trial Court Correctly Declined to Resubmit Additional Counts to the Jury.. . . . . . . . . . . . . . . . . . . . . . . . 161 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 iii TABLE OF AUTHORITIES Page No. Cases Ando v. Woodberry, 8 N.Y.2d 165 (1960). . . . . . . . . . . . . . . . . . . . . . . . . 127 California v. Trombetta, 467 U.S. 479 (1984). . . . . . . . . . . . . . . . . . . . . . 129 Chambers v. Mississippi, 410 U.S. 284 (1973).. . . . . . . . . . . . 129, 130, 131 Crane v. Kentucky, 476 U.S. 683 (1986). . . . . . . . . . . . . . . . . . . . . 128, 129 Delaware v. Van Arsdall, 475 U.S. 673 (1986). . . . . . . . . . . . . . . . . . . . . 128 Dickerson v. U.S., 530 U.S. 428 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Hawkins v. Costello, 460 F.3d 238 (2d Cir. 2006). . . . . . . . . . . . . . . . . . . 129 Jackson v. Denno, 378 U.S. 368 (1964). . . . . . . . . . . . . . . . . . . . . . . . . . . 123 Johnson v. Zerbst, 304 U.S. 458 (1938). . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Maryland v. Shatzer, 559 U.S. 98 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Matter of Jimmy D., 15 N.Y.3d 417 (2010). . . . . . . . . . . . . . . 13, 84, 86, 88 People ex rel Maxian v. Brown, 77 N.Y.2d 422 (1991). . . . . . . . . . . . . . . 108 People v. Adamson, 27 Cal.2d 478 (S.C. CA 1946). . . . . . . . . . . . . . . . . . 116 People v Alex, 260 N.Y. 425 (1933). . . . . . . . . . . . . . . . . . . . . . 17, 142, 144 People v. Acevedo, 40 N.Y.2d 701 (1976). . . . . . . . . . . . . . . . . . . . . . . . . 127 People v. Alfaro, 66 N.Y.2d 985 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . 154 People v. Alvino, 71 N.Y.2d 233 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . 127 People v. Arafet, 13 N.Y.3d 460 (2009). . . . . . . . . . . . . . . . . . . . . . 115, 138 People v. Aska, 91 N.Y.2d 979 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 iv People v. Brown, __ N.Y.3d __, 2015 NY Slip Op 02552 (March 26, 2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 People v. Brown, 80 N.Y.2d 729 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . 131 People v. Bruckman, 46 N.Y.2d 1020 (1979). . . . . . . . . . . . . . . . . . . . . . . 154 People v. Bryant, 31 N.Y.2d 744 (1972).. . . . . . . . . . . . . . . . . . . . . 153, 154 People v. Buie, 86 N.Y.2d 501 (1995). . . . . . . . . . . . . . . . . . . . . . . . 145n.15 People v. Carroll, 95 N.Y.2d 375 (2000). . . . . . . . . . . . . . . . . . . . . 128, 129 People v. Carter, 7 N.Y.3d 875 (2006).. . . . . . . . . . . . . . . . . . . . . . 154, 155 People v. Caserta, 19 N.Y.2d 18 (1966).. . . . . . . . . . . . . . . . . . . . . . . . . . 135 People v. Caviness, 38 N.Y.2d 227 (1975). . . . . . . . . . . . . . . . . . . . . . . . . 131 People v. Cona, 49 N.Y.2d 26 (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 People v. Crimmins, 36 N.Y.2d 230 (1975). . . . . . . . . . . . . . . . . . . . 17, 147 People v. Damiano, 87 N.Y.2d 477 (1996).. . . . . . . . . . . . . . . . . . . . . . . . . 85 People v. Davis, 43 N.Y.2d 17 (1977) . . . . . . . . . . . . . . . . . . . . . . . 127, 128 People v. DeLee, 24 N.Y.3d 603 (2014). . . . . . . . . . . . . . . . . . . . . . . . passim People v. Evans, 83 N.Y.2d 934 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 People v. Feldman, 299 N.Y. 153 (1949). . . . . . . . . . . . . . . . . . . . . . . . . . 128 People v. Gilford, 16 N.Y.3d 864 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . 85 People v. Glinsman, 107 A.D.2d 710 (2d Dept. 1985). . . . . . . . . . . . . . . . 112 People v. Gray, 86 N.Y.2d 10 (1995). . . . . . . . . . . . . . . . . . . . . . . . 153, 155 People v. Gurley, 42 N.Y.2d 1086 (1977). . . . . . . . . . . . . . . . . . . . 153, 154 People v. Harrison, 57 N.Y.2d 470 (1982).. . . . . . . . . . . . . . . . . . 85, 86, 87 People v. Hayes, 17 N.Y.3d 46 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 v People v. Huertas, 75 N.Y.2d 487 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . 146 People v Johnson, 40 NY2d 882, 883.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 People v. Liccione, 50 N.Y.2d 850 (1980). . . . . . . . . . . . . . . . . . . . . . . . . 154 People v. Lin, 105 A.D.3d 761 (2d Dept. 2013). . . . . . . . . . . . . . . . . . passim People v. Lin, 21 N.Y.3d 1012 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 People v. Loughlin, 76 N.Y.2d 804 (1990). . . . . . . . . . . . . . . . . . . . 162, 170 People v. Mateo, 2 N.Y.3d 383 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . 89-90 People v. McRay, 51 N.Y.2d 594 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . 85 People v. Mercado, __ N.Y.3d __, N.Y. Slip Op. 02556 (March 26, 2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 85, 103 People v. Miles, 198 A.D.2d 445 (2d Dept. 1993). . . . . . . . . . . . . . . . . . . 155 People v. Miller, 39 N.Y.2d 543 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . 129 People v. Morales, 42 N.Y.2d 129 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . 85 People v. Morris, 21 N.Y.3d 588 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . 137 People v. Morris, 68 N.Y.2d 799 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . 154 People v. Muhammad, 17 N.Y.3d 532 (2011). . . . . . . . . . . . . . . . . . . passim People v. Nieves, 67 N.Y.2d 125 (1986).. . . . . . . . . . . . . . . . . . . . . 130, 131 People v. Oden, 36 N.Y.2d 382 (1975).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 People v. Ortlieb, 84 N.Y2d 989 (1994). . . . . . . . . . . . . . . . . . . . 90, 107-108 People v. O’Sullivan, 104 N. Y. 481. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 People v. Petty, 7 N.Y.3d 277 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 People v. Phillips, 68 A.D.3d 1187 (2d Dept. 2009). . . . . . . . . . . . . . . . . 155 People v. Porter, 9 N.Y.3d 966 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . 84, 85 vi People v. Primo, 96 N.Y.2d 351 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . 127 People v. Pugliese, 26 N.Y.2d 478 (1970). . . . . . . . . . . . . . . . . . . . . . . . . 145 People v. Ramos, 99 N.Y.2d 27 (2002).. . . . . . . . . . . . . . . . . . . . 10, 90, 107 People v. Reynoso, 73 N.Y.2d 816 (1988). . . . . . . . . . . . . . . . . . . . . . . . . 131 People v. Robinson, 88 N.Y.2d 1001 (1996). . . . . . . . . . . . . . . . . . . . . . . 155 People v. Rosario, 17 N.Y.3d 501 (2011).. . . . . . . . . . . . . . . . . . . . . . . . . 142 People v. Sapia, 41 N.Y.2d 160 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . 131 People v. Satloff, 56 N.Y.2d 745 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . 154 People v. Scarola, 71 N.Y.2d 769 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . 127 People v. Scott, 86 N.Y.2d 864 (1995). . . . . . . . . . . . . . . . . . . . . . 13, 84, 88 People v. Shabazz, 99 N.Y.2d 634 (2003). . . . . . . . . . . . . . . . . . . . . . . 84, 85 People v. Stahl, 53 N.Y.2d 1048 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . 154 People v. Thomas, 22 N.Y.3d 629 (2014).. . . . . . . . . . . . . . . . . . . . . . . . . . 90 People v. Tosca, 98 N.Y.2d 660 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . 138 People v. Trappier, 87 N.Y.2d 55 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . 162 People v. Tucker, 55 N.Y.2d 1 (1981). . . . . . . . . . . . . . . . . . . . . . . . . passim People v. VanLuven, 64 N.Y.2d 625 (1984). . . . . . . . . . . . . . . . . . . . . . . . . 86 People v. Ventimiglia, 52 N.Y.2d 350 (1981).. . . . . . . . . . . . . . . . . . . . . . 128 People v. Vidal, 26 N.Y.2d 249 (1970).. . . . . . . . . . . . . . . . . . . . . . . 153-154 People v. Williams, 62 NY.2d 285 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . 90 People v. Williams, 81 N.Y.2d 303 (1993). . . . . . . . . . . . . . . . . . . . 129, 130 People v. Yukl, 25 N.Y.2d 585 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 vii Rock v. Arkansas, 483 U.S. 44 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 Schneckloth v. Bustamonte, 412 US. 218 (1973). . . . . . . . . . . . . . . . . . . . . 89 Smith v. Small, 564 Fed. Appx. 883 (9th Cir. 2014) . . . . . . . . . . . . . . . . . 115 Taylor v. Illinois, 484 U.S. 400 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 U.S. v. Almonte, 956 F.2d 27 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 U.S. v. Burgos, 94 F.3d 849 (4 Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . 115th Statutes C.P.L. § 60.45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 C.P.L. §310.50. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164, 169, 170 C.P.L. § 450.90. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 CP.L. § 470.05. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Penal Law § 120.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Penal Law § 125.25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7 Penal Law § 125.27. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6 Penal Law § 140.30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Penal Law § 265.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Penal Law §§ 110.00/160.15.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7 Other Authorities 2 Wigmore on Evidence [2d ed.], § 1142. . . . . . . . . . . . . . . . . . . . . . . . . . 143 Arthur Karger, The Powers of the New York Court of Appeals § 21:1 (Rev. 3d ed. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Note, A Matter of Time: Evidence of a Victim's Prompt Complaint in New York, 53 Brooklyn L Rev 1087 (1988) .. . . . . . 142 viii Richard T. Farrell, Prince, Richardson’s on Evidence § 4-101 (11th Edition 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 Richard T. Farrell, Prince, Richard ’s on Evidence § 4-103 (11th Edition 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 Richard T. Farrell, Prince, Richardson on Evidence, 11 ed. § 8-101. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130, 146th Richard T. Farrell, Prince, Richardson on Evidence, 11 ed. § 8-102.. . . 131th Richard T. Farrell, Prince, Richardson on Evidence, 11 ed. § 8-106.. . . 131th Richard T. Farrell, Prince, Richardson on Evidence, 11 ed. § 8-110. .. . 131th Richard T. Farrell, Prince, Richardson on Evidence, 11 ed. § 8-615.. . . . 17th ix COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK : Respondent, : -against- : : JIN CHENG LIN, : Defendant-Appellant. : ---------------------------------------------------------------------x BRIEF FOR RESPONDENT PRELIMINARY STATEMENT Defendant Jin Cheng Lin appeals from a July 14, 2008, judgment of the Supreme Court, Queens County (Lasak, J.). By that judgment, defendant was convicted, after a jury trial, of Murder in the First Degree (Penal Law § 125.27[1][a][vii])(four counts) (Penal Law § 125.27[1][a][viii])(two counts), Murder in the Second Degree (Penal Law § 125.25[1])(two counts) (Penal Law § 125.25[3])(four counts), Burglary in the First Degree (P.L. § 140.30[3]), and Attempted Robbery in the First Degree (Penal Law §§ 110.00/160.15[3]). The court sentenced defendant to concurrent terms of life imprisonment with no possibility of parole on each first-degree murder conviction, concurrent indeterminate terms of from twenty-five years to life imprisonment for each second-degree murder conviction, and determinate terms of twenty-five and fifteen years’ imprisonment, respectively, for the burglary and attempted robbery convictions. Defendant is currently incarcerated pursuant to this judgment. INTRODUCTION At approximately 4:00 p.m., on May 12, 2005, defendant went to the Queens County apartment of his former girlfriend, twenty-one-year-old Cho Man Ng, who went by the name Sharon Ng, and her nineteen-year-old brother Sek Man Ng, who was also known as Simon Ng. Simon, who was home alone, answered the door and defendant asked for the return of his fishing poles. When Simon turned to re-enter the second-floor apartment, defendant, uninvited, followed him. At 5:05 p.m., Simon wrote in his on-line blog about defendant’s arrival, request for his fishing poles, and that defendant was still present, walking around the apartment smoking. At approximately 9:05 p.m., Kevin Lee dropped Sharon, his girlfriend, off at her home and watched her walk into the building. When Lee arrived home, he called Sharon several times, but she did not answer. Finally, at about 9:25 p.m., Sharon answered her phone and said, in a weak voice, that someone was in her house and that she was dizzy. Unsure of her exact street address, Lee went to Sharon’s house. At 9:30 p.m., Sharon contacted her friend Vincent Tsang, via Nextel, telling him that there was someone in her apartment, that there was a 2 lot of blood, and asking him to call 911. Unable to call 911 because he did not know her exact address, Tsang also went to Sharon’s house. Lee arrived at Sharon’s first and, when he went to her second- floor apartment, he saw blood on the floor and walls. The door to Sharon’s bedroom was closed, but Simon’s bedroom door was open, and Lee could see a hand protruding from under a blanket on the floor. Meanwhile, as Lee called 911, Tsang arrived and both men waited on the street for the police. Inside the Ngs’ apartment the police found Simon, unconscious on a bedroom floor covered in blood, with numerous visible cuts and stab wounds, and a semi-conscious Sharon on the floor with her throat and stomach cut. Simon died at the scene, and Sharon died later at the hospital after emergency surgery. Back outside the apartment, Lee and Tsang were handcuffed and taken to the precinct for questioning. On the morning of May 13, 2005, after Lee told the police about defendant, the police went to defendant’s home and he agreed to accompany them to the police precinct to assist them in the investigation of the Ngs’ deaths. On the way to the precinct, noticing a scratch on defendant’s forehead, a detective asked about it and defendant responded that he had hit his head on his kitchen table. Defendant was unrestrained on the way to the precinct and while he was in the precinct. When he spoke to the detectives, he told them 3 that he had visited the Ngs’ apartment at approximately 4:00 p.m., on May 12, to deliver a present to Sharon, but had left the present, two seashell figurines, with Simon because Sharon was not home. Later that day, defendant asked to speak privately with a Detective Hui and told him that defendant wished to make a deal. Detective Hui, who was assigned to the Organized Crime Investigation Division and had already ascertained that there was no organized crime connection to this crime, relayed defendant’s comment to the detective in charge, and did not participate in the continuing investigation. A short time later, given the lateness of the hour, no further interviews were conducted and defendant, who did not want to leave, was driven home and agreed to return the next day. The next morning, after speaking to defendant, Detective Marshall picked him up at his home at an agreed upon time. Later at the precinct after receiving Miranda warnings, defendant agreed to speak to the detectives. He repeated his previously-provided account of his whereabouts at the time of the murders. But, when the detective told him that, according to Sharon’s friends, the seashell figurines had been in Sharon’s possession for several weeks before the murders, defendant changed his account. He informed the detectives that he had planned with a man named Gong and an unnamed Fukienese man to rob the Ngs. He explained that his role was to facilitate the robbers’ entry into the 4 apartment on May 12, and that he had observed the Fukienese man enter the building as defendant left. After the detectives learned of Simon’s blog entry memorializing defendant’s visit and request for fishing poles, they told defendant that Simon had survived and had told them something. A detective wrote the words “fishing poles” on a piece of paper and passed it to defendant, who looked at the paper and then his face became flush. The detective told defendant that he knew what happened and no one else but Simon could have told them. Defendant responded, “Then you know what happened,” and the detective agreed, telling defendant that he probably did not mean to kill them and that he should explain what happened. Defendant then broke down sobbing for about fifteen to twenty minutes. Once he calmed down, defendant admitted that, after Simon let him into the apartment, he obtained a knife and tape from the kitchen, held the knife to Simon’s neck, and made him bind himself with the tape. Defendant then searched the bedrooms for money, but found none. He turned off the lights and waited for Sharon to come home. When she entered, he approached her from behind, put the knife to her neck, and told her to bind herself with tape. At this point, Simon freed his hands and came out of his room. Defendant went “crazy,” stabbed Simon in the neck and stomach, and Simon 5 fell to the floor. Defendant then returned to Sharon’s room, where he stabbed her in the stomach and she fell to the floor. He threw the knife in the toilet and ran home. Defendant reduced his statement to writing and signed it. Defendant later wrote responses to further inquiries by the detectives, describing, among other things, what Simon and Sharon were wearing, where he got the knife, and the color of the tape used to bind Simon. One-half hour later, he responded in writing to additional inquiries, and related that he came to the United States when he was fourteen years old and went to school here from seventh through eleventh grades. The physical and forensic examination of the victims’ apartment resulted in the police finding defendant’s left palm print on the wall by Simon’s bed, defendant’s fingerprints on the tape binding Simon’s legs, the cardboard duct tape roll found in Simon’s room, and on a battery found in a flashlight on the floor near Simon’s feet. In addition, a partial profile of defendant’s DNA was found in the biological material found under Sharon’s nails. Defendant was charged with of Murder in the First Degree (Penal Law § 125.27[1][a][vii][four counts][committed during a designate felony], [1][a][viii] [two counts][multiple victims], [1][a][x] [two counts][committed by means of torture]); Murder in the Second Degree (Penal Law § 6 125.25[1][two counts][intentional], [3][four counts][felony]); Assault in the First Degree (Penal Law § 120.10[2][with intent to disfigure or disable]); Burglary in the First Degree (Penal Law § 140.30[2] [two counts][causes physical injury], [3][one count][dangerous instrument]); Attempted Robbery in the First Degree (Penal Law §§ 110.00/160.15[1] [two counts][serious physical injury, [3] [one count][dangerous instrument]);Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01[2][with intent to use]) (Queens County Indictment Number 1705/05). Defendant thereafter moved to suppress his statements to the investigating detectives. After a Huntley hearing, the court denied defendant’s motion in its entirety, concluding that defendant’s initial presence at the precinct was voluntary and non-custodial, and that all of the post-arrest statements were made after he had been advised of and voluntarily waived his Miranda rights (Eng, J.). The court further held that defendant’s arraignment was delayed to investigate his statements implicating two other people in the murder of the Ngs, and not to interfere with his right to counsel or to coerce a confession. The court also rejected defendant’s claim that he lacked the ability to understand the Miranda rights in English, finding that defendant was able to understand the import of the Miranda warnings. 7 Defendant thereafter proceeded to trial before the Honorable Gregory Lasak, Supreme Court, Queens County, and a jury. Defendant requested permission to admit a six-minute video depicting the administration of Miranda warnings by a prosecutor and defendant’s invocation of his right to counsel. Primarily, defendant argued that the video was admissible because the jury should be allowed to see his invocation of his right to counsel. The prosecutor objected, arguing that the video was too prejudicial because it would lead the jury to speculate that defendant did not understand English and that she would elicit evidence of defendant’s invocation without showing the jury the video. Defendant responded that its admission was also necessary because the video depicted his appearance, which was relevant to the voluntariness of his earlier confession. After lengthy colloquies, the court precluded the admission of his video as inadmissible hearsay but allowed defendant to admit a still photo culled from the video, which he declined. Defendant also sought the admission of unsolicited notes he wrote on the first day he was questioned by the police because, he claimed, these notes supported his claims of involuntariness as he referred to being imprisoned and accused of murder. These notes were also precluded as inadmissible hearsay. At the conclusion of the trial, the jury found defendant guilty of every count submitted – six counts of first-degree murder, six counts of 8 second-degree murder, first-degree burglary, and attempted first-degree robbery. The remaining counts of the indictment had been dismissed on the People’s motion before the case was submitted to the jury. Defendant was sentenced as indicated above. Defendant appealed his conviction and raised three claims as grounds for a new trial and a claim that certain counts should be dismissed as lesser-included offenses. First, defendant claimed that the court erred when it declined to re-submit all fourteen counts of the indictment for further deliberation after the jury returned a verdict that was allegedly inconsistent with respect to ten counts. Second, defendant contended that the court erroneously excluded defendant’s notes made on May 13, 2005, and the video of his aborted interview by an Assistant District Attorney. Third, defendant claimed that his arraignment was delayed unnecessarily and that his comprehension of English was insufficient to permit a knowing and voluntary waiver of his Miranda rights. On April 3, 2013, by a three-judge majority, the Appellate Division modified defendant’s conviction by vacating the second-degree murder convictions as inclusory concurrent counts of the first-degree murder convictions but otherwise affirming the judgment. People v. Lin, 105 A.D.3d 761 (2d Dept. 2013). 9 The majority held that the hearing court properly denied defendant’s motion to suppress defendant’s statements to law enforcement. Citing to People v. Ramos, 99 N.Y.2d 27, 35 (2002), the Appellate Division explained that an undue delay in arraignment is one factor that should be considered in assessing the voluntariness of a confession and that “a delay in arraignment alone does not warrant suppression . . . .” Lin, 105 A.D.3d at 761. The court held that the record did not support defendant’s claim of a unnecessary delay in his arraignment; rather, it held that the delay “was attributable to the time it took the police to conduct a thorough investigation and not to a strategically designed plan to permit the defendant to be questioned outside the presence of counsel.” Id. at 762. The court further determined that the record supported the hearing court’s determination that defendant understood the import of the Miranda warnings. Id. The court noted that defendant was provided with food, water, cigarettes access to a bathroom, and the opportunity to rest between interview sessions, and that there was no suggestion of the use or threatened use of physical force. Consequently, the court held, that under the totality of the circumstances, defendant’s statements were voluntarily made. Id. The majority also held that the trial court’s preclusion of the videotaped interview of defendant by an Assistant District Attorney was not 10 an improvident exercise of its discretion. Rather, the Appellate Division held that the trial court correctly determined that the probative value of the videotape was outweighed by the potential prejudice to the People. Lin, 105 A.D.3d at 762-63. In her dissent, Justice Priscilla Hall found that the delay in defendant’s arraignment was unnecessary and improper. Lin, 105 A.D.3d at 768. Contrary to the majority, Justice Hall would have found as a fact that the delay in the arraignment was strategically designed to allow for defendant’s questioning outside of counsel’s presence. She believed that the police could have initiated defendant’s arraignment shortly after his arrest and, at the latest, on the morning of May 15th while still investigating Gong and the Fukienese man. Id. at 769. Justice Hall concluded that this failure to arraign defendant earlier “strongly suggests” that the arraignment was delayed for an improper purpose. Justice Hall also found that the improper delay and the lengthy period of interrogation proved that the People had not established that defendant’s statements were voluntary. She surmised that “defendant must have felt that the police had the right to hold him and that they had ‘all the time in the world’ to question him,” and believed that this conclusion was supported by the notes defendant wrote while at the station. Id. 11 Justice Hall would have further found that the trial court’s decision not to admit defendant’s videotaped statement where he refused to speak to an Assistant District Attorney deprived him of his right to present a defense and to a fair trial. Lin, 105 A.D.3d. at 770. She believed that the videotape was relevant to the issue of the voluntariness because it showed defendant’s appearance and demeanor, which would, she believed, shed light on whether he was subjected to coercive conditions during the interrogation. Id. She also did not believe that the probative value was outweighed by any prejudice as she did not find that there was any prejudice to the People. Nor, she concluded, was a still photograph an adequate substitute for the videotape. Id. at 771-72. On June 13, 2013, Justice Hall granted defendant leave to appeal. People v. Lin, 21 N.Y.3d 1012 (2013). SUMMARY OF ARGUMENT At trial, the People established that defendant committed the double homicide of his ex-girlfriend Sharon Ng and her brother Simon by powerful, indeed inescapable, forensic evidence. This included defendant’s palm print amidst the blood spattered on the wall over Simon’s bed, a place defendant had no reason to be; his fingerprints on the cardboard core of the roll of duct tape used to bind Simon’s legs; his fingerprints on the actual duct tape 12 wrapped around Simon’s legs; his fingerprint on the battery inside the bloody flashlight lying next to Simon’s body; and DNA under Sharon’s fingernails attributable to defendant to a certainty of one in forty-three million. The People also introduced defendant’s confession to the double murder. Defendant now raises two arguments related to the confession only and an alleged defect in the verdict. These arguments are partially unpreserved and wholly without merit. Contrary to defendant’s contention, the courts below properly found that defendant’s confession was voluntary. Preliminarily, the voluntariness of the confession presents a mixed question of law and fact, and, thus, is subject to only limited review in this Court. See Matter of Jimmy D., 15 N.Y.3d 417, 423 (2010) (voluntariness and waiver of Miranda mixed questions subject to limited review); People v. Scott, 86 N.Y.2d 864 (1995). If the determination of the courts below finds record support, no further review is available. Here, the record established not only that defendant’s confession was voluntary, but that he affirmatively and repeatedly sought to manipulate the police during the course of the interrogation, rather than having his will overborne by them. The evidence showed that defendant initially posed as a cooperating witness, that the police accordingly did not regard him as a 13 suspect, that they questioned him for only ten to twenty minutes at a time on the first day, that they brought him home after the first day, where he stayed by himself, unattended, overnight for an eleven-hour period. The record also establishes that defendant voluntarily returned to the precinct the next day, and made his first statement implicating himself to any degree after only seven hours, including little more than one and one-half to two hours of questioning, and after he was confronted with evidence that the police knew at least part of his initial story was false. The evidence also showed that after that point, defendant attempted to mislead the police, sending them on a search for the actual murderers, who he described as only “Gong” and a Fukienese man, neither of whom actually existed. Defendant’s subsequent stay at the precinct for not much more than 24 hours, was, as the courts below both found, attributable to the police investigation into the two ill-described men whom only defendant could identify, including contacting out of state authorities, investigating possible suspects and known associates, and obtaining photos of suspects to show to defendant. It was, indeed, only when police inadvertently obtained further evidence that contradicted defendant’s story and confronted defednant with it that defendant realized that he could no longer maintain his lies and confessed to committing the double murder. 14 Similarly, the record established that defendant spoke English fluently to the detectives, to the interviewer from the Criminal Justice Agency at arraignment, and to a correction officer, and answered all questions appropriately, and that upon a prior arrest he had specifically been read the Miranda warnings in both English and Cantonese. This provided ample, if not overwhelming, support for the findings of the courts below that defendant validly waived his Miranda warnings and made a voluntary confession. While defendant and the dissenter in the Appellate Division would draw different inferences from the record, these arguments cannot be reviewed here. The hearing court and the Appellate Division were entitled to draw reasonable inferences, and the mixed question jurisdictional bar precludes further review of the competing inferences in this Court. See People v. Mercado, __ N.Y.3d __, N.Y. Slip Op. 02556 (March 26, 2015). In any event, the courts below were perfectly justified in rejecting defendant’s contrary inferences. They were quite justified in finding, for example, that defendant’s scribbling during the first day of interrogation that he was “imprisoned,” even though not a suspect and thereafter allowed to go home, and his feigned lack of understanding of the word attorney after he made his statements, even though he spoke English fluently and had previously been read the warnings in Cantonese, were simply further examples of defendant’s attempt to 15 manipulate the police. Because these findings too were supported by the record, no further review is available here. Nor did the trial court err in declining to admit the video recording of defendant’s invocation of the right to counsel after defendant made all of the statements admitted against him, or the evidence of the scribblings on the first day of questioning. The People offered to, and did, introduce testimonial evidence of defendant’s invocation of his right to counsel, and as to defendant’s appearance at the time – the only ground defendant now offers in support of admission – the People offered to admit photographs of defendant, including from the videotape itself. Moreover, admission of the tape would have allowed the jury to speculate with regard to defendant’s English language skills, an issue that defendant specifically stated he did not wish to raise and that would have necessitated three additional rebuttal witnesses, including the detective who had read defendant his Miranda rights in both English and Cantonese on a prior arrest. The trial court acted within its discretion in declining to broach that issue, particularly given that defendant’s primary objective – and the only one currently advanced – was addressed by the offer to introduce stills from the video recording. Similarly unavailing is defendant’s claim that the trial court should have admitted his scribblings into evidence. Most of these writing were 16 entirely irrelevant, and his claim of imprisonment on the first day, disproven when he was allowed to go home that night, was not admissible as a “prompt complaint.” Although a witness’s prompt complaint my be admitted to bolster his or her credibility, the complaint is only admissible if the witness testifies and his or her credibility is in issue. See People v Alex, 260 N.Y. 425 (1933)(prompt complaint of mistreatment by police at arraignment admissible to support credibility of defendant’s trial testimony, by analogy to rape cases); Richard T. Farrell, Prince, Richardson on Evidence, 11 ed. § 8-615(promptth complaint admissible on issue of credibility and only if witness testifies). In any event, any error on the part of the court was harmless. People v. Crimmins, 36 N.Y.2d 230 (1975). The overwhelming forensic evidence left no doubt as to defendant’s guilt. Even without the confession, the unrefuted forensic evidence, including, most tellingly, defendant’s fingerprint on the tape around Simon’s legs and the DNA under Sharon’s nails, ineluctably led to defendant’s guilt. Furthermore, the scribbling that defendant was “imprisoned” was disproved by the undisputed evidence that defendant was allowed to stay alone, at home, that night for a full eleven-hour period. Moreover, defendant, who argued that all of his scribblings should have been admitted, would have been affirmatively harmed by some of the entries, most notably his comment describing himself as “the dark prince of hell” (A: 669). 