The People, Appellant,v.Jermaine Dunbar, Respondent.

Brief

N.Y.September 18, 2014

To be argued by DONNA ALDEA (TIME REQUESTED: 25 MINUTES) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Appellant, against JERMAINE DUNBAR, Defendant-Respondent. W4444444444444444444444444444444444444444444444444444 REPLY BRIEF FOR APPELLANT W4444444444444444444444444444444444444444444444444444 RICHARD A. BROWN District Attorney Queens County Attorney for Appellant JOHN M. RYAN JAMES C. QUINN ROBERT J. MASTERS Assistant District Attorneys Of Counsel 125-01 Queens Boulevard Kew Gardens, New York 11415 (718) 286-6100 DONNA ALDEA, ESQ. COUNSEL FOR APPELLANT, PRO BONO BARKET, MARION, EPSTEIN & KEARON, LLP 666 OLD COUNTRY ROAD – SUITE 700 GARDEN CITY, NY 11530 (516) 745-1500 LYNN W.L. FAHEY, ESQ. ALLEGRA GLASHAUSSER, ESQ. LEILA HULL, ESQ. APPELLATE ADVOCATES 2 RECTOR STREET – 10 FLOORTH NEW YORK, NY 10006 (212) 693-0085 MARCH 11, 2014 Queens County Indictment Number 1217/09 TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. DEFENDANT IS WRONG IN CONTENDING THAT THE TOTALITY OF THE CIRCUMSTANCES AND DEFENDANT’S INDIVIDUAL BACKGROUND ARE IRRELEVANT IN ASSESSING THE “EFFECTIVENESS” OF THE MIRANDA WARNINGS IN THIS CASE AND “WHETHER DEFENDANT’S WAIVER WAS KNOWING, INTELLIGENT, AND VOLUNTARY”.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Because Miranda Warnings Were Fully Administered Prior to Any Interrogation, Miranda’s Per Se Rule is Not Implicated Here. . . . . . . . . . . . . . . . . . . . . . 3 2. The Cases Cited By Defendant Do Not Speak to the Issue of How to Determine the Validity of a Miranda Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 3. There is Ample Case law Establishing that the Totality of the Circumstances and Defendant’s Unique Background are Relevant to the Determination of Whether Miranda was Knowingly, Intelligently, and Voluntarily Waived. . . . . . . . . . . . . . . . . . . 11 4. Defendant’s Statement of the Law Runs Contrary to All Other Jurisprudence Relating to Waivers in General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 5. Defendant’s Articulation of the Standard is Unworkable.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 B. WHEN EVALUATED UNDER THE TOTALITY OF THE CIRCUMSTANCES OF THIS CASE, THE PRE-MIRANDA REMARKS DID NOT UNDERMINE THE EFFECTIVENESS OF THE MIRANDA WARNINGS OR THE KNOWING, INTELLIGENT, AND VOLUNTARY NATURE OF DEFENDANT’S MIRANDA WAIVER. . . . . . . . . . . . . . . . . . . . . 19 1. The Content of the Pre-Miranda Remarks did not Undermine the Validity of this Defendant’s Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 2. The Analysis is no Different as a Result of the Pre- Miranda Comments Being Standardized Rather than Ad Hoc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 3. Defendant’s Remaining General Complaints About the Central Booking Interview Program are not Properly Before this Court and Furnish No Basis for Suppression. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 ii TABLE OF AUTHORITIES Page No. Cases Ake v. Oklahoma, 470 U.S. 68 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Colorado v. Spring, 479 U.S. 564 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Dickerson v. United States, 530 U.S. 428 (2000). . . . . . . . . . . . . . . . . . . . . . 9 Duckworth v. Eagan, 492 U.S. 195 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Fare v. Michael C., 442 U.S. 707 (1979). . . . . . . . . . . . . . . . . . . . 11, 29, 30 Florida v. Powell, 559 U.S. 50 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 In re Cy R., 43 A.D.3d 267 (1 Dept. 2007). . . . . . . . . . . . . . . . . . . . . . . . . 30st In re Phillip “J”, 256 A.D.2d 654 (3d Dept. 1998) .. . . . . . . . . . . . . . . 12, 25 Johnson v. Zerbst, 304 U.S. 458 (1938) .. . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Matter of Miguel R., 99 A.D.3d 419 (1 Dept. 2012) . . . . . . . . . . . . . . . . . 12st Miranda v. Arizona, 384 U.S. 436 (1966) . . . . . . . . . . . . . . . . . . . . . . passim Missouri v. Seibert, 542 U.S. 600 (2004) .. . . . . . . . . . . . . . . . . . . . . . passim Moran v. Burbine, 475 U.S. 412 (1986). . . . . . . . . . . . . . . . . . . . . . . . . 11, 31 New York v. Quarles, 467 U.S. 649 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . 32 People ex rel. Maxian v. Brown, 77 N.Y.2d 422 (1991). . . . . . . . . . . . 33-34 People v. Anderson, 42 N.Y.2d 35 (1977). . . . . . . . . . . . . . . . . . . . . . . 29, 30 People v. Aveni, 100 A.D.3d 228 (2d Dept. 2012) . . . . . . . . . . . . . . . . . . . 