The People, Respondent,v.Raul Johnson, Appellant.BriefN.Y.November 17, 2014 To be argued by: ITAMAR J. YEGER 10 Minutes State Of New York Court Of Appeals ---------------------------------------------------------------------- THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- RAUL JOHNSON, Defendant-Appellant. ------------------------------------------------------------------- ========================================================== BRIEF FOR RESPONDENT ========================================================== Respectfully Submitted, THOMAS P. ZUGIBE Rockland County District Attorney Attorney for Respondent 1 South Main Street, 5th Floor New City, New York 10956 (845) 638-5001 ITAMAR J. YEGER Executive Assistant District Attorney Of Counsel Appellate Division Case Number 2011-2955 __________________________________________________________________ i TABLE OF CONTENTS PRELIMINARY STATEMENT ...............................................................................1 STATEMENT OF FACTS ........................................................................................5 THE SUPPRESSION HEARING .............................................................................5 The People’s Case......................................................................................................5 1. The Stabbing and Burglary. ..................................................................5 2. Defendant Claims He Has Information about the Stabbing and Agrees to a Proffer Session. ...........................................................5 3. The Agreement Specifies that Defendant was to Answer Truthfully or Anything he Said Could be Used Against Him. .............6 4. Defendant Lies About His Involvement, Accusing Another Gang Member of the Crime and Claiming He was in Jail During the Stabbing...............................................................................7 5. The Detectives Believe Defendant is Lying About What Happened After the Crime but Never Anticipate He Had Actually Stabbed the Victim. ................................................................8 6. At the Confidential Informant Meeting to Wire Defendant to Record Sonny, Defendant Spontaneously Confesses that He Committed the Stabbing........................................................................8 a. Defendant Willingly Accompanies the Detectives to the Stationhouse. .........................................................................9 b. At the “Friendly” Meeting, the Detectives Seek to Clarify Defendant’s Story to Protect Him Before Sending Him to Record a Person They Believe is a Dangerous Suspect....................................................................10 c. Defendant Persists in his Lies and Changes His Story to Claim He Witnessed the Attack............................................11 ii d. Defendant Suddenly Confesses that HE Stabbed the Victim........................................................................................11 7. The Detectives, in Shock and After Consultations, Mirandize Defendant and Obtain Further Oral and Written Statements from Defendant .................................................................12 8. The Detectives Take Defendant Home and Discuss The Next Steps in the Investigation............................................................14 The Defense Case.....................................................................................................14 The Court Denies Suppression.................................................................................15 POINT I THE HEARING COURT PROPERLY REJECTED DEFENDANT’S “RELATED MATTERS DOCTRINE” CLAIM REGARDING HIS ATTORNEY’S REPRESENTATION IN AN UNRELATED CASE AND THEREFORE PROPERLY ADMITTED HIS CONFESSIONS. IN ANY EVENT, DEFENDANT’S ALLEGEDLY UNLAWFUL INITIAL ORAL CONFESSION IS ATTENUATED FROM HIS DETAILED WRITTEN CONFESSION, AND ANY TESTIMONY RELATED TO THE ORAL CONFESSION WAS HARMLESS..............................................................................19 A. Under this Court’s Well Settled Jurisprudence, the Burglary and the Stabbing Were not Sufficiently Related so that Counsel’s Burglary Representation Meant He Represented Defendant on the Stabbing as Well ............................................................................................21 B. Defendant’s Burglary Counsel Admittedly Never Formally Entered into the Stabbing Until After Defendant Confessed, and Counsel’s Presence at the Proffer Session did not Amount to a “Constructive Entry” into the Stabbing Case ................................................23 C. The Third Department Case Defendant Cites to Support His Contention Here is Inapposite as There, the Attorney’s Activities Amounted to Actual Representation on the Very Case at Issue ...................26 iii D. Even if this Court finds that the Right to Counsel Attached, Defendant Waived the Right to Counsel’s Presence in his Presence at the Proffer ..................................................................................................28 POINT II DEFENDANT’S CLAIMS AT HIS PROFFER SESSION AND INITIALLY AT HIS CONFIDENTIAL INFORMANT MEETING THAT ANOTHER MAN STABBED THE VICTIM, A CLAIM DEFENDANT ADMITTED WAS A LIE WHEN HE SPONTANEOUSLY CONFESSED TO THE STABBING, ALONE OR COUPLED WITH HIS OTHER PREVARICATIONS, EASILY CONSTITUTE A MATERIAL BREACH OF THE PROFFER AGREEMENT. THE AGREEMENT, BY ITS TERMS, APPLIED ONLY TO THE PROFFER SESSION AND NOT TO THE CONFIDENTIAL INFORMANT MEETING ..................................................................32 A. This Court Should Analyze Defendant’s Claim Utilizing Contract Principles While Remaining Cognizant of Defendant’s Due Process Rights................................................................................................33 B. Defendant’s Claims During the Proffer Session and Initially at the Confidential Informant Meeting that Another Person Committed the Crime He Actually Committed Materially Breached the Proffer Agreement......................................................................................................34 C. The People Were Entitled to Use Defendant’s Statements Against Him at Trial Because the Proffer Agreement Specifically Contemplated that Result...............................................................................37 D. The Mere Fact that the Detective Thought Defendant may Have Been Lying or that they Wanted to use Him as an Informant Even After He Confessed Does not Render His Breach Immaterial......................38 E. The Detectives’ Interpretation of the Agreement has no Legal Significance ...................................................................................................40 F. The Proffer Agreement by its Terms was not in Effect at the Confidential Informant Meeting....................................................................40 iv POINT III DEFENDANT’S SUPPRESSION HEARING ROSARIO CLAIM AS TO CERTAIN NOTES FROM DETECTIVE ROMANO IS UNPRESERVED. FURTHER, THE MATERIAL WAS NOT ROSARIO FOR THE HUNTLEY/DUNAWAY HEARING. IN ANY EVENT, THE HEARING COURT PROPERLY EXERCISED ITS DISCRETION WHEN IT DECLINED TO SANCTION THE PEOPLE. FINALLY, ANY ERROR WAS COMPLETELY HARMLESS ............................................................42 A. Facts Relating to Defendant’s Rosario Issue.................................................42 B. Because Defendant Asked the Court to Hold the Rosario Issue in Abeyance Until After the Verdict, and the People Never Agreed to this Procedure, the Matter is Statutorily Waived and Unpreserved ..............51 C. The Court Properly Ruled that Detective Romano’s Notes Regarding the Victim’s Description and Potential Correspondence Between ADA Moran and Defendant’s Attorney on the Unrelated Burglary Were Not Rosario for Defendant’s Pretrial Huntley/Dunaway Hearing to Test the Voluntariness of His Confession .....................................................................................................55 D. Even if Defendant is Correct, and The Failure to Furnish Pre- Interview Notes Amounted to a Rosario Violation, County Court Properly Exercised Its Discretion in Refusing to Sanction the People.............................................................................................................61 E. Even if Defendant is Correct, and the Trial Court Should Have Sanctioned the People, Its Failure to do so was Harmless ............................65 F. Even if Defendant is Correct, and the Trial Court Should Have Reopened the Hearing, the Proper Result is to Hold the Appeal in Abeyance and Direct the Hearing Court to Reopen the Hearing ..................66 CONCLUSION........................................................................................................67 v TABLE OF AUTHORITIES FEDERAL CASES Hall v. Sec’y of HHS, 2009 U.S. Claims LEXIS 467 (Fed. Cl. July 28, 2009).......64 Melton v. Deere & Co., 887 F.2d 1241 (5th Cir. Miss. 1989).................................63 United States v. Brechner, 99 F.3d 96 (2d Cir. 1996) .............................................36 United States v. Castelbuono, 643 F. Supp. 965 (E.D.N.Y. 1986)..........................35 United States v. Davis, 2009 U.S. Dist. LEXIS 35603 (S.D.N.Y. Apr. 21, 2009) ...................................................................................................................19 United States v. Doe, 671 F. Supp. 205 (E.D.N.Y. 1987) .......................................29 United States v. Flores, 975 F. Supp. 731 (E.D. Pa. 1997) .....................................36 United States v. Gerant, 775 F. Supp. 182 (D. Md. 1991) ................................ 34-35 United States v. Gomez, 210 F. Supp. 2d 465 (S.D.N.Y. 2002) ..............................33 United States v. Gregory, 245 F.3d 160 (2d Cir. 2001)...........................................33 United States v. Hyles, 521 F.3d 946 (8th Cir. 2008)..............................................36 United States v. Lnu1-96cr1123-001, 1999 U.S. App. LEXIS 14011 (2d Cir. N.Y. June 22, 1999) ............................................................................................35 United States v. Loc Tien Nguyen, 313 F. Supp. 2d 579 (E.D. Va. 2004) ..............29 United States v. Lopez, 219 F.3d 343 (4th Cir. 2000) .............................................33 United States v. Ming He, 1996 U.S. App. LEXIS 28744 (2d Cir. N.Y. Sept. 3, 1996) ...............................................................................................................19 United States v. Nesbitt, 2010 U.S. Dist. LEXIS 96248 (D.S.C. Sept. 14, 2010) .......................................................................................................33, 38, 41 vi United States v. Okeayainneh, 2012 U.S. Dist. LEXIS 7069 (D. Minn. Jan. 23, 2012) .............................................................................................................35 United States v. Pollack, 91 F.3d 331 (2d Cir. 1996)..............................................35 United States v. Seeright, 978 F.2d 842 (4th Cir. 1992)..........................................35 United States v. Torres, 2008 U.S. Dist. LEXIS 58600 (S.D.N.Y. Aug. 1, 2008) ...................................................................................................................33 United States v. Veals, 360 Fed. Appx. 679, 684-85 (7th Cir. Ill. 2010) ................29 NEW YORK STATE CASES People v. Banch, 80 N.Y.2d 610 (1992) ..................................................................62 People v. Barclift, 228 A.D.2d 194 (1st Dep't 1996)...............................................58 People v. Boswell, 193 A.D.2d 690 (2d Dep't 1993)...............................................58 People v. Brown, 71 A.D.3d 1043 (2d Dep't 2010).................................................62 People v. Brummel, 136 A.D.2d 322 (1st Dep't 1988) ............................................55 People v. Bryant, 209 A.D.2d 630 (2d Dep't 1994).................................................59 People v. Callicutt, 85 A.D.3d 1326 (3d Dep't 2011)........................................ 26-27 People v. Carracedo, 89 N.Y.2d 1059 (1997).........................................................64 People v Castor, 99 A.D.3d 1177 (4th Dep't 2012).................................................23 People v. Chavis, 147 A.D.2d 582 (2d Dep't 1989) ................................................21 People v. Cohen, 90 N.Y.2d 632 (1997)..................................................................22 People v. Consolazio, 40 N.Y.2d 446 (1976) ..........................................................56 People v. Contreras, 12 N.Y.3d 268 (2009)............................................................56 vii People v. Cosmo, 205 N.Y. 91 (1912) .....................................................................53 People v Cowan, 92 A.D.3d 794 (2d Dep't 2012) ...................................................23 People v. DeBoue, 299 A.D.2d 422 (2d Dep't 2002)...............................................38 People v. Defina, 256 A.D.2d 587 (2d Dep't 1998).................................................59 People v. Delayo, 52 A.D.3d 1114 (3d Dep't 2008) ................................................33 People v. Forlano, 19 A.D.2d 365 (1st Dept. 1963) ...............................................63 People v. Foy, 301 A.D.2d 614 (2d Dep't 2003) .....................................................25 People v. Giles, 73 N.Y.2d 666 (1989)....................................................................59 People v. Goldman, 175 A.D.2d 723 (1st Dep't 1991) ............................................60 People v. Gonzalez, 55 N.Y.2d 720 (1981) .............................................................59 People v. Grant, 91 N.Y.2d 989 (1998)...................................................................23 People v. Grant, 241 A.D.2d 562 (3d Dep't 1997) ..................................................23 People v. Graves, 85 N.Y.2d 1024 (1995)...............................................................51 People v. Grullon, 204 A.D.2d 171 (1st Dep't 1994) ..............................................58 People v. Harris, 20 N.Y.3d 912 (2012) .................................................................20 People v. Hayes, 32 A.D.3d 1047 (2d Dep't 2006)..................................................23 People v. Jackson, 41 A.D.3d 1268 (4th Dep't 2007)..............................................22 People v. Jackson, 78 N.Y.2d 638 (1991) ...............................................................64 People v. Jackson, 78 N.Y.2d 900 (1991) ...............................................................54 