17 Similarly, the video of the invocation of the right to counsel after he made the statements admitted against him would have added little as to the only issue he now raises in this regard – his appearance after he made his statement. Indeed, to this day, defendant has identified nothing about his appearance on the tape that would have supported a finding of involuntariness. Finally, defendant’s argument that the trial court should have resubmitted all fourteen counts when the jury preliminarily returned three not guilty verdicts should be rejected. The essential element common to the three not guilty verdicts was the intent to kill Simon, and thus the court acted reasonably in resubmitting, along with the three not guilty verdicts, the only guilty verdict involving that element. See People v. Muhammad, 17 N.Y.3d 532 (2011); People v. Tucker, 55 N.Y.2d 1, 7 (1981). Further, defendant’s argument that the acquittals on counts two and four, “standing alone,” were repugnant to counts ten and twelve is unpreserved for this Court’s review, as he never argued in the trial court that two of the three acquittals should be viewed in isolation or that counts ten and twelve were repugnant to those two counts. Similarly unpreserved is defendant’s argument that the court somehow improperly signaled its view to the jury by resubmitting only the four affected counts. Moreover, defendant’s argument that general juror “confusion” was enough to send all fourteen counts back to the jury is contrary to the statute, 18 which provides that the defective verdicts should be resubmitted and that the defect should be explained to the jurors. Accordingly, this claim too, one that even the dissenter below declined to adopt, should be rejected by this Court. THE HUNTLEY HEARING The People’s Case Detective Bernard Marshall was assigned to investigate the murders of Cho Man Ng (a.k.a Sharon Ng) and Sek Man Ng (a.k.a Simon Ng), a sister and brother, who were murdered on May 12, 2005, in their Queens apartment. On May 13, 2005, after defendant was mentioned by Sharon’s other friends, Detective Marshall and Detective Daniel Schindlar went to defendant’s home between 7:00 and 8:00 a.m., identified themselves, and asked him to come to the police precinct to discuss the deaths of the siblings (A: 184-87). Defendant agreed to come, went upstairs for his shoes and jacket, and was unrestrained as he rode in the police vehicle to the 107th Precinct (A: 186-87). Detective Marshall spoke to defendant in English, defendant responded in English, and the two did not have any trouble understanding each other (A: 190). When Detective Marshall inquired about a scratch on defendant’s forehead, defendant said that he had hit his head on his kitchen table (A: 192-93). 19 At the stationhouse, defendant was escorted to an interview room that was about twelve by twelve feet and furnished with a desk and chairs. Detective Marshall asked whether defendant would like anything to eat or drink, and brought him a glass of water (A: 187-88). Defendant, as well as other people who knew the Ng siblings, were at the stationhouse to aid the police in learning more about the victims and who may have known them (A: 188). At 9:00 a.m., Detective Marshall left the stationhouse to attend the autopsies. While Detective Marshall was gone, Detective Philip Wong arrived at the stationhouse to assist with interviews (A: 189). Detective Wong was told that there had been a double homicide of a brother and sister and that defendant was the ex-boyfriend of the sister, and he was instructed to interview defendant, who was not considered a suspect (A: 73-74, 82). Detective Wong and defendant had been acquainted for seven to eight years – Detective Wong had been involved in defendant’s prior arrest, and defendant had served as a line-up filler arranged by Detective Wong (A: 75). At 11:00 a.m., Detective Wong went into the interview room and greeted defendant, who was not handcuffed and was not under arrest, by stating, “I haven’t seen you in a long time” (A: 59-62, 66, 77, 82). The men conversed in English and Cantonese. Detective Wong had no difficulty 20 understanding defendant when he spoke in English and defendant did not indicate that he had had any problem understanding Detective Wong’s English (A: 66-67). Their first conversation lasted approximately fifteen minutes. Detective Wong then left the room, but he returned at least six or seven times over the course of the day and continued the conversation, each time for about ten to fifteen minutes (A: 78-81). Throughout their many conversations during the day, defendant did not tell Detective Wong that he wanted to go home, did not complain about being in the interview room, and did not say that he wanted to call a lawyer (A: 83-84). Detective Wong kept questioning defendant because he wanted to make sure defendant was being accurate before defendant wrote out a statement (A: 85). Detective Wong was simultaneously conducting interviews of other witnesses who were in other locations within the stationhouse (A: 76, 79-80). Defendant told Detective Wong that he had known Sharon Ng for seven years and that they had dated for five years, but their romantic relationship had ended about a year earlier (A: 62, 67). Defendant explained that he had broken off the relationship because Sharon had cheated on him with a married man, Kevin Lee. Defendant said that he had recently been in 21 China and, since his return on March 16, 2005, he had seen Sharon twice at his house (A: 62-64). Defendant told Wong that, on May 12, 2005, he left his house between 4:00 and 4:09 p.m., and walked to Sharon’s house, six or seven minutes away. Sharon was not home, but Simon let him in (A: 64). Defendant said that he went there to bring Sharon a present, but Detective Wong could not understand in Cantonese defendant’s description of the gift (A: 67). After defendant explained in English that the gift was a squirrel made out of seashells, Detective Wong understood (A: 67). Defendant stated that he stayed in Sharon’s apartment for one-half hour and then went home where he remained for the rest of the night (A: 64). While defendant spoke, Detective Wong wrote his words (A: 62; People’s Exhibit 2). When asked about why he had gone to Sharon’s home on May 12th, defendant, in addition to the statement about delivering a gift, gave a number of other reasons. He told Detective Wong that he wanted to get contact information for Sharon’s parents, that he wanted to have sex with Sharon, and that he did not want anyone to think that Sharon was promiscuous (A: 65). Defendant never asked to leave or for a lawyer, and was allowed to go to the lunchroom in the stationhouse (A: 83-84,102). Defendant expressed 22 to Detective Wong that he would help the police with the investigation and would come back whenever the detectives wanted (A: 71). Detective Kevin Hui, who was fluent in Cantonese and was assigned to the Organized Crime Investigation Division, also went to the 107th Precinct to interview witnesses in connection to the murder of the Ngs because there was a suspicion that organized crime could be involved (A: 14-16,26). When Detective Hui arrived at the precinct, he saw lots of Asian people that he learned were witnesses, family, and friends of the victims (A: 27). After interviewing two people, at approximately 10:00 p.m., Detective Hui entered the interview room where Detectives Wong and Shim were interviewing defendant (A: 16-17, 28). Defendant was speaking English and Cantonese and was scribbling or doodling on a piece of paper (A: 18- 19,32; Peoples’ Exhibits 1A & 1B). He was in the room for about five minutes when defendant asked to speak to him alone (A: 21, 32-34, 38, 68-69). After the other detectives left, defendant asked Detective Hui, “What happens if I stick it out to the end or if I talk” (A: 21). Detective Hui replied that, in his experience, many suspects leave the country and that if defendant “knows who did it he should tell” (A: 21). Defendant replied that he “guaranteed” that “the guy is not going to leave” (A: 22). Defendant then asked, “What if I left and two minutes later rang the doorbell again he wouldn’t 23 come back down to check who it was” (A: 22). Detective Hui asked for an explanation of whom defendant was referring to when he said “he,” and defendant replied that it was Simon (A: 22-23). Defendant asked if he could work out a deal. Detective Hui replied that he was not in charge of the case, but would get someone who could discuss a deal (A: 23). As Detective Hui was leaving the room, after about five minutes, defendant asked to use the bathroom and commented that he “did not want to squat in jail until he was 60, or maybe until he was 40” (A: 23-24, 39, 47-48). Defendant and Detective Hui conversed in Cantonese (A: 38, 46). Upon Detective Marshall’s return from the autopsies, defendant did not ask for a lawyer, had not requested to leave the precinct, did not ask how long he would have to stay in the precinct, and was given food, cigarettes, and bathroom breaks. Nor did the detectives speaking to defendant tell Detective Marshall that defendant had requested a lawyer (A: 193-94). After Detective Hui exited the interview room, he relayed defendant’s statements to Detective Marshall and Lieutenant Belluchi (A: 24, 196, 248). The detectives and supervisors discussed these statements, and Lieutenant Belluchi decided that, since everyone was tired, they would let defendant go home, let everyone get some rest, and “pickup again the next day” (A: 196, 248). At some time during the evening, Detective Wong 24 removed the papers defendant was scribbling on and gave them to Detective Marshall, who put them in the case folder (A: 71-72, 194-195). 1 Sometime between midnight on May 13 and 1:00 a.m. on May 14, 2005, Detective Marshall drove defendant home (A: 192, 248). Detective Marshall asked defendant if he would come back to the precinct the next day, and defendant replied that Detective Marshall should call him and pick him up and he would come back “no problem” (A: 192). On the morning of May 14, 2005, Detective Marshall called defendant and asked whether he would be willing to come back to the precinct to talk to the detectives, and he agreed (A: 197). At 11:00 a.m.,the agreed upon time, Detectives Marshall and Schindlar knocked on defendant’s door, he answered, said that he needed to finish dressing, and invited them in (A: 197). The detectives waited in the kitchen and, when defendant was ready, they all went to the precinct in the police vehicle. Defendant was not handcuffed and, during the drive, there were no conversations regarding the investigation (A: 197). Detective Schindlar did not recall seeing any cuts or scratches on defendant’s face (A: 319). There was no conversation until approximately 11:40 a.m., when they sat down in the interview room and Detective Marshall read defendant the The exhibit consisted of pages of writing in Chinese. The parties stipulated to a1 translation of the documents (A: 315). 25 Miranda warnings from a form (A: 198-99; People’s Exhibit 7). Defendant replied “yes” to each question, signed the card indicating his willingness to speak to the detectives, did not ask for any clarification of any of the rights he was read, and did not state that he did not understand anything read to him (A: 199-201, 321-322). After defendant waived his Miranda rights, Detectives Marshall and Schindlar spoke to him (A: 202). The conversation was conducted in English, and defendant did not indicate that he had any trouble understanding (A: 201). The detectives asked defendant about his May 12th visit to the Ngs’ apartment, and defendant repeated his statement that he went there to deliver certain figurines that were a gift for Sharon, arriving between 3:00 and 4:00 p.m and staying approximately twenty minutes (A: 202-203). After conversing for one and one-half to two hours, Detective Marshall interrupted the interview, leaving defendant alone in the room while the detective spoke to other people concerning when Sharon had come into possession of the figurines. At approximately 5:00 p.m., Marshall returned to the interview room and told defendant that he had spoken to people who said that Sharon had the figurines in the apartment for weeks before May 12, 2005 (A: 204-07). He then left defendant alone for about an hour (A: 207-08). 26 When Detective Marshall returned to the room at about 7:00 p.m., defendant told him, in substance, that he had gone to the Ngs on May 12th for the purpose of facilitating a robbery. Defendant’s account, which he later reduced to writing, was that, when he came back from China in March, he went to work for a Chinese bakery and restaurant in Connecticut called Tod Ming (A; 208-09; Defendant’s Exhibit A). There, he met a man named Gong, who showed him a gun, told him about a house in New Hampshire where there was a lot of money, and asked him if he knew where Gong could get money for more guns and a car. Referring to the Ngs, defendant told Gong that he knew of a house in Flushing where there was money. Although he told Gong that he did not want to go into the Ngs’ home for the money, he gave him the Ngs’ address and described Sharon’s car. According to defendant, Gong called him at the end of April and during the first week of May and asked about how he could get into the Ngs’ home. Defendant told him that he would go to the Ngs’s home on the afternoon of May 12th, and facilitate Gong’s entry. Gong told defendant that he would give defendant money from the planned New Hampshire robbery. Defendant explained that he went to the Ngs at 4:00 p.m., on May 12, was admitted by Simon, talked to Simon inside for about one-half hour, and, when he left, passed a Fukienese man standing next to the front door talking on a cell phone. As he walked away, defendant watched the man enter 27 the building. Defendant went home and waited for Gong to call, but he never did (A: 209-10). Defendant then wrote, in English, his account of his conversations with Gong and the events of May 12, 2005 (Defendant’s Exhibit A). At 9:30 p.m., Marshall informed defendant that he was under arrest and prepared an arrest report (A: 211, 256). Defendant remained in the interview room while Detective Marshall began an investigation focused on identifying Gong and the Fukienese man. He contacted the police in New Haven, Connecticut, and determined that there was a restaurant supply company called Tod Ming in that area. He also contacted an F.B.I. agent who had information about the location, and collected photographs of people named Gong that were shown to defendant (A: 212). Detective John Warner assisted in the investigation of defendant’s statement that he was involved with a man named Gong in setting up a robbery of the Ngs (A: 153-54). At about 1:00 a.m., on May 15, 2005, Detective Warner interviewed defendant for about one and one-half hours in an effort to obtain more information that would allow the police to identify Gong. Defendant told Detective Warner about meeting Gong in Connecticut and provided the names of other people who worked with Gong (A: 156-57, 162- 65, 172). Detective Warner wrote down defendant’s statement (A: 161; 28 People’s Exhibit 5). They conversed in English, experienced no difficulty2 understanding each other, and defendant was not handcuffed (A: 155). Detective Marshall worked through the night and was resting on his desk at about 5:00 a.m., on May 15, 2005, when defendant, who had been resting in the interview room, knocked on the door of the interview room, which was the signal they had established for alerting the detectives whenever he needed to use the bathroom or wanted a drink (A: 213). Marshall asked defendant what he wanted, and defendant said that he wanted to talk. After the detective sat down, defendant told him that, although he had helped set up a robbery of the Ngs, he did not know that they would hurt anyone. Defendant then wrote down the information he wanted to add. In that statement, he explained that he told “them” that Sharon kept money in little boxes and that he thought the robbers were armed with guns (A: 213-215; Defendant’s Exhibit B). He stated that he had lied during his first interview because he was scared when he learned that Sharon and Simon were dead (Defendant’s Exhibit B). He explained that he told the robbers about the Ngs because they promised to give him money after the “big case,” and he needed money for a trip to China (Defendant’s Exhibit B). Because the prosecutor had not given notice of the statements to Detective Warner,2 the People did not seek to use those statements in their direct case. Warner’s testimony was offered as relevant to the circumstances surrounding the noticed statements (A: 161). 29 Detective William Schmittgall arrived at the 107th Precinct at about 10:00 a.m., on May 15, 2005, was debriefed by Detective Marshall, and asked to help identify Gong and the Fukienese man (A: 103-106, 216). Marshall and Schmittgall interviewed defendant from about 11:00 a.m. until about 2:00 p.m. Before the interview began, Schmittgall reminded defendant, who was not handcuffed, that he had been already been given the Miranda warnings and that those warnings still applied – he had the right to speak to an attorney or he could speak to the detectives. Defendant indicated that he wanted to speak to the detectives to “explain things,” and the detectives spoke to defendant to learn as much about Gong and the Fukienese man in an effort to identify them (A: 107, 139, 228). The conversation was in English, and defendant did not indicate that he had any difficulty understanding nor did he ever state that he no longer wanted to speak to the detectives (A: 108, 140, 142). Defendant provided a more detailed description of Gong, and the detectives asked him to identify other people at the restaurant who knew Gong (A: 217). After the detectives talked with defendant for two to three hours, they left the room, got food for defendant, did some computer checks, vouchered some items, and discussed the case. They then decided to visit the crime scene (A: 217, 108-09). 30 Detectives Marshall and Schmittgall returned to the precinct at about 6 p.m. and discovered from Detective Ng who learned from the victim’s friends that, on May 12, 2005, Simon had mentioned defendant’s arrival and presence at his apartment in an on-line diary called Zhanga. Simon had posted that defendant arrived at his home asking for fishing poles and, instead of waiting by the door, defendant walked in uninvited and stayed for some time, walking around the home smoking a cigarette (A: 218-19, 110). Detectives Marshall and Schmittgall reviewed the Zhanga entry and discussed a strategy for confronting defendant with the discrepancy between Simon’s blog entry and defendant’s statement that he had gone there to deliver seashell figurines (A: 110). They decided to use the information to convince defendant that Simon was still alive, that they had talked to him, and that he had told them about the fishing poles (A: 219, 111). At approximately 9:00 p.m., Detectives Marshall and Schmittgall went into the interview room and told defendant that they had just come from the hospital, where Simon was in critical condition and had just gotten out of surgery (A: 220, 238-241, 111). They told defendant that they had spoken to Simon and that he had informed them that defendant had come to the apartment looking for something (A: 220, 112). Defendant insisted that he had gone there to deliver the figurines and to see Sharon (A: 111-112, 220). Schmittgall 31 then wrote the words “fishing poles” on a piece of paper, turned the paper upside down, and said to defendant, “This is what you went there for” (A: A: 112). Schmittgall then asked whether anyone else had been present when defendant spoke to Simon and defendant said, “No, we were alone” (A: 112). Detective Schmittgall then told defendant that, when he read the paper, he would know that the detectives had spoken to Simon, because no one else could have told him what was on the paper. He then slid the paper across the table to defendant. Defendant looked at the paper and his face became flushed. Schmittgall said, “We could play games here, but you know there is no one else who could have told me that . . . we know what is going on here.” Defendant responded, “Then you know what happened.” The detective replied, “We know what happened . . . things happen for a reason, I’m sure your intention was not to murder two people, especially someone you loved, Sharon, but there is more to this story, we need you to explain it” (A: 112-13). Defendant then broke down and sobbed for fifteen to twenty minutes (A: 221, 112-13). Detective Marshall gave defendant some tissues, water, and a cigarette (A: 221). After defendant composed himself, the detectives told him that it was time for him to explain what had happened. Defendant said that he was walking around in the apartment and grabbed a knife from the wooden knife 32 holder in the kitchen. He went into Simon’s room, held the knife to Simon’s throat, and forced him to bind himself with tape at the legs and ankles. When Sharon came home, he turned out the lights, got behind her, put the knife to her neck and forced her to tie herself up. Simon then “went crazy,” and started breaking free, so defendant stabbed him. Then, Sharon was “going crazy,” so he stabbed her (A: 113, 222-23). Detective Schmittgall asked defendant to tell him something about the incident that no one else would know and had not been in the newspapers. Defendant replied that Sharon’s door was locked, and Marshall confirmed that the statement was correct (A: 114). Detective Schmittgall then asked defendant to tell him where the knife was and defendant replied that it was in the toilet with the blade sticking up. Detective Schmittgall then looked to Detective Marshall, who indicated that that was correct (A: 114). The detectives asked defendant to write his statement, he wrote that [spelling and grammatical errors in original]: On Thursday May 12 2005 a round 4 pm: I went to Sharon andth Simon house. Rang the doors bill Simon come down and open the door and I ask them the fishing pobes. flowe up stater in to the apartment. And talk to the Simon cigettes. I get the knife from the kitchen and go to Simon room with tape I get from the kitchen. I hold the knife to he neck from behing and to tape himself and tape his eye, moth, hand, leg. I told him to set the bed. I look for the money from Simon’s room and Sharon’s room, I couldn’t find the money. So I want to the livingroom smok cigettes. And wirth for Sharon that Sharon come home. I come 33 from behind and put the knife to the neck and I turned the light off be for she come home. So she couldn’t see me. I told her to the tape her slef with the white tape. That Simon go cazy and hand free and his come out the room and I go cazy and stab him in he neck and stomech. He falls down to the floor and closed to the doors that go beck to Sharon’s room and she be cazy too. So I’m cazy and stab her stomech and fall down on the floor closed the make up talbe. That I scared that tohron the knife to the toillet. That I look back that see Sharon she room is closed And I ran home. Change the shirt and jeans. And that watch T.V. and take show and went to sleep. (A: 115-16, 222-23; People’s Exhibit 3). Defendant signed the statement at 12:55 a.m. on May 16, 2005. Although he wrote “cazy” and “moth,” verbally he stated, “crazy” and “mouth,” and the detectives had no difficulty understanding him (A: 117-18). The detectives then left the room and discussed whether they had any additional questions for defendant (A: 224). When they re-entered the room, Detective Marshall wrote questions on piece of paper, one question at a time, and defendant wrote the answers as follows [spelling and grammatical errors in original]: What clothes was Simon wearing? Simon wearing white T-shirt and silver short pant. What is Sharon wearing? Sharon wearing the jacket. What was Simon doing while you were walking around the apartment? Simon doing the H.W. by the computer. What were you wearing on May 12, 2005 34 I wearing on May 12, 2005 is the pants and shoes I have on now and the back long sleeve shit. Where is that shirt now? The shirt now is in my claset on the box Where did you get the knife from. I get the knife from the kitchen on the table with the long knife on the cutting board. What color is the tape on Simon? The color on Simon is silver. (People’s Exhibit 4A). Defendant signed the paper at 1:30 a.m., and the detectives left the room (A: 225-26, 119-21). They returned a short time later and repeated the process. The questions and answers were as follows: How old were you when you came to the U.S.A.? 14 yer. What Junior High School did you attend? M.S. 74. 7th-8th grade. What high school did you attend? Benjaimen Cardoza What grade were you in when you left school? 11 grade.th (People’s Exhibit 4B [spelling and grammatical errors in original]; A: 122-23, 226-27). Defendant signed the paper at 2:00 a.m. on May 16, 2005 (Exhibit 4B; A: 123, 145). Throughout the interview process defendant never asked for 35 an attorney, was given food, water, cigarettes, bathroom breaks, and slept and rested (A: 226-28, 254-58). After he was formally arrested, defendant was removed from the interview room at times so the detectives could interview other people and, as a result, was placed in the squad cell (A: 235, 237). An Assistant District Attorney came to the precinct and began interviewing defendant, but the interview, which was video recorded, ended when defendant requested an attorney (A: 236, 261-62, 314; Exhibit 10). While defendant was at Central Booking, he was interviewed, in English, by a representative of the New York City Criminal Justice Agency, who filled out a form (hereinafter CJA) (A: 293-99; People’s Exhibit 9). This CJA form denotes that defendant provided his pedigree information including his address, that he had completed up to the 11th grade in school, that he was unemployed and his parents financially supported him, and that he had lived at his last two residences in Flushing for the past fourteen years. While incarcerated in Rikers Island, three to four months before the Huntley hearing, defendant conversed, in English, with Corrections Officer Robert Reed on six or seven occasions (A: 307-11). Officer Reed had no difficulty understanding defendant’s English, and defendant responded appropriately when asked questions in English (A: 310-12). 36 Several years before his arrest in this case, on January 9, 1998, defendant was arrested by Detective Thomas Chin, who, together with Detective Wong, advised defendant of the Miranda warnings in English and Chinese (A: 267-72). Detective Chin communicated with defendant in English and had no trouble understanding him (A: 273, 280-82). He read each right in English, and defendant replied, “Yes,” indicating that he understood and was willing to speak to the detectives (A: 273-76). Detective Chin made sure that defendant understood each right before moving on to the next right by asking, after each question, whether defendant had any questions (A: 274, 277-78). He used the word “lawyer,” as well as “attorney” in relating the rights (A: 278). Defendant wrote the word “Yes,” next to each right and signed the warnings form (A: 274; Exhibit 8A). Detective Wong repeated the warnings in Chinese, and defendant responded by saying “Yes” in Chinese (A: 276-78, 287; Exhibit 8B). Defendant was allowed to read the Miranda warnings in both English and Chinese (A: 276, 285-86). The Defense Case Detective Daniel Schindlar accompanied Detective Marshall when he transported defendant, who was not handcuffed, between his home and the police precinct (A: 318-19, 320-21). Detective Schindlar did not recall seeing any marks on defendant’s face (A: 319). He was present when Detective 37 Marshall advised defendant of the Miranda warnings and defendant appeared to be reading the rights printed on the form as Detective Marshall read them (A: 320). After each right, Detective Marshall asked, “Do you understand?” and each time defendant replied, “Yes” (A: 321-22). The Court’s Decision In a written decision dated September 19, 2008, the court denied defendant’s motion to suppress his statements. Fully crediting the detectives’ testimony, the court held, first, that defendant was not in custody when he made the May 13, 2005 statements and, thus, there was no requirement that he be advised of the Miranda warnings (A: 409-14). Second, the court concluded that when defendant returned to the precinct on May 14, he did so voluntarily and was not in custody, and that he was advised of his Miranda rights when he arrived did not transform the situation to a custodial one (A: 414-416). Third, the court found that defendant was not in custody until approximately 9:00 to 9:30 p.m., on May 14, 2005, when he inculpated himself in a plot to rob the Ngs, and that statement was made after he had been advised of and knowingly, intelligently, and voluntarily waived, his Miranda rights (A: 415-16). Fourth, the court found that “the fact that defendant was not totally fluent in English [did] not render his statements inadmissible” (A: 417). 