12 People v. Aveni, 2014 N.Y. Slip Op. 1209 (Feb. 20, 2014). . . . . . . . . . 28n.5 People v. Bethea, 67 N.Y.2d 364 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 32 iii People v. Bolarinwa, 258 A.D.2d 827 (3d Dept. 1999) .. . . . . . . . . . . . . . . 12 People v. Brown, 14 N.Y.3d 113 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 People v. Chapple, 38 N.Y.2d 112 (1975) . . . . . . . . . . . . . . . . . . . . . . . . 3, 32 People v. Coleman, 43 N.Y.2d 222 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . 15 People v. Crampe, 17 N.Y.3d 469 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v. Fiumefreddo, 82 N.Y.2d 536 (1993) . . . . . . . . . . . . . . . . . . . . . . 15 People v. Howard, 256 A.D.2d 1170 (4 Dept. 1998) .. . . . . . . . . . . . . . . . 12th People v. Hutchinson, 59 N.Y.2d 923 (1983). . . . . . . . . . . . . . . . . . . . . . . . . 3 People v. Keene, 148 A.D.2d 977 (4 Dept. 1989) . . . . . . . . . . . . . . . . . . . 30th People v. Paulman, 5 N.Y.3d 122 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 People v. Providence, 2 N.Y.3d 579 (2004). . . . . . . . . . . . . . . . . . . . . . . . . 14 People v. Ramos, 99 N.Y.2d 27 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 People v. Seaberg, 74 N.Y.2d 1 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 People v. Soto, 253 A.D.2d 359 (1 Dept. 1998) . . . . . . . . . . . . . . . . . . . . . 13st People v. Spotford, 85 N.Y.2d 593 (1995) .. . . . . . . . . . . . . . . . . . . . . . . . . 15 People v. Stuckey, 175 Cal. App. 4 898 (Cal. App. 3d Dist. 2009). . . . . . 35th People v. Thomas, 2014 N.Y. Slip Op 1208 (Feb. 20, 2014). . . . . . . . . 28n.5 People v. Vasquez, 90 N.Y.2d 972 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . 29 People v. Vivenzio, 62 N.Y.2d 775 (1984) .. . . . . . . . . . . . . . . . . . . . . . . . . 14 People v. Williams, 62 N.Y.2d 285 (1984). . . . . . . . . . . . . . . . . . . 11, 29, 30 Rhode Island v. Innis, 446 U.S. 291 (1980) . . . . . . . . . . . . . . . . . . . . . . . 4n.1 Ross v. Moffitt, 417 U.S. 600 (1974) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 iv Stansbury v. California, 511 U.S. 318 (1994) . . . . . . . . . . . . . . . . . . . . . . . 31 United States v. Leon, 468 U.S. 897 (1984). . . . . . . . . . . . . . . . . . . . . . . . . 31 Von Moltke v. Gillies, 332 U.S. 708 (1948). . . . . . . . . . . . . . . . . . . . . . . . . 25 Whren v. United States, 517 U.S. 806 (1996) . . . . . . . . . . . . . . . . . . . . . . . 32 Statutes CPL §140.20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 v COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Appellant, : - against - : : JERMAINE DUNBAR, : Defendant-Respondent. ---------------------------------------------------------------------x REPLY BRIEF FOR APPELLANT PRELIMINARY STATEMENT This reply brief is submitted in response to defendant’s brief. The facts, procedural history of the case, and primary legal arguments discussed in the People’s main brief will not be repeated here, except as necessary to respond to defendant’s specific contentions. ARGUMENT A. DEFENDANT IS WRONG IN CONTENDING THAT THE TOTALITY OF THE CIRCUMSTANCES AND DEFENDANT’S INDIVIDUAL BACKGROUND ARE IRRELEVANT IN ASSESSING THE “EFFECTIVENESS” OF THE MIRANDA WARNINGS IN THIS CASE AND “WHETHER DEFENDANT’S WAIVER WAS KNOWING, INTELLIGENT, AND VOLUNTARY.” The People and defendant agree that the due process question of whether defendant’s statement was voluntarily made, which was not reached by the Appellate Division, is not at issue here (Defendant’s Brief at 34, 36); for defendant was not physically deprived and his will was not overborne. The People and defendant also agree that the Appellate Division did, in fact, apply a per se rule to suppress the videotaped statement in this case, refusing to consider the totality of the circumstances in determining whether defendant’s Miranda waiver was knowing, intelligent, and voluntary (Defendant’s Brief at 15, 28). According to defendant, the Appellate Division was correct in doing so because “the ‘totality’ issue arises only once the prosecution has demonstrated that clear and effective Miranda warnings were provided and that the defendant’s waiver was knowing, intelligent, and voluntary” (Defendant’s Brief at 19) (emphasis added). Defendant, thus, contends that if the prosecution does not first meet both of these two threshold conditions, “the burden never shifts to the defendant, and the court has no occasion to apply the totality-of-the-circumstances test.” Id. And, according to defendant, “any