People v. Jakins, 277 A.D.2d 328 (2d Dep't 2000) .................................................21 viii People v. James, 207 A.D.2d 564 (2d Dep't 1994)..................................................58 People v. Jenkins, 98 N.Y.2d 280 (2002) ..........................................................62, 64 People v. John, 38 A.D.3d 568 (2d Dep't 2007)......................................................66 People v. Johnson, 100 A.D.3d 777 (2d Dep't 2012) ................................................2 People v. Jordan, 21 A.D.3d 385 (2d Dep't 2005) ..................................................24 People v. Joseph, 86 N.Y.2d 565 (1995) .................................................................64 People v. Kelly, 62 N.Y.2d 516 (1984)....................................................................62 People v. Lopez, 16 N.Y.3d 375 (2011)...................................................................22 People v. Lopez, 196 A.D.2d 664 (2d Dep't 1993) ..................................................58 People v. Love, 57 N.Y.2d 998 (1982) ....................................................................21 People v. Madison, 22 A.D.3d 684 (2d Dep't 2005)................................................23 People v. Melendez, 178 A.D.2d 366 (1st Dep't 1991) ...........................................59 People v. Miller, 18 N.Y.3d 704 (2012) ..................................................................66 People v. Mitchell, 238 A.D.2d 527 (2d Dep't 1997) ..............................................56 People v. Montes, 173 Misc. 2d 886 (Sup. Ct. Bx. 1997) .......................................19 People v. Perez, 65 N.Y.2d 154 (1985) ...................................................................56 People v. Phillips, 55 A.D.3d 1145 (3d Dep't 2008) ...............................................23 People v. Poole, 48 N.Y.2d 144 (1979)...................................................................56 People v. Prochilo, 41 N.Y.2d 759 (1977) ..............................................................21 People v. Ramirez, 89 N.Y.2d 444 (1996)...............................................................20 ix People v. Rivera, 78 N.Y.2d 901 (1991) .................................................................54 People v. Rivera, 277 A.D.2d 470 (2d Dep't 2000).................................................23 People v. Rogelio, 79 N.Y.2d 843 (1992)................................................................51 People v. Rosario, 9 N.Y.2d 286 (1961) ...........................................................55, 56 People v. Scott, 86 N.Y.2d 864 (1995) ....................................................................20 People v. Sohn, 148 A.D.2d 553 (2d Dep't 1989)....................................................21 People v. Somerville, 249 A.D.2d 687 (3d Dep't 1998) ..........................................29 People v. Stevens, 44 A.D.3d 882 (2d Dep't 2007)..................................................21 People v. Steward, 88 N.Y.2d 496 (1996) .........................................................22, 24 People v. Stokes, 165 Misc. 2d 934 (Sup. Ct. Monroe 1995)..................................33 People v. Taylor, 36 A.D.3d 562 (1st Dep't 2007) ..................................................52 People v. Tucker, 30 A.D.3d 312 (1st Dep't 2006)..................................................22 People v. Vasquez, 88 N.Y.2d 561 (1996)...............................................................64 People v. Veal, 158 A.D.2d 633 (2d Dep't 1990) ....................................................57 People v. Wade, 296 A.D.2d 720 (3d Dep't 2002) ..................................................23 People v. Walker, 285 A.D.2d 660 (3d Dep't 2001) ................................................23 People v. Watkins, 157 A.D.2d 301 (1st Dept. 1990)..............................................57 People v. Williams, 7 N.Y.3d 15 (2006) ..................................................................62 People v. Woods, 141 A.D.2d 588 (2d Dep't 1988).................................................21 Virgo v. Bonavilla, 49 N.Y.2d 982 (1980)...............................................................53 x OTHER STATE CASES Godfrey v. Godfrey, 705 N.W.2d 77 (S.D. 2005) ....................................................63 Housler v. State, 2013 Tenn. Crim. App. LEXIS 787 (Tenn. Crim. App. Sept. 17, 2013) ....................................................................................................36 Pellegrin v. Pellegrin, 574 N.W.2d 644 (S.D. 1998) ..............................................63 State v. Bortner, 150 N.H. 504 (N.H. 2004) ............................................................36 State v. Malik-Ismail, 292 N.J. Super. 590 (N.J. App. Div. 1996) ..........................29 NEW YORK STATE STATUTES C.P.L. §240.45(a).....................................................................................................56 C.P.L. §240.75 ........................................................................................................66 C.P.L. §290.10 .........................................................................................................55 C.P.L. §470.05 ........................................................................................................55 C.P.L. §710.40 ..................................................................................................52, 55 P.L. §§110.00/125.25[1] ............................................................................................1 P.L. §120.10[1] ..........................................................................................................1 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- RAUL JOHNSON, Defendant-Appellant. App. Div No. 2011-2955 Rockland County Indictment No. 2009-91 PRELIMINARY STATEMENT Defendant RAUL JOHNSON appeals from a judgment of the County Court (Kelly, J.) dated January 15, 2010. After a jury convicted defendant of attempted murder in the second degree (P.L. §§110.00/125.25[1]) and assault in the first degree (P.L. §120.10[1]), the court sentenced him to thirteen years in prison and five years postrelease supervision (S. 19). Defendant, initially charged with an unrelated burglary, was convicted of stabbing the victim in a supermarket parking lot about two years before he committed the burglary on the strength of his own words, a confession he made while ostensibly cooperating with the police to find the "real" assailant in the stabbing in order to "work off' any potential sentence on the burglary. After a lengthy pretrial hearing, the court found, inter alia, that 1 defendant's burglary counsel did not represent him on the stabbing and that in any event defendant and counsel had waived counsel's presence at the confidential informant meeting where defendant confessed. After the trial, the court refused to sanction the People for an alleged Rosario violation that defendant had raised during the trial, then deferred until after the jury convicted him. In the Appellate Division, defendant argued that the police violated his right to counsel when they Mirandized and questioned him after he confessed to stabbing the victim. Defendant argued that he was in custody and that the crimes were related so that his right to counsel attached to the stabbing. Defendant also argued that the trial court erred when it failed to sanction the People for an alleged hearing Rosario violation, that the evidence was legally insufficient or against the weight of the evidence, and that his sentence was excessive. The Appellate Division rejected defendant's claims. People v. Johnson, 100 A.D.3d 777 (2d Dep't 2012). It ruled that defendant was not in custody and that the crimes were not related, so the detectives could question defendant regarding the stabbing even though he was represented on the burglary charge. It further ruled that the complained-of notes were not Rosario for the suppression hearing. It rejected defendant's remaining contentions. In this Court, defendant argues again that his burglary counsel represented him in this case too because it was "related to" the burglary. He also argues for the 2 first time that his lies, including accusing another of committing the stabbing while denying any involvement in the crime itself, were not sufficiently material to vitiate the contract. Finally, defendant persists in claiming that certain notes were Rosario material for the suppression hearing. This Court should affirm the judgment in its entirety. Under the well-settled "related matters" doctrine, these crimes simply are not sufficiently related either factually or temporally to fall within the parameters for relatedness. Further, burglary counsel's actions in this case are insufficient to amount to actual representation. In any event, counsel and defendant waived counsel's presence at the subsequent confidential informant meeting where defendant ultimately confessed. In addition, it would tum the laws of contracts on its head to find, as defendant claims, that the lies he told prior to confessing that he stabbed the victim were legally immaterial. Defendant lied and repeatedly told the police both the proffer session and initially at the confidential informant meeting that another person stabbed the victim. It is difficult to comprehend a more material breach of a proffer agreement that was both based on defendant's representation that he possessed information that another person committed the stabbing and based on his promise to tell -the complete truth. The hearing court merely followed the consequence outlined in the agreement when it ruled the People could use 3 defendant's statements as direct evidence at his trial. Finally, defendant's Rosario claim is waived and meritless. Defendant deliberately pushed off the court's ruling on his Rosario claim until after the trial, when the court could no longer effectively address the issue in time to save the verdict. Further, the court correctly exercised its discretion to rule after the trial that the material was not Rosario for the hearing, and that in no event was any sanction warranted. This court should therefore affirm the judgment of conviction and sentence in its entirety. Defendant is currently incarcerated pursuant to this judgment. 4 STATEMENT OF FACTS THE SUPPRESSION HEARING On June 2, 8, 15 and 16, 2009, the County Court conducted a Huntley hearing to determine whether defendant's statements to the police would be admissible in evidence. 1 The People's Case 1. The Stabbing and Burglary. In December 2005, the victim, an elderly man, was stabbed at the Shop Rite in Clarkstown (Detective LORRAINE McGRATH: 319, 321). Twenty months later, in August 2007, the police arrested defendant for committing a series of burglaries in Clarkstown, and JOHN M. SCHWARZ was assigned to represent defendant on those charges (17, 31; Schwarz: 426-28). He represented defendant on the burglary charge, but not on any stabbing (Schwarz: 427-28, 430, 435). 2. Defendant Claims He Has Information about the Stabbing and Agrees to a Proffer Session. On October 12, 2007, at defendant's request, Town of Clarkstown Police Detective McGrath met at the Rockland County District Attorney's Office with defendant and prosecutor Richard Moran, Detective Shine, and defendant's 1 Numbers refer to transcript pages of Defendant's Appendix. The Trial will not be summarized. 5 attorney on the burglary, Mr. Schwarz (McGrath: 322, 325, 413; Schwarz: 429). Mr. Schwarz reached out to try to "talk to us to work off time for the burglary" and identified himself as defendant's attorney for the burglary (McGrath: 323-24, 391; Schwarz: 431). Defendant was not a suspect in the stabbing and did not have an attorney for that crime (McGrath: 324). Defendant was given a "queen for a day" proffer agreement from the Rockland County District Attorney's Office as part of negotiations on the unrelated burglary charge (10; Detective FRANK ROMANO: 202-03, 235, 255, 259, 298; McGrath: 320-22, 325, 329).2 3. The Agreement Specifies that Defendant was to Answer Truthfully or Anything he Said Could be Used Against Him. / The agreement was, by its terms, between defendant and the Rockland County District Attorney's Offices (10). It specified that defendant was required to "truthfully respond to any and all questions put to him," and that if he lied the agreement was "null and void" (10 ififl, 4; Romano: 306). In that event, any statement could then "be used as direct evidence against" defendant at trial (10 if4). The proffer was also limited by its terms to October 12, 2007, the day the "queen for a day" proffer session took place ( 10 if 6; Romano: 311 ). Thus, the proffer agreement was "just for that one day at the District Attorney's Office" (McGrath: 2 The proffer agreement was introduce as Defendant's Exhibit B (McGrath: 325). 6 366). Further, the "writing constitute[d] all the terms of the agreement between the parties" ( 10). Mr. Schwarz signed the document as defendant's attorney for the burglary and related charges, as "there were no charges pending other than the ones pending in the Town of Clarkstown" (Schwarz: 430-31, 443). 4. Defendant Lies About His Involvement, Accusing Another Gang Member of the Crime and Claiming He was in Jail During the Stabbing. The questioning detectives took notes of the proffer session (11-16). Detective McGrath told defendant he had to be completely honest about what he said at the proffer (McGrath: 332). Defendant explained the workings of a certain gang, called "Ghillafamn" and claimed he was number three in the gang hierarchy (11-12; McGrath: 326-27). Defendant claimed that "Sunny (or Sonny or Sundeep) Bajwa (or Bashuah)" confessed that he committed the stabbing and fled with his friends; Sonny did not know if the victim died (12; Romano: 202-03, 235, 255, 259, 298; McGrath: 329-31; Schwarz: 452).3 Defendant claimed he was in jail during the stabbing (12, 14). The ADA checked but defendant had been released about ten days before the stabbing (14). Defendant also minimized the number of phone contacts and meetings he had with other gang members around the time the victim was stabbed (13-15). Ultimately, defendant agreed to wear a wire and record Sonny, the one accused in the stabbing (McGrath: 332, 356). 3 Defendant was accused of burglarizing Sonny's parent's house (McGrath: 415). 