38 Relying on the evidence that defendant had lived in the United States for several years, had attended school here, had responded to the detectives’ questions “in a meaningful way,” and never indicated a lack of understanding of anything said to him, the court concluded that “defendant was able to fully understand the ‘immediate import of the warnings’ read to him” (A: 418). Fifth, the court found that the police informing defendant falsely that Simon was still alive did not render defendant’s confession involuntary because the ruse was not of such a nature as to induce a false confession or to render his confession involuntary (A: 419-21). Finally, the court found that the delay of defendant’s arraignment was “due to circumstances largely created by the defendant’s earlier misstatements,” and did not violate his right to counsel or render his confession involuntary (A: 421-25). The court found that, although the questioning of defendant continued for twenty-nine or thirty hours after his arrest until his final confession, the purpose of the delay was to investigate “the circumstances surrounding a double homicide and [the] need to follow up on differing versions of the events as provided by defendant and other witnesses,” and was not contrived to deprive defendant of his right to counsel (A: 423-24). The court found further that, during the delay, there were breaks in the questioning, defendant was permitted to rest, was provided food, drinks, and cigarettes, was 39 allowed to use the bathroom, and was not subjected to any threats, coercion, or “show of force by the police” (A: 425). The court concluded that the length of the interrogation process did not render defendant’s confession involuntary, and denied his motion to suppress (A: 425). THE TRIAL The People’s Case Miu Ping Cheung, Sharon and Simon Ng’s aunt, visited and spoke to her niece and nephew often (RA: 608-09). In September or October 2004, Sharon, who was then twenty-one years old and worked at a telephone store, moved into an apartment at 154-34 64th Avenue in Flushing, Queens, with her eighteen-year-old brother, Simon Ng, a student at Queens College (RA: 598- 600, 602, 651-52). Their parents had moved to Hong Kong (RA: 600). In 1997, defendant and Kevin Lee became friends after meeting at work. By 2004, both men were dating Sharon (RA:644-46). Defendant had already been dating Sharon when Lee met her in 1998. Lee and Sharon became friends and, in 2003, began dating. At some point, Sharon broke up with Lee, who was married, but, in the summer of 2004, they re-commenced their relationship and Sharon broke up with defendant (RA: 647-51). Lee visited Sharon’s apartment on at least ten occasions, but never went into Simon’s bedroom and never saw defendant there (RA: 651-53). 40 On May 12, 2005, at approximately 7:00 p.m., Lee met Sharon at the store in Manhattan where she worked and they went to a restaurant for dinner (RA: 653-54). He then drove Sharon home, arriving at about 9:05 p.m. He noticed a light on in Simon’s bedroom, but the living room was dark. He waited in his car while Sharon went into her building and then drove home (RA: 654-56, 684-89, 692-93). From his home, at about 9:25 p.m., Lee called Sharon several times before she picked up her phone and said, in a weak voice, “I am so dizzy, someone’s in the house” (RA: 656-57, 679-80, 713-14). Because he could not remember Sharon’s address, Lee did not call 911, but he immediately went to her house. Meanwhile, at about 9:30 p.m., on May 12, 2005, Wailap “Vincent” Tsang’s Nextel, a walkie-talkie type device, buzzed and identified his friend, Sharon Ng as the caller (RA: 838-41, 856). Tsang pressed a button to allow the caller to speak, and Sharon said that there was someone in her apartment, there was a lot of blood, and asked him to call 911 (RA: 841-42). Tsang called Sharon’s friend, Angela, but could not reach her, so he left work and drove to Sharon’s apartment (RA: 842). When Lee arrived at Sharon’s building, he found the outside door open and went up to the second-floor, where her apartment door was open 41 (RA: 657-58, 690, 697). The only light came from Simon’s bedroom, where the door was open, and Lee saw a hand poking out from under a blanket on the floor and a lot of blood on the floor and walls (RA: 658-59, 680, 701-02, 706). Sharon’s bedroom door was closed and there was blood on her door and doorknob (RA: 658, 700-01). He went outside and called 911 (RA: 659-61, 678; People’s Exhibit 8). When Tsang arrived, Lee was standing outside the building and told Tsang not to go upstairs (RA: 842, 661-62, 681-82, 711). Police Officers John Deachman and Giordano received a radio call at 9:40 p.m. to go to 154-34 64 Avenue for a robbery in progress (RA: 651-th 53, 577). When they arrived at 9:43 p.m., Lee and Tsang flagged them down. After speaking to Lee and Tsang, the officers went to the second floor and, unbeknownst to them, Lee and Tsang followed them (RA: 554, 572, 576, 843, 863). They found the apartment door ajar, knocked, pushed the door open, and identified themselves and asked if anyone was home but got no response (RA: 580). With guns drawn, they walked into the apartment (RA: 579). The living room and bathroom were dark and only a dim light shone from the kitchen (RA: 556, 843, 864). There was blood in the hallway outside the bedrooms (RA: 556). They went into one bedroom and found Simon on the floor next to the bed in a large pool of blood (RA: 557, 866). Officer Deachman then 42 realized that Lee and Tsang had followed them into the apartment and ordered them to go outside (RA: 557-58, 714, 843-44). Simon was unconscious and covered in blood; he had numerous cuts and stab wounds on his arms. He was partially covered with a blanket, but his duct-taped legs were visible (RA: 557-58). Officer Deachman called for an ambulance. He then heard a moan from the other bedroom. Officer Giordano tried to open the door, but it was locked so he kicked the door open, and they found Sharon Ng, lying on the floor by the door (RA: 558, 587-88). Sharon was in a semi-conscious state, with her stomach cut open, her intestines on the floor, and lots of blood (RA: 558, 588). Many other stab wounds, including a cut throat, were also visible. Deachman and Giordano knelt next to Sharon and one of them asked, “Who did this to you,” but, when she tried to speak, only a moan came out (RA: 559, 591). Very slowly and in a very low voice, she said, “I cannot breathe” (RA: 559, 593). At 9:46 p.m., Emergency Medical Technician Brian Goldblum and his partner responded to the victim’s apartment. They first attended to Sharon, who had multiple stab wounds, a weak pulse, and her internal organs began to protrude from a laceration to her abdomen (RA: 507-513, 516-17, 559). While his partner remained with Sharon, Goldblum went to the other bedroom and determined that Simon, who was lying on his back on the floor and had 43 suffered multiple stab wounds, had no pulse or heart beat, was not breathing, and his pupils were fixed and dilated (RA: 511-513, 521). He pronounced Simon dead and returned to Sharon, whose breathing was very shallow and uneven (RA: 513, 560). As Sharon was taken by ambulance to New York Hospital Queens, her heart stopped beating (RA: 513-15, 525-26; People’s Exhibit 1 - Sharon Ng’s hospital records). Dr. James Maurer, a surgeon and an expert in trauma and critical care, was on call that evening, and he explained how, upon Sharon’s arrival at the hospital, the doctors opened her chest and compressed her heart, attempting to re-start it. She had suffered multiple wounds to her head, neck, chest, back, extremities, and her abdomen was eviscerated (RA: 527-537, 538-39). As the doctors were attempting to re-start her heart, Deborah Shem, a nurse on duty in the operating room, saw Sharon being wheeled into the operating room (RA: 535-38, 531). Sharon was in full arrest; one doctor was massaging her heart while another doctor was trying to stop her bleeding (RA: 541). Unfortunately, the doctors were unsuccessful and Sharon was pronounced dead at 10:36 p.m. (RA: 537, 542). When she was preparing to move Sharon’s body to the morgue, Shem noticed a lot of “defensive wounds” on Sharon’s arms, and hair on her hand, and tissue under her fingernails (RA: 44 543, 547-48). After consulting with a detective, Shem placed bags over Sharon’s hands and secured them with tape (RA: 543; Exhibit 2 -photo of Sharon Ng). Back at the victims’ apartment, Tsang and Lee went downstairs to wait as the officers instructed, were handcuffed, and a half hour later were taken to the police precinct (RA: 844, 662, 712). At around10:00 p.m., Detective Marshall, accompanied by Detectives Woods and Hogan, arrived to look around the crime scene (RA: 877, 981). Detective Marshall observed Simon bound with tape lying on the floor of a bedroom and blood in the other bedroom; Sharon had already been taken to the hospital (RA: 878, 983, 987, 1092). Simon was bound with silver tape around his ankles and masking tape around his thighs and ankles (RA: 1093). At about 10:30 p.m., Detective Daniel Mulvanerty of the Crime Scene Unit arrived to photograph the scene and collect possible evidence (RA: 983, 1428-1429, 1432, 1509). Detective Mulvanerty walked through, photographed, and sketched the Ngs’ apartment (RA: 1432-36; People’s Exhibits 4, 5, 6, 7, 31A, 31B, 33, 34, 35). Simon’s bedroom was a “bloody mess,” with blood on the walls, floor, and bed and several pieces of tape and bloody clothes on the floor (RA: 1434, 1478, 1495; People’s Exhibit 6). Simon was partially obstructed because his head was under the bed and his arm 45 was under a portable table (RA: 1438). After photographing Simon’s body, he moved it to get a better view and take a few more photographs, but was careful not to touch or disrupt the tape on Simon’s legs (RA: 1436-39, 1469). In Simon’s room, Detective Mulvanerty found and collected a Mag flashlight, a piece of duct tape, and a roll of duct tape (RA: 1448-49; People’s Exhibit 3). He also recovered a roll of masking tape from Sharon’s room (RA: 1449). He noticed a small jewelry box on Sharon’s bed, a white winter jacket cut up with blood on it, masking tape with blood, a red shirt with blood, and a roll of masking tape, and a flowery handbag (RA: 1443-50; People’s Exhibits 7, 33, 34, 35). He packaged these items and gave them to Officers Deachman and Giordano for vouchering (RA: 1448-51, 561-62; People’s Exhibit 3 - paper bag containing evidence; People’s Exhibit 31B- photo depicting roll of duct tape). In the bathroom, Detective Mulvanerty removed a knife from the toilet with the blade pointed up and the handle completely submerged in water. (RA: 570-71, 1454-55; People’s Exhibit 36). After the knife dried, he placed it in a cardboard box, which he sealed and gave to Officer Giordano for vouchering (RA: 1455-57; People’s Exhibit 22). The knife was not dusted for fingerprints (RA: 1511-13). The knife was made of white metal, with an eight- inch blade and a four-and-one-half inch handle. It was the same brand as the 46 knives and scissors in a block on the kitchen counter (RA: 1458-59; People’s 37). Detective Mulvanerty dusted for fingerprints throughout the apartment (Mulvanerty: 1454). He found and lifted two prints from the walls3 of Simon’s bedroom – one on the wall above the headboard and one on the wall by the side of the bed. He also lifted a fingerprint from a soda can outside the front door of the residence (RA: 1461-65, 1505-06; People’s Exhibit 38). There was no sign of forced entry to the apartment (RA: 1465, 1510). At 2:00 a.m., on May 13, 2012, Lee, who had been at the precinct being interviewed, accompanied the police to Miu Ping Cheung’s home to inform her of her niece and nephew’s deaths (RA: 599, 665). Lee and Ms. Cheung called the victims’ mother in Hong Kong (RA: 600, 665-55). Later,4 the police searched Lee’s car, interviewed his family, and checked his cell phone (RA: 666-69, 712). Lee then stayed home and about one and one-half hours later, at 4:00 a.m., Detective Marshall arrived and, with Lee’s consent, Sometime after Detective Mulvanerty, another crime scene detective examined the3 crime scene and lifted seven latent prints (RA: 1507-08). On May 13, 2005, Ms. Cheung, accompanied by Lee, went to the medical4 examiner’s office and identified photographs of her niece and nephew (RA: 668-69). When the prosecutor was eliciting this information, counsel stipulated that the victims were “the boy and the girl” (RA: 601). Later in the trial, the People and defendant stipulated that the victims were identified by their maternal aunt, Miu Ping Cheung, on May 13, 2005 at the Medical Examiner’s Office (Proceedings: 1689-90). 47 searched Lee’s home, room, laundry, garbage, and body for any marks and took him back to the precinct for further questioning (RA: 667, 880-81). Meanwhile, after being brought to the precinct in handcuffs, Tsang was interviewed for hours by the police about what happened on May 12 and about other people that knew the victims. When the police were not questioning him, he was alone in a room (RA: 869). He gave the police his cell phone to search and it was subsequently returned to him (RA: 853, 863). At about 4:00 a.m., Tsang left the precinct and picked up Cherry, another of Sharon’s friends, and returned to the precinct with her (RA: 844-45, 850). About three hours later, Tsang left the precinct (RA: 851, 853). Around 7:00 a.m., on May 13, 2005, Detective Marshall went to defendant’s Queens home, informed him that he was investigating the victims’ death, and asked him to come to the precinct (RA: 881-82, 1057). Defendant agreed and went upstairs to dress as Detective Marshall and another detective waited on the lower level of the home (RA: 882-83). While defendant put on his coat, Detective Marshall observed a scratch on defendant’s forehead and asked about it. Defendant responded that he hit his head on his kitchen table (RA: 887). When they arrived at the precinct, defendant, who had not been handcuffed, was led into the interview room, which was a twelve by twelve 48 room with a desk and several chairs (RA: 884). Detective Marshall asked defendant if he wanted anything to eat or drink, gave him a glass of water, and then left him in the interview room alone because he went to the medical examiner’s office to view the autopsies. That morning and early afternoon Detective Hui, who was assigned to the Organized Crime Investigation Unit and was responsible for gathering intelligence regarding Asian organized crime gangs, and Detective Wong arrived separately at the precinct to assist in the investigation. They both saw several Asian civilians in the squad area and were told these were witnesses and the victim’s family and friends (RA: 720-21, 736, 768-69, 775). Throughout the day, Detective Hui had interviewed Kevin Lee, Kevin’s wife, Amy, and Angela Ng, a friend of Sharon’s (RA: 745-46). Detective Wong interviewed Kevin Lee about four to seven times that day; he interviewed him multiple times to confirm the information and to make sure nothing was being left out (RA: 776). Lee provided the police a DNA sample and defendant’s name and address and stayed at the precinct until around 5:00 p.m. on May 14, 2005 (RA: 669-70, 715, 973-74). Detective Wong interviewed Sharon’s friend Angela three to four times (RA: 776-77). As he had at the hearing, Detective Wong explained to the jury the substance of his conversation with defendant and defendant’s statement to him 49 (RA: 778-819). Detective Wong and Detective Hui explained that at approximately 10:00 p.m., Detective Hui walked in during one of the interviews and defendant asked to speak to Detective Hui alone. Detective Hui then explained to the jury the statement defendant made at that time as he had at the hearing (RA: 721-731, 746-755, 757-765). At the end of their conversation, defendant asked to use the bathroom and the telephone, and stated that he wanted to call his mother (RA: 729). While in the precinct, defendant was smoking, eating, and drinking. Anytime Detective Marshall obtained food, he asked defendant if he wanted anything to eat (RA: 891). Up to this point, defendant stayed in the interview room and the kitchen of the squad room and had not been placed in a holding cell (RA: 891-92). When he left the interview room, Detective Hui informed Detective Marshall, Lieutenant Bellucchi, and other detectives of defendant’s statement (RA: 730-32, 788, 809, 888, 1005-06). Meanwhile, sometime around 12:00 a.m. on May 14, Detective Ronald Waldron removed and cleaned an ashtray defendant was using (RA: 820-23, 833-835). Detective Waldron returned the ashtray to the room and watched through a two-way mirror while defendant smoked then put out his cigarette in the ashtray (RA: 824). Waldron re-entered the room, removed the ashtray, and used a paperclip to pick up the 50 butt and put it in an envelope, which he vouchered and had delivered to the medical examiner’s office (RA: 824, 1388-93; People’s Exhibit 9). At some point during Detective Marshall’s conversations with defendant, defendant indicated that he did not want to leave the precinct and that he would rather stay. After speaking to Detective Hui and unaware of what information defendant, who until this point was considered a witness may have possessed and while considering that defendant was now a potential suspect, defendant was allowed to leave and was not arrested (RA: 791, 891, 1007). At this time, the police had other potential suspects under consideration as well (RA: 1017). As a result, in the early morning hours of May 14, 2005, Detectives Marshall and Schindlar drove defendant back to his home. Before they did so, Detective Hui saw defendant walk out of the precinct by himself unrestrained (RA: 732, 765). During the ride to defendant’s home, defendant agreed to return to the precinct the next day if the detectives picked him up (RA: 890, 892, 1008, 1010, 1024). At about 11:00 a.m., on May 14, 2005, Detective Marshall called defendant, who agreed to return to the precinct (RA: 892-93, 1009-10). Shortly, thereafter, Detective Marshall arrived at defendant’s home, was invited in and waited at the kitchen table as defendant finished getting dressed. Defendant’s mother and brother were also home (RA: 893). Once defendant 51 was ready, they drove back to the precinct and defendant was seated in the back seat, but was not handcuffed (RA: 894). At the precinct, Detective Marshall, accompanied by Detective Schindlar, brought defendant into the interview room and, in English, read the Miranda warnings from a written form, which was signed by defendant and the detectives, dated, and had the beginning and ending times noted (RA: 894-99, 1010-11, 1016; People’s Exhibit 10). Defendant did not indicate any difficulty understanding the detectives, the detectives understood defendant, and his answers were responsive to their questions (RA: 899-900, 1057). Defendant responded “yes” to each question and agreed to speak to the detectives (RA: 897-900). Defendant explained, as he had the prior day, that he had gone to the victims’ home on May 12, 2005 to give Sharon a gift made out of shells. When Sharon was not home, he gave the gift to Simon, stayed for about twenty minutes, then left. He also discussed with the detectives his relationship with Sharon (RA: 900-01, 1020). After about one and one-half to two hours, Detective Marshall went into the squad room to review Detective Walsh’s notes of an interview with Sharon’s friend Angela (RA: 901-02, 1020, 1023). At approximately 4:30 - 5:00 p.m., the detectives returned to speak to defendant. They told him that Sharon had the shell figurine in her apartment 52 prior to May 12, 2005, and he insisted that he went to her home on the 12th to give her that figurine. After about an hour, the detectives left the interview room to review some other information obtained during the investigation (RA: 903, 1023). Around 7:00 p.m., the detectives returned to the room and explained to defendant that they confirmed that Sharon had the figurine before May 12th. He then explained that he agreed to help another person rob the victims’ home and wrote out a statement detailing this plan, which he and Detective Marshall signed (RA: 905-06, 1023; People’s Exhibit 11). In his statement, defendant explained that Gong was looking to get money to buy guns and a car to commit a large-scale robbery in New Hampshire and he told Gong that there was money in Sharon’s Flushing house. He had met Gong through a co-worker at a Chinese restaurant/bakery in Connecticut. At the end of April or beginning of May, Gong called and asked him about getting into Sharon’ house. Defendant told Gong that he could get him into her house on May 12th around 4:00 p.m. When he left Sharon’s on May 12th, he saw a Fukienese man standing by the front door and, as he walked away, the Fukienese man walked into Sharon’s building. Defendant further explained that Gong never called him, he never asked Gong for money, but Gong had offered to give him money from the large-scale robbery. Defendant explained 53 that, the next day, the police told him that Simon and Sharon were killed (RA: 908-10). After defendant completed this written statement at 9:00 p.m., he was placed under arrest (RA: 910). Detective Marshall began the arrest processing and he and several other detectives began an investigation into Gong (RA: 910-11, 1027). They called the New Haven police and an FBI agent who had information about the Chinese restaurant where defendant claimed he worked. The detectives located several people with arrest records that had Gong or some variation of it in their name, they obtained photos of these people and showed these photos to defendant, but he did not identify Gong (RA: 912). As defendant was being interviewed, he was taken to the bathroom whenever he said he needed to use it, he was given cigarettes throughout the day, and every time Detective Marshall ate he provided defendant with food (RA: 912-13). Prior to being placed under arrest, defendant never asked to leave the precinct, did not ask how long he would be there, and, at no point, did he request a lawyer (RA: 1011-12, 1032). After defendant was placed under arrest, Detective Marshall put him in a cell so he could use the phone there to call home, then he was returned to the interview room where he remained as the detectives investigated Gong. Whenever he needed something – a cigarette, bathroom break, or food – he 54 would knock on the door (RA: 913-14, 1026, 1030). At times, defendant slept in the interview room by putting two of the chairs together, and he slept in the cell, where he was placed whenever the interview room was needed by other detectives (RA: 915, 1035-36). Detective Marshall did not hear anyone yell at defendant during any of the interviews (RA: 1019). At about 4:30 to 5:00 a.m., on May 15, 2005, defendant knocked on the interview room door. Detective Marshall, who had his head down on his desk trying to sleep a little, opened the door and asked defendant what he wanted (RA: 915, 1021, 1048). Defendant said that he wanted to talk, Detective Marshall spoke to defendant, and then defendant wrote out another statement in his own handwriting (RA: 916-20, 1028, 1033; People’s Exhibit 12). In this statement, defendant explained, in sum and substance, that he told Gong where Sharon kept the money, that Gong was supposed to call him after it was over, that he did not know that the victims would get hurt, that he would get paid for helping them get money, and he needed the money for his upcoming trip to China (RA: 918-20). Around 10:00 a.m., Detective Schmittgall, from Queens Homicide, came to the precinct and, after a forty-five minute to one hour debriefing by Detective Marshall, both detectives went into the interview room and spoke to defendant for a few hours (RA: 921-23, 1038-40, 1048, 1129-30, 55 1132, 1149, 1157-58). After introducing himself, Detective Schmittgall told defendant that his Miranda warnings still applied, that he had the right to speak to ta lawyer, and that they would like to ask him about some inconsistencies. Defendant agreed to explain things (RA: 1132). The detectives were attempting to ascertain more information about the Fukienese man, trying to identify this Fukienese man, and trying to identify Gong. Defendant told the detectives he had no way of knowing who the Fukienese man and Gong were (RA: 1158). Around 2:00 p.m., the detectives left the interview room, got some food for themselves and defendant, then went to the crime scene so Detective Schmittgall could see the layout of the building and front door (RA: 923-24, 1040, 1132-33, 1147, 1162). Meanwhile, sometime on May 15, 2005, Simon’s friend, Justine Zhou, informed the police that on May 12, 2005, at 5:05 p.m., Simon posted the following on Xanga.com, a social media website (RA: 1123-25): Thursday, May 12, 2005 Anyway today has been weird, at 3 some guy ringed the bell. I went down and recognized it was my sister’s former boyfriend. He told me he wants to get his fishing poles back. I told him to wait downstair while I get them for him. While I was searching them, he is already in the house. He is still here right now, smoking, walking all around the house with his shoes on which btw I just washed the floor 2 days ago. Hopefully he will leave soon . . . . 56 (RA: 1126; People’s Exhibit 21).5 Upon returning to the precinct around 5:00 or 6:00 p.m., Detectives Marshall and Schmittgall learned about Simon’s blog post (RA: 925, 1042-43, 1134). Around 9:00 p.m., the detectives spoke to defendant, informing him that, while they had thought Simon would die, he was holding on, and that they had spoken to Simon (RA: 927-28, 1041, 1046-47, 1135-36, 1156). They again asked defendant what he went to the apartment for and told him that Simon, the only other person there at the time, had told them what it was, which was different than what defendant had told them. Detective Schmittgall wrote “fishing poles” on a piece of paper, and handed it to defendant (RA: 928-30, 1044, 1137). Defendant turned the paper over, read it, and his face became flush. Detective Schmittgall explained that he did not believe that defendant meant for things to happen the way they did, that he believed that defendant loved Sharon, but stated that defendant should explain what happened. Defendant then cried hysterically for fifteen to twenty minutes (RA: 1137). Detective Marshall gave defendant a glass of water and some tissues and waited for defendant to calm down (RA: 931, 1044, 1138). Chris Choi, an employee of Xanga.com, explained that Simon Ng opened an account5 at Xanga.com, an on-line community in October, 2002 (RA: 1113-17; People’s Exhibit 21). His last entry was posted on May 12, 2005, at 5:05 p.m. (RA: 1117, 1122). Only someone who knew Simon’s user name and password could post on his page (RA: 1121-22). 57 Once defendant stopped crying, the detectives told him that they knew what happened because they spoke to Simon, and again asked him what had happened (RA: 931, 1138). Defendant explained that he went to the victims’ apartment at 4:00 p.m., rang the door bell, Simon answered, he asked Simon for the fishing poles, and followed Simon upstairs to the apartment (RA: 932-33, 938, 1138). After being there for a while, he grabbed a knife and tape from the kitchen, told Simon to tape himself up, turned off the lights, and waited for Sharon to come home (RA: 936). As he waited, he looked around the apartment for money but found none (RA: 1138). When Sharon came home, he came up behind her and put a knife to her throat, but Simon got loose and was going crazy so he stabbed Simon multiple times, including from the front of the neck all the way to the back. He then went into Sharon’s room and stabbed her multiple times and was unsure of the location of the wounds but remembered that he stabbed her in the stomach (RA: 932-33, 1138-39). Detective Schmittgall asked defendant to tell him information about the crime that had not been in the newspaper or been mentioned by another detective. Defendant responded that Sharon’s door was locked. Unaware if this was accurate, Detective Schmittgall looked to Detective Marshall who confirmed that it was true. Detective Schmittgall asked defendant for another piece of information and defendant responded that he 58 had left the knife in the bathroom. When asked where in the bathroom he left the knife, defendant responded that he left it in the toilet bowl with the blade sticking out, which Detective Schmittgall knew to be true and Detective Marshall confirmed was accurate (RA: 1140, 1163). Detective Schmittgall asked defendant to write out his statement. At 12:55 a.m. on May 16, 2005, defendant finished writing out this statement (RA: 933-39, 1073, 1141-42, 1167; People’s Exhibit 13). In this statement, defendant explained that he took the tape and knife from the victim’s kitchen, taped Simon’s eye, mouth, hand and leg, and looked for money in Simon’s and Sharon’s rooms (RA: 936, 1087-88, 1143; People’s Exhibit 13). He also wrote that, after he stabbed Sharon, he threw the knife in the toilet, and when he looked at her bedroom, her door was closed (RA: 937; People’s Exhibit 13). A short time later, the detectives returned to clarify a few matters with defendant. Detective Marshall wrote a question down, handed the paper to defendant, who would write a response; they did this seven times (RA: 939- 42, 1143; People’s Exhibit 14). The detectives asked defendant what clothing he and the victims were wearing during the crime, what Simon was doing as he waited in the apartment, what color tape was on Simon, and where he got the knife from (RA: 942, 1139). Defendant answered each of these questions and his answers were consistent with the other available evidence. Defendant 59 wrote that Simon was wearing a white shirt and silver shorts, the tape on Simon was silver, Sharon wore a jacket, the knife used in the crime came from the kitchen, and Simon was on the computer when he was at the apartment. As for his own clothing, defendant explained that he was wearing the pants and shoes he wore when he committed the murders and that the black long-sleeved shirt he had worn was in his closet (RA: 1139). The detectives saw a few spots of possible blood on defendant’s pants. It was later determined that only defendant’s blood, not the victims’, was found on defendant’s pants (RA: 1153-54). After the question and answer session was over, the detectives left the room again. When they returned around 2:00 a.m., the detectives engaged in another written question and answer session this time focusing on defendant’s educational background (RA: 943-45, 1144; People’s Exhibit 15). Defendant explained that he had come to the United States when he was fourteen years old, he went to junior high at M.S. 74 and Benjamin Cardoza High School, which he left when he was in the 11th grade. On May 16, 2005, at 10:00 a.m., Detective Kevin Hogan, accompanied by Detective Schmittgall, Captain Burn, and Sergeant Ferruling, executed a search warrant on defendant’s apartment (RA: 1073, 1403-07, 1421-22). The search uncovered, as described by defendant, a black, long- 60 sleeved shirt on top of a box in defendant’s closet and his passport and plane tickets on his dresser (RA: 1407-11, 1149-52). The shirt did not appear to have blood on it (RA: 1145, 1149-53). About 11:00 a.m., two Assistant District Attorneys came to the precinct, read defendant his Miranda warnings. He asked for a lawyer, and all questioning stopped (RA: 946, 1146). At no time after Detective Schmittgall came to the precinct on May 15, 2005 had defendant ever indicated that he wanted a lawyer or did not want to speak to the police (RA: 1146-47, 1161). A photograph of defendant taken on May 16, 2005, revealed two scratches on his forehead (RA: 955; People’s Exhibit 16). Sometime that day, May 16, 2005, crime scene Detective Mulvanerty returned to the Ngs’ apartment and took a photo of fishing poles that were in a closet (RA: 968-69, 1466-68; People’s Exhibit 39). Dr. Henry Nields, an expert in forensic pathology, conducted an autopsy on Simon (RA: 1619-1623). Dr. Nields found that Simon’s legs were bound together with three bands of tape – two multiple wraps of duct tape on the lower shins and calves and a single band of masking tape – and there was adhesive residue on Simon’s left wrist and neck (RA: 1624-25, 1628; People’s Exhibit 41F). Dr. Nields removed the tape, placed it in a bag, and labeled it (RA: 1625-26; People’s Exhibit 18). Detective Marshall, who was present at 61 the autopsy, retrieved the bag and brought it back to the precinct and vouchered it (RA: 885-86, 959-60; People’s Exhibit 18). Simon had suffered a five-inch deep stab wound to the front of his neck, which perforated the thyroid and trachea, transected his small arteries and interior thyroid artery, and incised the spinal cord (RA: 1630-31; People’s Exhibit 41E). Blood was found in both of his lungs and in his stomach, indicating that he had aspirated blood due to the trachea injury and swallowed blood that he was able to cough up (RA: 1631-32). Simon also suffered three incised wounds to his chin, a laceration on the right front scalp, which was surrounded by a contusion measuring seven inches by two inches, an incised wound on his face, multiple incised wounds on his arms and hands, abrasions on his fingers, hemorrhaging under the skin on the back of his left hand and wrist, which was consistent with having been bound with tape, and a contusion on his left upper chest near his shoulder (RA: 1629-34; People’s Exhibits 41B, 41C, 41D, 41G). He also suffered eleven blunt force injuries that could have6 been caused by being struck with a flashlight (RA: 1666-67). His death was caused by the loss of blood resulting from the sharp force injuries to his neck and upper extremities (RA: 1648). A sharp force injury is an injury that is caused by a weapon that has a sharp edge6 (RA: 1629, 1665). An incised wound is a sharp force injury whose length on the surface of the skin is greater than the depth of the injury. A stab wound is also a sharp force injury but in these injuries the depth of the injury is greater than the length of the injury on the surface of the skin (RA: 1629). 