personal knowledge or experience of the defendant is irrelevant” in answering both of these threshold questions. Id. Defendant’s analysis is fundamentally wrong because it conflates two separate – and very different – questions: (1) whether Miranda warnings were provided prior to custodial interrogation, and (2) if so, whether defendant’s waiver was knowing, intelligent, and voluntary. While the answer to the first question does not depend on the personal knowledge or experience of the defendant, for Miranda did create a per se, bright-line rule in this regard, the answer to the second question does require evaluation of the totality of the 2 circumstances. And because, in this case, the second question is the only one that is implicated, the Appellate Division’s failure to engage in a totality-of-the circumstances analysis is reversible error. 1. Because Miranda Warnings Were Fully Administered Prior to Any Interrogation, Miranda’s Per Se Rule is Not Implicated Here. As discussed in the People’s main brief, there is no question that Miranda warnings must be given before custodial interrogation; and a statement obtained in the absence of Miranda warnings or as a result of pre- Miranda interrogation must be suppressed, without regard to the individual circumstances of the suspect. Miranda v. Arizona, 384 U.S. 436, 444, 446 (1966) (“The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given”); People v. Hutchinson, 59 N.Y.2d 923 (1983); see also Missouri v. Seibert, 542 U.S. 600, 611 (2004) (Miranda warnings cannot be adequate where suspect is interrogated and confesses before warnings are given; and subsequent advisement of Miranda rights and re-elicitation of statement does not cure the defect); People v. Chapple, 38 N.Y.2d 112, 115 (1975) (Miranda warnings given in the midst of continuous interrogation are insufficient to protect the defendant’s rights); People v. Bethea, 67 N.Y.2d 364 (1986) (same); People v. Paulman, 5 N.Y.3d 122, 130 (2005) (same). 3 Here, Miranda warnings were fully and correctly administered to defendant before any interrogation began, and he made no statements whatsoever prior to receiving the Miranda warnings. Accordingly, this is not1 a case that implicates Miranda’s most fundamental guarantee, and it cannot be resolved under Miranda’s bright-line, per se, rule. Nevertheless, defendant, like the Appellate Division before him, hones in on Miranda’s requirement that defendant be “‘adequately and effectively’ advised of the choice the Constitution guarantees” (Missouri v. Seibert, 542 U.S. at 609, quoting Miranda v. Arizona, 384 U.S. at 467), and argues that, pursuant to the Supreme Court’s precedent, the determination of whether the warnings are “effective” does not depend on the individual background of the suspect or the surrounding circumstances of each case. The problem with defendant’s, and the Appellate Division’s, analysis is that it plucks the word “effective” out of the context in which it was used in Seibert and Miranda, and misapplies it – in an unprecedented and wholly unsupported manner – to a different facet of the Miranda inquiry. In this regard, there is no doubt that the pre-Miranda remarks read to defendant in1 Central Booking do not, themselves, constitute interrogation or its functional equivalent as they ask no questions, invite no response, and focus the suspect only on exculpatory information, such as alibis or mitigating information. See Rhode Island v. Innis, 446 U.S. 291 (1980) (explaining that Miranda safeguards “come into play whenever a person is subjected to either interrogation or its functional equivalent” and defining “interrogation” as “words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect”). Indeed, the Appellate Division correctly refused to adopt defendant’s argument on this point, and defendant has now abandoned that argument on this appeal. 4 In Miranda, the Court did not specify the particular words that law enforcement should use, holding only that, at minimum, they must “adequately and effectively” apprise a suspect, prior to custodial interrogation, (1) of his right to remain silent, (2) that anything he says may be used against him, (3) that he has the right to the presence of an attorney, and (4) that an attorney will be provided if he cannot afford one. Miranda, 384 U.S. at 467-73. In Miranda’s wake, different iterations of the warnings have been used, providing courts with the opportunity to determine whether the language used sufficed to apprise the suspect of each of the four basic Miranda advisements. See