7 5. The Detectives Believe Defendant is Lying About What Happened After the Crime but Never Anticipate He Had Actually Stabbed the Victim. After this meeting, Detective McGrath felt that Sonny had committed the crime to raise his gang status and that defendant knew more than he was letting on (McGrath: 333, 379). She therefore noted in her report that "We are all in agreement. [Defendant] may possibly be hiding the fact he was involved in the stabbing. He could be the party they reported to after the stabbing to get into the gang" (Romano: 238-39; McGrath: 384) (emphasis supplied). Defendant was represented on the burglary charge but not on the stabbing (Romano: 301-03). He was "absolutely not" a suspect in the stabbing (Romano: 122; McGrath: 333).4 6. At the Confidential Informant Meeting to Wire Defendant to Record Sonny, Defendant Spontaneously Confesses that He Committed the Stabbing. Months later, Detective McGrath spoke with defendant to arrange a confidential informant meeting with him (McGrath: 333-34, 358-59). Detective McGrath wanted to complete the confidential informant paperwork and to wire him for a conversation with Sonny (McGrath: 335, 357-58, 391). 4 Mr. Schwarz claimed that he believed defendant was a suspect in the stabbing, but never communicated anything to law enforcement about his feelings (Schwarz: 436-37). 8 a. Defendant Willingly Accompanies the Detectives to the Stationhouse. The next day, Saturday, April 19, 2008, at 9:00 a.m., Detectives Romano5 and McGrath met with defendant (Romano: 191-94; McGrath: 334, 381). Defendant again claimed that Sonny had committed the crime (Romano: 198, 302- 03). Detective McGrath had met with defendant before, and felt that the suspects might confess to defendant (Romano: 234). They met at Haverstraw Middle School, a spot defendant chose (Romano: 295-96). Defendant's lawyer on the unrelated burglary knew about the meeting and the possible wire, and was still only representing him on those charges (Romano: 277; Schwarz: 432, 440).6 From there, they went to buy defendant a sandwich and then to the stationhouse (Romano: 196-97, 178; McGrath: 335-36. 340-41). They hid defendant while buying the food because he was a confidential informant (McGrath: 340). Defendant was "absolutely not" in custody "because he wasn't under arrest. He wasn't a suspect. He wasn't in custody. He was a cooperating individual" (Romano: 197). Defendant was free to walk out of the meeting at any time "if that's what he chose to do" (Romano: 288). In fact, the detective brought along the confidential informant packet for defendant to sign (McGrath: 335). 5 Detective Romano served for twenty-five years with the Clarkstown Police Department, the last eighteen as detective, and worked with confidential informants before (Romano: 192, 201-02). 6 Mr. Schwarz claimed he not think the police would "interrogate" defendant (Schwarz: 441 ). 9 b. At the "Friendly" Meeting, the Detectives Seek to Clarify Defendant's Story to Protect Him Before Sending Him to Record a Person They Believe is a Dangerous Suspect. Beginning at about 9:40 a.m., they discussed the case to see what defendant knew and whether he should make a controlled phone call or wear a wire to a meeting (Romano: 199, 244-47, 304; McGrath: 342). The meeting was "very comfortable and very friendly;" defendant was "very relaxed" (McGrath: 342, 381). Defendant was never handcuffed during the entire meeting (Romano: 231- 32, 282; McGrath: 354-55). Defendant spoke about his family history so Detective Romano, who had not attended the proffer session, could get to know him (Romano: 200-01, 271; McGrath: 342). They also spoke about the gang members to ensure defendant was "still in the know" and could get the information the detectives sought (McGrath: 343). They then spoke about the stabbing because the detectives "wanted to know for sure exactly what happened" before they sent him into "a very dangerous situation" with a stabbing suspect (McGrath: 344-45). The detectives needed to know the entire story so they could protect defendant (Romano: 208; McGrath: 344-45). 10 c. Defendant Persists in his Lies and Changes His Story to Claim He Witnessed the Attack. Defendant first claimed he was not present during the stabbing and was told about the assault; he then changed his story and alleged that he witnessed it from various locations (Romano: 204-08, 245-46, 251, 253, 279; McGrath: 343-46). Defendant knew what the victim was wearing and described the knife used (Romano: 210-11). Defendant was not a suspect at that time, even when he · changed his story (Romano: 208-09; McGrath: 345). When defendant said it was a robbery, Detective Romano corrected him because the victim had said nothing was taken (Romano: 210). Nobody suggested to defendant that he was lying or that he was required to cooperate (Romano: 288-91, 296). d. Defendant Suddenly Confesses that HE Stabbed the Victim. Suddenly, defendant's demeanor changed (Romano: 212; McGrath: 346, 394). "He started to get more nervous. He wasn't as fast giving the story. He started to slow down, and it was obvious that something was bothering him, and that he was uncomfortable" (Romano: 212). When Detective Romano said something about it, defendant blurted out, with tears in his eyes, "I'm afraid I'm not going to go home today" (Romano: 212; McGrath: 347, 394-95). Detective Romano, still having no inkling that defendant was directly involved, responded, '"Why would you not go home today? You are going to go home today" 11 (Romano: 212; McGrath: 395). Then: He said this thing has been bothering him for a long time that he thought about turning himself in and his friends in, and he was really upset, and like I said, he was starting to cry, get emotional, and I asked him did you strike this man at any time. Did you hit this man, and he said yes. (Romano: 213). Defendant, still denied that he had stabbed the victim and claimed to have a knife phobia, but eventually admitted to stabbing the victim in the chest (Romano: 213-14; McGrath: 347). 7. The Detectives, in Shock and After Consultations, Mirandize Defendant and Obtain Further Oral and Written Statements from Defendant. The detectives had not considered defendant to be a suspect or that he had committed the crime, and Detective Romano was "shocked. I was totally shocked (Romano: 212-13, 231, 241-43, 302). Detective McGrath was "shocked. I was floored" (McGrath: 348). "We weren't expecting a confession. We were expecting to speak to a confidential informant" (Romano: 264). The conversation ceased and the detectives left defendant alone in the room (Romano: 215; McGrath: H2. 32). After discussing the situation with their superior, Detective Romano read defendant his Miranda warnings about one-half hour after his first confession (Romano: 215-21; McGrath: 348-51). Defendant signed the Miranda card and agreed to continue speaking (Romano: 217, 221-22; 12 McGrath: 351).7 No threats or promises were made to defendant for his confession (Romano: 222-23). Defendant spoke some more and then read, corrected and signed a confession that Detective McGrath had written (30; Romano: 223-25, 229-30; McGrath: 352-53).8 In his written confession, defendant described how he and his friends decided to stab someone (Romano: 225-26). The men purposely avoided certain areas they knew had cameras, and went to the Shop Rite parking lot, darkened because it was nighttime (Romano: 226). They targeted a man with a shopping cart (Romano: 226). Defendant: went up to him and said something. The man turned around and I punched him in his mouth with my fist. Jeff, Sunny, Mike Madden, Jow and Manny all punched the man also. From there I stabbed the guy with my pocket knife in his chest area. Then I turned to my right, and I saw Sunny stab him in the man's chest area. (30; Romano: 226-27). The men then fled, and defendant threw his knife away into a stream that ran along the Shop Rite property (Romano: 227). The men met the next day and promised never to tell anyone about it (Romano: 228). 7 The card was introduced as People's Exhibit 1 (Romano: 218). 8 The written confession was introduced as People's Exhibit 2 (30; Romano: 224-25). 13 8. The Detectives Take Defendant Home and Discuss The Next Steps in the Investigation. After defendant signed the confession, the detectives returned him to Haverstraw, where he chose a place for him to alight from the police vehicle (Romano: 231, 259-60; McGrath: 354, 396). The detectives wanted to discuss with the District Attorney's office whether they would continue using .defendant as a confidential informant (Romano: 260-61, 265; McGrath: 396, 401). The detectives believed that defendant's confession was the true version of the stabbing (Romano: 279-80; McGrath: 364). Thus, the statements he made at the proffer were false (Romano: 307, 309-10; McGrath: 420). The Defense Case Defendant RAUL JOHNSON testified for the defense (Johnson: 455). Defendant claimed he thought Mr. Schwarz represented him on the stabbing (Johnson: 456, 469). Defendant admitted he signed the Miranda form, but claimed he thought his proffer agreement was still in effect (Johnson: 457-58). He further claimed that at the April meeting the detectives told him he would go to jail on the burglary if he did not cooperate (Johnson: 458). On cross-examination, defendant admitted nobody told him he had to confess to the stabbing (Johnson: 459). He admitted that he told the detective he stabbed the victim but claimed he did not do it "voluntarily" (Johnson: 460). He admitted that he was never handcuffed and that 14 the detectives told him he would be going home and did indeed let him go home (Johnson: 465-66). Defendant confirmed most of the others' testimony (Johnson: 464-71). The Court Denies Suppression In a detailed twenty-page Decision and Order ("D&O"), the hearing court denied suppression (D&O: 141-60). It credited the detectives' testimony regarding all the significant contested facts, including their surmise that defendant's involvement extended to merely being the person to whom the other gang members who had committed the stabbing reported and that the detectives never thought defendant had committed the crime (D&O: 141-145). The court noted defendant's claims: 1) the police violated his right to counsel; 2) the confession could not be used because it violated the "queen for a day" proffer agreement; and 3) the pre-Miranda statements were not voluntary (D&O: 145). It then rejected each claim seriatim. The court first found that defendant's right to counsel had not attached when defendant met with the detectives on April 19, 2008 (D&O: 145-46). It found that the proffer was to "achieve a benefit for the defendant on the burglary charge by providing information about an incident the police were investigating in which neither the police or counsel believed the defendant was a suspect ... [but] merely a witness" (D&O: 146). As the court saw it, "defendant's counsel was not retained 15 or assigned to represent defendant regarding the stabbing incident. The defendant while in custody did not request representation regarding the stabbing" (D&O: 146). Further, "based upon what was known to the police and to Mr. Schwarz, it could not be anticipated that representation would be needed or desired" (D&O: 147). The court rejected defendant's "related matters" argument, specifically finding that the matters were not related in any legally significant manner (D&O: 147-49). It cited to cases from the Second Department where even two otherwise unconnected cases between the same defendant and victim were not related for representation purposes (D&O: 149-50). As an alternative, the hearing court also found that defendant validly waived his right to counsel at the proffer "by agreeing to continue to provide information to the police after the conclusion of the meeting" (D&O: 151) (citation omitted). Second, the court rejected defendant's argument that the proffer agreement prevented the People from utilizing defendant's confession (D&O: 151 ). After setting forth the law on proffers (D&O: 151-154), the court found, as a matter of fact, that "defendant breached the terms of the agreement and that the remedy for breach, to wit, withdrawal of the use immunity, should be given effect" (D&O: 154). The court expressly found that the agreement was for one day, October 12, 2007 and "was limited to statements made" that day (D&O: 154). The court found that "by his own further admissions, the defendant was not truthful during the 16 initial proffer" (D&O: 155). As a result, "the immunity agreement was vitiated ab initio" because it was dependent on defendant being truthful with the detectives (D&O: 155). Third, the court found "defendant was not subjected to custodial interrogation at the time he made his statement to the police on April 19th" (D&O: 155). After stating the law (D&O: 155-57), the court found that: the length of the interrogation was not dispositive; the police suspicions were not "manifest"; he was not accused of participating in the crime and did not admit involvement; the questioning was "merely investigatory"; defendant was there to lessen his time on the burglary; defendant was cooperative; he was there at his own insistence; he "was never handcuffed, andJhere is no evidence that his freedom of movement was curtailed"; and he was fed before the meeting (D&O: 157). The court further found that the detectives left defendant after his initial confession for a while, and then informed him of his Miranda rights (D&O: 158). The court ruled that defendant fully understood his rights, having completed the eleventh grade in high school, and voluntarily waived them (D&O: 158). The court specifically found that there was no evidence that "defendant's will was overborne" because the totality of the circumstances weighed against that finding, and that even ifthe police told defendant he may face jail time ifhe did not cooperate, that "was merely a statement of the facts as the parties knew it. The 17 defendant's sole reason for being there was to lessen any sentence he may receive in the burglary case. Under no interpretation could that statement be considered a promise or threat that could induce a false confession" (D&O: 159-60). This Court should affirm County Court's decisions, orders and judgment in full. 18 POINT I THE HEARING COURT PROPERLY REJECTED DEFENDANT'S "RELATED MATTERS DOCTRINE" CLAIM REGARDING HIS ATTORNEY'S REPRESENTATION IN AN UNRELATED CASE AND THEREFORE PROPERLY ADMITTED HIS CONFESSIONS. IN ANY EVENT, DEFENDANT'S ALLEGEDLY UNLAWFUL INITIAL ORAL CONFESSION IS ATTENUATED FROM HIS DETAILED WRITTEN CONFESSION, AND ANY TESTIMONY RELATED TO THE ORAL CONFESSION WAS .HARMLESS. Defendant presented no evidence that Mr. Schwarz, his robbery counsel, actually represented him ·in the stabbing case, and the matters are simply not related sufficiently to invoke this Court's "related matters" jurisprudence.9 Additonally, by its terms, the proffer agreement was merely for a single day, and there is no evidence in the record that the parties to the agreement, the District Attorney's Office and defendant, extended the agreement to include the later confidential informant meeting. Further, the April 19 confidential informant 9 The People merely respond to defendant's "related matters" claim. On appeal to this Court, defendant abandons his claim that Detective Romano's questions prior to fitting defendant with a wire (the reason for the meeting) somehow "transformed" the voluntary meeting into a custodial interrogation. Indeed, defendant simply was never in custody even after his confession, as amply evidenced in the record. Further, defendant has never argued that his right to counsel attached merely because he had agreed to cooperate and had signed a proffer or cooperation agreement. There is a body of case law that has created a separate right to counsel at any proffer session on the ground that what was said there could and likely would affect the outcome in the underlying case. See People v. Montes, 173 Misc.2d 886 (Sup. Ct. Bx. 1997) (court refused to enhance sentence for defendant who lied at the "cooperating" trial because he went unrepresented during trial preparation). United States v. Davis, 2009 U.S. Dist. LEXIS 35603, 18-20 (S.D.N.Y. Apr. 21, 2009) (citing United States v. Ming He, 1996 U.S. App. LEXIS 28744, 31-37 (2d Cir. N.Y. Sept. 3, 1996). This argument was never advanced at any level, and should not now be entertained. 