62 Dr. Nields also preformed Sharon’s autopsy (RA: 1649). Sharon suffered five stab wounds and five incised wounds on her face, three stab wounds and two incised wounds to her neck, six stab wounds and four incised wounds to her torso, fourteen incised wounds on her hands and wrist, and a contusion on the back of her right hand (RA: 1649-54; People’s Exhibits 2, 42B-42E). The neck wounds varied in depth from two inches to three and one- half inches (RA: 1651). The torso wounds varied in depth from one and one- half inches to eight inches and the facial wounds ranged from three-quarters of an inch to an inch and one-half in depth (RA: 1649-50, 1652). The eight- inch torso wound perforated the left abdominal wall, two loops of the small bowel, and the large bowel, and went into the posterior wall of the abdominal cavity (RA: 1652; People’s Exhibit 42A). The sharp force injuries to Sharon’s head, neck, and torso caused her death (RA: 1664). Dr. Nields removed the bags that were covering Sharon’s hands, and clipped her fingernails (RA: 1649, 1687). He sent the clippings, along with blood samples and hairs, to the forensic biology lab for testing (RA: 1648, 1663). The sharp force wounds suffered by both the victims could have been caused by the knife recovered from the victims’s apartment (RA: 1663, 1665). 63 Criminalist Robert Hindle, an expert in biology and DNA analysis, developed the victims’ DNA profiles from the blood samples and tested, among other things, the biological material under Sharon’s fingernails (RA: 1336-39). Although most of the material matched Sharon’s DNA profile, he found a mixture of DNA under a nail from her right hand (RA: 1279-84, 1340). He determined that the second contributor was male and developed a partial profile of the DNA of the male contributor (RA: 1340-42, 1352). He then calculated the statistical probability of the profile as one in one trillion Blacks, Caucasians, and Hispanics, and one in one hundred thirty billion Asians (RA: 1343). It is rare to find another person’s DNA under a fingernail because hand washing and showering ordinarily removes it. Its presence could have been the result of scratching (RA: 1346-47). Under Mr. Hindle’s supervision, the profile of the DNA from defendant’s cigarette butt was developed (People’s Exhibit 9; RA: 1297, 1327- 29, 1333, 1573). Defendant’s DNA profile was consistent with the male DNA found under Sharon’s fingernails (RA: 1353-54; People’s Exhibits 25A-F). Taking into account that the male DNA profile was incomplete with respect to five locations, the statistical probability of the matching loci was one in one hundred million Blacks, eight hundred eighty million Caucasians, eight 64 hundred thirty million Hispanics, and forty-three million Asians (RA: 1353-55, 1615-16; People’s Exhibit 27). 7 Following his arrest, prints of defendant’s fingers, palms, thumbs, and the sides of his hands were prepared (RA: 956). Criminalist Alynka Jean identified a fingerprint on a battery from the flashlight recovered from Simon’s bedroom (RA: 1197-1211, 1265-66). She photographed and enhanced the print, and sent it to the latent print section of the laboratory for evaluation (RA: 1211). She processed the duct tape roll from Simon’s bedroom and found four fingerprints on the cardboard center of the roll (RA: 1212-14). She photographed them and sent them to the latent print section (RA: 1214-17; People’s Exhibits 23A and 23B). Other items, including the knife, were processed, but no fingerprints were found (RA: 1205-08, 1218). In 2007, Jean was asked to process a strip of duct tape from which she found two fingerprints on the non-adhesive side. She photographed them and sent them to the latent print section (RA: 1219-25; People’s Exhibit 18; People’s Exhibits 24A and 24B). She tested other additional items in 2007, but found no prints (RA: 1226-28). Many other items, including the blood on defendant’s jeans, defendant’s shirt and7 boots, a strand of hair from under Sharon’s fingernail, and pieces of duct and masking tape, were tested, but either no biological material was found or the DNA profile developed from biological material matched the person on whom it was found (RA: 1336-39, 1344-46, 1349). The knife was not tested because it had been in the toilet with the handle under water. The victims’s clothing and the flashlight were not tested because they were too bloody to find DNA other than the victims’ (RA: 1344-36, 1584-88, 1590-91). 65 Detective Deborah Kennedy, an expert in comparison and identification of latent prints, examined the latent prints found by Detective Mulvanerty and Criminalist Jean and compared them to the prints of defendant’s hands created when his arrest was processed. Of the three latent prints recovered at the crime scene, the one found over Simon’s bed matched defendant’s left palm (RA: 1517-28; People’s Exhibit 17). The other two prints were of no value meaning that there was insufficient information or clarity in the print to make an identification (RA: 1527-28). 8 Of the prints that came from the police lab, two on the core of the duct tape roll were valuable and matched defendant’s third and fifth fingers (RA: 1530, 1533-34). The print on a flashlight battery matched defendant’s9 left thumb (RA: 1531-32). The two prints on the duct tape removed from Simon’s leg also matched defendant’s left thumb (RA: 1534, 1543; People’s Exhibits 24A, 24B, 40). The Defense Case According to Jin Zhan Lin, defendant’s younger brother, on May 12, 2005, he returned home from work at about 7:30 p.m., to his family’s Of the seven latent prints recovered the second time the crime scene unit processed8 the apartment, six of these prints were of no value and the remaining print was not identified (RA: 1528-30). Human digits are numbered one through ten, counting from the right thumb to little9 finger of the right hand, then the left thumb to little finger of the left hand (RA: 1531). 66 apartment at 59th Avenue and 155th Street, in Queens, and defendant was home watching television (RA: 1691-98, 1721, 1723). He went to his room and when he came out of his room between 8:00 and 9:00 p.m., he watched television and ate dinner with his brother. Their mother came home between 9:00 and 10:00 p.m. Lin went to bed at 11:00 p.m. (RA: 1698). He had noticed and asked about a mark on defendant’s forehead on May 11 (RA: 1709). The next morning, May 13, 2005, defendant left with the police at 6:00 to 6:30 a.m. (RA: 1699). Lin went to the police station with Detectives Wong and Marshall shortly after 8:00 p.m. that day (RA: 1699-1700). He spoke to Detective Wong in Chinese about his whereabouts on May 12, 2005 (RA: 1699-1701, 1703). At about midnight, Detective Marshall drove defendant and Lin home (RA: 1702). Lin did not have any documentation to support his testimony regarding when he got to and left work; he did not have a time sheet or a punch card (RA: 1713). At home, Lin and defendant spoke to their sister about the murders and were shocked to learn that something happened to Sharon and Simon but they did not discuss what they had said to the police (RA: 1704, 1721-22). He never spoke to defendant about any of the statements defendant made to the police (RA: 1276, 1731). Their sister was friends with Sharon and 67 defendant had dated Sharon for five years but Lin was not aware that Sharon and defendant’s relationship had ended (RA: 1704, 1732). On May 13, 2005 defendant was scheduled to return to China; he had already had his ticket (RA: 1704-05). On May 15, 2005, Lin went to the precinct with his sister and her boyfriend but the police would not let them see defendant (RA: 1705). Defendant went to Middle School 74 and Cardoza High School and had an American driver’s license (RA: 1710-17). THE PRECLUDED EVIDENCE Defendant’s Unsolicited Written Notes While in the precinct interview room on May 13, 2005, defendant wrote on some blank sheets of papers. These notes, which were written in Chinese, were later translated and the parties stipulated to the accuracy of the translations (A: 449; RA: 30). Counsel explicitly argued that all of defendant’s statements on these pages should be introduced (A: 511-12, 526; RA: 627-28, 642). The statements covered a wide variety of topics. Defendant wrote, for example, “There is no love in human society. This is bologna. Money. Love” (A: 668). In another passage, he stated “Tragic on top of another tragic. Double disasters. Bad luck in the year of the rooster. Those who kill people and commit arson are wearing golden belt. Those who repair roads and bridges 68 die without a corpse” (A: 669). He wrote “Cut off from all the six types of relationship in the family. I am the dark prince of hell. It is difficult to be a human being. Hard to be a person. It is the more difficult to be a good person” (A: 669). Another few lines of his notes included the passage “To be alive represents that there are people who have missed you. I now really miss you. Hope you understand” (A: 663). They also included the statement: “found out peeping 45 percent. Become angry 20 percent. Kidnapped [sic] but found family members not in 20 percent.,” which is set forth on the second page of the English translation (A: 659). While arguing that all these statements were admissible, counsel highlighted the following two additional passages: 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. Everyone helps. Is not helping me. Okay. Okay. (A: 510-13; RA: 626-29). As to these statements, counsel offered the first to show that defendant was in fact imprisoned at the time he wrote the statement. Counsel argued: “[H]e says, ‘I am imprisoned.’ Imprisoned means you can’t 69 get up and you can’t walk out. It means you can’t leave” (A: 511). He also characterized both passages as a “cry for help” (A: 515). Apparently recognizing that the notes constituted hearsay, counsel argued that the two highlighted portions were admissible under either the present sense impression or state of mind exceptions to the hearsay rule (A: 512; RA: 628). The first passage was a present sense impression, counsel argued, because defendant was describing an event and his description was corroborated by other evidence in the case (Proceedings: 623). When the court asked how the second statement, “Do I look like a murderer? Heaven and earth help,” fit within the present sense impression exception, counsel responded that it was up to the jury to determine that. Reading a sentence from Richardson’s on Evidence, counsel argued that defendant’s passages constitute prompt complaints of maltreatment that were admissible to support his claim that his confession was coerced and that this complaint was timely because it was being written as the maltreatment was occurring (A: 522; RA: 638). Counsel also argued that it was admissible under the theory of completeness because the jury would receive all these other statements attributable to defendant and should be allowed to factor these passages into the totality of the circumstances (A: 514; RA: 630). 70 The prosecutor argued that the vast majority of the statements were irrelevant and “don’t even have to do with this case. With the goings on at the precinct. It’s in the nature of some kind of poetry” (A: 520; RA: 636). The prosecutor further argued that these statements were not relevant because they would not assist the jury in deciding what happened or in determining the circumstances under which defendant made his statements to the police (A: 519-21; RA: 635-37). The prosecution argued that this supposed cry for help was not a present sense impression because it was not a description of an event at all, as required under the present sense impression exception. The prosecutor argued that the other statement, “I am imprisoned,” far from being corroborated, as required under the present sense impression exception, was disproven by the evidence that defendant was in fact taken home and allowed to stay by himself all night and most of the next morning (A: 517-18; R: 633-34). Moreover, the statements, the prosecutor asserted, were self-serving and inadmissible under the case law even if defendant claimed it established his state of mind (A: 518; RA: 634). The prosecutor also argued that these statements did not constitute a prompt complaint about maltreatment. None of the defendant’s many statements complained about a specific event of maltreatment and she 71 contrasted them to the timely complaint found in People v Alex, 260 N.Y. 425 (1933), where the defendant complained to the arraignment judge that he had been beaten and showed the judge his injuries (A: 521; RA: 637). The court denied defendant’s request to admit these passages, ruling that these ramblings were not relevant and were not subject to any hearsay exception (A: 526; RA: 642). Defendant’s Invocation of His Right to Counsel After defendant confessed to the detectives that he personally committed the murders, an attempt was made to capture defendant’s statement on video, but defendant then invoked his right to counsel and all questioning ceased. Defendant attempted to introduce the aborted six-minute video statement at trial, arguing that it was relevant to his prior waiver of his right to counsel regarding the prior statements and that it showed what defendant “looked like” on the night the interrogations took place. He specifically disavowed any intent to argue that the video showed defendant’s difficulty in speaking English. The prosecution offered to stipulate to defendant’s invocation of the right to counsel at the time of the aborted video and to allow defendant to introduce photographs of defendant’s appearance on the night of the interrogations, including a still from the video, if defendant so desired. The prosecution also pointed out that once introduced, counsel could argue that it 72 reflected on defendant’s ability to speak English, and counsel conceded that he might change his mind on this issue. The prosecutor stated she would seek to introduce the testimony of three witnesses, including a detective who read defendant his rights in Cantonese in a prior case, if the statement were introduced. The trial court denied the motion to admit the videotape. The colloquy concerning the video began when the trial commenced (A: 442-43; RA: 23). Counsel argued that the recording was proof that defendant asked for a lawyer when he was questioned by the Assistant District Attorney and that it helped to demonstrate the “overall voluntariness” of defendant’s statements and “what took place” because “supposedly” the police had been advising him of his rights for three days (A: 442-43; RA: 23- 24). Counsel further asserted that the video was admissible to “complete the circle of all of these statements” from the first one to the last one (A: 443-44; RA: 24-25). The prosecutor responded by describing the content of the video and asserting that she planned to elicit that defendant invoked his right to counsel during the prosecutor’s interview without using the video. The prosecutor asserted that she believed that defendant would use the video to argue that he did not have a sufficient understanding of English to validly waive Miranda and understand the questioning and that, as a result his 73 statements were involuntary. The prosecutor continued that if defendant used the video for this purpose, the People would seek to admit evidence, as she did at the pre-trial hearing, that defendant had been given Miranda warnings in both English and Cantonese during a 1998 arrest, elicit testimony that defendant was interviewed in English prior to his criminal court arraignment by a CJA interviewer, and elicit testimony from a corrections officer who spoke to defendant in English on several occasions at Rikers Island (A: 444- 48; RA: 25-29). Counsel agreed with the prosecutor that, should he argue that defendant did not understand English, the People could admit evidence to the contrary and, he explained, while he was not planning on making such an argument, his position could change (A: 448-49; RA: 29-30). When directly asked by the court whether he would argue that defendant did not understand English, counsel answered, “I don’t believe so” (A: 450; RA: 31). The prosecutor explained to the court that the recording need not be admitted to prove that defendant invoked his right to counsel because that could be done through testimony and that the recording itself would lead the jury to speculate and make conclusions about defendant’s ability to speak English (A: 450-451; RA: 31-32). 74 While acknowledging that the prosecutor was arguing that the video would mislead the jury, counsel asserted that the People could rebut his argument and that this recording was the best evidence of what happened. He also argued that the defense would argue that defendant asked for a lawyer for four days and the jury should “see that” (A: 451-452; RA: 32-33). Counsel then argued for the first time that the recording was admissible because the jury should be allowed to see what defendant looked like after three days of questioning in the precinct and that his physical appearance when he asked for a lawyer was admissible (A: 453; RA: 34). After this lengthy colloquy, the prosecutor provided the court with the recording (A: 454; RA: 35). Later in the proceedings, in response to the court’s question, counsel argued that the recording was admissible because it “completes our entire position” (A: 483: RA: 77). When the court subsequently asked how the recording would help show what happened on the two earlier days, counsel continued that the way defendant looked and how he communicated were relevant to what happened in the previous days because this was all “one flowing event” (A: 486; RA: 80). Characterizing counsel’s application, the court said that “what counsel is asking the Court is to credit his argument that he wants the video 75 only to establish one, that the defendant invoked his right to counsel and two, what the defendant looked liked” (A: 487; RA: 81). 10 The prosecutor explained that these defense goals could be accomplished without the admission of the recording. She asserted that the first goal would be met when she elicited that defendant invoked his right to counsel and that the second goal could be met by admitting a photo of defendant through either an existing photo or by creating a still photo from the video (A: 487-488; RA: 81-82). Because these goals could be accomplished without the video, the prosecution argued, defendant would not be prejudiced. She further asserted that, since defendant did not make any admission on the video, it was not relevant and was not admissible but that if the video was entered into evidence, she would seek to admit evidence of defendant’s ability to speak and understand English on her direct case (A: 488-493; RA: 82-83). Before the completion of jury selection, the court ruled that the video was inadmissible hearsay and it would not be allowed into evidence, “especially in light of the fact that the People are willing to stipulate to the fact that defendant requested an attorney” (A: 496; RA: 401). This statement contained on lines 11-14 of page 75 the transcript (RA: 81) is, the10 People assert, incorrectly denoted as being spoken by counsel. But it can be fairly inferred from the substance of this statement that the court made this statement. Similarly, based upon the substance of the comments, it is reasonable to infer that after the court spoke the prosecutor spoke from line 15 on page 75 ( RA: 81) and continued until line 22 on page 77 (RA: 83), but that also is not properly denoted. 76 Later, when the People sought to admit defendant’s arrest photograph during its direct case, counsel renewed his request to admit the video to show what defendant “really” looked like on the 16th when a prosecutor spoke to him. He argued that it was not fair to allow the admission of the arrest photo of defendant when the defense was not allowed to admit the video. When the court reminded counsel that the People offered to create a still photo of defendant from the video, counsel objected, arguing that since voluntariness was an important aspect of the defense it was “extremely important” for the video to be shown to the jury. Since the video depicted what the police said was the first time defendant asked for an attorney, counsel asserted, his appearance and physical condition were important and the video spoke volumes as to his condition during that questioning. Denying defendant’s renewed request, the court stated that it had looked at the video and a still photo would show defendant’s appearance (A: 530-35; RA: 949- 954). The Verdict After the jury returned with its verdict the first time, it had acquitted defendant of counts two and four, which charged him with the first- degree intentional murder of Simon, committed during the course of the attempted robbery and the burglary, and acquitted him of count five – first- 77 degree murder of intentionally killing Simon and also killing Sharon in the same transaction. But the jury also convicted defendant on count eight – the intentional second-degree murder of Simon. After an unrecorded side bar and outside the jury’s presence, the court stated that it would ask the jury to continue deliberating on counts two, four, five and eight because these counts were inconsistent (A: 642-43; RA: 1965-66). Counsel objected, arguing that the court should resubmit all fourteen counts because “the jury . . . obviously had some misunderstandings about the law and how it’s applying the facts to the law” (A: 643; RA: 1966). When the jury returned, the court explained that it found defendant not guilty on counts two, four, and five, all of which involved the intentional killing of Simon, while they found defendant guilty of count eight, which involved the intentional killing of Simon, and that he could not accept these verdicts because they were inconsistent. The court instructed the jury to continue deliberating on those charges only (A: 644-45; RA: 1967- 68). Subsequently, the jury returned a verdict of guilty on all the resubmitted counts. The chart below indicates the verdicts after the jury came back the first time and the second. 78 Ct. No. Crime Relevant Elements 1st Verdict 2nd Verdict 1 Murder 1° Intentional killing of Sharon during First Degree Burglary G G 2 Murder 1° Intentional killing of Simon during First Degree Burglary NG G 3 Murder 1° Intentional killing of Sharon during Attempted First Degree Robbery G G 4 Murder 1° Intentional killing of Simon during Attempted First Degree Robbery NG G 5 Murder 1° Intentional killing of Simon and the killing of Sharon during the same transaction NG G 6 Murder 1° Intentional killing of Sharon and the killing of Simon during the same transaction G G 7 Murder 2° Intentionally killing Sharon G G 8 Murder 2° Intentionally killing Simon G G 9 Murder 2° Killing Sharon during the commission of Burglary G G 10 Murder 2° Killing Simon during the commission of Burglary G G 11 Murder 2° Killing of Sharon during the commission of Attempted Robbery G G 12 Murder 2° Killing of Simon during the commission of Attempted Robbery G G 79 13 Burglary 1° Knowingly remains unlawfully in a dwelling to commit a crime while using a dangerous instrument G G 14 Robbery 1° Attempting to forcibly steal property while using a dangerous instrument G G 80 POINT ONE T H E A P P E L L A T E D I V I S I O N ’ S DETERMINATION THAT DEFENDANT’S CONFESSION WAS VOLUNTARY IS AMPLY SUPPORTED BY THE RECORD AND, AS A MIXED QUESTION OF LAW AND FACT, IS BEYOND FURTHER REVIEW. MOREOVER, THE OVERWHELMING INDEPENDENT FORENSIC EVIDENCE RENDERED ANY POSSIBLE ERROR IN ADMISSION OF THE CHALLENGED STATEMENTS HARMLESS. The voluntariness of defendant’s statements presents a mixed question of law and fact, and because the lower courts’ determinations are amply supported by the record, no further review can be had in this Court. Indeed, the hearing evidence established that defendant cooperated with the police investigation, was questioned in short intervals and frequently left alone, gave a largely exculpatory statement placing himself at the scene, and was allowed to go home overnight and stay by himself after that statement. He returned to the precinct to continue his cooperation the next day, and made limited admissions after only intermittent questioning during seven daylight hours at the precinct on the second day – admissions that put the real blame on two others, leading the police on a chase for these phantom killers. The subsequent delay of a little more than twenty-four hours before arraignment – only one factor in the voluntariness calculus – was, as both lower courts found, attributable to the investigation of defendant’s story that two other perpetrators 81 were involved in this double homicide. And, as a result of that investigation, after the police confronted defendant with evidence that contradicted his prior story, he fully confessed to the homicide, without the use of any overbearing or coercive police tactics. This more than justified the findings of the courts below. Indeed, the evidence at the hearing established that defendant was highly manipulative, providing the police with information as he saw fit and to his best strategic advantage at the moment, rather than being browbeaten into a confession over four days of interrogation, as defendant now portrays. Defendant first assumed the role of cooperating friend, eager to help the police in their investigation and even telling the police he would stay after the first day of questioning, although he was sent home nonetheless. He minimally inculpated himself the next day when the police made clear that they knew he was lying about why he went to the premises in the first place – to give the victim a figurine, and even then continued to feed the police false information, sending them to chase down non-existent criminals. And he ultimately confessed only when he believed the police already knew the full truth about the homicides and there was no further point in his charade. Far from his will being overborne, defendant sought to control and manipulate the police and the investigation from the outset. The mere fact that his strategy was unsuccessful 82 and excellent police work yielded his confession did not require the Appellate Division to conclude that his statement was involuntary. Additionally, the record amply supported the lower courts’ determinations that defendant understood the import of the Miranda warnings. Defendant had lived in the United States for at least seven years at the time of the interrogation, he went to middle school and high school in New York, and the hearing record is replete with testimony from officials who conversed with him fluently in English, including not only numerous detectives, but also a corrections officer, a representative of the Criminal Justice Agency at arraignment, and detectives on a prior case. Defendant had also previously been read his warnings in Cantonese, his native language, as the People also established at the hearing. Thus, as the record supports the lower court’s determination that, under the totality of the circumstances, defendant’s confessions were the product of his free will, this Court has no further power to review the claim. Finally, even if it were error to admit the statement, and it was not, the independent forensic proof of defendant’s guilt was overwhelming. This included defendant’s fingerprints on the roll of tape used to bind Simon and on the actual tape on Simon’s body, and his palm print on the blood-spattered wall over the blood-soaked bed that Simon’s body lay under. In addition, 83 defendant’s initial inculpatory statement, given while defendant was fully cooperating with police and after which he was allowed to go home, placed him at the scene hours before the murders. Given this evidence, any possible error in eliciting defendant’s final statement was harmless. A. As the Voluntariness of Defendant’s Confession Constitutes a Mixed Question of Law and Fact, It Is Subject to Only Limited Review in This Court To Determine Whether There is Record Support for the Lower Courts’ Determinations. As this Court has previously held, the voluntariness of a defendant’s confession is a mixed question of law and fact, subject to limited review in this Court. Matter of Jimmy D., 15 N.Y.3d 417, 423 (2010); People v. Scott, 86 N.Y.2d 864 (1995). When the lower court’s findings of fact are supported by the record and no error of law exists, no further review is available as a jurisdictional matter. Thus, the determinations of the courts below here are subject to review only to determine whether there exists record support for them. It is clearly established that mixed questions of law and fact are not reviewable in this Court when the evidence adduced at the hearing supports the determination made by the lower courts. See People v. Porter, 9 N.Y.3d 966, 967 (2007); People v. Shabazz, 99 N.Y.2d 634, 636 (2003); Scott, 86 N.Y.2d at 864; People v. Oden, 36 N.Y.2d 382 (1975). This is so because “questions of reasonableness of conduct can rarely be resolved as a matter of 84 law even when the facts are not in dispute.” People v. Harrison, 57 N.Y.2d 470, 478 (1982); see People v. Morales, 42 N.Y.2d 129, 137-138 (1977). This “rule applies ‘where the facts are disputed, where credibility is at issue or where reasonable minds may differ as to the inferences to be drawn.” Harrison, 57 N.Y.2d at 477 quoting People v. McRay, 51 N.Y.2d 594, 601 (1980). Indeed, “unless there is no possible view of the evidence that would support the determination of the lower courts,” this Court is “bound by the findings of the suppression court.” People v. Damiano, 87 N.Y.2d 477, 486 (1996). This rule has been “broadly applied to a wide variety of issues.” Harrison, 57 N.Y.2d at 477, citing Morales, 42 N.Y.2d at 137-138. For example, challenges to review the propriety of a suppression decision generally present the intermediate court with mixed questions of law and fact. See People v. Mercado, __ N.Y.3d __, N.Y. Slip Op. 02556 (March 26, 2015)(collecting cases; founded suspicion of criminality justifying search of car and consent to search trunk are mixed questions of law and fact); People v. Gilford, 16 N.Y.3d 864, 868 (2011)(reasonableness and suggestiveness of showup are mixed questions of law and fact); Porter, 9 N.Y.3d at 967 (request for counsel is a mixed question of law and fact); Shabazz, 99 N.Y.2d at 636 (legality of car stop presents a mixed question of law and fact); People v. Evans, 83 N.Y.2d 934 (1994)(stop and search of defendant is a mixed question 85 of law and fact); People v. VanLuven, 64 N.Y.2d 625 (1984)(reasonable suspicion is a mixed question of law and fact). This Court has specifically applied this doctrine to the voluntariness of a defendant’s confession. In People v. Scott, this Court expressly held that the “Appellate Division’s finding that defendant’s confession was voluntary, a mixed question of law and fact, is supported by evidence in the record and therefore beyond this Court’s further review (see, People v Harrison, 57 NY2d 470, 477; People v Johnson, 40 NY2d 882, 883).” 