Florida v. Powell, 559 U.S. 50, 60 (2010); Duckworth v. Eagan, 492 U.S. 195, 203 (1989). The question of whether warnings are “effective” in such cases depends only on a determination of whether, whatever iteration was used, the suspect was actually told, or clearly led to understand, each of the four things that Miranda fundamentally requires prior to any interrogation. The suspect’s prior knowledge and understanding of Miranda, his experience with the criminal justice system, and any other surrounding circumstances are irrelevant to this threshold determination, because – whether the suspect is a seasoned legal scholar or an uneducated and naive first-time arrestee – an interrogation conducted in the absence of Miranda warnings must be automatically suppressed. But these cases’ requirement of “effective” conveyance of the four basic Miranda rights is not implicated where, as here, there is no question 5 that defendant was actually read, in clear and unequivocal terms, each of the four basic Miranda rights, with nothing omitted at all, before he was questioned. The issue of whether some circumstance – outside of the warnings themselves – impacted defendant’s understanding of his rights, or coerced him to make a waiver, does not relate to Miranda’s basic, fundamental, bright-line, per se rule that each of the warnings be fully provided. Instead, that question, which by necessity requires reference to a circumstance that is outside of the Miranda warnings themselves, relates to the separate question of whether, under the circumstances, the Miranda waiver is knowing, intelligent, and voluntary. And, as discussed below (see infra subpoint A3), that separate determination does require reference to the totality of the circumstances. Nor did the Supreme Court change this analysis in Missouri v. Seibert, 542 U.S. at 600. In Seibert, the Court addressed a very extreme continuous-interrogation case, where pursuant to department policy, suspects were extensively questioned without being apprised of their Miranda rights, and, after making a full confession, were Mirandized and asked to repeat their confessions. In holding that both the pre-Miranda and post-Miranda statements would have to be suppressed, the Court reasoned that the Miranda warnings could not be deemed to have functioned “effectively” in such situation, because “effectiveness” requires that a suspect be given “a real choice between talking and remaining silent.” Id. at 609. In a case where the interrogation is continuous, and a full confession has been obtained prior to 6 Miranda warnings being read, the warnings are stripped of their effectiveness because the suspect has necessarily already been deprived of that choice. As a result, such a suspect’s statement is taken as a whole, not viewed as two separate pre- and post-Miranda statements, and it is all deemed the product of a single, completely un-Mirandized, interrogation. Thus, the individual background of the suspect is irrelevant to the inquiry because, again, Miranda’s fundamental guarantee of warnings before custodial interrogation has been violated: in continuous interrogation cases, the warnings – while containing the proper language – come after the interrogation. But just as the case at bar does not involve a situation where the warnings were not fully read, it also does not involve a situation where the warnings were not timely administered, for here, both the warnings and the waiver preceded the interrogation and any statement by defendant. Thus, neither part of Miranda’s fundamental guarantee is implicated: the suspect was fully apprised of all four Miranda warnings prior to any custodial interrogation, and, thus, the warnings were constitutionally “effective” to satisfy Miranda’s threshold, bright-line requirement, as that term was used in Miranda, and reiterated in Seibert. The Appellate Division and defendant, while similarly incorporating the word “effective” into their analysis, misapply that word to a different part of the inquiry, to analyze the impact of circumstances outside of the Miranda warning itself on the validity of defendant’s waiver. In other 7 words, the Appellate Division’s concern that the pre-Miranda remarks impacted the “effectiveness” of the Miranda warnings is just another way of saying that, although the Miranda warnings themselves were fully and clearly articulated, and given prior to custodial interrogation, the suspect’s understanding of them (ie., his “knowledge” of their import) or his decision to waive them (ie., the “voluntariness” of his