19 meeting took place without counsel after he and defendant agreed to this procedure at the proffer meeting. Thus, contrary to defendant's current claim, the hearing court properly rejected defendant's allegation that he was represented by his robbery counsel, Mr. Schwarz, on the stabbing as well, and that the detectives violated defendant's right to counsel by questioning him without properly obtaining a waiver of his right to counsel in counsel's presence, the law in New York (Defendant's Brief at 21-30).10 Here, there is ample support in the record for the hearing court's conclusion and the Appellate Division's findings that the police acted properly at every step up until and including defendant signing the written ,_, • 11 con1ess10n. Initially, to determine whether a statement by a defendant was "involuntarily made," the court must look at the "totality of the surrounding circumstances" at the ' 0 Defendant abandons his argument, made to the hearing court, that the "Queen for a Day" proffer agreement immunized his confession many months later. He did the same in the Appellate Division. 11 This Court has apparently never expressly stated what level of review applies to the "related matters" doctrine. However, this court has opined that whether a confession was involuntarily made presents a mixed question of law and fact that this Court must affirm so long as it "is supported by evidence in the record .... " People v. Scott, 86 N.Y.2d 864, 865 (1995). Further, this Court has stated that whether a "defendant unequivocally invoked his right to counsel while in custody [presents a] mixed question oflaw and fact [that] is beyond our further review" unless the record lacks support for that determination. People v. Harris, 20 N.Y.3d 912, 914 (2012); People v. Ramirez, 89 N.Y.2d 444, 448 n.1 (1996) (right to counsel at lineup presents mixed question). This Court should adopt the "mixed question" standard for the related matters doctrine as well. Such inquiries are inevitably fact-specific, and credibility determinations at the hearing or trial court level play a huge role in later appellate determinations. Considering the fact-intensive inquiries, the mixed question standard fits best within this Court's pantheon of review standards. Whether or not this Court uses this or a less-deferential standard, it should affirm the hearing court's ultimate determination that the People could utilize defendant's confession at trial. 20 time the statement was made. See, People v. Sohn, 148 A.D.2d 553 (2d Dep't 1989); People v. Woods, 141A.D.2d588 (2d Dep't 1988). The burden of proving the statements were voluntary rests with the prosecution, but once the People have "established the legality of the police conduct and the defendant's waiver of his rights, the burden of persuasion ... rests with the defendant." People v. Chavis, 147 A.D.2d 582 (2d Dep't 1989). See also, People v. Love, 57 N.Y.2d 998 (1982). Furthermore, the hearing court's determinations are sound and should not be disturbed. Since "the hearing court had the particular advantage of seeing and hearing the witnesses, its determination must be accorded great weight on appeal." People v. Prochilo, 41 N.Y.2d 759 (1977); People v. Jakins, 277 A.D.2d 328 (2d Dep't 2000). Absent a showing that they are clearly erroneous to the point where they are completely unsupported by the record, the hearing court's findings should not be disturbed. People v. Stevens, 44 A.D.3d 882 (2d Dep't 2007). Here, there is ample record support for the hearings courts conclusions. A. Under this Court's Well Settled Jurisprudence, the Burglary and the Stabbing Were not Sufficiently Related so that Counsel's Burglary Representation Meant He Represented Defendant on the Stabbing as Well. This Court should find, on this record, that defendant may not invoke the "related matters" doctrine because the matters are not legally related. While law enforcement may not question a suspect represented by counsel in a matter that 21 relates to the represented matter, [i]f, however, the police seek to question the suspect about a matter that is not related to the case that the attorney is handling, different rules apply." People v. Lopez, 16 N.Y.3d 375, 380 (2011). Indeed, the police may interview a represented suspect on a different unrelated matter even in "a subsequent custodial" setting People v. Steward, 88 N.Y.2d 496, 502 (1996). This Court has settled the standard for determining whether matters are so related that representation on one matter bars questioning as to the second matter: where the two criminal matters are so closely related transactionally, or in space or time, that questioning on the unrepresented matter would all but inevitably elicit incriminating responses regarding the matter in which there had been an entry of counsel. In such cases, interrogation on the unrepresented crime is prohibited · even in the absence of direct questioning regarding the crime on which counsel had appeared. People v. Cohen, 90 N.Y.2d 632, 638-39 (1997). Thus, in Cohen this Court found that the right to counsel did not attach to a series of crimes that were somewhat related but not so related so as to trigger the "related matters" doctrine. This Court and others have fastidiously adhered to this Court's severe limitations when applying the "related matters" doctrine. Indeed, one court found that two crimes were "not transactionally related" even where the victim of the murder plot at issue was also the victim of the other crime, the victim's own attempted murder. People v. Jackson, 41A.D.3d1268, 1269 (4th Dep't 2007); see People v. Tucker, 30 A.D.3d 312, 312-13 (1st Dep't 2006) (murder victim had 22 been assaulted eleven months prior to murder). 12 Here, the same is true. There was no connection whatsoever between the burglary and the stabbing - other than the fact that the police ultimately determined that defendant committed both crimes and that defendant had burgled the home of the person he initially accused of the stabbing. Indeed, defendant committed the crimes twenty months apart. As such, the lower courts properly determined that the "related matters" doctrine did not apply to defendant's case. This Court should affirm those determinations. B. Defendant's Burglary Counsel Admittedly Never Formally Entered into the Stabbing Until After Defendant Confessed, and Counsel's Presence at the Proffer Session did not Amount to a "Constructive Entry" into the Stabbing Case. The hearing court also properly found that defendant had no right to counsel because counsel had never entered the stabbing case, and if he did, both he and counsel waived it. "In a subsequent custodial interrogation about matters unrelated to the charge upon which a defendant was assigned counsel in a prior separate proceeding, the suspect is competent to waive the right to counsel in the absence of 12 People v. Grant, 91 N.Y.2d 989, 991 (1998) (Brooklyn gun charges and the Schenectady murder charges were umelated even though both involved the same weapon because they "were not so interwoven that any interrogation on the latter would almost necessarily elicit incriminating responses on the former"); People v Castor, 99 A.D.3d 1177, 1179-80 (4th Dep't 2012) (defendant represented in husband's death could be questioned regarding daughter's death); People v Cowan, 92 A.D.3d 794, 795 (2d Dep't 2012) (two burglaries); People v. Phillips, 55 A.D.3d 1145, 1147 (3d Dep't 2008); People v. Hayes, 32 A.D.3d 1047 (2d Dep't 2006); People v. Madison, 22 A.D.3d 684, 686 (2d Dep't 2005); People v. Wade, 296 A.D.2d 720, 720-721 (3d Dep't 2002); People v. Walker, 285 A.D.2d 660, 662-664 (3d Dep't 2001); People v. Rivera, 277 A.D.2d 470, 471-72 (2d Dep't 2000); People v. Grant, 241A.D.2d562, 562-63 (3d Dep't 1997), rev'd 91N.Y.2d989, 991 (1998). 23 counsel as to such matters." People v. Steward, 88 N.Y.2d 496, 502 (1996); People v. Jordan, 21 A.D.3d 385 (2d Dep't 2005). Here, there is no question that while Mr. Schwarz was assigned to represent defendant on the unrelated burglary charge, he was never assigned to represent defendant on the stabbing (RD&O. 6- 7). This was because "there were no charges pending other than the ones pending in the Town of Clarkstown" (Schwarz: H3. 6-7, 19). The hearing court was well within its discretion in rejecting defendant's and Mr. Schwarz's testimony that they thought they were in an attorney-client relationship with respect to the stabbing. Defendant, on appeal, essentially admits that little counsel did prior to defendant's arrest resulted in constructive representation. At best, as defendant must concede, counsel's pre-confession "representation" consisted of making a few phone calls, attending the proffer session with the stated purpose to "work off' the burglary charge, and asking to be contacted after the confidential informant meeting (17-20; Defendant's Brief at 21). Defendant is reduced to arguing that counsel's post-confession activity, including negotiating a disposition on the two cases - where anyone would concede he represented defendant - bootstrap his "representation" to the period up until and including the confession (Defendant's Brief at 22-25). Allowing such post-hoc representation, would mean that every person who ever had an attorney enter a case would then be vaccinated against any 24 pre-entry activities or statements. Such a rule would be unworkable in theory or practice . . Defendant seems to conflate Mr. Schwarz's representation on the burglary to the stabbing, but that merely begs the question that the hearing court properly answered in the negative (compare Defendant's Brief at 22 with D&O. 7-11). Defendant then tries - as he does with his Rosario claim ,-- to use events after the confession to prove that Mr. Schwarz represented defendant at the April 19, 2008 meeting (Defendant's Brief at 22-23). Allowing a defendant to hide behind this legal doctrine to avoid the result of a proffer agreement would likely remove this standard method of obtaining information from law enforcement's crime-fighting tool kit. People v. Foy, 301 A.D.2d 614, 615 (2d Dep't 2003) (calling "unreasonable" defendant's attempt to shoehorn any crime he ever committed into avoiding questions pursuant to proffer agreement). This Court should rightly object to defendant's overbroad proposal. Again, the court was entitled to reject his and counsel's self-serving testimony and there is more than enough record evidence for the hearing court to have found that defendant was not represented as to the stabbing. 25 C. The Third Department Case Defendant Cites to Support His Contention Here is Inapposite as There, the Attorney's Activities Amounted to Actual Representation on the Very Case at Issue. This Court should reject defendant's attempt to support his claim here from a Third Department case that is easily distinguishable on its facts and provides a stark contrast between permissible and impermissible questioning. In People v. Callicutt, 85 A.D.3d 1326 (3d Dep't 2011), an Albany County Assistant Public Defender ("APD") represented defendant on an attempted weapons charge. At the same time, the police were investigating a series of robberies, including one that resulted in a homicide. An Albany Assistant District Attorney ("ADA") contacted the APD and proposed having defendant take a polygraph test on the robbery- homicide in exchange for a reduced sentence on the weapons charge. The APD recommended against the examination, but the defendant agreed and received the reduced sentence. About six months later, detectives interrogated defendant in jail, and ultimately he confessed to the robbery-murder and two other robberies. Defendant gave oral and written confessions. The hearing court suppressed the confession and the People appealed. Id. at 1326-27. The appellate division limited its analysis to whether the defendant's right to counsel was activated when the attorney: met with, advised and accompanied defendant to the meeting with police concermng his requested 26 participation in the polygraph examination in connection with the homicide investigation. We find that it did, and that the subsequent questioning of defendant by police in the absence of counsel violated defendant's constitutional right to counsel. People v. Callicutt, 85 A.D.3d 1326, 1327 (3d Dep't 2011). The court summarized this Court's actual representation jurisprudence, citing to Arthur, Grice, and other cases. The court then found that the APD had actually represented the defendant in the robbery-homicide as well. It emphasized the following suppression hearing evidence: 1) they had an extensive conversation about the homicide; 2) they discussed what the polygraph test entailed; 3) the APD advised the defendant "as to what his rights were and what he should or should not say;" 4) the APD accompanied the defendant to the meeting with the police and the ADA to discuss the polygraph test; 5) during the meeting the police explained to them that the defendant's name had come up as a suspect in the murder and they wanted to know where he had been during the crime; 6) "Notably, after that conference, Carpinello advised defendant not to take the polygraph examination-despite the favorable sentencing agreement that defendant would receive on the weapon possession charge if he did so" (underlined emphasis supplied; italicized emphasis in original); and 7) when the APD could not personally attend the polygraph, she arranged for a different APD to confer with and advise the defendant prior to the examination. 