86 N.Y.2d at 883. Similarly, less than five years ago, in Matter of Jimmy D., this Court held, “Because voluntariness is a mixed question of law and fact, our review is limited to deciding whether the Appellate Division's finding is supported by evidence in the record.” 15 N.Y.3d at 423. Here too, the issue presented by defendant is the voluntariness of defendant’s confession. Indeed, defendant argues that the police overbore his will by interrogating him over a period of four days and keeping him in custody after his arrest, and before arraignment, for a period of twenty-eight hours (see Defendant’s Brief at 49) (“The People failed to prove beyond a reasonable doubt that appellant’s statements, the product of four days of interrogation in a windowless precinct room, were voluntary.”) This presented a classic question of voluntariness. See Jimmy D., 15 N.Y.3d at 423 (whether 86 defendant was isolated from mother, improperly induced to speak by offer of help, and validly waived Miranda warnings constituted question of voluntariness that was a mixed question of law and fact subject to limited review). Like defendant, the dissenter in the Appellate Division divined no legal issue in the case. Focused on the delay in arraignment, Justice Hall conceded that the delay was but one factor to consider in determining voluntariness, but found the delay improperly motivated based on her reading of the record. 105 A.D.3d at 769 (“Upon my reading of the record, I find that the delay in the arraignment strategically designed so that the defendant could be questioned outside the presence of counsel”; the failure to promptly initiate arraignment “strongly suggests that the defendant’s arraignment was delayed for an improper purpose”). The majority simply disagreed with the inferences Justice Hall drew from the record, 105 A.D.3d 762 (“Here, the delay in arraigning the defendant was attributable to the time it took the police to conduct a through investigation and not to a strategically designed plan to permit the defendant to be questioned outside the presence of counsel.”). This choice of inferences presents a mixed question of law and facts as this Court made clear in Harrison, 57 N.Y.2d at 477 (the mixed question rule “applies ‘where the facts are disputed, where credibility is at issue or where reasonable 87 minds may differ as to the inferences to be drawn.”)(citations omitted, emphasis added). Similarly, the question of whether defendant understood the import of the Miranda warnings is a mixed question of law and fact. Jimmy D., 15 N.Y.3d at 423-24 (whether defendant validly waived Miranda warnings constituted mixed question of law and fact). In sum, based upon this long-standing limitation in the Court’s jurisdiction regarding mixed questions of law and facts, this Court may review defendant’s current contention only to determine whether there exists record support for the lower courts’ determinations. Scott, 86 N.Y.2d at 864; see also Arthur Karger, The Powers of the New York Court of Appeals § 21:1(Rev. 3d ed. 2005). B. The Appellate Division’s Finding That, under the Totality of the Circumstances, Defendant’s Confession Was Voluntary Is Supported by the Record. The record below fully supports the Appellate Division’s finding that defendant’s statements were voluntary and, as a result, no further review is available to defendant in this Court. Indeed, the evidence at the hearing showed that defendant cooperated with the initial police investigation, consenting to go to the precinct along with many of the victims’ friends. The police interviewed defendant in only short intervals of ten to twenty minutes that day, he made a generally exculpatory statement, placing himself in the 88 apartment for benign purposes, and he was thereafter allowed to go home and left alone overnight. Defendant did not return until 11 a.m. the next day, also in an effort to help the police, and was interviewed for about one and one-half to two hours during a seven to eight hour interval before his next statement, indicating that he had let others into the apartment to commit a robbery, which he made only after being confronted with conflicting evidence. His subsequent detention of a little more than twenty-four hours in order to investigate defendant’s alleged cohorts was proper, and the fact that defendant’s story was belied by the investigation caused defendant to confess, not any coercive police conduct. In addition, defendant’s actions, his cooperation and incremental inculpation only after being confronted with evidence that was inconsistent with his lies, demonstrates that he attempted to manipulate the police and their investigation, further proving that he was not susceptible to any alleged coercive police tactics. As a result, there was ample record support for the conclusion that all of defendant’s statements were voluntary and admissible. An analysis of the voluntariness of a statement, depends upon “the totality of all the surrounding circumstances – both the characteristics of the accused and the details of the interrogation’” to determine whether the defendant’s will was overborne. Dickerson v. U.S., 530 U.S. 428, 434 (2000), quoting Schneckloth v. Bustamonte, 412 US. 218, 223 (1973); see also People 89 v. Mateo, 2 N.Y.3d 383, 413 (2004); People v. Thomas, 22 N.Y.3d 629, 642 (2014). A delay in arraigning the defendant, while he or she is in custody, is but one factor to consider among the totality of circumstances reflecting on the issue of voluntariness. People v. Ramos, 99 N.Y.2d 27, 34 (2002); see also People v. Ortlieb, 84 N.Y2d 989 (1994)(no unnecessary delay when record devoid of evidence that arraignment postponed solely to deprive defendant right to counsel). Further, a waiver of Miranda rights will be valid “so long as the immediate import of those warnings is comprehended. . . .” People v. Williams, 62 NY.2d 285, 288-289 (1984); see also Maryland v. Shatzer, 559 U.S. 98 (2010); Johnson v. Zerbst, 304 U.S. 458 (1938); C.P.L. § 60.45(2)(a). The evidence at the hearing showed that defendant’s statements were voluntary, that the delay was attributable to the police investigation into defendant’s false statements implicating others in this double homicide whom only he could identify, and that defendant understood the import of the Miranda warnings. After the discovery of the murders, many of the victims’ friends, including defendant, came to the precinct to assist in the police investigation. That first day, defendant was not a suspect and was not restrained in any way and he freely spoke to the police explaining his relationship with the female victim and his activities the day before, including 90 that he stopped by the victims’ apartment. In fact, one of the detective called in to assist in the investigation was specifically told by his fellow officers that defendant was not a suspect (A: 74, 82). Defendant specifically told detectives that he would help them with their investigation (A: 71), and that he would come back whenever they wanted (A: 71, 192), and he instructed one of the detectives to come pick him up (A: 192). That night, defendant also told a detective that he did not want to leave but that he preferred to stay in the precinct (A: 192). Defendant was nevertheless brought home and stayed by himself overnight. The next day, May 14, 2005, the detective picked defendant up as they had arranged. At 11:40 a.m., defendant was read his Miranda warnings in English and he waived these rights (A: 198-201). Initially, defendant repeated his statement from the previous day – that he had gone to the victims’ apartment in the afternoon to drop off a figurine but left soon after, making him one of the last persons to see Simon alive (A: 202-03). The police spoke to him for about one and one-half hours. Around 5:00 p.m., the detective returned and confronted defendant with an inconsistency between his statement and other evidence – that the figurine was in the victims’ apartment prior to the day of the murder, after which he was left alone for an hour (A: 204-07). By 7:00 p.m., the detective returned and defendant implicated himself in the crime 91 by claiming that he had set the victims up to be robbed by Gong and an unnamed Fukienese man. Defendant detailed how this plan came about, how it was to be executed, and that he knew Gong from working at a Chinese bakery in Connecticut. Only after this statement was written down, at 9:30 p.m., was defendant arrested (A: 208-211). The record reveals that over the next twenty-four hours or so, the police extensively investigated defendant’s story regarding Gong and the Fukienese man (A: 157). They first investigated the Chinese bakery where defendant worked (A: 212). After investigating, they confirmed that there was restaurant supply company with the exact name defendant gave, not a bakery, in the same area where defendant claimed he worked (A: 212). The detectives called local law enforcement in that area and contacted the FBI attempting to gain information on this company. They obtained photographs of men that had “Gong” in their name and showed these photos to defendant, hoping to identify Gong (A: 212). The police re-interviewed defendant asking for more identifying information about Gong and the Fukienese man, and in response, when he provided the names of other people who knew Gong, they investigated all this new information (A: 156-57, 162-65, 172). At 5:00 a.m., on May 15, 2005, about nine hours after his arrest, while defendant and the detective were resting, defendant asked to speak to the 92 detective again. He persisted in his story that he helped these other men rob the Ng’s and did so for money. He provided more information about what he had told the “real” perpetrators, stating that the robbers were to be armed with guns and that Sharon was not supposed to get hurt. This statement was written down (A: 213-15). Later that morning, a new detective, who was unfamiliar with the case, arrived to assist in the investigation. Detective Marshall accompanied by the newly assigned Detective Schmittgall re-interviewed defendant to learn as much as they could about Gong and the Fukienese man, who defendant claimed planned on committing a large robbery in New Hampshire with the proceeds of the Ng robbery (A: 103-08, 216-17). They spoke to defendant for two to three hours. Again, defendant persisted in his story that he saw a Fukienese man walk into the victim’s building as he left. And he provided a more detailed description of Gong and Gong’s other acquaintances. Armed with a little more information, the detectives left defendant alone when they went to complete some computer checks. They also decided to visit the scene (A: 108-09, 217). Upon their return to the precinct, the detectives learned about Simon’s online blog post from a friend of Simon’s. The substance of Simon’s blog post contradicted defendant’s statements claiming that he went to the victims’ apartment to drop off a figurine. Rather, Simon wrote that 93 defendant had asked for his fishing poles back and had stayed in the apartment for sometime (A: 109-11, 218-19). After discussing how to best deal with this new contradictory evidence, at 9:00 p.m., approximately twenty-four hours after defendant’s arrest, the detectives told defendant that Simon had just come out of surgery and was in grave shape, but that they were able to speak to him. The detectives then confronted defendant with the information about the fishing poles, which only defendant and Simon would know (A: 111-12, 218-20). After the shock that the detectives had learned the truth wore off, defendant confessed that he committed the murders by himself and robbed the victims’ apartment (A: 113- 23, 220-27). As a result, the Appellate Division’s ruling that defendant’s statements were voluntary was amply supported by the record. Lin, 105 A.D.3d 761-62. For most of the questioning, defendant was regarded as a cooperating witness, and his initial statements were given as a result of questioning reflecting that. After his return home and eventual eleven-hour- overnight stay, he returned to the precinct to continue to assist in the investigation and made partial admissions after only limited questioning – an hour and one-half to two hours – after being confronted with information that the figurine he allegedly brought Sharon that day was in fact already in her 94 apartment prior to that. Nothing the police did indicates that either of these statements was coerced. Similarly, defendant’s statement after he summoned the detective to provide more information regarding the purported actual murderers was the result of defendant’s own desire to make a clarifying statement, not the result of police pressure. As to defendant’s final statement, the Appellate Division’s determination that defendant’s arraignment was delayed in order to investigate his allegations about two accomplices, who were responsible for the actual murders, was amply supported by this record. The police attempted to locate the bakery where defendant allegedly worked, contacted Connecticut law enforcement authorities to obtain leads with regard to the mysterious Gong, obtained pictures and showed them to defendant to get an identification of his claimed accomplice, went to the scene, investigated defendant’s further spontaneous statements about the arrangements with Gong, and learned of the victim’s blog showing that defendant went to the victim’s apartment to obtain fishing poles. This delay for investigative purposes was both necessary and appropriate. Indeed, the police are tasked with thoroughly investigating crimes and it was their job to find all the people responsible for these extremely violent, heinous murders, not just the first perpetrator they apprehended. In 95 addition, contrary to defendant and the dissenter’s opinion, this investigation could not proceed without defendant’s assistance (Defendant’s Brief at 66; Lin, 105 A.D.3d at 769). Defendant was the only person who could identify Gong and the Fukienese man: the police did not have any other witnesses or other evidence to identify the other alleged perpetrators. As a result, without defendant, the detectives would not know who these men were and would never be able to identify them. Further, it cannot be even fairly inferred from this record that the police delayed defendant’s arraignment to elicit a more inculpatory statement from defendant. Up until the time the police learned about Simon’s blog post, the police solely questioned defendant about Gong and the Fukienese man and were attempting to identify them, as well as any other persons that might help identify and locate them. They had not expressed any disbelief in defendant’s story, nor did they attempt to elicit a more inculpatory statement from defendant. It was because the police believed defendant’s story implicating Gong and a Fukienese man that they spent over twenty-four hours investigating Gong – showing defendant photos and reaching out to other law enforcement agencies that might have information about defendant’s work place. And, it was solely by chance that they received Simon’s blog, which contradicted defendant’s story and led the police to confront him with the contradictory 96 evidence, resulting in his eventual full confession. There was no evidence that the police were soliciting any evidence or further information from the victims’ friends to inculpate defendant or had expressed any disbelief in defendant’s story about Gong and the Fukienese man. Thus, defendant’s persistence that Gong and a Fukienese man were physically responsible for these murders, a claim that he perpetuated for about twenty-four hours, was the direct and sole cause for the delay in his own arraignment. Had he not misled the police on a false investigation, the police would not have had any reason to delay the arraignment. In short, the record overwhelmingly supports the lower courts’ conclusion that the delay resulted from the thorough police investigation and was “not . . . strategically designed . . . to permit the defendant to be questioned outside the presence of counsel.” Lin, 105 A.D.3d at 762. Indeed, defendant’s approach to the police was, throughout the questioning, an attempt to manipulate them, feeding the police information when he wished and only fully confessing when he believed the police already knew the entire truth. He first pretended to cooperate in the investigation, playing the role of a concerned friend and thereby led the police to conclude that he was not a suspect. Later, he only made partial admissions when confronted with information revealing that he had lied about the figurine. He 97 then attempted to manipulate the police by misleading them and sending them on an extensive multi-state search for non-existent perpetrators, giving them a false story that minimized his involvement. Only when he believed that the police knew that this story too was false did defendant see no point in further perpetuating his false stories and fully confess. This bespoke a calculated response to police questioning, not an overborne will. For this reason too, the Appellate Division had ample ground for its determinations that defendant’s statements were voluntary. Finally, the Appellate Division’s decision that the police did not engage in coercive tactics was also supported by the record. Lin, 105 A.D.3d at 762. Defendant voluntarily came to the precinct twice – the morning of May 13, 2005, and the morning of May 14, 2005. For the majority of the time he was at the precinct, he was there voluntarily assisting the police in the investigation of this double homicide, as were several of the victims’ other friends. When he was picked up and dropped off at home, he was seated unrestrained in the back of the police car and was not even frisked before he entered the car. There was nothing accusatory about the questioning because he was not considered a suspect. Initially, he was there to help the police. He never alleged that he was yelled at or threatened with arrest or other reprisals, nor did he ever claim that he was subjected to physical force or the threatened 98 use of physical force. Instead, the detectives characterized the interviews as friendly. Prior to his arrest, while he seemed to have spent most of his time in the interview room, there were times he was seated in the lunch room or another area when the detectives needed to interview someone else. He was not subjected to non-stop rounds of questioning by teams of detectives. Rather, he was questioned in short intervals – ten to twenty minutes – and left by himself, unrestrained in the interview room and for hours at a time. He never asked to leave and even indicated he would help the investigation and return when needed. During defendant’s stay in the precinct, he was given water, cigarettes, food, and access to the bathroom. He was also allowed to rest in the interview room during the long breaks in questioning. Therefore, the record amply supports the lower court’s conclusion that the police did not employ any coercive tactics in questioning defendant. Additionally, defendant’s affirmative lying to the police and creating his false story of a planned robbery by Gong and the Fukienese man was not only the direct cause of the delay in his arraignment but also demonstrates that defendant was not subjected to any coercive police tactics. While defendant was at the precinct for over fourteen hours that first day, he maintained throughout the entire time that he was innocently at the victims’ 99 apartment earlier in the day and had left hours before the murders. And, the next day, even after he had implied the night before that he had some information about the murders, he persisted that he had only gone there to drop off the figurine and stayed for only a short time. It was only seven hours later when the police confronted defendant with the fact that the figurine had been in the victims’ apartment weeks prior to the murder, did he create this limited inculpatory story of a planned robbery. Then, for about twenty-four hours, defendant kept up this charade, providing the police with information about Gong, his associates, his appearance, and viewing photographs of men named “Gong.” Again, it was only after the police confronted defendant with the evidence from Simon’s blog that defendant truthfully confessed and admitted to solely and personally killing both Simon and Sharon. Defendant’s successful attempt at manipulating and misdirecting the investigation is further proof that he was not subjected to any coercive interrogation techniques and did not have his will overborne. Similarly, the Appellate Division’s holding that the hearing court’s decision that defendant adequately understood the import of the Miranda warnings was supported by the record. At the hearing, the People established that, over a three-day period, defendant was interviewed by five different detectives all of whom spoke to him in English. Each detective 100 explained that he did not have any difficulty conversing in English with defendant, that defendant did not express any difficulty understanding the detective’s English, and that defendant responded appropriately to the detective’s questions. While some of the interviews lasted only fifteen to twenty minutes, other interviews spanned one and one-half to two hours, during which time the detectives had no difficulty communicating with him. Then, during the final interview, which lasted approximately five hours and featured defendant writing out statements and handwriting responses to questions in English, did completely and solely inculpated himself. While defendant’s written statements and answers contain misspellings, they were written in full sentences and demonstrate a fluency in English. The hearing court also heard that, after his arrest, defendant was interviewed by a representative of the New York City Criminal Justice Agency, who spoke to him in English and obtained his pedigree information, including his employment and school history (Cothalic: H6: 2-8). While he was being held at Rikers Island, defendant conversed with a particular corrections officer six or seven times. These conversations were in English and the corrections officer did not have any difficulty understanding defendant and defendant answered any questions appropriately (Reed: H6: 16-21). 101 The hearing court also learned that defendant had a prior arrest where he had been read his Miranda warnings. In 1998, defendant was arrested by Detectives Chin and Wong and was advised of his Miranda warnings in English and Chinese. Detective Chin read the warnings to defendant in English and defendant did not indicate any trouble understanding them (Chin: H5: 9-14, 16-18). Detective Chin used the word attorney and lawyer in reading the rights and defendant wrote “yes” next to each question (Chin: H5: 14). Detective Wong then read the Miranda warnings to defendant in Chinese and defendant responded “yes” in Chinese (Chin: H5: 12-14, 23). Defendant also read the warnings himself in both English and Chinese (Chin: H5: 12, 21-22). Based upon the above evidence, the lower court’s ruling that defendant understood the import of the Miranda warnings was fully supported by the record. The People proved that defendant spoke to five detectives and a correction officer in English around the time of his arrest or soon thereafter and all these witnesses testified that defendant appeared to comprehend when he was spoken to in English, answered questions responsively, and did not indicate any trouble understanding the speakers’ English. Defendant completed his interview with CJA in English and accurately provided his age, date of birth, address, school and work history. And, finally, several years 102 prior to this arrest, defendant had been read the Miranda warnings in both English and Chinese and never told those detectives that he did not understand English or the warnings provided to him in English. Thus, the lower court’s findings that defendant understood the import of the Miranda warnings was supported by the record and cannot be disturbed by this Court. Because the record strongly supports the conclusions by the lower courts that defendant was not subject to undue and unnecessary delay, understood the import of the Miranda warnings, was not subjected to unduly coercive tactics, and that his statements were ultimately voluntary (Lin, 105 A.D.3d at 761-62), this issue is beyond this Court’s further review. Nevertheless, defendant, adopting some of the dissenter’s findings, persists in his view that the lower court’s erred in denying his suppression motion. But these contentions either distort the hearing record or rely on inferences drawn solely in defendant’s favor – inferences that were rejected by both the hearing court and the majority below and are therefore beyond this Court’s power to review. Mercado, 2015 N.Y. Slip Op. 02556. Moreover, defendant fails to offer any justification for failing to apply the mixed question rule in this case. Indeed, all of defendant’s contentions are based upon a misinterpretation of the evidence and the drawing of unsupported inferences. 103 For instance, defendant repeatedly asserts that the interrogation was four days long and that he was held in a windowless room during that period (Defendant’s Brief at 49, 55-56). The record does not support these assertions, much less demand their acceptance over the evidence relied upon by the majority below. As noted above, the evidence at the hearing established that after voluntarily coming to the precinct on the day after the murder, defendant was questioned in short ten-to-twenty minute intervals and otherwise left alone, and he thereafter returned home where he stayed overnight for a period of eleven hours without any police presence. Also, while he was at the precinct, defendant was not exclusively in the windowless room. He was taken out of that room when it was needed for other interviews, he was allowed to go into the lunch room, and he went to the bathroom as well. Thus, defendant’s characterization of the interrogation, suggesting a four-day marathon interrogation in a closed windowless room with no respite, is not founded in the record, but rather is completely contradicted and neither the hearing court, nor the majority was required to adopt that unsupported view of the evidence. Defendant argues that the evidence “unambiguously” demonstrates that the police “broke” him with the prolonged isolation and interrogation, as allegedly demonstrated by testimony that he cried for fifteen to twenty minutes before he confessed (Defendant’s Brief at 58). But the lower 104 courts were not required to adopt this speculation as a conclusion. First, in making this assertion, defendant views the evidence through a defense-oriented prism, drawing the inferences most favorable to him, but the courts below were free to draw a different inference – that defendant broke down because he believed that he could no longer maintain his fabricated story and that his charade of innocence had collapsed. The latter inference in no way involves the conclusion that defendant’s will was overborne or that the circumstances were likely to elicit a confession that was unlikely to be true. Second, defendant’s analysis is fatally flawed because he completely ignores much of the other evidence in the record, including the finding that no coercive tactics were used by the police, such as threats or intimidation; that he was allowed to go home on his own, rather than be confined or “isolated” by the police, for an entire overnight period spanning eleven hours; that he was questioned intermittently after that until confessing to a robbery plot; and that defendant believed, when he gave his final statement, that he could not maintain his story any longer because the police knew from Simon what had actually occurred. Indeed, as to the last of these, the evidence showed that after defendant read “fishing poles” and his face became flush, the detective told him that there was no one else that could have told them about the fishing poles and that they knew “what is going on here,” 105 to which he responded “you know what happened.” A: 112-13. This11 evidence led the courts below to the rational and reasonable inference that defendant only began sobbing when he realized that he had been caught, not because he had been broken by overbearing police tactics. It was, indeed, not a mere coincidence that defendant only cried after the police just confronted him with evidence that could only have come from Simon, and after defendant acknowledged that he believed the police knew the truth. This provided an ample basis for the courts below to reject the inference advanced by defendant that he only confessed because the police overbore his will. Defendant further claims that the police delayed his arraignment solely to continue the interrogation in order to obtain further evidence of his guilt and that the Appellate Division ruling to the contrary was “without any evidentiary basis” (Defendant’s Brief at 63-65). Similarly, the dissenter below asserted that the delay was designed to question defendant further without the presence of counsel. But, as discussed above, the record conclusively belies There appears to be a minor transcription error with Detective Schmittgall’s hearing11 testimony or he misspoke as he relayed his conversation with defendant (A: 112 - line 15). The detective testified that after defendant’s face got flush “I said, you know what I went there for that also. I said, listen, we could play games here. There is no other person that could have told me that because you, yourself, said there was nobody else there. So that’s what I said, you know” (A: 112 - lines 15-19). Based upon the context and syntax, it can reasonably be inferred that this first sentence was the detective relaying what defendant had said “you know what I went there for that also” because immediately after that the detective tells defendant not to “play games.” This reading of the detective’s testimony provides even more support for the People’s argument that defendant began sobbing because he realized that he had been caught. 