choice) was diminished by these additional comments. However, this is an issue that must be explored under the second question pertinent to a Miranda determination: whether the waiver was knowing, intelligent, and voluntary. It does not relate to the first question of whether the constitutional minimum was satisfied by providing complete Miranda warnings prior to interrogation. Thus, the threshold Miranda requirement was absolutely and unequivocally satisfied here – notwithstanding any impact of the pre-Miranda remarks. Indeed, those remarks, distinct and separate from the Miranda warnings, and explicitly noted as such by the interviewers (see DVD at 12:04: “in a few moments, I will read you your rights”, DVD at 12:05: I’m going to read you your rights now, and then you can decide if you want to speak to us”), are, themselves, part of the “totality of the circumstances” surrounding the warnings and waiver, which are, as defendant posits and the People agree, not relevant to the threshold question of whether Miranda warnings were fully and correctly provided. 8 And contrary to defendant’s accusation, the People do not claim that this is the end of the inquiry, or offer this Court a “brazen invitation to simply ignore the pre-Miranda script” (Defendant’s Brief at 38). Rather, the People agree with defendant that the interrogators’ pre-Miranda remarks must be considered in answering what defendant deems the second threshold Miranda question: whether defendant’s Miranda waiver was knowing, intelligent, and voluntary. Defendant claims that a case-by-case, totality-of-the- circumstances analysis is not necessary or appropriate in the determination of this second threshold question either; that the answer to this question must also be made based on a hypothetical “reasonable defendant”, and without regard to the personal knowledge or experience of the defendant standing before the Court. This is where defendant is flatly wrong. 2. The Cases Cited By Defendant Do Not Speak to the Issue of How to Determine the Validity of a Miranda Waiver Preliminarily, none of the cases that defendant cites for the proposition that the totality of the circumstances is irrelevant to the determination of whether a Miranda waiver is knowing, intelligent, and voluntary establishes the rule that defendant would forge. In Dickerson v. United States, 530 U.S. 428 (2000), the Supreme Court struck down a statute that attempted to legislatively overrule Miranda by providing that the admissibility of statements made during custodial interrogation “should turn only on whether or not they were voluntarily made,” without regard for 9 whether the Miranda warnings were first administered. Dickerson, thus, holds only that if the four Miranda warnings are not given, a resulting statement must be automatically suppressed, and that Congress cannot enact a law that eliminates this requirement. It clarifies that the question of whether Miranda warnings were given is a Fifth Amendment question, separate and apart from the due process inquiry regarding the voluntariness of the statement. But Dickerson has nothing to do with determining the validity of a Miranda waiver, and does not hold that words uttered prior to Miranda warnings can be deemed to completely and automatically erase those warnings as though they were never uttered. Similarly, Missouri v. Seibert, 542 U.S. 600 (2004), where the Supreme Court held that warnings cannot be effective if they are preceded by unwarned interrogation and a full confession, does not speak to the question of how to assess the voluntariness of a Miranda waiver, like this one, that precedes interrogation. Thus, while defendant states – as law – the proposition that the question of whether a Miranda waiver is knowing, intelligent, and voluntary does not permit reference to the totality of the circumstances or the individual circumstances of the suspect (Defendant’s Brief at 19, 35), none of the cases he cites establishes that principle. Indeed, outside of the Appellate Division’s decision here, no case has ever so held, and every case to have addressed the issue has held to the contrary. 