27 Contrast these facts with the hearing record in this case. Here, unlike in Callicutt, defendant was never a suspect in the unrepresented crime. While defendant makes much of the fact that the police thought he might have been the gang member to whom the "actual" criminal gang members reported, there is no record evidence that the police thought that defendant committed any actual crime related to the stabbing. Further, despite defendant's attempt at puffery, the only factual comparison to Callicutt is, at best, that counsel attended the proffer session for the sole purpose of ensuring a better deal on the underlying burglary. Notably, here the attorney encouraged cooperation, there is no record support that they ever discussed in any detail defendant's rights regarding the stabbing, counsel never told defendant what to - or not to - say, and counsel sent defendant to the confidential informant meeting alone, apparently unconcerned by what defendant might say there. The facts here are completely distinguishable on the significant facts from Callicutt. That is why the hearing court and the Second Department found as it did here. D. Even if this Court finds that the Right to Counsel Attached, Defendant Waived the Right to Counsel's Presence in his Presence at the Proffer. Even if this Court finds that counsel either actually entered the stabbing case or that the matters were related, this ruling would not help defendant because, as the hearing court properly found, at the proffer session both defendant and counsel 28 waived counsel's presence at the confidential informant meeting. As the case the hearing court cited states, "counsel consented to and facilitated the encounters between [defendant and the detectives], well aware that the meetings were to occur in his absence. [Defendant] had several opportunities to seek his counsel's assistance or request his presence at these meetings. He did not." United States v. Doe, 671 F. Supp. 205, 209 (E.D.N.Y. 1987); see United States v. Veals, 360 Fed. Appx. 679, 684-85 (7th Cir. Ill. 2010) ("As long as counsel had notice ofthe debriefing, waiver is implied."). As one court observed, a knowing and voluntary waiver need not also be wise or prudent. United States v. Loe Tien Nguyen, 313 F. Supp. 2d 579, 589 (E.D. Va. 2004). Defendant's and counsel's actions here constitute a waiver of defendant's right, in whatever form, to have his attorney present at the confidential informant meeting. Here, the evidence reflects that counsel and defendant knew he would be participating in the confidential informant meeting without counsel being present. Under such circumstances this Court may presume that they waived this right. See People v. Somerville, 249 A.D.2d 687, 691 (3d Dep't 1998) (defendant agreed to take polygraph outside counsel's presence); State v. Malik-Ismail, 292 NJ. Super. 590, 596-98 (NJ. App. Div. 1996) (where defense counsel "waived his appearance at [cooperating witness pre-testimony] interviews" statements could be used against defendant absent Miranda warnings). Here, the parties agreed at the 29 proffer meeting that defendant would meet with the detectives to wear a wire. Indeed, counsel testified at the hearing "[t]hat after the proffer session as part of [defendant's] cooperation with the D.A.'s Office, that he would present himself to the Clarkstown detectives, be wired up" (Schwarz: 440). While counsel claimed that he "did not believe" the police were going to ask defendant any questions, the hearing court was free to disregard this claim, especially as it was made solely by counsel who, rather than asking, merely and allegedly assumed this to be the case. Certainly counsel could have asked whether the police would question defendant, and neither he nor defendant raised any such concerns with the police. Further, counsel gave ADA Moran defendant's cellular phone number under circumstances that meant the detectives would meet defendant without counsel (20; Schwarz: 442). Given this, it matters not whether counsel actually represented defendant or whether the matters were legally related, because defendant and counsel acquiesced to counsel's absence at the confidential informant meeting. The hearing court therefore correctly found that defendant and counsel waived any alleged right he may have had (D&O. 11). Given that the record fully supports this conclusion, this Court should affirm that determination. In sum, the hearing court correctly found defendant was not in custody, knowingly, voluntarily and intelligently waived his Miranda rights, and voluntarily gave statements to the detectives, and the Appellate Division correctly affirmed the 30 resulting judgment. This Court should affirm the lower courts' wholly correct findings. 31 POINT II DEFENDANT'S CLAIMS AT HIS PROFFER SESSION AND INITIALLY AT HIS CONFIDENTIAL INFORMANT MEETING THAT ANOTHER MAN STABBED THE VICTIM, A CLAIM DEFENDANT ADMITTED WAS A LIE WHEN HE SPONTANEOUSLY CONFESSED TO THE STABBING, ALONE OR COUPLED WITH HIS OTHER PREVARICATIONS, EASILY CONSTITUTE A MATERIAL BREACH OF THE PROFFER AGREEMENT. THE AGREEMENT, BY ITS TERMS, APPLIED ONLY TO THE PROFFER SESSION AND NOT TO THE CONFIDENTIAL INFORMANT MEETING. It strains credulity for defendant to argue that he did not materially breach the proffer agreement when he claimed he witnessed another man stab the victim, a claim that defendant confessed was a lie because he had actually stabbed the victim. One has to wonder what defendant would posit constitutes a material breach if attempting to pin the crime on an innocent person while denying that you were the actual perpetrator does not amount to a material breach. This is especially true here, where the proffer agreement, by its very terms, required defendant to tell the truth and contained as a consequence that the People would be able to use the statements as direct evidence against defendant. Further, the agreement did not even apply to the confidential informant meeting, and so no "breach" was necessary for the People to use defendant's confessions at the subsequent trial. 32 A. This Court Should Analyze Defendant's Claim Utilizing Contract Principles While Remaining Cognizant of Defendant's Due Process Rights. Contract rules dictate both results. While there is not much law in New York, all courts have interpreted cooperation agreements utilizing contract principles after adding a due process overlay to protect a criminal defendant's constitutional rights. United States v. Gregory, 245 F.3d 160, 165 (2d Cir. 2001); United States v. Torres, 2008 U.S. Dist. LEXIS 58600 (S.D.N.Y. Aug. 1, 2008); United States v. Gomez, 210 F. Supp. 2d 465, 475 (S.D.N.Y. 2002) ("Although special consideration must be given to a defendant's due process rights, the parties should be held to the terms of their agreement."); People v. Stokes, 165 Misc. 2d 934, 937 (Sup. Ct. Monroe 1995); see generally People v. Delayo, 52 A.D.3d 1114, 1115 (3d Dep't 2008) (rejecting defendant's due process claim that proffer violation required a hearing after finding claim unpreserved). Given this, courts have routinely ruled that such agreements "are governed by their express terms." United States v. Nesbitt, 2010 U.S. Dist. LEXIS 96248 (D.S.C. Sept. 14, 2010) (collecting cases), citing United States v. Lopez, 219 F.3d 343 (4th Cir. 2000) (government forbidden from using proffer lies to enhance sentence because agreement never contemplated such use). Thus, as long as the People can show that defendant materially breached the proffer agreement, or that it did not apply, the court properly ruled the evidence admissible. 33 B. Defendant's Claims During the Proffer Session and Initially at the Confidential Informant Meeting that Another Person Committed the Crime He Actually Committed Materially Breached the Proffer Agreement. Defendant breached the agreement - even assuming it was in effect at the confidential informant meeting. There does not appear to be significant case law in New York regarding proffer sessions and what constitutes a material breach. Nevertheless, case law from jurisdictions that have considered material breaches in this context leads to the conclusion that a defendant who lies by accusing another person of committing a crime that he himself committed while minimizing to zero his own participation must necessarily be material. For example, one court found that the defendant materially violated a federal proffer agreement when he only minimized his level of involvement in a cocaine smuggling ring, rather than denying it completely. United States v. Gerant, 775 F. Supp. 182, 185-87 (D. Md. 1991). There, the defendant claimed that he was merely a pilot "mule" for a drug cartel, and that he earned about half a million dollars from the criminal enterprise. Id. at 185. However, the court found that the government had proven by a preponderance of the evidence that the defendant had materially breached the contract when he "made false and incomplete statements to agents, [] intentionally omitted critical and material information which he was required to give and that he falsely testified at [a] trial .... " Id. at 186. It specifically found sufficient evidence that the defendant was an operational manager for the cartel involved in procuring 34 and distributing illegal drugs, he had earned at least three times as much from the operation as he admitted, and he lied at the trial about when he had begun cooperating. Id. at 187. As that court found, "False information or false testimony in any one of these three areas would be sufficient to constitute a substantial breach of the agreements with the government as to a material matter." Id.; see United States v. Seeright, 978 F.2d 842, 846 (4th Cir. 1992) (defendant materially breached agreement where he "had provided false information in his proffer statement and intentionally withheld material evidence"); United States v. Pollack, 91 F.3d 331, 336 (2d Cir. 1996) ("Moreover, based upon the language of the cooperation agreement, the government could reasonably conclude that Pollack was in material breach of the agreement when he lied about his involvement in the arson."); United States v. Lnul-96crl 123-001, 1999 U.S. App. LEXIS 14011 (2d Cir. N.Y. June 22, 1999) (lying about "role in executing and planning the murder robbery constituted a material breach"); United States v. Castelbuono, 643 F. Supp. 965, 972-974 (E.D.N.Y. 1986) (minimizing monetary gains by a mere $66,500 in an $800,000 deal and lying about how money was laundered considered material). Again, falsely accusing the wrong person as the perpetrator amounts to a material breach. United States v. Okeayainneh, 2012 U.S. Dist. LEXIS 7069, 11- 14 (D. Minn. Jan. 23, 2012). Indeed, embellishing the truth through falsely implicating an alleged accomplice even while also naming the actual perpetrator 35 amounts to a material breach. Housler v. State, 2013 Tenn. Crim. App. LEXIS 787, 94-98 (Tenn. Crim. App. Sept. 17, 2013). Similarly, one court found that minimizing a child murderer's criminal acts constitutes a material breach. State v. Bortner, 150 N.H. 504, 508-510 (N.H. 2004) (changing story from holding child's head under a faucet to splashing her with faucet water, and minimizing killer's "roughness" such as banging head on a closet, constitute material breaches). ' Given this case law, this Court should find that defendant materially breached the proffer agreement that mandated he be truthful when he accused another person of committing the stabbing when he had actually committed the crime. Further, the fact that the police may have known defendant was lying (and their "shock" at his confession belies defendant's claim that they thought he committed the crime), would not render the agreement unenforceable. As one federal court has found, the mere fact that law enforcement thinks the defendant is lying does not mean that the defendant is entitled to enforce the contract even where no attempt is made to ascertain the truth. United States v. Hyles, 521 F.3d 946, 952-54 (8th Cir. 2008). In fact, even where, as here, a defendant ultimately corrects his falsehood, he still breaches the agreement. United States v. Flores, 975 F. Supp. 731, 743 (E.D. Pa. 1997), citing United States v. Brechner, 99 F.3d 96, 99 (2d Cir. 1996). Here, there is no question defendant lied. He actually confessed to committing the stabbing after accusing another at least twice, at the proffer session 36 and again initially at the confidential informant meeting. It would be difficult to find a more powerful example of violating an agreement explicitly dependent upon "truthfully respond[ing] to any and all questions put to him" during the proffer session" (10). Nothing could be further from the truth than lying that another committed a crime you actually committed. Although the agreement makes lying a material breach ab initio, the evidence further demonstrates that the police detrimentally relied on the falsehoods. Having no reason to believe defendant lied about who stabbed the victim, the police waited six more months to have the confidential informant meeting, time they could have spent further investigating the case. More importantly, it would truly be unconscionable for any defendant to be able to lie with impunity at a proffer session where he promised to tell the truth, then hide behind his confession to the crime as a "defense" to his lies being used against him. Fairness dictates that the People should be allowed to use statements a defendant makes when violating a proffer agreement in such a blatant manner. C. The People Were Entitled to Use Defendant's Statements Against Him at Trial Because the Proffer Agreement Specifically Contemplated that Result. Because defendant breached the agreement by lying about who committed the crime, the People were well within their rights to use defendant's statements, including any truthful ones, at the trial. The prosecution may avail itself of a 37 consequence included in a proffer agreement where a defendant breaches the · agreement by lying: "Having agreed to provide fully truthful information and having failed to do so, defendant is in breach of the proffer agreement. Accordingly, the government can avail