106 these assertions. As the lower courts determined, the evidence demonstrates that defendant was held in order for the police to find the two unapprehended perpetrators who, according to defendant, actually committed the homicides of Simon and Sharon (A: 003 - Lin, 105 A.D.3d at 762, 421, 424). Indeed, defendant’s assertion that the police “had all that was necessary to move [him] to Central Booking” ignores that the police had a responsibility to continue this investigation and to apprehend or obtain the necessary leads to track down the two accomplices: “Gong” and the Fukienese man – two extremely violent men who had allegedly savagely bound and butchered the victims in this case and were planning additional crimes, according to defendant. Moreover, contrary to defendant and the dissenter’s contentions, this investigation could not proceed without defendant’s assistance since this story came only from him and only he could identify the “real” perpetrators, who were identified only as “Gong” and “the Fukienese man.” In addition, much of the evidence at the hearing showed that the police undertook considerable efforts to find these men, tracking down defendant’s former place of employment, contacting Connecticut authorities, obtaining pictures of possible suspects, and showing those pictures to the defendant for identification purposes. Thus, the delay here – little more than twenty-four hours – cannot properly be characterized as undue and unnecessary. See Ramos, 99 N.Y.2d at 35; Ortlieb, 84 N.Y2d at 107 989; People ex rel Maxian v. Brown, 77 N.Y.2d 422 (1991)(twenty-four hours is presumptively not unreasonable). Next, defendant asserts that defendant’s false statements could not provide a basis for prolonging his investigation because many defendants make false statements and they cannot be detained on this ground alone. According to defendant, such statements would weaken the due process and statutory requirement for prompt arraignment (Defendant’s Brief at 66). But here, unlike in the vast majority of cases, defendant’s false statement implicated two other men in a vicious double murder, and defendant was the only person able to provide information to identify and apprehend these two other men. This was not a case where defendant only implicated himself but some of the details were false so the police persisted in questioning defendant solely to get the truth. Based upon his own statement, defendant was the least culpable perpetrator to this murder and there were two very violent men on the loose with designs of committing a large-scale home invasion in another state. Moreover, only he could identify these men, since he had no actual names or identifies for the police to pursue on their own. Thus, as the lower courts found, the police investigation leading up to the information about Simon’s blog was undertaken in good faith to investigate and apprehend dangerous men who had violently murdered two people, not for any improper purpose. 108 Defendant commits the same errors with regard to his self-serving written ramblings during the first day of questioning – he ignores the evidence contrary to his position and assumes the lower courts were required to draw the inferences in the light most favorable to him (Defendant’s Brief at 67-68). Indeed, the evidence showed that many of defendant’s self-serving statements were demonstrably false. For instance, defendant wrote about being “imprisoned,” but the day these notes were jotted down he voluntarily came to the precinct in order to cooperate with the investigation, and said he would assist the police in any way. Additionally, the undisputed evidence at the hearing shows that he was taken home that night and allowed to stay alone in his home for the entire night, rather than being “imprisoned.” Defendant also wrote that everyone was calling him a murderer but, at that time, he was not a suspect at all. Indeed, one of the detectives called in to assist in the investigation that day was specifically told defendant was not a suspect (A: 74, 82). Moreover, defendant wrote these statements as he gave false exculpatory statements to the police, evincing, if anything, an intent to manipulate the process rather than that he had been subjected to coercive police tactics. In fact, since defendant lied to the police that entire first day and gave only exculpatory statements, he could not have been swayed by the alleged coercive tactics he referenced in his writing. At any rate, this assertion should not even 109 be considered because it is unpreserved for appellate review. Defendant never made this argument before the hearing court (A: 347-71). Further, the dissenter’s assertion that these notes supported her belief that “defendant must have felt that the police had the right to hold him at the station house and that they had ‘all the time in the world’ to question him” (Lin, 105 A.D.3d at 769, internal citation omitted) fails to account for the remainder of the evidence before the hearing court. Indeed, as noted above, defendant’s incredible, self-serving, manufactured claims of custodial interrogation are belied by the record, which indisputably established that defendant voluntarily accompanied the detectives to the precinct to assist in the investigation and that defendant was thereafter allowed to go home and be by himself overnight – hardly indicative of a custodial circumstance. Moreover, the inferences drawn by Justice Hall were rejected by the majority, and the majority’s conclusions were amply supported by the record. As a result, no further review in this Court is available. As this Court just recently observed in commenting on one judge’s efforts to look behind the mixed-question bar, “The dissenting Judge strongly disagrees with the Appellate Division. But the views of individual Judges of this Court on the merits of defendants’ suppression motions are beside the point because the Criminal Procedure Law simply does not vest us with jurisdiction to entertain 110 these appeals.” People v. Brown, __ N.Y.3d __, 2015 NY Slip Op 02552 (March 26, 2015). So too here, Justice Hall’s dissent below represents her individual reading of the evidence and, even should members of this Court agree with those views, those opinions in no way vest this Court with jurisdiction to do more than look at whether the majority’s view below finds support in the record. Here, it undoubtedly does, and Justice Hall’s personal views as to the best inferences to draw from the record are, in this Court’s words, “beside the point.” For similar reasons, this Court should reject defendant’s assertion – an assertion not held even by the dissenting Justice below – that defendant did not understand the Miranda warnings because he has a limited understanding of English (Defendant’s Brief at 70-72). While defendant heavily relies upon the video of his interaction with the prosecutor to demonstrate that he did not understand English, the majority below was entitled to rely on the contrary evidence, including the evidence concerning defendant’s lengthy tenure and his middle high school education in this country (at least seven years), his fluent conversation with non-police officials near the time of his confessions (such as the CJA interviewer and the correction officer who had numerous conversations with him), and the detectives’ testimony about his command of the language. Even more 111 specifically, on the issue of his understanding of the warnings, the courts below could justifiably rely not only on the fact that defendant never complained that he was unable to understand the warnings – and in fact indicated that he did understand the warnings – but also on the testimony presented by the People at the hearing that he had previously been informed of the warnings in another case in both English and Cantonese, his native language, and that he had a sufficient proficiency in English to write out several statements in English and answer the detectives’ written questions in English. Given all this evidence, the courts below could conclude that defendant’s purported failure to understand the word “attorney” on the videotape was feigned and yet another example of defendant’s efforts to manipulate authorities, as he had done throughout the questioning. Further, defendant’s claim that the police were “required, as a matter of law, to give defendant a fresh set of Miranda warnings” (Defendant’s Brief at 73-74) should be rejected. While defendant acknowledges that the Appellate Divisions hold that Miranda does not need to be re-explained when a defendant is in continuous custody and he acknowledges that he was in continuous custody, he also contradictorily and conclusorily argues that Miranda needed to be reissued here. People v. Glinsman, 107 A.D.2d 710 (2d Dept. 1985). His argument simply does not make sense. In the end, defendant 112 does little more than simply assert that the re-issuance of Miranda warnings here was “required, as a matter of law” (Defendant’s Brief at 73). But it cannot be that the police were required “as a matter of law” to reissue the Miranda warnings, when there is no law that requires their reissuance when, as defendant concedes (Defendant’s Brief at 73-74), the custody is continuous, as it was from May 14, when he received and waived the Miranda, to May 15 when he finally and fully inculpated himself. In the absence of any legal requirement for the re-issuance of Miranda warnings, this claim too should be disregarded. Finally, defendant makes generalizations about confessions and relies on some law review articles and an article published in a psychological journal (Defendant’s Brief at 52-53). But these arguments should not be considered by this Court because none of these authorities demonstrates that defendant’s confessions were not a product of his own free will – the only question relevant here. That in other circumstances a confession may be deemed involuntary and that certain conditions may lead to a coercive atmosphere for a defendant does not prove that either of those conclusions should be drawn here. Moreover, to the extent that defendant relies on psychological journals expressing the views of social scientists, this Court should not 113 consider the opinions expressed therein. Defendant offered no such expert testimony at the hearing; those opinions have never been subjected to, much less passed, an appropriate Frye hearing; and the prosecution had no occasion to counter those assertions in the hearing court. As a result, they should form no part of this Court’s consideration of the case. C. Even If Any Error Occurred, it Was Harmless Because the Evidence of Defendant’s Guilt Was Overwhelming Even Without His Confession. In any event, even if there were error in the admission of defendant’s ultimate full confession, it was harmless in light of the other overwhelming proof of defendant’s guilt. People v. Crimmins, 36 N.Y.2d 230 (1975). This evidence included forensic evidence directly from the crime scene establishing not only defendant’s presence in the apartment, but also defendant’s use of the very roll of tape used to bind Simon during the murder and defendant’s fingerprints on the actual tape that was wound around Simon’s legs. Defendant’s fingerprints were also found on a battery inside a bloody flashlight, found on the floor in Simon’s room, near his feet (RA: 1448-49; People’s Exhibit 4). And defendant’s DNA was found under Sharon’s fingernails. Each of these taken alone would have been powerful evidence of defendant’s responsibility for the crime, but together they led inescapably to defendant’s guilt. 114 First, the People’s proof established that defendant’s palm print was on the bloody wall in Simon’s room next to Simon’s blood-soaked bed. When the police arrived at the scene, Simon was found stabbed in his bedroom in a pool of blood, lying partially under his bed, and the bed itself was extensively stained with Simon’s blood. Next to that bed, Simon’s blood was spattered on the wall. Amidst those spatterings, the crime scene unit recovered defendant’s palm print – powerful forensic evidence that was never seriously challenged at trial. Indeed, there was no other reason for defendant’s palm print to legitimately be in Simon’s room at all, much less on the blood- splattered wall behind the blood-soaked bed under which Simon’s dead body lay. Smith v. Small, 564 Fed. Appx. 883 (9th Cir. 2014) (Miranda error harmless given overwhelming evidence of guilt which included defendant’s fingerprints on duct tape that caused victim’s asphyxiation); People v. Arafet, 13 N.Y.3d 460 (2009) (while no eyewitness to crime and no admission by defendant, proof was overwhelming and key piece of evidence was defendant’s fingerprint on thruway toll ticket, so error regarding admission of prior crime harmless); U.S. v. Burgos, 94 F.3d 849 (4 Cir. 1995) (collecting cases;th “Federal appellate courts consistently have concluded that fingerprints constitute material, cogent proof in sustaining conspiracy convictions for 115 contraband narcotics”); People v. Adamson, 27 Cal.2d 478 (S.C. CA 1946)(“fingerprints are the strongest evidence of identity of a person”). Second, defendant’s fingerprints were on the core of the roll of duct tape used to bind Simon’s legs. A criminalist with the New York City Police Department found four prints on the cardboard center of a duct tape roll found in Simon’s room. Two of these prints matched defendant’s third and fifth finger, which would be his middle and pinkie finger on his right hand (RA: 1212-14, 1530, 1533-34). This constituted truly overwhelming evidence of defendant’s guilt by itself. Third, and even more compelling, were defendant’s fingerprints on the actual duct tape that had been wrapped around Simon’s legs. During the autopsy, the medical examiner found three bands of tape wrapped round Simon’s legs. This included two separate wrappings of duct tape on Simon’s lower shins and calves and a single band of masking tape (RA: 1624-25, 1628). This duct tape was vouchered and examined for fingerprints. Two fingerprints were found on the non-adhesive side of the tape. These fingerprints matched defendant’s left thumb print (RA: 1219-25, 1534, 1543). Again, this evidence, by itself, overwhelming proof that defendant committed these horrific murders. Fourth, added to this was defendant’s fingerprint on a battery inside of a flashlight recovered by Simon’s feet on the floor of his bedroom. 116 The flashlight was covered in blood, and indeed, there was so much blood on it that it was not tested for DNA because the likelihood of finding any DNA that was not the victim’s was minimal (RA: 1345-46). The batteries inside the flashlight were tested and defendant’s left thumb print was found on one of the batteries (RA: 1210-11, 1531-32). The evidence further established that Simon suffered from eleven blunt force injuries and these injuries could have been caused by being struck by the recovered flashlight (RA: 1665-68). Furthermore, the fingerprint evidence was particularly compelling here because there was no legitimate reason for it to have been found in the victims’ apartment. Defendant and Sharon had broken up one year prior to these murders, which would have been in the spring of 2004. In the fall of 2004, five or six months after defendant and Sharon’s relationship ended, the victims moved into this apartment (RA: 645). Then from December 2004 to March 2005, defendant was in China and since his return, he had claimed to have seen Sharon only twice, and both times were at his home, not at her new apartment (RA: 784). Because Sharon and defendant had broken up, the reasonable inference was that defendant had not spent any considerable time inside the victims’ new apartment. In addition, even had defendant been in the victims’ apartment some time after she moved in and before he went to China, there would not have been any reason from him to have gone into Simon’s 117 bedroom. By all accounts, Simon was a quiet young man. Sharon’s current boyfriend and friend Tsang testified that Simon did not talk much and they never went into Simon’s bedroom (RA: 652, 838-39). And defendant told the police that, when he was at the victims’ apartment waiting for Sharon, he tried to converse with Simon but Simon was not talkative (RA: 785). Thus, prior to the murders, defendant would not have had the opportunity to leave his palm and fingerprint on the walls in Simon’s bedroom. Fifth, there was a direct forensic link between defendant’s DNA and the biological material found under Sharon’s fingernails. The DNA expert explained that the recovery of defendant’s biological material under Sharon’s nail was rare and this was so because hand washing and showering usually removes it (RA: 1346-47). Also, it was not likely that another person’s DNA would have remained under Sharon’s nails for weeks or months. This biological material could have been placed under Sharon’s nail if she scratched the other person recently (RA: 1347). While the DNA expert described this DNA as a partial match to defendant’s DNA, the evidence, according to the expert, nevertheless identified defendant with a degree of precision that inescapably led to defendant’s guilt. Comparing the DNA profile found under Sharon’s nail to defendant’s profile reveals that each of the alleles in this profile matched defendant’s DNA, his DNA was consistent with it, and the 118 probability of defendant’s DNA matching the DNA found under Sharon’s nail was one in forty-three million Asians (RA: 1353-55, 1615-16; People’s Exhibit 28). Also, there were indications that Sharon had fought with her attacker. She had seven incised wounds to her left hand, four to her right had, three to her right wrists and a contusion on the back of her right hand. And there was blood smeared all over the walls and door of Sharon’s bedroom, demonstrating that a struggle occurred. Also, because defendant and Sharon had broken up and defendant and Sharon had limited contact with each other, there was no innocent reason for the discovery of defendant’s DNA under Sharon’s fingernail. That defendant and Sharon had not been romantically involved for a long time in conjunction with this DNA evidence, when combined with her defensive wounds, and Detective Marshall’s observation of the scratch on defendant’s forehead, which was memorialized in his arrest photo (People’s Exhibit 16), lends still further powerful support evidence of defendant’s guilt. Thus, this physical and scientific evidence alone is sufficient to overcome the alleged error in the admission of defendant’s statements. But there was more. The People established that defendant had a powerful motive to commit the crime. The evidence established that defendant had been rejected by Sharon in favor of another boyfriend, and in fact, for an extended 119 period of time, she had cheated on him with this other boyfriend, who was defendant’s married friend, and thus defendant had reason to be jealous and angry with her (RA: 645-651). Additionally, the number and location of the stab wounds demonstrate a heightened level of rage by the killer – Sharon suffered five stab wounds and five incised wounds just to her face. She also received three stab wounds and two incised wounds to her neck, six stab wounds and six incised wounds to her torso, including an eight-inch deep stab wound to the abdomen, which cut through the small bowel, the large bowel, and into the posterior wall of the abdominal cavity, causing some of her intestines to protrude from her body (RA: 513, 1649-52). Finally, even if defendant’s ultimate confession were erroneously admitted, and it was not, his first statement placing him at the scene and lying about the reason for his presence in the apartment was unquestionably properly admitted, and such powerful evidence of defendant’s consciousness of guilt provided still further powerful evidence corroborating defendant’s guilt. Defendant came voluntarily to the precinct on the day after the murder in order to assist in the investigation, like many of the victims’ friends. He was not a suspect – indeed, the investigating detectives stated as much to Det. Wong, when he arrived at the scene to assist in the investigation – and defendant was allowed to go home and stayed alone there all night after his first statement. 120 Moreover, that first day when he made his initial statement, defendant was questioned only intermittently in short ten-to-twenty minute intervals, not continuously. Thus, there can be no doubt that the first statement was properly introduced into evidence. In that statement, defendant not only admitted to being at the apartment on the day of the murder, but lied about his reason for being there, telling police that he had gone there to give Sharon a figurine. Later, the police learned that defendant’s statement was false: Simon detailed in an on-line blog that defendant came to the apartment to retrieve fishing poles, which the police later found in a closet, and the People established that the figurine was in Sharon’s apartment prior to the murder (RA: 1113-1126, 903, 1023). Defendant’s deception spoke volumes and, when viewed with the mountain of physical evidence, constituted not only overwhelming evidence, but a level beyond even that. In light of the overwhelming evidence establishing defendant’s guilt, there is no reasonable probability that the jury’s verdict would have been more favorable had defendant’s confession not been admitted. Nevertheless, defendant argues that the alleged error here cannot possibly be harmless. Contrary to defendant’s assertion, the People’s case would not have been “very substantially weaker” without his confession and 121 the jury was not relegated to unsupported inferences and circumstantial evidence (Defendant’s Brief at 75). Indeed, the inferences of defendant’s guilt were direct and powerful: his fingerprints on the very roll of tape used to bind the victim and on the tape wound around Simon’s legs and his palm print on the bloody wall in Simon’s room over the bloody bed under which Simon lay was not speculative; to the contrary, that evidence alone left absolutely no room for doubt. The forensic evidence of defendant’s one in forty-three million forensic link to Sharon’s fingernail scrapings, his substantial motive and his deception to the police only added to the overwhelming evidence already presented to the jury. In short, there is simply no reasonable view of this record that supports defendant’s contention that had the jury not been presented with his confession that it would have acquitted him. Nor does the jury’s initial repugnant verdict support this contention as defendant now argues. Instead, this Court should not even consider that mistaken verdict in this harmless error analysis because, as discussed below (see Point Three, infra), the repugnancy of that verdict does not support the contention that the jury found any of the People’s proof insufficient; rather, it merely shows it made a mistake in applying the law, as demonstrated by its corrected verdict convicting defendant of all the charges. 122 Additionally, attributing any such subjective reasoning to the jury’s initial verdict is disfavored by this Court. People v. Tucker, 55 N.Y.2d 1, 7 (1981). Finally, defendant’s reliance on Jackson v. Denno, 378 U.S. 368, 376 (1964), is misplaced (Defendant’s Brief at 75). In support of his assertion that the error here cannot be deemed harmless, defendant quotes a passage in Jackson in which the Supreme Court states that a defendant’s due process rights are violated when an involuntary confession is admitted even when there was other sufficient evidence to support the conviction. But Jackson is readily distinguishable. A due process violation occurred in Jackson because there was never a pretrial hearing deciding the voluntariness of the confession in the first instance. Instead, the voluntariness was a question solely for the jury to decide, the same jury that decided that defendant’s guilt. Clearly, the error in Jackson is not implicated here, where there was an extensive pre-trial hearing and ruling by a court prior to the admission of defendant’s confession to the jury. Nor did Jackson consider any issue related to harmless error. Thus, the Court’s statements in Jackson are inapplicable to defendant’s case and do not warrant a finding that harmless error does not apply here, should this Court determine that the admission of his confession was incorrect. Moreover, here, there was not just other “sufficient” evidence of defendant’s guilt, as referenced in the quote from Jackson; there was other 123 truly overwhelming evidence of defendant’s guilt. The forensic evidence not only established that defendant was present in the apartment during the bloody murders, but that he himself handled the tape around Simon’s legs, and, to an overwhelming statistical probability, that the defendant’s DNA was under the fingernails of Sharon’s dead body. * * * In sum, defendant’s challenges to the denial of his motion to suppress are beyond further review by this Court because it is a mixed question of law and fact and the inferences drawn by the courts below were fully supported by the record. Indeed, the record demonstrated that, rather than having his will overborne by the police, defendant repeatedly attempted to manipulate them: first feigning cooperation and giving false stories for his presence in the apartment, then sending them on a wild chase for the mysterious men who actually committed the murders, while feigning further cooperation in the search for those men. His manipulation also included defendant’s false claims of “imprisonment” at a time when he was not even a suspect and after which he was allowed to go home by himself overnight with no supervision. And, it was only when, as a result of the police investigation into and search for two potential double murderers, defendant knew it was no 124 longer tenable to maintain his lies to the police that he confessed, not because of any coercive tactics. The lower courts’ inferences regarding defendant’s ability to understand English were also fully supported by the record, including the testimony of many police and non-police witnesses who spoke to him at or very near the time of the interrogation. In light of this evidence, the lower courts were entitled to view defendant’s purported post-statement trouble with the Miranda warnings when on video, as simply further efforts to manipulate law enforcement officials and create a record helpful to him in court. Given the record support for the lower courts’ inferences, no further review is available now. Finally, to the extent any error occurred, it was harmless beyond a reasonable doubt since the other evidence – defendant’s DNA under Sharon’s nails, his fingerprints on the wall in Simon’s room, on the tape binding Simon, on the cardboard tape roll, and on a battery in a blood-covered flashlight found next to Simon’s feet, and Simon’s blog placing defendant in the apartment that afternoon – overwhelmingly established defendant’s guilt to brutally murdering Sharon and Simon. 125 POINT TWO THE COURT DID NOT ABUSE ITS DISCRETION OR VIOLATE DEFENDANT’S RIGHT TO PRESENT A DEFENSE WHEN IT PRECLUDED HEARSAY EVIDENCE IN THE FORM OF THE VIDEOTAPE OF HIS POST- STATEMENT REQUEST FOR A LAWYER AND HIS UNSOLICITED HANDWRITTEN SCRIBBLES JOTTED DOWN ON THE FIRST DAY OF QUESTIONING. At trial, defendant sought to admit a video recording of himself invoking his right to counsel after the statements admitted in this case were made. The trial court did not abuse its discretion in rejecting this evidentiary offer because it was irrelevant to the admission of the prior statements, the People otherwise elicited that defendant invoked his right to counsel and, to the extent it showed defendant’s physical condition near the time of the statements, the trial court reasonably addressed this concern by offering to allow the introduction of still photographs of the defendant during the interview. With regard to the notes, jotted by defendant during the first day of questioning, the court similarly acted within its discretion in rejecting defendant’s evidentiary offer. The vast majority of those notes consisted of random, irrelevant musings and the only relevant portions were both self- serving hearsay not within any exception to the hearsay rule and such proved to be false. Thus, neither evidentiary ruling provides a ground for reversal. 126 Moreover, any possible error was harmless in light of the overwhelming forensic evidence of guilt, including defendant’s fingerprints on the duct tape that bound one of the murdered victims legs and his DNA under the fingernails of the other, and because defendant’s post-statement invocation of his right to counsel was before the jury in any event. The general rule in New York is that “all relevant evidence is admissible unless its admission violates some exclusionary rule.” People v. Scarola, 71 N.Y.2d 769 (1988), citing People v. Alvino, 71 N.Y.2d 233, 242 (1987) and Ando v. Woodberry, 8 N.Y.2d 165 (1960); see also Richard T. Farrell, Prince, Richardson’s on Evidence § 4-101 (11th Edition 1995). “Evidence is relevant if it tends to prove the existence or non-existence of a material fact, i.e., a fact directly at issue in the case.” People v. Primo, 96 N.Y.2d 351 (2001); see also Scarola, 71 N.Y.2d at 777. Not all relevant evidence is admissible, however. “A court may, in its discretion, exclude relevant evidence if its probative value is outweighed by the prospect of trial delay, undue prejudice to the opposing party, confusing the issues or misleading the jury.” Primo, 96 N.Y.2d at 355, citing People v. Davis, 43 N.Y.2d 17, 27 (1977) and Scarola, 71 N.Y.2d at 777; see also People v. Petty, 7 N.Y.3d 277 (2006); People v. Alvino, 71 N.Y.2d at 242; People v. Acevedo, 40 N.Y.2d 701, 704 (1976). There is no bright-line rule or 127 “litmus paper test for determining when the probative value of [] evidence outweighs its potential for prejudice.” People v. Ventimiglia, 52 N.Y.2d 350 (1981). Rather, this determination is a process of balancing “in which both12 the degree of probativeness and the potential for prejudice of the proffered evidence must be weighed against each other.” Id. at 360. Additionally, the determination of whether evidence is too slight, remote, or conjectural “to have any legitimate influence in determining the fact in issue” “rests with the discretion of the Trial Judge . . . .” Richard T. Farrell, Prince, Richard ’s on Evidence § 4-103 (11th Edition 1995); see also Davis, 43 N.Y.2d at 27; People v. Feldman, 299 N.Y. 153, 169-170 (1949)(whether evidence is too remote is a question for the court). And trial judges are given “‘wide latitude’ to exclude evidence that is ‘repetitive . . ., only marginally relevant’ or poses an undue risk of ‘harassment, prejudice, [or] confusion of the issues.’” Crane v. Kentucky, 476 U.S. 683, 689-690 (1986), quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); see also People v. Carroll, 95 N.Y.2d 375 (2000)(“trial courts accorded wide discretion in making evidentiary rulings”). This is so because “‘it is important to rivet the jury’s attention on the real issues at trial without undue diversion to collateral matters While Ventimiglia concerned the application of the rule against admitting prior12 crimes, its discussion regarding the probative versus prejudicial value of evidence is generally instructive. 