10 3. There is Ample Case law Establishing that the Totality of the Circumstances and Defendant’s Unique Background are Relevant to the Determination of Whether Miranda was Knowingly, Intelligently, and Voluntarily Waived While the cases cited by defendant do not address the issue of how to assess the validity of a Miranda waiver, there is ample case law that does. And that case law directly and conclusively establishes – contrary to defendant’s contentions – that the question of whether Miranda was knowingly, intelligently, and voluntarily waived must be determined based on the totality of the circumstances surrounding the purported waiver. See Fare v. Michael C., 442 U.S. 707 (1979) (courts must look to the “totality of the circumstances surrounding the interrogation to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have counsel”); People v. Williams, 62 N.Y.2d 285, 288 (1984), citing Johnson v. Zerbst, 304 U.S. 458 (1938) (“To be valid, an accused’s waiver of his or her rights must be knowingly and intelligently made.... deficient intelligence is but one factor in the whole ‘totality of the circumstances’ to be considered” in determining voluntariness and admissibility, as well as in “determination of an accused’s understanding of Miranda warnings or voluntary waiver of Miranda rights”); see also Colorado v. Spring, 479 U.S. 564 (1987); Moran v. Burbine, 475 U.S. 412 (1986). And this inquiry is, as this Court has directly recognized, “essentially a factual issue that must be determined according to the circumstances of each case.” People v. Williams, 62 N.Y.2d at 288. 11 Additionally, beyond the precedent of this Court or the Supreme Court, the Appellate Divisions of this State have uniformly held in thousands of cases – directly contrary to defendant’s contentions and the Appellate Division’s strange and unprecedented approach in this case – that the question of whether a suspect’s waiver is “knowing, intelligent, and voluntary”, though distinct from the question of whether the statement itself is voluntary under due process, must similarly be based on an evaluation of the totality of the circumstances of each individual case with reference to the unique background of each defendant. See, e.g., People v. Aveni, 100 A.D.3d 228, 237 (2d Dept. 2012) (“Determining whether an individual has voluntarily, knowingly, and intelligently waived his or her rights is a factual inquiry that is based on the totality of the circumstances”); Matter of Miguel R., 99 A.D.3d 419, 420 (1st Dept. 2012) (Abdus-Salam, J. on panel) (“The totality of the circumstances establishes that appellant knowingly, intelligently, and voluntarily waived his Miranda rights in the presence of his mother”); People v. Bolarinwa, 258 A.D.2d 827, 829 (3d Dept. 1999) (Graffeo, J.) (looking to “totality of the surrounding circumstances and according considerable deference to County Court’s findings” to hold that defendant’s Miranda waiver was “knowing, intelligent, and voluntary” as defendant “was able to understand her rights and appreciate the nature and consequences of her actions”); People v. Howard, 256 A.D.2d 1170 (4 Dept. 1998) (Pigott, J. on panel) (“Although defendantth was in pain, he was alert, conscious and coherent. Miranda warnings were 12 administered, and defendant indicated that he understood his rights and was willing to speak to the investigators. The court properly determined, based on the totality of the circumstances, that the waiver was knowing, intelligent and voluntary”); In re Phillip “J”, 256 A.D.2d 654, 655-56 (3d Dept. 1998) (Graffeo, J. on panel) (internal quotations omitted) (“relevant factors [to the determination of whether defendant made a knowing and intelligent waiver of his Miranda rights] include respondent’s age, prior criminal experience, evidence of coercion by the police prior to obtaining the waiver, and whether the Miranda warnings were fully, clearly and adequately administered to the youth.”); People v. Soto, 253 A.D.2d 359 (1 Dept. 1998) (“although the policest informed [defendant prior to Miranda] that the body had been found and showed him photographs of the crime scene, defendant did not make any statements until after he waived his Miranda rights. The hearing evidence, viewed in totality, establishes that defendant’s waiver of his Miranda rights and his subsequent statements were knowingly intelligently and voluntarily made and were not the product of coercion.”) In view of this mountain of case law -- consistently applying a totality-of-the-circumstances test and looking to the defendant’s unique pedigree to determine not only the due process question of whether defendant’s statement was voluntary, but also the threshold question of whether the Miranda waiver was knowing, intelligent, and voluntary – defendant’s assertion that, “[a]fter Miranda, the totality of the circumstances test only 13 applies to questions concerning the voluntariness of a properly Mirandized statement, not whether Miranda was effectively conveyed and knowingly, intelligently, and voluntarily waived in the first place” (Defendant’s Brief at 35, see also id. at 19), is flatly wrong. 