itself of the remedy the agreement expressly provides." United States v. Nesbitt, 2010 U.S. Dist. LEXIS 96248 (D.S.C. Sept. 14, 2010); see People v. DeBoue, 299 A.D.2d 422 (2d Dep't 2002) (People could seek harsher sentence after defendant violated agreement by minimizing his participation in criminal activity where harsher penalty contemplated in agreement). Here the agreement expressly informed defendant that one consequence, if he lied, was that the People could use any statement "as direct evidence against him in any prosecution" (10). The lower court's therefore correctly ruled that the People could do so. D. The Mere Fact that the Detective Thought Defendant may Have Been Lying or that they Wanted to use Him as an Informant Even After He Confessed Does not Render His Breach Immaterial. Nevertheless, defendant, terming his prevarications "minor misrepresentations," argues that these lies did not vitiate the agreement (Defendant's Brief at 31-36). He argues that the People and the police continued to use defendant as a cooperator even after they knew he lied about being in jail during the crime (Defendant's Brief at 32). At that time, though, the police were merely curious because they thought he may have been the person the "actual" 38 stabbers reported to, and therefore the minor misrepresentation was immaterial. Conceding that this is true, as the People must, does nothing to the major misrepresentations defendant actually made at both meetings, that he and not another had stabbed the victim. Defendant's claim that "the detectives suspected Raul of being involved in the stabbing incident and believed that he was more involved than he claimed to be at the proffer session" is a play on the evidence (Defendant's Brief at 33). In fact, Detective McGrath expressly stated, "I believed that Sonny Bashuah possibly did this assault to possibly gain entrance into the gang - or into a gang" (McGrath: 333). Thus, the record supports the conclusion that the detectives merely believed defendant was the reporting entity, not that he actively participated in the crime. Much more importantly, the report the detectives filed immediately after the proffer session noted the limit of their disbelief: "We were all in agreement [defendant] may possibly be hiding the fact that he was involved in the stabbing. He could be the party that they reported to after the stabbing to get into the gang" (16). Their "shock and "surprise[]" at being "floored" with the news that defendant himself committed the stabbing rendered meaningless any claim that they allegedly wanted to continued to use him as a cooperator to ensnare his alleged codefendants. 39 E. The Detectives' Interpretation of the Agreement has no Legal Significance. Further, anything the police testified to regarding their interpretation of the agreement and its limits is completely immaterial: they were not parties to the agreement (Defendant's Brief at 33). The agreement was between the District Attorney's Office and the defendant, as defendant admits (10; Defendant's Brief at 34). While the police were certainly bound by the agreement, they are not lawyers and their opinions are not legally binding on either the People or defendant. More importantly, defendant cites to evidence relating to the detectives thoughts right after the proffer session, where they merely caught defendant in an "immaterial" lie - that he was not in jail when he claimed to be (McGrath: 379-80). This knowledge did not include, until the confidential. informant meeting, that defendant had actually committed the crime. This testimony therefore sheds no light upon the ultimate ruling the lower courts made and this Court should affirm: lying and saying someone else committed a crime you committed materially breaches an agreement to answer questions truthfully. F. The Proffer Agreement, by its Terms, was not in Effect at the Confidential Informant Meeting. In truth, though, whether or not any alleged breach was material, the court properly admitted the confessions because the agreement terminated after the proffer session ended. "Defendant signed the agreement, acknowledging that he 40 agreed to its terms." United States v. Nesbitt, 2010 U.S. Dist. LEXIS 96248 (D.S.C. Sept. 14, 2010). By its terms, the contract between the parties was limited to any statements made that day: "6) It is understood that the client will receive limited use immunity which will preclude the use of statements made by him on this date .... " (10) (emphasis supplied). This Court should affirm. 41 POINT III DEFENDANT'S SUPPRESSION HEARING ROSARIO CLAIM AS TO CERTAIN NOTES FROM DETECTIVE ROMANO IS UNPRESERVED. FURTHER, THE MATERIAL WAS NOT ROSARIO FOR THE HUNTLEY/DUNAWAY HEARING. IN ANY EVENT, THE HEARING COURT PROPERLY EXERCISED ITS DISCRETION WHEN IT DECLINED TO SANCTION THE PEOPLE. FINALLY, ANY ERROR WAS COMPLETELY HARMLESS. Despite the Appellate Division reaching the merits, defendant's suppression hearing Rosario claim remains unpreserved for appellate review or waived because he waited until after the verdict to have the court adjudicate it. Further, as the People forcefully argued both during and after the trial, the material was simply not related to the subject matter of Detective Romano's testimony at the limited Huntley/Dunaway suppression hearing. In any event, the court properly declined to sanction the People or reopen the suppression hearing. Finally, any alleged error was completely harmless. A. Facts Relating to Defendant's Rosario Issue. During the second day of trial, defense counsel claimed that the People did not provide suff(cient Rosario material to the defense at the pretrial hearing (544). Counsel admitted that the pretrial hearing was only "a full Dunaway, Huntley Hearing" (558). Nevertheless, counsel, comparing the hearing Rosario with the more voluminous trial Rosario for Detectives McGrath and Romano, claimed that 42 the People violated their Rosario obligations (554-56, 559). The Court noted that the pretrial Rosario would be less "because [the hearing] only addressed one aspect of the case, namely, the voluntariness of' defendant's confession (557-58). The court invited defendant "to document what it was that was not provided that was relevant to the hearing" (558). Defense counsel raised the Rosario issue again, but specifically deferred his claims until after Detective Romano testified (SA: 2-3). 13 He asked Detective Romano about conversations between the detective and ADA Moran in May 2008, after defendant's confession at the April 19 meeting (SA: 4-6). The court sustained objections to the questions as being irrelevant: THE COURT: [ADA] CRISPINO: THE COURT: It's beyond hearsay. I don't see it's relevance. You're [the People] not offering any content after that April meeting, are you, as part of the statement made by the defendant? No. So if he contacted the attorney subsequently, how would that be relevant on the voluntariness of the statement, it's something that occurred afterwards? [DEFENSE COUNSEL]: These questions have to do with the 13 The People submitted a Supplemental Appendix that related only to the Rosario point. Citations to that documents are prefaced by ""SA." 43 THE COURT: subject of that application. So do you want to take the application now, is that what you're saying, before you went on? [DEFENSE COUNSEL]: I'll see if I can move along here. (SA: 6-7). Defense counsel then handed an application to the court and the People alleging a Rosario violation (554; McGeorge Affirmation in support, 110). Defense counsel's motion made a general claim as to all the material not furnished prior to the pretrial hearing (McGeorge Affirmation: 110-11 ifif 5-6). In getting to specifics, counsel only referenced two pages of the trial Rosario material. The first was page 2 in Detective Romano's Supplemental Complaint Report that contained the victim's description of his attacker (McGeorge Affirmation: 111 if8). Defense counsel claimed the victim's description was relevant because it meant that "the defendant's statement differs from the victim's statement" in the number of assailants and defendant's description (McGeorge Affirmation: 112 ifif l 0-11 ). Defense counsel claimed that this meant the hearing court, if enlightened as to these discrepancies, "might have concluded that defendant did not lie at the October proffer meeting, and that defendant's April statement was actually a false confession" (McGeorge Affirmation: 112 ififll-12). Second, defense counsel claimed generally that the People should have 44 furnished an additional seventeen pages of notes, but singled out a specific page for attack: page 14. Counsel claimed that because Detective Romano wrote after defendant's confession that ADA Moran thought they needed a new agreement, this proved that the agreement was in effect in April, and would have been relevant to whether defendant breached the agreement with his lies in October at the "Queen for a Day" proffer meeting (McGeorge Affirmation: 112-14ififl1-15). The only relief defendant sought was to reopen the pretrial hearing (McGeorge Affirmation: 114 if l 8). In court, though, counsel asked for preclusion of the statement "or for such further and different sanctions as the Court deems fit" (555). He also argued that the notes were material to the issue of whether defendant's burglary counsel represented him on the stabbing as well (562). The People argued that "the scope of the hearing was the voluntariness of the statement, all the notes that were pertaining to that hearing, the voluntariness of the statement, were turned over" (558). Counsel then suggested that the court hold defendant's application in abeyance pending the verdict because an acquittal would moot the application, but defendant would renew the application ifthe jury convicted (564-65). The People responded that "there is no issue" and explained why there was no violation - defendant and his counsel both agreed to allow defendant meet the detectives without counsel being present, and any post-confession calls were merely a 45 courtesy (565-67). The court opined that the trial Rosario pertained to issues outside the scope of the pretrial hearing (566). The court also stated its opinion that "I haven't seen any Rosario violation and I haven't seen any prejudice so far" (567, 570). Without the People's agreement, the court allowed defendant "to renew something later, if you think it's appropriate, if there's an adverse verdict rendered, you can always do it" (570). Instead, defense counsel asked the court to "reserve decision on this" application and the court agreed: "sure" (571). Defense counsel also raised the issue of not receiving certain other notes from Detective Romano, but he had copied those notes verbatim in typed form and those were furnished to the defense (SA: 16-20). The People responded in an October 9, 2009 Affirmation by ADA Richard Moran (Moran Affirmation). ADA Moran pointed out that defendant limited his specific Rosario claims to two pages: one containing the victim's description of his attacker, the second containing notes referring to conversations that took place after defendant's confession. The People argued that the notes were not Rosario for the pretrial hearing because they were not notes regarding defendant's statement. First, Detective Romano did not testify at the pretrial regarding his interactions with the victim or regarding any descriptions of the victim's 46 attacker(s). Further, defendant's confession matched his description of multiple attackers he gave at his proffer, just that he left himself out of the attack; thus, any variance from the victim's description of his allegedly single attacker was immaterial. Second, Detective Romano did not testify regarding any conversations that post-dated the confession. The notes only state that somebody would contact defendant's attorney, not who the attorney is. Finally, on cross examination, the detective testified that ADA Moran was supposed to reach out to defense counsel to see whether defendant could continue to cooperate, thus reaffirming what the .notes said. Thus, the hearing's outcome would have been no different. The People expanded on their argument in an October 27, 2009 Memorandum of Law, submitted at the post-trial hearing on defendant's Rosario application. At the October 27, 2009 post-trial hearing, defendant argued that Detective Romano's Rosario was deficient (574). He argued that the notes regarding the detective's conversations with the victim were relevant on the issue of how many attackers there were (574-75). Counsel claimed that the trial Rosario proved that defendant was not lying at the proffer but instead gave a false confession (575-76). Counsel conclusorily argued: It certainly is a reasonable possibility that had the defense been able to use the information contained in the detective's handwritten notes that were not available at the suppression hearing, it's certainly a reasonable 47 possibility that the defense could have advanced a sufficient argument that the court might have agreed that the defendant did not lie at the initial proffer session; and, dare I say, given the additional constitutional ramifications it cannot be said that it was harmless beyond a reasonable doubt. (576). Counsel also argued that the notes impacted whether Mr. Schwarz, defendant's counsel on the unrelated burglary charge, somehow also was representing defendant in the stabbing on the day he confessed (576-78, 580). Counsel argued that Mr. Schwarz did enter this case and so defendant was represented when he confessed (581-83). Counsel further claimed that notes related to whether the "Queen for a Day" proffer agreement covered the April 19, 2008 meeting, and therefore the confession, and the post-confession notes demonstrated that the agreement was still in effect (583-85). The People vigorously denied that any of the material was Rosario for the pretrial suppression hearing (588-89). During the long investigation, many notes were generated, but almost none concerned defendant's proffer or his confession, the actual subject matter of the suppression hearing (590-91). Specifically combating defendant's motion claims, the two instances defendant referenced were not Rosario because the suppression hearing had nothing to do with the victim's identification or his conversation in the hospital with Detective Romano, and the notes that post-dated the confession had no relevance to the confession itself ( 591, 594-96, 600). Further, defense counsel explored the post-confession matters with 48 the detective at the suppress10n hearing by cross exammmg him on the representation issue, and Mr. Schwarz actually testified at the hearing regarding his understanding of the relationship between him and defendant (596-97, 604). Thus, "they wouldn't have materially affected the outcome" (604). The People's Memorandum of Law mirrored these arguments (120-32). The court deflected counsel's claims regarding his alleged inability to cross- examine Detective Romano by noting that counsel never asked to recall him to confront him with information about the attorney-client relationship gleaned from Mr. Schwarz's testimony (597). The court also noted that Mr. Schwarz gave the police defendant's contact information so they could call him directly without counsel's presence (598-600). When the court challenged defense counsel to demonstrate prejudice, counsel could not adequately respond beyond repeating the legal standard (RH. 601-03). Counsel then claimed that "the detective had information that actually supported my client's version that he gave at the proffer session" ( 603 ). In a November 6, 2009 post-hearing reply, defense counsel reiterated his position that the victim's description of the alleged lone assailant was somehow relevant to defendant's confession because both concerned "what happened" as defendant was committing the crime (McGeorge Reply: 162-63 ifif4-9). Counsel argued he could have further examined the testifying detectives as to the "true 49 story" (McGeorge Reply: 163-64ifl1). Counsel again argued that the non-disclosed notes about ADA Moran's contacts with Mr. Schwarz, defendant's attorney on the unrelated burglary, would have allowed him to further question Detective Romano regarding whether there existed an attorney-client relationship between them on the stabbing incident (McGeorge Reply: 164-65 ififl4-18). Finally, defendant claimed the notes provided additional evidence that ADA Moran and the detectives believed the agreement was still in effect on April 19, 2008, the day defendant confessed (McGeorge Reply: 165 if l 8). In a December 4, 2009 Decision and Order ("RD&O"), the court denied defendant's applications to reopen the pretrial suppression and for a Rosario violation finding.