128 having little or no bearing on the guilt or innocence of the defendant.’” People v. Aska, 91 N.Y.2d 979 (1998), quoting People v. Miller, 39 N.Y.2d 543, 551 (1976). Absent an abuse of discretion, a trial court’s decision to either admit or deny the admission of evidence should not be disturbed on appeal. Aska, 91 N.Y.2d at 981; see also Carroll, 95 N.Y.2d at 385. Further, “a court’s discretion in evidentiary rulings is circumscribed by the rules of evidence and the defendant’s constitutional right to present a defense.” Carroll, 95 N.Y.2d at 385. “[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense’” [Crane v. Kentucky, 476 U.S. at 690, quoting California v. Trombetta, 467 U.S. 479, 485 (1984)] to defend against a state’s allegations. Chambers v. Mississippi, 410 U.S. 284, 294 (1973); see also Hawkins v. Costello, 460 F.3d 238 (2d Cir. 2006). This right, however, is not absolute. People v. Williams, 81 N.Y.2d 303, 313 (1993); see also Hawkins v. Costello, 460 F.3d at 240 (defendant’s right to present defense has limits). Indeed, this Court has said that a defendant’s “right to present a defense does not give criminal defendants carte blanch to circumvent the rules of evidence.” People v. Hayes, 17 N.Y.3d 46 (2011)(internal quotations and citations omitted). In discussing a defendant’s constitutional right to present a defense, the Supreme Court has held that a defendant is required to “comply 129 with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Chambers v. Mississippi, 410 U.S. at 302; see also Taylor v. Illinois, 484 U.S. 400, 411 (1988)(defendants do not have “unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence”). And the Second Circuit has noted that “restrictions on a defendant’s presentation of evidence are constitutional if they serve legitimate interest in the criminal trial process and are not ‘arbitrary or disproportionate to the purposes they are to serve.’” U.S. v. Almonte, 956 F.2d 27 (1992), quoting Rock v. Arkansas, 483 U.S. 44, 55 (1987). An evidentiary rule may be shown to be arbitrary per se “or when it is applied by a court without due consideration of the individualized circumstances and interest present in the matter before it.” Williams, 81 N.Y.2d at 313. One of the most respected and applied evidentiary rules is the exclusionary hearsay rule. Chambers v. Mississippi, 410 U.S. at 302. Hearsay is, of course, a statement made out of court that is sought to be introduced for the truth of what is asserted. People v. Nieves, 67 N.Y.2d 125, 131 (1986); Richard T. Farrell, Prince, Richardson on Evidence, 11 ed. § 8-101. Theth basic rational for the exclusion of hearsay evidence is that it is not reliable because it consists of unsworn statements that are not subject to cross- 130 examination, and the declarant is not testifying so his demeanor and credibility is not being assessed by the jury. Richard T. Farrell, Prince, Richardson on Evidence, 11 ed. § 8-102; see also Chambers v. Mississippi, 410 U.S. at 302;th People v. Brown, 80 N.Y.2d 729 (1993); People v. Caviness, 38 N.Y.2d 227 (1975). Hearsay evidence is only admissible if it falls under an exception to the rule. Nieves, 67 N.Y.2d at 131. These exceptions are premised on the belief that they bear persuasive assurances of trustworthiness. Chambers v. Mississippi, 410 U.S. at 302; Caviness, 38 N.Y.2d at 230. For instance, the state of mind “exception” is applicable when the utterance of the statement, without regard to truth, indicates the state of mind or shows the effect upon the mind of the hearer or declarant. Richard T. Farrell, Prince, Richardson on Evidence, 11 ed. § 8-106. Because theth proponent is not relying upon the truth of the matter asserted, statements that qualify under the state of mind exception are not hearsay. Id. By contrast, purely self-serving statements or acts by a party that are being offered to support that party’s position at trial are inadmissible. Richard T. Farrell, Prince, Richardson on Evidence, 11 ed. § 8-110. Theth purpose of this rule is to ensure that a party does not manufacture favorable evidence. People v. Reynoso, 73 N.Y.2d 816 (1988); see also People v. Sapia, 41 N.Y.2d 160, 167 (1976). 131 Application of these evidentiary principles establishes that the trial court correctly precluded the admission of the six-minute video recording and defendant’s written ramblings. While defendant argued that the video recording was relevant to defendant’s physical condition near the time of the statements, counsel never identified any aspect of defendant’s appearance or demeanor on the tape that would have supported the argument that his statements were involuntary. Moreover, defendant outright rejected the prosecutor’s reasonable offer to introduce photographs of defendant’s appearance from the video itself – just like the court allowed the prosecution to introduce a booking photograph of defendant taken after his arrest. Similarly, defendant’s written ramblings were largely irrelevant and to the extent any of them were probative at all, they were self-serving hearsay not within any exception. The trial court acted well within its discretion when it rejected defendant’s request to introduce the video recording. Below, defendant presented two arguments to support the admission of the video – that it proved his invocation of his right to counsel and that it demonstrated his appearance. On this appeal, however, he has abandoned his primary arguments raised below – that the video was admissible to establish his invocation of his right to counsel, a fact which the People openly conceded and planned on eliciting 132 with testimonial evidence. By not arguing that the trial court should have admitted the video on this ground, an argument that even the dissenter did not find persuasive (Lin, 105 A.D.3d at 772-73), defendant effectively concedes that the trial court correctly rejected this ground for admission. As noted above, in his brief to this Court, defendant relies on a single ground for admission of the video – that it would have shown his appearance on the date he made his final statement to the police, which, he argues, would support his contention that his statement was involuntary (Defendant’s Brief at 79). But this argument fails for at least two reasons. First, defendant never identified to the trial court any aspect of his appearance that would have supported his claim of involuntariness. While counsel claimed that the video showed how defendant looked after the police interrogation, counsel failed to point to any specific aspect of defendant’s appearance or his responses that demonstrated or even suggested that his will was overborne. Indeed, his claims that the video demonstrated the involuntariness of the prior statements are puzzling, especially in light of the recording itself, which does not establish, or even suggest, that defendant was physically or mentally drained or exhausted. Rather, it reveals that defendant was orientated to time and place, was comfortable and relaxed in his chair as he sat smoking a cigarette and drinking, and that he understood that he was under arrest, would 133 be sent to court, and that he planned on hiring a private attorney (see Video, supplied by defendant). Moreover, there was nothing remotely coercive demonstrated by the six-minute recording – no one was yelling at defendant (nor did he ever assert that anyone ever had), he did not seem fearful or afraid, he was not sobbing uncontrollably or displaying any emotional or mental distress, he did not have any visible bruises, nor did he ever claim that his statements were made under physical force or the threat of physical force. Clearly, the video itself refutes defendant’s claim that it would help establish that he was so “beat down” that his earlier statements were involuntary and false. In the absence of any offer of proof or argument as to how the video would have supported defendant’s claim of voluntariness, the court below was not required to admit it for this purpose simply on defendant’s say so. Second, even though defendant never pointed to any aspect of the video that would have supported his involuntariness claim, the prosecutor offered to allow counsel to introduce photographs of defendant’s condition on no audio the night he confessed to the murders, including a still photograph from the video. Indeed, nothing prevented counsel from submitting a still photograph from any moment of his choosing during the six-minute video, and he could have even asked the court to submit multiple photos, if he so desired, 134 but he never did. Instead, he rejected this reasonable option outright, refusing to engage in a parsing of the video. Also, counsel could have requested to play the video without the audio but he did not do that either. Rather, counsel was not satisfied unless the entire six-minute video with the audio was played for the jury. Because counsel did not establish in the trial court why the video was necessary to show defendant’s appearance over and above a photograph or series of photographs taken from the very same video recording that he sought to introduce into evidence, he has failed to show that the trial court abused its discretion in this regard. Defendant now argues, as did the dissenter below, that still photographs could not have substituted for the video because videos are inherently better than photographs. Citing to People v. Caserta, 19 N.Y.2d 18, 21 (1966), defendant quotes Justice Hall’s assertion that still photographs can be inadequate because they may capture only a single moment in time that is not representative of how a person actually appears (Defendant’s Brief at 81). 13 But here, defendant was not constrained to a single moment in time or to presenting the jury with his appearance at only a particular instant on the video. Rather, defendant could have chosen any moment – indeed, the precisely Justice Hall stated “a still photograph can be very misleading, as it captures only a13 moment in time. For instance, in one moment, a photograph can capture the defendant’s appearance in a way that he appears alert and rested. Conversely, in another moment, a photograph can capture the defendant’s appearance in a way that he appears depleted and malnourished” (A: 10 - Lin, 105 A.D.3d at 772). 135 optimal moment, from his point of view, or even a series of the most highly favorable moments in multiple photographs – anywhere from the video to make his point in the strongest way that the video would allow. Likewise, counsel could have asked to play a clip from the video, or even multiple clips, but he never sought this alternative either, insisting that only the full six- minute video could satisfy his request. Because defendant had so many viable options, Justice Hall’s observations about the limitations of a single photograph do not apply here, and defendant offered no other compelling need for the full six-minute video. Furthermore, admission of the video recording bore a danger of misleading the jury and opening the door to extensive additional testimony on a side issue that counsel expressly stated he wished to avoid. As counsel well knew, the video of defendant invoking his right to counsel would have allowed the jury to speculate as to defendant’s understanding, or lack of understanding, of the English language. This in turn would have opened the door to additional testimony relevant to defendant’s understanding of English, and the prosecutor specifically enumerated for the court the testimony of three additional witnesses that she would call on that issue, including a detective who had read defendant his Miranda rights in Cantonese after a prior arrest. 136 The trial court understandably sought to avoid the delay, confusion, and other difficult problems that would have been raised with the introduction of this evidence. At best, the evidence would have sidetracked the jury, raising an issue that required extensive legitimate rebuttal from the prosecutor as to a question that defense counsel expressly stated he had no intention of broaching. And part of that rebuttal would have inextricably related to a prior arrest of the defendant, raising the specter of prejudice to the defense and a possible reversal, something the trial court surely wished to avoid. The trial judge was not required to interject this issue into the case, particularly since the prosecutor had offered to stipulate to defendant’s invocation of counsel, which the jury in fact heard, and the prosecutor also offered to admit photographs of defendant’s condition from the videotape itself. Conversely, if the court admitted the full video recording but declined to admit the rebuttal testimony, the jury could have been affirmatively misled. Had the video recording been admitted, the jury would have been free to speculate regarding how it reflected on the defendant’s understanding of English, regardless of whether defendant expressly made that argument. See People v. Morris, 21 N.Y.3d 588 (2013)(uncharged crime evidence does not need to be excluded simply because defendant concedes that arrest lawful); 137 People v. Arafet, 13 N.Y.3d 460 (2009); People v. Tosca, 98 N.Y.2d 660 (2002). In addition, counsel’s assurances, relied on by the dissenter below, that counsel would refrain from making the argument that defendant did not understand the Miranda warnings due to a language barrier were very qualified: when the introduction of the tape was discussed, counsel stated that the defense was not adopting that position “at this point,” but limited that statement with the proviso that “it may be” that “I change our position” on this issue (A: 448). And when the trial court sought to clarify counsel’s position by asking him directly if he would make that argument, the best counsel could offer was, “I don’t believe so” (A: 450). Further, even if defendant was not going to argue that he did not have a sufficient understanding of English, as the prosecutor argued below (A: 450-51; RA: 31-32), the content of the video itself clearly made this an obvious issue, as defendant’s current argument on appeal demonstrates. To support his contention that he was not fluent enough in English to understand the Miranda warnings, defendant argues that the prosecutor’s interaction with him “unambiguously showed” that he did not have a sufficient understanding of English and that “the videotape amply demonstrat[es] appellant’s limited English in general” (Defendant’s Brief at 71-72). Thus, defendant’s argument supports the prosecutor’s argument made below the video standing alone presented this issue to the jury. Because the 138 jury was free to consider this issue and counsel could have sought to raise it later, directly or indirectly, despite his lukewarm assurances, the trial court had to be concerned that the absence of rebuttal evidence would leave the jury with a mis-impression as to defendant’s language skills, because it would never have heard from the independent, non-police witnesses that defendant spoke English fluently or, more importantly, that he had specifically been read the Miranda warnings in Cantonese on a prior occasion. The trial court was not required to give the defendant the windfall of an unbalanced presentation of this issue. In short, the court acted well within its discretion in doing what it did: meeting defendant’s “appearance” argument by offering to allow photos of his appearance directly from the video recording itself, and meeting defendant’s argument regarding invocation of the right to counsel through the introduction of testimony of the invocation from other witnesses. In the absence of a compelling, or even legitimate, reason why the video was essential to the disclosure of defendant’s appearance at that time over and above what could have been disclosed in a series of photos, the trial court did not err in the manner that it thoughtfully resolved this evidentiary question. Curiously, defendant now argues that the court’s rulings were improper and unbalanced because the court allowed the People to introduce an 139 arrest photo of the defendant on the issue of defendant’s appearance near the time the statements were made (Defendant’s Brief at 80). But the People had no advantage here: the trial court offered to defendant the same opportunity to introduce a photo from the video, and, indeed, defendant could have asked for the admission of multiple photos. Defendant has failed to establish how or why the People were unfairly favored by the trial court’s ruling. Thus, the trial court did not abuse its discretion when it precluded the admission of the video. Given the relevancy of the video as argued by defendant – his invocation of his right to counsel and his appearance – and considering the court’s concern that the jury would at best be sidetracked and at worst affirmatively misled if the entire video were introduced, the court appropriately precluded the evidence while allowing photographs and testimony as a reasonable substitute. Nor does defendant’s complaint about the preclusion of his random scratch notes fare any better. First, almost all of the pages of notes were irrelevant to the issues before the jury, and would have at best led the jury to speculate as to their meaning. For example, statements like, “There is love in human society. That is baloney. Money. Love.” (A: 668) were simply not indicative of anything, as the prosecutor argued, and the trial court properly excluded them. Similarly, “Love and righteousness Also have something to do 140 with me,” and “It is difficult to be a human being,” (A: 669) had no legitimate purpose before the jury. And statements like, “Bad boy, really bad boy, you do not have any share in good thing, but bad thing is related to you,” and “Cut off from all the six types of relationship in the family I am the dark prince of hell,” (A: 669) even if they were deemed relevant they would have been prejudicial to defendant and therefore, were understandably precluded by the trial court. Defendant points, however, to two specific statements, alleging that the trial court erred in precluding them – a position that even the dissent below did not adopt. First, defendant argues that the trial court abused its discretion in precluding the statement, “I am imprisoned.” Contrary to his current protestations, defendant offered that statement for the truth of the matter asserted. Counsel, in fact, argued for its admission by referencing the objective definition of imprisonment: “[H]e says, ‘I am imprisoned.’ Imprisoned means you can’t get up and you can’t walk out. It means you can’t leave.” (A: 511). Counsel thus sought to show that defendant was, objectively, not free to leave. Because the statement was offered for its truth, it was indeed hearsay and could only be admitted if it fell within an exception. Defendant nevertheless argues that this statement, and his self- serving plea for “heaven and earth” to help him, were prompt complaints of police mistreatment and admissible as such. This argument evinces a 141 fundamental misunderstanding of the prompt complaint doctrine. Prompt complaint or prompt outcry allows a party to overcome the traditional rule against bolstering the credibility of a witness by introducing prior consistent statements. Richard T. Farrell, Prince, Richardson on Evidence, 11 ed. § 8-th 615; see People v. Rosario, 17 N.Y.3d 501, 511-12 (2011). The rule allows evidence of an immediate complaint where the witness might otherwise be expected to promptly complain should certain conduct have been committed against him or her, but the evidence is used only for credibility purposes, not to prove the truth of the matter asserted. See Richard T. Farrell, Prince, Richardson on Evidence, 11 ed. § 8-615; Note, A Matter of Time: Evidenceth of a Victim's Prompt Complaint in New York, 53 Brooklyn L Rev 1087, 1091- 94 (1988) (cited in People v. Rosario, 17 N.Y.3d at 513). And “since the rule permitting evidence of prompt complaint bears solely on the credibility of the [witness], such evidence is admissible only if the [witness] testifies.” See Richard T. Farrell, Prince, Richardson on Evidence, 11 ed. § 8-615. th While this rule is often used by the prosecution to bolster the credibility of the victim in sexual assault cases, this Court has also applied it to other circumstances, including to defendants who testify to mistreatment at the hands of the police. See People v. Alex, 260 N.Y. 425 (1933). Indeed, in Alex, this Court expressly adopted the prompt complaint rationale from sexual 142 assault cases as the ground for the admissibility of a prompt complaint of injury by police: The general rule is that the evidence of a witness cannot be corroborated by proof that the witness made the same statement on a prior occasion when not under oath. There are, however, well-established exceptions to the rule. Thus evidence that the injured person made timely complaint of the injury is properly received in a criminal trial where the defendant is charged with rape, robbery or larceny. (People v. O’Sullivan, 104 N. Y. 481; 2 Wigmore on Evidence [2d ed.], § 1142.) 260 N.Y. at 428. This Court went on to state: “It is under the principle involved in such cases that evidence that the defendant made complaint when arraigned should have been received.” Id. Moreover, in Alex, the defendant testified to the mistreatment by police and offered his prompt complaint of14 This Court’s opinion recites:14 The defendant testified in detail in regard to beatings which he claimed the police officers inflicted upon him. He testified in substance that he was told by the police what he must state in a confession, and was warned that if he did not they would continue to beat him; that he made the confession and stated in it what he was told to state by the police because he could not stand the pain inflicted and because of fear of further physical punishment and that the confession was false as he was innocent of the crime charged. He also testified that as a result of the beatings, marks were left upon his body. He was interrogated by his counsel as to what occurred when he was arraigned in County Court thirty-six hours after his arrest. By proper questions, counsel sought to establish that at that time defendant complained to the County Judge that he had been beaten by the police; that he "ripped" off his coat and shirt in the court room in the presence of the Judge and offered to show the Judge the bruises on his body, and asked the Judge to look at his back. Alex, 260 N.Y. at 427. 143 the abuse at arraignment in support of the credibility of that testimony. Alex, 260 N.Y. at 429 (prompt complaint testimony “would have had a direct bearing upon the truth of defendant’s story”). Here, by contrast, defendant did not testify. The evidence he offered in support of the involuntariness of his confession came from cross- examination of the People’s witnesses. Thus, defendant’s alleged prompt complaint contained in his unsolicited writings could not have supported the credibility of his testimony, as in Alex, and that doctrine is, as a result, inapplicable to the facts of this case. In addition, for an even more fundamental reason the notes did not qualify as prompt complaints, they were not complaints to another person at all; indeed, they were at most defendant’s complaints to himself. No evidence suggested that defendant intended his scribblings were to be handed to someone else in the form of a complaint. Defendant did not ask that they be delivered to another, nor did he ask to keep them for himself so that he could deliver them to anyone. This stands in stark contrast to the defendant in Alex, who complained to the arraignment judge at the first available opportunity and displayed his bruises to the judge and the others present. Here, defendant simply left behind self-serving statements – statements that were never delivered to anyone or corroborated by any 144 independent source. And, if anything, the notions contained in these statements was throughly disproven, as the evidence showed that defendant was a cooperative witness at the time that he made them, and was not a suspect, as Detective Wong was specifically told when he arrived at the precinct the same day (A: 73-74, 82). And, most tellingly, defendant was free to go home and stay there over night after these statements were made. This, again, stands in stark contrast to the defendant in Alex, who had objective evidence of bruising and witnesses who would corroborate his prompt complaint – such as the Assistant District Attorney and clerk at arraignment. Additionally, defendant offers these statements as relevant to defendant’s state of mind. But whether or not a person is in custody – “imprisoned,” as defendant alleged – does not depend upon the subjective belief of the person in custody. To the contrary, it depends solely on an objective analysis – what a reasonable innocent person in the defendant’s position would believe. See People v. Pugliese, 26 N.Y.2d 478 (1970); People v. Yukl, 25 N.Y.2d 585 (1969). Thus, the defendant’s statements were not relevant to the ultimate fact he sought to establish: that he was imprisoned by the police on May 13, 2005. 15 Nor were these statements admissible as present sense impressions. This exception15 – abandoned by defendant in this Court – requires corroboration of the content of the hearsay statement. People v. Buie, 86 N.Y.2d 501 (1995). Here, the record not only fails to corroborate the statements, it affirmatively disproves them, as noted above. 145 In short, the trial court did not abuse its discretion in precluding the notes because almost all of them were facially irrelevant and would lead to speculation, and, as to the two isolated statements he now identifies as being particularly significant, defendant offered those out-of-court statements to prove the truth of the facts asserted therein. See Richard T. Farrell, Prince, Richardson on Evidence, 11 ed. § 8-101; People v. Huertas, 75 N.Y.2d 487,th 491-92 (1990). Because they similarly did not fall within the prompt complaint doctrine or any other exception, the trial court providently exercised its discretion in precluding them. Finally, defendant argues that even if the video and his notes constituted hearsay, they were admissible as they were reliable and the “best evidence” of his physical and emotional state during the long interrogation. However, defendant’s characterization of this evidence is completely inadequate and therefore fatally flawed. This evidence, created by defendant, who had been lying to the police during the majority of his interrogation, was not reliable at all, much less the best evidence of anything. Rather, as discussed above, this evidence constituted self-serving, inadmissible statements that could easily be manufactured, as indeed the statement that defendant was “imprisoned” in fact was. Thus, this argument also fails to 146 provide any basis to prove that the trial court’s ruling was an abuse of its discretion. Moreover, any error in the court’s rulings was harmless in light of the overwhelming evidence of defendant’s guilt and the insignificance of the alleged errors with regard to the ultimate verdict. As discussed above (see pp. 114-121, supra), the evidence of defendant’s guilt was truly overwhelming. People v. Crimmins, 36 N.Y.2d 230 (1975). Defendant’s palm print over the bloody bed under which Simon lay, his fingerprints on the duct tape roll and on the actual duct tape around Simon’s legs, and his DNA under the other victim’s fingernails left no doubt as to defendant’s guilt of these crimes. Nor would the precluded evidence have had any meaningful effect. Defendant’s rambling notes had little or no relevance, and his statement, amidst the rest of the ramblings, that he was “imprisoned” was affirmatively disproven by uncontroverted evidence. The notes were written on May 13, 2005, a day when defendant not only voluntarily went to the precinct, offering his cooperation to the police as a witness, but after which he went home overnight and stayed entirely alone without any police supervision for an eleven-hour period. This evidence, and the evidence that he voluntarily returned to the police precinct the next day in the guise of continuing his cooperation with the police as a witness, established that, to the extent the 147 notes were relevant at all, they were unreliable, self-serving, and false statements that could not have meaningfully undermined the jury’s verdict. Thus, there is no reason to believe the notes would have been credited by the jury, much less affected the verdict. Moreover, if as defendant strenuously argued, all of the scribbles had come in, defendant may have been in an even worse position then if they did not come in at all. Indeed, his characterization of himself as “the dark prince of hell” could have been devastating before the jury, and his description of himself as a “bad boy, really bad boy” would not have helped much either. Accordingly, defendant is hard pressed to argue that, on balance, the notes would have benefitted rather than hurt him. Similarly, even defendant seems unable to explain how a videotape of his appearance – as opposed to still photographs – could have caused the jury to reject his confession. And, despite the fact that the defense eschewed the court’s offer to admit still photographs, the jury still saw one such photograph, defendant’s arrest photo, that was received into evidence on the People’s offer. Thus, if anything about defendant’s appearance was helpful to the defense, that evidence was provided to the jury. Therefore, defendant’s suggestion that the proffered evidence could have caused the jury to disregard his confession is unreasonable, unfounded, and speculative in the extreme. 148 In sum, this Court should reject defendant’s challenge to the preclusion of the video and his unsolicited, self-serving notes. The trial court did not abuse its discretion as it carefully considered the probative value of the evidence and its reliability and weighed that against the extraneous issues the evidence would have raised and its potential for misleading the jury. For this reason, and because even if it were possible to discern any error in the court’s rulings, this error was harmless and the court’s rulings provide no ground for reversal. POINT THREE DEFENDANT’S CHALLENGE TO THE COURT’S RESPONSE TO THE INITIAL VERDICT IS LARGELY UNPRESERVED FOR APPELLATE REVIEW AND WHOLLY WITHOUT MERIT. During deliberations, the jury returned a verdict convicting defendant of all counts except three first-degree murder counts, as to which the jury returned acquittals. As the trial court recognized, the key common element among the acquittals was the intent to kill Simon. But the jury had returned a verdict of guilty as to count eight, the second-degree intentional murder of Simon, and that count was thus repugnant to the three acquittals. Moreover, count eight was the only other count that contained the intentional killing of Simon as an element. Thus, the court resubmitted the three first- 149 degree murder counts and count eight to the jury, after which the jury returned a guilty verdict on all counts. Defendant does not now dispute that the acquittals were repugnant with count eight, but argues that the trial court acted improperly by resubmitting only four counts of the indictment. He argues that the acquittals on three first-degree murder counts were repugnant not only to count eight, as the trial court found, but to counts ten and twelve – the felony murder of Simon committed during the burglary and attempted robbery, respectively – as well. He also argues that because of an unspecified possibility of juror confusion as to other counts, all of the fourteen counts should have been re-submitted to the jury, even though no repugnancy existed, and that the trial court’s resubmission of only four of the fourteen counts improperly signaled its view of the evidence to the jury. Defendant’s claims are partially unpreserved for this Court’s review and wholly without merit. First, defendant never argued in the trial court that the acquittals on the first-degree murder counts disproved an element of counts ten and twelve, and that those counts should have been resubmitted for that reason. Second, defendant failed to argue that resubmission of four of fourteen counts signaled the court’s view of the evidence. Accordingly, these arguments are unpreserved. 