4. Defendant’s Statement of the Law Runs Contrary to All Other Jurisprudence Relating to Waivers in General In addition to being wholly unsupported, and affirmatively contradicted by available Miranda jurisprudence, defendant’s contention – that the question of whether a Miranda waiver is knowing, intelligent, and voluntary should not be evaluated by reference to the totality of the circumstances or to the individual defendant’s background – would run contrary to volumes upon volumes of this Court’s jurisprudence establishing the means and methods of determining the validity of waivers in general. See, e.g., People v. Crampe, 17 N.Y.3d 469 (2011) (“before proceeding pro se a defendant must make a knowing, voluntary and intelligent waiver of the right to counsel.... To ascertain whether a waiver is knowing voluntary and intelligent, a court must undertake a ‘searching inquiry’... [which] encompasses consideration of a defendant’s pedigree, since such factors as age, level of education, occupation and previous exposure to the legal system may bear on a waiver’s validity”); People v. Providence, 2 N.Y.3d 579, 580-81, 583 (2004), citing People v. Vivenzio, 62 N.Y.2d 775 (1984) (“when deciding whether a defendant actually understood the dangers of self -representation,” so as to be able to knowingly, intelligently, and voluntarily waive his right to counsel, “a 14 reviewing court may look to the whole record, not simply to the questions asked and answers given during a waiver colloquy,” and a determination that “defendant was an adult who had been involved in the criminal justice system before” was relevant to the inquiry); People v. Coleman, 43 N.Y.2d 222, 227 (1977) (“whether the defendant validly waived his right to counsel [at a lineup] is a question which must be resolved in light of the totality of the circumstances surrounding the alleged waiver”); People v. Spotford, 85 N.Y.2d 593, 598 (1995) (looking to the “totality of the record” to determine whether “defendant knowingly, voluntarily, and intelligently waived his presence at the Ventimiglia hearing”); People v. Brown, 14 N.Y.3d 113, 118 (2010) (“so long as the totality of the circumstances reveals that the plea [and the concomitant waiver of a trial] is voluntarily, knowingly, and intelligently made, it will be upheld”); People v. Fiumefreddo, 82 N.Y.2d 536, 543 (1993) (internal quotations omitted) (assessment of whether a plea, and concomitant waiver of constitutional privilege against self incrimination and rights to a jury trial and to be confronted by witnesses, is voluntary, knowing, and intelligent, should be left “to the trial court’s sound discretion exercised in cases on an individual basis”); People v. Seaberg, 74 N.Y.2d 1, 11 (1989) (“a waiver [of the right to appeal], to be enforceable, must not only be voluntary but also knowing and intelligent. The trial court determines that it meets those requirements by considering all the relevant facts and circumstances surrounding the waiver, 15 including the nature and terms of the agreement and the age, experience and background of the accused.”) In other words, contrary to defendant’s reasoning, a Miranda waiver is just another type of waiver, governed by the same rules and principles applicable to waivers in general. It will be valid if made knowingly, intelligently, and voluntarily, and that determination must be made by reference to all of the surrounding circumstances – including any pre-waiver remarks, but also including the defendant’s individual background, motivations, and experience with the criminal justice system. 5. Defendant’s Articulation of the Standard is Unworkable Finally, defendant’s statement of the law on this point is completely unworkable. Defendant claims that unless and until the prosecution can show both that clear and effective Miranda warnings were administered AND that the defendant’s waiver was knowing, intelligent, and voluntary, “the burden never shifts to defendant, and the court has no occasion to apply the totality of the circumstances test.” (Defendant’s Brief at 19). Defendant thus exempts from this inquiry any consideration of the “personal knowledge or experience of defendant,” which he deems “irrelevant at this stage” (Defendant’s Brief at 19), and also exempts from the inquiry any consideration of the language of the Miranda warnings themselves, or the fact that defendant