· The court gave a short factual recitation and described the documents the defense claimed were suppression hearing Rosario material never furnished until trial. (RD&O: 175-77). The court first ruled there was no prejudice because "counsel had an opportunity to effectively cross examine the witness at the original hearing." (RD&O: 178). It then ruled that "the notes were not Rosario material and or not relevant to the court's determination on the right to counsel issue, the continued vitality of the limited use immunity agreement issue or [t]he voluntariness ofthe statement issue." (RD&O: 178) (citations omitted). The court, quoting the statutory standard, found "there is no reasonable possibility that 50 the result of the hearing would have been different had the notes been turned over" (RD&O: 179). The court flatly rejected defendant's claims regarding the notes of the victim's description, finding defendant's claim as to discrepancies "baseless" (RD&O: 179). It also found "Detective Romano's actions and beliefs following the defendant's confession are irrelevant to the Court's determination· and disclosure of the interview notes would not have changed the Court's decision" (RD&O. 179). The court further found that even if it was Rosario, any delay "did not prejudice the defendant" and defendant did not make any "showing [] that the non-disclosure materially contributed to the result of the proceeding" (RD&O. 179). The court therefore ruled that there was no reason to reopen the suppression hearing (RD&O. 180). B. Because Defendant Asked the Court to Hold the Rosario Issue in Abeyance Until After the Verdict, and the People Never Agreed to this Procedure, the Matter is Statutorily Waived and Unpreserved. Despite the voluminous record relating to defendant's Rosario claim, it is not preserved for this Court's review or is waived because defendant requested the court to defer deciding the issue until after the statutory period allowed for review. This Court has repeatedly required preservation for Rosario claims. People v. Graves, 85 N.Y.2d 1024, 1027 (1995); People v. Rogelio, 79 N.Y.2d 843, 844 (1992). Here, defendant, by pushing off the court's decision on his Rosario claim, 51 has placed his current contention beyond this Court's jurisdictional power to hear it. Defendant's claim is waived and unpreserved. C.P.L. §710.40 is entitled "Motion to suppress evidence; when made and determined." Subsection four mandates that . If after a pre-trial determination and denial of the motion the court is satisfied, upon a showing by the defendant, that additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion, it may permit him to renew the motion before trial or, if such was not possible owing to the time of the discovery of the alleged new facts, during trial. (emphasis supplied). Citing this subsection, the First Department has ruled that a motion to reopen a suppression hearing is "untimely" where it is made based upon "allegedly conflicting trial testimony." People v. Taylor, 36 A.D.3d 562, 562-63 (1st Dep't 2007). Here, defense counsel kept deferring the Rosario issue, first until after Detective Romano testified (SA: 2-3), and then ultimately until after trial. It was defense counsel that first raised the issue of deferring the motion until after the verdict (SA: 8-9). The People did not agree, stating emphatically "there is no issue" and explaining why there was no violation (SA: 9-11 ). In the end, the People never agreed to have the court decide this issue after the verdict, although the court and counsel did agree without them (SA: 14-16). As a result, this claim is unpreserved. 52 The rule against allowing defendants to defer motions in anticipation of a. verdict makes logical sense. I 00 years ago, this Court declared such tactics to effect a waiver of those issues. In People v. Cosmo, 205 N.Y. 91 (1912), this Court said: "A known cause of challenge is always waived by withholding it, and raising it as an objection after verdict; since such a practice is incompatible with the good faith and dealing which should characterize the administration of justice." Id. at 101. This Court's reasoning in Cosmo, that by not objecting defendant waived his procedural right to raise "a knowh cause of challenge," applies equally here. Stated another way, "a party is not permitted to speculate upon a favorable verdict before asserting a claim that could properly be made during trial." Virgo v. Bonavilla, 49 N.Y.2d 982 (1980) (plaintiff did not object as soon as plaintiff found out that one of the Medical Malpractice Panel Members was an acquaintance of defendant). Similarly here, defendant cannot be allowed to spot a trial defect but withhold his objection, and then raise it only after the jury has returned a guilty verdict. As the court said in Cosmo; this type of conduct does not comport with the "good faith and dealing" expected in the "administration of justice." People v. Cosmo, 205 N.Y. at 100-01. Another case supports this conclusion. This Court has ruled that the salutary purpose of the preservation rule, to force litigants to protest "when the court had an 53 opportunity to prevent the harm of which defendant now complains," applies to Rosario claims. Pe.ople v. Rivera, 78 N.Y.2d 901 (1991). There, the defense attorney, during the pretrial Wade hearing, made a preliminary inquiry regarding "an unexplained reference in the file to a 'note' that was apparently prepared in connection with the 'DA write-up.'" Id. The court requested the prosecutor to inquire, and defense counsel never again raised the matter. This Court found that it could not review the claim on appeal because the defendant had not properly preserved it. Id.; see People v. Jackson, 78 N.Y.2d 900 (1991) (Rosario claim unpreserved where made at hearing but never brought to trial judge's attention). Here, defendant did more; he deliberately pushed the court to ignore the issue until after the verdict. As such, his claim is similarly unpreserved. The mere fact that defendant raised the matter at trial does not lessen this Court's ultimate concern that defendants should not be allowed to anticipate verdicts. Here, defendant raised the suppression Rosario issue during trial, but then asked the court to hold the issue until after the verdict. In so doing, defendant expressly "anticipated the verdict." That he cannot do. Thus, defendant waived his procedural right to raise his objection because he waited until after the verdict to notify the court of the error; The conclusion that defendants cannot hold motions in abeyance until after the verdict is supported by the case law and the New York State Legislature's 54 actions with regard to legal sufficiency motions. That statute, C.P.L §290.10(1), expressly authorizes the trial court to "reserve[] decision [until] the jury thereafter renders a verdict of guilty .... " See People v. Brummel, 136 A.D.2d 322, 325 (1st Dep't 1988) (noting that until after 1983 amendment to C.P.L. §290.10, it "did not permit the trial court to reserve decision on a motion to dismiss until after the verdict."). It is plain that, absent a similar statutory provision, a court may not do so for a Rosario claim discovered during the trial. In sum, defendant's actions here have rendered his claim statutorily waived under C.P.L. §710.40(4) and waived or unpreserved pursuant to case law and C.P.L. §470.05. C. The Court Properly Ruled that Detective Romano's Notes Regarding the Victim's Description and Potential Correspondence Between ADA Moran and Defendant's Attorney on the Unrelated Burglary Were Not Rosario for Defendant's Pretrial Huntley/Dunaway Hearing to Test the Voluntariness of His Confession. Contrary to defendant's claim, Detective Romano's notes regarding the victim's description and potential correspondence between ADA Moran and defendant's attorney on the unrelated burglary were not Rosario for defendant's pretrial Huntley/Dunaway hearing to test the voluntariness of his confession. Defendant correctly notes that People v. Rosario, 9 N.Y.2d 286 (1961) and its progeny, including the New York statute codifying the rule, require the People to furnish: "Any written or recorded statement, including any testimony before a grand jury and an examination videotaped pursuant to section 190.32 of this 55 chapter, made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness's testimony" C.P.L. §240.45(a). By necessity and statutory language, if the material does not concern the subject matter of his actual testimony, it is not Rosario material. People v. Contreras, 12 N.Y.3d 268, 272 (2009); People v. Poole, 48 N.Y.2d 144, 148 (1979); Rosario, 9 N.Y.2d at 290. Further, the rule does not entitle a defendant "to embark on an unrestrained tour of investigation seeking generally useful information." Poole, 48 N.Y.2d at 148 (internal quotation marks and citation omitted). This Court should rule, as a threshold matter, that Detective Romano's notes concerning: 1) his conversation with the victim; and 2) matters that post-date defendant's confession, never related to his pretrial Huntley hearing testimony. It is plain that these documents did not "relate to" the "subject matter" of Detective Romano's testimony. This Court has never defined these terms. Instead, it has only generally required that the People hand over those notes of witnesses' statements "relating directly to material issues raised" at trial. People v. Consolazio, 40 N.Y.2d 446, 453 (1976). This applies to hearings as well. People v. Mitchell, 238 A.D.2d 527 (2d Dep't 1997). In People v. Perez, 65 N.Y.2d 154, 159 (1985), this Court reaffirmed that not all prior statements by a People's witness are subject to Rosario disclosure, even though the statements might bear on 56 that witness' credibility. Instead, the People must merely disclose only those statements "directly related" to the witness' trial testimony. The First and Second Department have both expounded upon these terms in ways that strongly militate in favor of finding that the hearing court properly declined to find that Detective Romano's notes were Rosario. For example, in People v. Veal, 158 A.D.2d 633 (2d Dep't 1990), the court held that the People were not required to disclose a probation officer's reports because he testified solely as to the defendant's appearance. The First Department has held similarly. In People v. Watkins, 157 A.D.2d 301 (1st Dept. 1990), the First Department ruled that a "ghost" officer's overtime voucher was not Rosario even though it related the time the crime was committed, since it did not mention the names of any arrestees. The court reasoned that the voucher "contain[ ed] no factual assertions about or descriptions of the events which were the subject matter of [the officer's] testimony." Id. at 313. The court warned that if such tangential documents were Rosario, "the potential consequences to the criminal justice system would be staggering." Id. at 314. Thus, convictions should not be reversed "for the good faith non-production of such a document," unless the document contained a statement that sufficiently related to the witness' testimony. Id. 57 The lower courts have repeatedly cited to Watkins with approval. See People v. Barclift, 228 A.D.2d 194, 195 (1st Dep't 1996) (officer's daily activity report not Rosario because subject matter of report not related to officer's testimony); People v. James, 207 A.D.2d 564 (2d Dep't 1994)(police report not Rosario because contents of report not related to subject matter of witness's testimony); People v. Grullon, 204 A.D.2d 171 (1st Dep't 1994) (officer's daily activity report not Rosario because it did not relate to subject matter of officer's testimony); People v. Lopez, 196 A.D.2d 664 (2d Dep't 1993) (Queens T.N.T Buy and Bust Tac Plan not Rosario because it contains mere proposals for upcoming activities and contains no factual assertions about or descriptions of drug transaction and arrest of the defendant); People v. Boswell, 193 A.D.2d 690, 690- 91 (2d Dep't 1993) (two DD-5 complaint follow-up forms not Rosario because the People did not elicit any testimony regarding those forms on officer's direct testimony). Applying Watkins to the facts here, the notes were not Rosario regarding defendant's confession. It is impossible to conceive how the victim's identification impacted on the voluntariness of defendant's confession. As the court found, "defendant's contention that the victim's account corroborated defendant's admittedly untruthful account (prior to his confession) is baseless" (RD&O. 5). It is ludicrous for defendant to suggest that the victim's account of the incident, made under duress, 58 was truthful and cast doubt upon defendant's confession. This is especially true here, where at trial the eyewitness testified consistently with defendant's confession with regard to how the crime occurred, the number of perpetrators, and the race of the attackers. 