150 Moreover, defendant’s claims are entirely meritless. There was only one explanation consistent with the jury’s three acquittals – the failure to find the intent to kill Simon – and that element existed in only one other count, count eight, the second-degree intentional killing of Simon. Thus, the trial court acted properly. Furthermore, the unspecified possibility that the jury was confused as to other counts is based entirely on speculation and does not demonstrate any repugnancy as to other counts, nor does it render the verdict defective as to those counts, and thus did not provide a ground to resubmit those other counts to the jury. Additionally, defendant fails to allege any plausible theory of how the court signaled its view of the evidence to the jury simply by resubmitting the repugnant counts and only those counts, as the Criminal Procedure Law requires. Accordingly, defendant’s current claims should be rejected. A. Factual Background. When the jury initially returned a verdict, it acquitted defendant of three of the first-degree murder counts, counts two, four, and five, but convicted him on the remainder of the fourteen counts. Counts two and four charged defendant with intentionally killing Simon in the course of and in furtherance of an attempted robbery (count two) and intentionally killing Simon in the course of a burglary (count four), and count five charged 151 defendant with intentionally killing Simon while killing Sharon in the course of the same transaction. But the jury also convicted defendant of the intentional second-degree murder of Simon, count eight – the only other count to include the intentional murder of Simon as an element. After an unrecorded side bar and outside the jury’s presence, the court stated that it would ask the jury to continue deliberating on counts two, four, five and eight because these counts were inconsistent (A: 642-43; RA: 1965-66). Counsel objected, arguing that the court should redeliberate on all fourteen counts because “the jury . . . obviously had some misunderstandings about the law and how it’s applying the facts to the law” (A: 643; RA: 1966). When the jury returned, the court explained that they found defendant not guilty on counts two, four, and five, all of which involved the intentional killing of Simon, while they found defendant guilty of count eight, which required as an element the intentional killing of Simon. The court stated that it could not accept these verdicts and resubmitted these counts to the jury. The court instructed the jury to continue deliberating on those charges only (A: 644-45; RA: 1967-68). The jury returned to the jury room, and defendant did not make any further arguments or lodge any additional objections. 152 B. Defendant’s Argument That the Acquittals Were Repugnant to Counts Ten and Twelve and His Argument That the Court Signaled its View of the Evidence to the Jury Are Not Preserved for this Court’s Review. Defendant now argues that the acquittals on the three first-degree murder counts were repugnant not only to count eight, but also to counts ten and twelve, both of which charged defendant with the second degree felony- murder of Simon. Defendant never made this argument to the trial court though, and thus the issue is unpreserved for this Court’s review. Similarly, defendant never argued that by resubmitting only four counts to the jury the court was improperly signaling its view to the jury. As such, these claims cannot be reviewed here. For a question of law to be presented for this Court’s review, a defendant must timely and specifically object to the purported error. See CP.L. § 470.05(2); People v. Gurley, 42 N.Y.2d 1086, 1087 (1977); People v. Bryant, 31 N.Y.2d 744, 745 (1972). This rule is designed to provide the trial court with the opportunity to correct a specified error when such opportunity still exists to maintain the integrity of the verdict in the interest of finality. People v. Gray, 86 N.Y.2d 10, 20 (1995). As such, the purpose of a timely and specific objection is to cure “formal defects” and to “serve . . . judicial economy by eliminating the need for new trials where a proper objection would have altered the Judge . . . .” to the alleged error. People v. Vidal, 26 N.Y.2d 153 249, 254 (1970); see also People v. Liccione, 50 N.Y.2d 850 (1980). As a result, if an objection is not specific or timely, a defendant has failed to bring the trial court’s attention to the error at a time when the error can be corrected. This failure divests this Court of jurisdiction because it only has the authority to review questions of law. See C.P.L. § 450.90; People v. Satloff, 56 N.Y.2d 745 (1982); People v. Cona, 49 N.Y.2d 26 (1979); Gurley, 42 N.Y.2d at 1086; Bryant, 31 N.Y.2d at 745. Under this Court’s long-standing precedent, the preservation rule applies to repugnancy claims. People v. Muhammad, 17 N.Y.3d 532, n. 5 (2011); People v. Carter, 7 N.Y.3d 875 (2006); People v. Morris, 68 N.Y.2d 799 (1986); People v. Alfaro, 66 N.Y.2d 985 (1985); People v. Satloff, 56 N.Y.2d 745 (1982); People v. Stahl, 53 N.Y.2d 1048 (1981); People v. Bruckman, 46 N.Y.2d 1020 (1979). Thus, to properly preserve such a claim, a defendant must register a protest that the verdict is repugnant prior to the discharge of the jury, permitting the court the opportunity to resubmit the matter to the jury to obtain a consistent verdict. See Alfaro, 66 N.Y.2d 987; Stahl, 53 N.Y.2d at 1050. Clearly then, for an objection to an alleged repugnancy to be timely, it must be made prior to the discharge of the jury because the jury is still available to cure the defect. Alfaro, 66 N.Y.2d at 987; Satloff, 56 N.Y.2d at 746. 154 To satisfy the specificity requirement, a defendant’s objection should alert the court to the precise repugnancy it believes exists. See Gray, 86 N.Y.2d at 19-20. As a result, a defendant must do more than assert that a verdict is repugnant. Instead, when multiple counts are involved, the defendant should explain the exact legal repugnancy he believes exists. See generally People v. Robinson, 88 N.Y.2d 1001, 1002 (1996)(objection must be made with sufficient specificity at trial to alert court to asserted error when it has opportunity to cure); see also People v. Phillips, 68 A.D.3d 1187 (2d Dept. 2009)(repugnancy claim partially unpreserved because defendant did not raise one of his specific claims of repugnancy to court); People v. Miles, 198 A.D.2d 445 (2d Dept. 1993). Additionally, this Court has held that repugnancy claims do not constitute a mode of proceedings error that would be exempted from the preservation rule. Carter, 7 N.Y.3d at 876. Here, defendant failed to preserve his current contention that the acquittals were repugnant to defendant’s convictions on counts ten and twelve for this Court’s review. Defendant argues in this Court that counts ten and twelve were repugnant to the acquittals because counts two and four charged first-degree felony murders of Simon and counts ten and twelve charged second-degree felony murders of Simon (Defendant’s Brief at 89). But he never made this argument in the trial court. Indeed, counsel said nothing more 155 than that the jury “had some misunderstandings,” without ever describing the alleged repugnancy that he now specifies in this Court. Indeed, he did not specifically identify counts ten and twelve as repugnant to counts two and four, much less explain why those counts were repugnant. Thus, defendant failed to alert the court to the alleged repugnancy, consequently failing to preserve the issue for review. Rather, defendant’s argument in the trial court does not appear to be one of repugnancy at all. Defendant argued only that the jury failed to understand the law and misapplied it to the facts, but, as this Court has repeatedly recognized, repugnancy is not grounded upon factual inconsistencies. Indeed, as explained in greater detail below, an examination of the facts is inappropriate for this type of analysis. People v. DeLee, 24 N.Y.3d 603, 608 (2014); Muhammed, 17 N.Y.3d at 542-543; People v. Tucker, 55 N.Y.2d 1, 7 (1981). In any event, even if defendant’s brief utterance in the trial court could be seen as a repugnancy argument, it did not identify his current, very specific contention about how and why the convictions on counts ten and twelve were repugnant to the announced acquittals. That claim is thus unpreserved for this Court’s review. Similarly, defendant has failed to preserve for review his contention that the trial court improperly signaled its view of the evidence to 156 the jury, in violation of section 310.50 of the Criminal Procedure Law and due process (Defendant’s Brief at 91). He did not argue that resubmission of less than all counts, or of these particular four counts, somehow would have signaled to the jury the court’s view of the evidence. Nor did he mention section 310.50, much less explain how section 310.50 prohibited resubmission of less than all of the fourteen counts. Nor did counsel mention due process or either the state or federal constitution. Accordingly, this contention too was not preserved for this Court’s review. Because these arguments were not preserved they fail to present a reviewable question of law. As such, they cannot be considered by this Court on this appeal. Nor does this Court’s decision in DeLee, 24 N.Y.3d at 606, require a different result. While a non-specific objection that the verdict is repugnant might be sufficient in cases where there are only two charges that can be inconsistent and the repugnancy is apparent, such an objection is not sufficient in the circumstances presented here where there were fourteen counts and innumerable permutations that counsel could have identified as inconsistent based upon differing theories. In these circumstances, the trial court would not have been able to divine much less, anticipate defendant’s current arguments. 157 In DeLee, the jury returned a verdict convicting defendant of the lesser included offense of first-degree manslaughter as a hate crime, acquitting him of the lesser included offense of first-degree manslaughter, and convicting him of third-degree weapon possession. DeLee, 24 N.Y.3d at 606. Before the jury was discharged, without elaborating on the record, counsel argued that the verdict was inconsistent. Later, however, counsel filed a Section 330.30 motion explaining the legal inconsistency in detail. He explained that the acquittal of the ordinary manslaughter was repugnant since it shared the same elements with the first-degree manslaughter as a hate crime. DeLee, 24 N.Y.3d at 606. The Appellate Division concluded that defendant had preserved his repugnancy claim because he argued that the verdict was repugnant prior to the jury’s discharge but this Court did not consider the preservation issue. Id. at 607. DeLee does not warrant a finding that defendant’s objection here was sufficient to preserve this issue for appellate review and, thus, presented a question of law reviewable by this Court. In DeLee, there were only two charges that could have possibly been repugnant – the first-degree Manslaughter as a hate crime and ordinary first-degree Manslaughter – and the jury returned a guilty verdict on the hate crime manslaughter and a not guilty verdict on the ordinary manslaughter. As such, the legal inconsistency to 158 which DeLee’s counsel was referring when he argued without elaborating was apparent. Here, by contrast, the inconsistency defendant now identifies between counts ten and twelve and the three acquittals was not identified and not at all obvious among the many possible combinations of potential inconsistencies in a fourteen-count indictment. Here, there were six first- degree murder counts, six second-degree murder counts, and one count each of burglary and attempted robbery submitted to the jury. The different murder charges were based on different theories and had several overlapping elements with all the other charges. The complexity of the charges involved here required counsel to be very specific with his objection to put the court on notice of the legal repugnancy he believed was present and give the court an opportunity to correct it. But, as described above, counsel merely argued that the jury misunderstood the law and misapplied the facts, and failed to provide any argument or analysis to support his assertion. As a result, this case is distinguishable from DeLee because here counsel’s unspecific objection failed to put the court on notice of the arguments he raises now – that his acquittals were inconsistent with counts ten and twelve – and simply failed to preserve his other new contentions for appellate review. 159 Indeed, defendant’s lack of specificity herein demonstrates the precise reason that specificity is required by the preservation rule. While defendant argued in the trial court, without elaboration, that the judge should resubmit all of the counts to the jury, in the Appellate Division, defendant described a number of alleged repugnancies between the acquittals and the specific counts on which defendant had been convicted, including counts one, seven, eight, ten, twelve, thirteen, and fourteen, based on specific, differing theories. Then, in this Court, defendant abandoned the arguments as to16 counts one, seven, thirteen, and fourteen, and argues only that counts ten and twelve are repugnant counts. He fails to explain, however, how his generic argument in the trial court would have alerted the trial judge to the arguments defendant would later raise in the Appellate Division, much less the adjustments he then made to his arguments in this Court. Accordingly, defendant’s brief statement in the trial court, never elaborated upon in any motion, was insufficient to preserve his current contentions for review. Defendant has thus failed to preserve for review both his argument that the convictions on counts ten and twelve are repugnant to the acquittals on counts two and four, and that the court improperly imparted its view of the Defendant’s Appellate Division Brief at 25-28.16 160 evidence to the jury. Thus, this Court has no power to review those contentions on this appeal. C. The Trial Court Correctly Declined to Resubmit Additional Counts to the Jury. When the jury returned verdicts of not guilty on three first-degree murder counts, all of which required the intent to kill Simon, yet convicted defendant of the intentional second-degree murder of Simon, the trial court properly held that these verdicts were legally repugnant and instructed the jury to continue deliberating as to these four counts. Defendant does not dispute that these counts were properly resubmitted, but argues that the court should have resubmitted all of the counts to the jury, and “at least” counts ten and twelve. These arguments are fundamentally flawed, as counts ten and twelve did not require proof of the intent to kill Simon, and defendant claims no repugnancies or defect in the verdicts on the remaining counts, and the court was not authorized to resubmit counts that were not defective. In the seminal case of People v. Tucker, 55 N.Y.2d 1 (1981), this Court explained that there were two different approaches to analyzing repugnancy claims. In one approach, a court would review the entire record to consider all the evidence, discover the underlying basis for the jury’s determination and, thus, determine the logic or illogic of the verdicts and correct any repugnancy. Tucker, 55 N.Y.2d at 7. This approach would require 161 the court to intrude in the jury’s deliberative process by speculating on how the jury perceived and weighed the evidence. Id. This Court was reluctant to adopt this approach because the Court disfavors attacks on jury verdicts and because such a rule would interfere with the jury’s ability to exercise mercy, an accepted power of the jury. Id. at 7. The second approach to reviewing repugnancy claims requires the court to compare the elements of the crime as charged by the jury to the inconsistent verdict and not consider the evidence elicited at the trial or the accuracy of the jury charge. Id. at 6-8. Not wanting to undermine the jury’s role in a criminal trial, this Court adopted the second approach to analyzing repugnant verdicts and rejected the first. Id. In reviewing verdicts, this Court has explained that “[t]he critical concern is that an individual not be convicted for a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all.” Id. at 6. The Tucker rule continues to apply today. See DeLee, 24 N.Y.3d at 608; Muhammad, 17 N.Y.3d at 539; People v. Trappier, 87 N.Y.2d 55 (1995); People v. Loughlin, 76 N.Y.2d 804, 806 (1990) . Under this rule, “a verdict is repugnant only if it is legally impossible – under all conceivable circumstances – for the jury to have convicted the defendant on one count but not the other.” Muhammad, 17 N.Y.3d at 540; see also DeLee, supra, at 608. 162 This analysis requires the court to view the charges theoretically and to determine “whether a theoretical defendant charged with the same offenses (as framed by the actual jury instruction) could have been guilty of one but not the other.” Muhammad, 17 N.Y.3d at 543. In reviewing the elements of the crime as charged to the jury without regard to the proof at the trial, when an acquittal on one count negates an element of a crime for which the defendant was found guilty, there is a legal repugnancy. Muhammed, 17 N.Y.3d at 542-543. But, “‘[i]f there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case’” DeLee, 24 N.Y.3d at 608, quoting Muhammad, 17 N.Y.3d at 544. By contrast, a simply illogical verdict “is viewed as a mistake, compromise or the exercise of mercy by the jury, none of which undermine a verdict as a matter of law.” Muhammed, 17 N.Y.3d at 542-543. And, while there is no restriction on a court’s discretion to address a jury when a verdict appears to be inconsistent with the evidence, a court’s failure to do so “would not be an abuse of discretion as a matter of law since factual repugnancy . . . does not provide a reviewing court with the power to overturn a verdict . . . .” Muhammad, 17 N.Y.3d at 545. 163 Under the statute, once it is determined that a verdict is repugnant, the trial court must explain the inconsistency to the jury and direct it to reconsider its decision. DeLee, 24 N.Y.3d. at610; see also C.P.L. §310.50(2). If the verdict is repugnant, the repugnancy was preserved for appellate review, and the court fails to resubmit the counts, the appellate court should order a new trial. DeLee, 24 N.Y.3d at 609-610. Applying this case law here, it is clear that the trial court correctly responded to the jury’s verdict. The jury acquitted defendant on all three first- degree murder counts – two, four, and five – that required an intent to kill Simon. Count two required the jury to find that defendant personally and intentionally caused Simon’s death in the course or furtherance of committing first-degree burglary. Under count four, the jury was required to find that defendant personally and intentionally caused Simon’s death in the course of or in furtherance of committing attempted robbery. And the fifth count required proof that defendant intended to kill Simon while causing the death of another, namely Sharon. The jury also returned a guilty verdict, however, on count eight, which charged defendant with intentionally killing Simon. The court instantly noticed an inconsistency between these verdicts and, after conferring with the attorneys, informed the jury that the acquittals, all of which 164 involved the charge of intentionally killing Simon, were inconsistent with the guilty verdict on the intentional second-degree murder of Simon. The court astutely interpreted the jury’s acquittal on the three first- degree counts. Properly focusing on the totality of the acquittals, the court noticed that the essential common element among them was the element of intent to kill Simon, which naturally led to the reasonable inference that the jury appeared to have concluded that the People did not establish that defendant intentionally killed Simon. But the jury simultaneously convicted defendant on count eight – the intentional second-degree murder of Simon – which also had the element that defendant intend to kill Simon, and created a legal repugnancy, since defendant could not lack the intent to kill Simon under counts two, four, and five, and possess the intent to kill Simon at the same time under count eight. This verdict, then, raised the possibility that defendant was convicted of second-degree murder when the jury actually found that he did not commit the essential element of intentionally killing Simon. These counts were thus repugnant. See DeLee, 24 N.Y.3d at 608; Muhammad, 17 N.Y.3d at 539; Tucker, 55 N.Y.2d at 6. This conclusion was reinforced, as defendant himself acknowledges in his brief to this Court (Defendant’s Brief at 88-89), by the conviction on count six. Indeed, the difference between count five – the 165 intentional murder of Simon while causing the death of Sharon in the same transaction – and count six – the intentional murder of Sharon while causing the death of Simon – is the intent to kill Simon. Only the absence of this latter element explains how the jury could convict on count five but acquit on count six. As defendant concedes, for this reason, the court correctly informed the jury that the acquittals were repugnant to count eight (Defendant’s Brief at 89). Nevertheless, defendant now challenges the court’s response to the jury’s verdict, claiming that the court should have asked the jury to re- deliberate on all the counts, not merely four counts, and should have at least asked the jury to re-deliberate on counts ten and twelve (Defendant’s Brief at 89). These arguments are unavailing. As to defendant’s unpreserved argument as to counts ten and twelve, defendant’s analysis is fundamentally flawed, because defendant examines counts two and four in isolation, rather than considering all three acquittals. As to defendant’s arguments that all counts had to be resubmitted, even those as to which he has identified no repugnancy, the Criminal Procedure Law does not permit the resubmission of counts that are not defective, and indeed requires that the court specifically explain the defect to the jury. Nor did the submission of four counts signal to the jury the court’s view of the evidence; the court in no way indicated whether the jury 166 should change the acquittals to a conviction or the conviction to an acquittal. Accordingly, defendant’s arguments should be rejected. First, defendant’s argument that the convictions on counts ten and twelve were inconsistent with the acquittals on counts two and four requires, as defendant himself notes, that the court view two of the three acquittals “standing alone” (Defendant’s Brief at 89). According to defendant, because counts two and four required proof that Simon was killed during the commission of a felony, the acquittals on those counts were inconsistent with the convictions on the second-degree murder counts charging that Simon was killed during the commission of a felony (counts ten and twelve). This argument demonstrates a misunderstanding of the basis identified by this Court for determining whether a repugnant verdict exists. As explained above, a verdict is repugnant only where it can be concluded that the jury failed to find a specific element of the crime, Tucker, 55 N.Y.2d at 6, and not “‘[i]f there is a possible theory under which a split verdict could be legally permissible.” DeLee, 24 N.Y.3d at 608, quoting Muhammad, 17 N.Y.3d at 544. Here, taken in isolation, the acquittals on counts two and four did not allow the trial court to conclude that the jury failed to find that Simon was killed during the commission of a felony. Indeed, the two counts had two essential elements in common: the intent to kill Simon and the commission of 167 the crime during the course of a felony. Either one could have explained the two acquittals, and thus the court could not say, based on these two acquittals alone, that the jury found that the single element requiring proof that defendant committed the crime during the commission of a felony did not exist. Moreover, viewing the two acquittals “standing alone,” a split verdict was perfectly permissible: the jury could have found that the killing occurred during the course of a burglary and attempted robbery (explaining the second-degree felony murder convictions under counts ten and twelve), but that defendant did not possess the intent to kill Simon (explaining the acquittals under counts two and four). Thus, the counts defendant identifies, counts two and four, do not, in isolation, establish a repugnant verdict as to counts ten and twelve. Viewing all three acquittals together, however, the trial court properly could concluded that the jury failed to find an essential common element: the intent to kill Simon. Indeed, the third count on which defendant was initially acquitted required such intent but did not require proof that the crime was committed during a felony. This, then, was the single essential element common to the three acquittals, and that element was necessary for a conviction on only one other count, count eight. Thus, the court, viewing all three counts together, correctly found that the acquittals were repugnant to the 168 conviction on count eight, and that counts two and four, in isolation, were not repugnant to counts ten and twelve. Defendant’s analysis is also wrong because he ignores his own concession that, given the acquittal on count five and the conviction on count six, the jury must have found that defendant did not intentionally kill Simon (Defendant’s Brief at 88-89). Rather, starting with defendant’s own premise – that the acquittal on count five and the conviction on count six demonstrate that the essential element that was lacking was the intent to kill Simon – and viewing the remainder of the acquittals and convictions, as the court did, leads one to the inescapable conclusion that the court acted properly. The acquittals on counts two, four, and five, all including the intent to kill Simon, were repugnant with his conviction on the intentional second-degree murder charged in count eight – also requiring proof of intent to kill Simon. Therefore, the court’s response and description of the defect was correct and complied with the statute. C.P.L. § 310.50(2). Defendant’s assertion that all counts had to be resubmitted, even those as to which no repugnancy was shown, is similarly unavailing. Contrary to defendant’s claim, the governing statute does not permit resubmission in the absence of a defect in the verdict. The statute sets forth that when a verdict is legally defective “the court must explain the defect or error and must direct the 169 jury to reconsider such verdict.” C.P.L. § 310.50(2)(emphasis supplied). The use of “such verdict” establishes that the statute only authorizes the resubmission of the defective verdict and not the entire verdict. Had the Legislature intended for the court to resubmit the entire verdict for reconsideration it would have specifically said so. Indeed, later on in the statute, the Legislature refers to the “verdict in its entirety,” C.P.L. § 310.50(2), establishing that if the Legislature had wished to require resubmission of the entire verdict when any part of that verdict was defective, it could have said so. Instead, the statute read as a whole demonstrates that the Legislature referred to the defective part of the verdict. The remaining language in the statute reinforces this conclusion. Indeed, it is difficult to imagine how the court could “explain the defect or error” in counts that were not defective or erroneous. For this reason too, the statute does not authorize the resubmission of counts that are not defective. Moreover, defendant’s reliance on Robinson, supra, and Loughlin, 76 N.Y.2d at 806, for the proposition that the court should have directed the jury to reconsider all counts is misplaced. Indeed, neither of these cases stand for the proposition that the trial court must resubmit all of the counts when there is a repugnancy among some of the counts. Rather, these cases merely acknowledged the applicable standard – verdicts should be resubmitted when 170 there is “confusion” over the jury’s findings, and that confusion is evidenced as this Court has repeatedly explained, when a not guilty verdict establishes that the jury did not find an element of the crime contained in another count as to which a guilty verdict was returned. Thus, these cases do not suggest that all counts must be resubmitted, even in the absence of a repugnancy. Defendant’s further assertion that the court erred because its response improperly signaled to the jury its apparent view of the evidence (Defendant’s Brief at 86-87, 91) is meritless. Indeed, defendant’s argument seems to be premised on his erroneous contention that the trial court was required to resubmit additional counts to the jury. But, for the reasons discussed above, this premise is wrong, and thus so too is this claim. Given that the court correctly explained the defect – that an inconsistency existed among a limited number of counts, because it appeared that the jury found both that defendant had not intentionally killed Simon and had intentionally killed Simon – its comments did not impermissibly signal to the jury its view of the evidence nor did it improperly intrude upon the jury’s deliberative process. Moreover, to the extent that defendant argues that the jurors may have believed that the court wanted them to conform their acquittals to guilty verdicts, the opposite conclusion could be made with equal force – the jury may have 171 believed that the court was telling it that it could not convict defendant on the intentional second-degree murder count. In sum, the trial court properly returned the jury to deliberate to correct the repugnancy in the verdict because the three acquittals for first- degree murder based upon intentionally killing Simon were inconsistent with the jury’s simultaneous guilty verdict for second-degree murder based on the intentional killing of Simon. Defendant’s contentions to the contrary are largely unpreserved, and thus beyond this Court’s power of review, and because they are based on a narrow view of the verdict are completely without merit. The trial court was indeed not authorized to resubmit additional, non- defective counts, nor did the court’s decision to follow the statute as written improperly signaled its view of the evidence to the jury and thereby impact the verdict ultimately rendered. 172 CONCLUSION For the reasons set forth above, the Appellate Division’s order affirming defendant’s conviction should be affirmed. Respectfully submitted, RICHARD A. BROWN District Attorney Queens County By: ________________________ Anastasia Spanakos Assistant District Attorney ROBERT J. MASTERS JOHN M. CASTELLANO ANASTASIA SPANAKOS Assistant District Attorneys of Counsel April 24, 2015 173