14 In any event, Detective Romano did not testify as to any identification. As the Second Department has held, where "no testimony concerning the [] identification of another individual was elicited during the direct examination of the prosecution witness, the People were not obligated to make the [alleged Rosario describing the identification] available to the defendant." People v. Bryant, 209 A.D.2d 630, 630-31 (2d Dep't 1994); see People v. Defina, 256 A.D.2d 587 (2d Dep't 1998) (notes about anonymous person not Rosario because officer did not testify about person). Here, the same is true. Second, the same is true regarding notes about ADA Moran's efforts to reach out to defendant's counsel on the unrelated burglary. It is plain that any alleged Rosario material must temporally relate to the testimony. See People v. Melendez, 178 A.D.2d 366 (1st Dep't 1991) ("The police reports concerning a meeting a month prior to the charged conspiracy between the undercover and one 14 Normally, trial evidence is not admissible to argue matters related to pretrial hearings. People v. Gonzalez, 55 N.Y.2d 720, 721-22 (1981); see also People v. Giles, 73 N.Y.2d 666 (1989) (Appellate Division erred when it used prior trial testimony to grant defendant's suppression motion; this Court ordered a suppression hearing). However, this Court should be able to utilize the trial testimony to determine whether the court correctly denied the motion to reopen the pretrial hearing, the ultimate remedy that defendant sought. 59 of the codefendants did not constitute Rosario material since no testimony was elicited about that meeting on direct examination."). For example, in People v. Goldman, 175 A.D.2d 723, 725-26 (1st Dep't 1991), the defendant alleged a laundry list of documents that he claimed the People should have furnished: These included various names and addresses, a few cryptic remarks about other persons involved in the case who had once been considered as targets for investigation, notes on Martinez's research into defendant's prior indictment, notes of things the detective planned to do, notes of a conversation Martinez had with the officer who responded to the scene of the accident stating, "Memo book. Anyone accompanied to hosp. Excepted older person does not remember [how door was opened]." The second portion of these notes consisted of a proposed script which Martinez had drawn up for use by the witness defendant was charged with bribing in anticipation of a second conversation between the witness and defendant, which conversation never took place. Id. That court rejected any Rosario claim because the police witness testified only to technical aspects of recording conversations. Given these legal parameters, defendant's complaints fall flat. It is quite clear that Mr. Schwarz represented defendant on the burglary from the "Queen for a Day" proffer session in October 2007 until and after defendant's ultimate confession to the "surprised" and "shocked" detectives on April 19, 2008. The question whether Mr. Schwarz represented defendant as to the stabbing during any of that time was fully explored during the pretrial hearing. There is no doubt that 60 nothing in Detective Romano's notes about events that took place after the confession cast any light on Mr. Schwarz's representation during the time period prior to and including defendant's confession. Thus, it simply was not Rosario for the pretrial Huntley hearing. Even on appeal, defendant struggles to articulate how the alleged material "related to" the "subject matter" of Detective Romano's testimony. Defendant's brief merely mentions the post-confession notes regarding whether a new agreement should be reached (Defendant's Brief at 37-40), without tying it to the evidence that showed defendant to have breached the agreement by lying to the police about his (non) involvement at the "Queen for a Day" proffer session. Ultimately, whether defendant was represented by counsel at the April 19, 2008 confession could never be resolved by resort to testimony regarding Mr. Schwarz's status in May 2008, even if at that point Mr. Schwarz represented defendant (a question defense counsel never asked him at the suppression hearing). Thus, none of the material was Rosario, and the court properly ruled that the People were not obligated to furnish defendant with them prior to the suppression hearing. D. Even if Defendant is Correct, and The Failure to Furnish Pre-Interview Notes Amounted to a Rosario Violation, County Court Properly Exercised Its Discretion in Refusing to Sanction the People. The trial court properly declined to sanction the People even if defendant is correct that the failure to furnish the documents he claimed entitlement to was a 61 Rosario violation. Contrary to defendant's claim, a court is not required to sanction the People even where they fail to prevent a document from being destroyed or otherwise fail to furnish Rosario material to the defense: The Supreme Court providently exercised its discretion in declining to impose any sanction against the People for the loss of Rosario material. The defendant failed to carry his burden of showing a reasonable possibility that the police officer's destruction of a draft complaint report materially contributed to the defendant's conviction or caused him any prejudice. People v. Brown, 71 A.D.3d 1043 (2d Dep't 2010). That court was merely following this Court's dictates. People v. Williams, 7 N.Y.3d 15, 20 (2006) (ruling is within court's discretion); People v. Banch, 80 N.Y.2d 610, 616 (1992) (imposition of sanctions depends "upon the degree of prosecutorial fault and the resulting prejudice to the defendant."). As the Second Department noted in Brown, the determination of an appropriate sanction falls within the exercise of the court's sound discretion with attention given to the overriding need to eliminate prejudice to the defendant while protecting the interests of society. People v. Jenkins, 98 N.Y.2d 280, 284 (2002); People v. Kelly, 62 N.Y.2d 516 (1984). Thus, this Court cannot reverse unless it finds that County Court abused its discretion. This is not a semantic point. This Court has apparently never explained what, exactly, is meant by "abuse of discretion." But other courts have. To reverse, this Court must find more than that its determination would have been 62 different had it decided the motion ab initio. Rather, it must find that NO REASONABLE JURIST could have found as the court did when it denied any sanction. As one jurist noted, "[ d]iscretion, by definition, implies the power to decide a question either way, and it is not abused unless a right-minded individual could not have made the decision reached. It is no test of abuse that a reviewing Judge would have acted differently." People v. Forlano, 19 A.D.2d 365, 366-67 (1st Dept. 1963) (Steuer, J., dissenting); Melton v. Deere & Co., 887 F.2d 1241, 1245 (5th Cir. Miss. 1989) ("Indeed, the idea of discretion necessarily means that the court has room to decide the issue either way without committing error."); Pellegrin v. Pellegrin, 574 N.W.2d 644, 650 (S.D. 1998) ("Generally, discretion means 'no decision either way is dictated by the law.' HL.A. Hart, The Concept of Law 272 (2d ed 1994)."). As the South Dakota Supreme Court stated: Abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence. Id. The determination is not whether we would have made the same ruling, but whether a judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion. Godfrey v. Godfrey, 705 N.W.2d 77, 80 (S.D. 2005) (citations and internal quotation marks omitted). Another court noted the hurdle a party seeking an abuse-of-discretion ruling must overcome: "Discretion means that different results can both be reasonable. Thus, any appeal of a discretionary decision is unlikely to 63 succeed." Hall v. Sec'y of HHS, 2009 U.S. Claims LEXIS 467 (Fed. Cl. July 28, 2009) (citations omitted). Here, the court obviously and properly denied the drastic preclusion sanction defendant sought because he did not demonstrate that he was m any way prejudiced by the delayed disclosure, a requirement for relief. Even where there has been a complete failure to disclose Rosario material, preclusion of evidence is a severe sanction, a blunt instrument that should not be wielded unless potential prejudice from the failure of disclosure cannot otherwise be cured. Jenkins, 98 N.Y.2d at 284. See People v. Carracedo, 89 N.Y.2d 1059, 1062 (1997); People v. Vasquez, 88 N.Y.2d 561, 577 (1996); People v. Joseph, 86 N.Y.2d 565, 570-71 (1995) ("some showing of prejudice is essential"); People v. Jackson, 78 N.Y.2d 638, 647 (1991) ("Judges conducting CPL 440.10 hearings should not assume the existence of prejudice simply because the defendant has stated a Rosario claim."). As the trial court, exercising its discretion, appropriately found, "counsel had an opportunity to effectively cross examine [Detective Romano] at the original hearing" (RD&O. 4)." Further, defendant could demonstrate no real prejudice from their absence at the hearing. At best, defendant argues "an argument could have been advanced that [defendant] did not vitiate[] the agreement by lying at the proffer session[,] that [the victim's description of the perpetrator and the incident did not match [defendant's] appearance and description, [and] that the immunity 64 agreement was in effect and [defendant] was represented by counsel at the time of the confession" (Defendant's Brief at 30). But defendant did argue the first and last points extensively to the hearing court and even had the lawyer to examine regarding his representation of defendant during the relevant time period, between the "Queen for a Day" proffer session and the confession many months later. Further, as noted above, the identification was not an issue and defendant himself and the eyewitness both contradicted the victim's identification. As the court found, absent any prejudice, the trial court properly declined to issue any sanction against the People. E. Even if Defendant is Correct, and the Trial Court Should Have Sanctioned the People, Its Failure to do so was Harmless. Even if County Court should have sanctioned the People by reopening the Huntley hearing, its failure to do so was not reversible error. As noted above, the missing notes did not materially relate to defendant's defenses at the Huntley hearing. Further, the evidence was overwhelming that defendant truthfully confessed and that he was not represented, or if he was represented, that he and counsel waived the attorney-client privilege, so there is no possibility that the information, or the failure to sanction the People, contributed to the hearing court's finding or the guilty verdict. Any error here was completely harmless. Defendant has the burden to show "that there is a reasonable possibility that the non-disclosure materially contributed 65 to the result of the trial or other proceeding .... " C.P.L. §240.75; see People v. Miller, 18 N.Y.3d 704, 709 (2012) (acknowledging Legislature's directive to apply prejudice standard to Rosario violations). As the trial court correctly found, he cannot do so here (RD&O. 4-5). The evidence was overwhelming that defendant lied at the proffer and told the truth when he confessed; therefore the confession was properly admitted. Further, defense counsel had more than enough to cross- examine defendant at least as to whether Mr. Schwarz represented defendant during that period of time. These issues were therefore squarely presented to the hearing court, even absent the unfurnished notes. F. Even if Defendant is Correct, and the Trial Court Should Have Reopened the Hearing, the Proper Result is to Hold the Appeal in Abeyance and Direct the Hearing Court to Reopen the Hearing. Finally, even if County Court should have reopened the hearing, its failure to do so is not reversible error. The remedy for certain hearing -error, including failing to reopen a pretrial suppression hearing, is to hold the appeal "in abeyance" while instructing the hearing court to reopen the hearing for a report to the appellate courts. People v. John, 38 A.D.3d 568 (2d Dep't 2007). Therefore, this Court should affirm his conviction or, in the alternative, remit for a reopened hearing. 66 CONCLUSION For the reasons set forth above, defendant's conviction and sentence should be affirmed. ~~ ITAMARJ. YEGER Executive Assistant District Attorney Of Counsel January 10, 2014 Respectfully submitted, THOMAS P. ZUGIBE District Attorney Rockland County 67 ) STATEOFNEWYORK: COURT OF APPEALS J THE PEOPLE OF THE STATE OF NEW YORK, - against - RAUL JOHNSON, Defendant. COUNTY OF ROCKLAND ) ) ss: STATE OF NEW YORK ) AFFIDAVIT OF SERVICE Coleen A. Fortes, being duly sworn, says: I am an employee in the Office of the Rockland County District Attorney's Office. Deponent is not a party to the action, and is 18 years of age, or older. On the IOTH day of January 2014, I served three true copies of the Brief for Respondent, and three true copies of the Supplemental Appendix pursuant to 22 NYCRR 500.12 [ c] upon counsel for Defendant-Appellant, to the Office of the Public Defender, Rockland County, located at 11 New Hempstead Road, 3rd Floor, New City, New York, was served by mailing the paper to the counsel for defendant, at the address designated by him/her for that purpose, by placing said motion, properly sealed and addressed to counsel, in a location designated for all mail pickup and delivery in the Office of the Rockland County Public Defender, where an employee of the Rockland County Mailroom Department delivers all incoming mail and picks up all outgoing mail and deposits said mail and/or packages in a building, located in Pomona, New York, designated as the Rockland County Mailroom Department, and where said mail is properly stamped and postage prepaid thereon, and then said Mail is deposited by a Rockland County Employee into an official depository under the exclusive care and custody of the U.S. Postal Service within the State of New York pursuant to CPLR 2103(b )(2). Sworn to before me this 101h day 9.f January 10, 2014 t NOT~OMARA E LOPEZ Notary Public, State of New York No. 01L06141974 Quailfied in Rocklal]d foun'/l;u- Commission Expires .3... (/ .;.!.1- Coleen A. Fortes