unequivocally stated that he understood each warning and wanted to make a statement (Id.). Indeed, defendant accuses the People of engaging in “sleight 16 of hand” by arguing that “the impact of the pre-Miranda remarks must be viewed through the prism of clear, forceful, and unequivocal Miranda warnings that follow[ed],” and the unique circumstances of each case, claiming that “after Miranda, the totality-of-the-circumstances test only applies to questions concerning the voluntariness of a properly Mirandized statement, not whether Miranda was effectively conveyed and knowingly, intelligently, and voluntarily waived in the first place” (Defendant’s brief at 35). But what defendant does not explain is how can the determination of whether Miranda was “effectively conveyed” be made, if not by reference – at least in part – to the language employed to convey the discrete warnings themselves and the suspect’s indication that he understood each of them? How can the determination of whether a suspect’s waiver is knowing and intelligent be made, if not – at least in part – by reference to the suspect’s age, education, experience with the criminal justice system, and motivation for the waiver? How can the determination of whether a waiver is voluntary be made, if not – at least in part – by reference to the suspect’s physical and mental condition at the time of the waiver? While defendant repeatedly accuses the People of “brazen[ly]” inviting this Court “to simply ignore the pre-Miranda script” (Defendant’s Brief at 38, see also 2, 5), the People do no such thing – we agree, and have repeatedly acknowledged, that the pre-Miranda remarks must be considered in determining whether defendant’s Miranda waiver was knowing, intelligent, 17 and voluntary (Appellant’s Brief at 18, 23-24, 28, 38, 39, 41). Rather, it is the defendant who argues that the language of the pre-Miranda remarks are the only thing that this Court should consider, and that all other circumstances surrounding the waiver – including defendant’s physical and mental condition, pedigree, experience with the criminal justice system, unequivocal expression of his understanding of each Miranda warning and his desire to speak, and even the language of the Miranda warnings themselves – should be ignored. This is an incorrect and unprecedented statement of the law, and a wholly unfair and unworkable rule. * * * In sum, the People do not seek, as defendant accuses, “to revive the old totality-of-the circumstances test, gloss over the misleading language of their pre-Miranda script, and ignore federal and state case law related to the effective conveyance of Miranda” (Defendant’s Brief at 34). Rather, the People seek to have this case evaluated under the still-valid totality-of-the- circumstances standard, with all of the circumstances factored into the analysis along with the language of the pre-Miranda remarks, and in accordance with all of the federal and state case law that governs the effectiveness of Miranda warnings and the validity of a Miranda waiver. The Appellate Division erred in couching its decision as a per se Miranda violation based on “ineffective” warnings, when, in fact, its analysis necessarily depended on looking to circumstances outside of the warnings themselves, and where Miranda’s 18 fundamental guarantees were not implicated as there was no doubt that Miranda warnings were fully provided prior to the commencement of any custodial interrogation. By the same token, the court erred in adamantly refusing to look to the totality of the circumstances and the unique pedigree and experience of the individual defendant before it in determining whether his Miranda waiver was knowing, intelligent, and voluntary. And defendant’s analysis attempting to defend the Appellate Division’s decision only serves to underscore the error. The Appellate Division’s decision should be reversed. B. WHEN EVALUATED UNDER THE TOTALITY OF THE CIRCUMSTANCES OF THIS CASE, THE PRE-MIRANDA REMARKS DID NOT UNDERMINE THE EFFECTIVENESS OF THE MIRANDA WARNINGS OR THE KNOWING, INTELLIGENT, AND VOLUNTARY NATURE OF DEFENDANT’S MIRANDA WAIVER In his brief, defendant argues that the deception in the pre- Miranda remarks was “substantial”, and undermined defendant’s understanding of his Miranda rights and his ability to make a knowing, intelligent, and voluntary waiver by literally contradicting each of Miranda’s admonitions (Defendant’s Brief at 28-31). Indeed, according to defendant, the pre-Miranda remarks were the “anti-Miranda”, rendered particularly insidious because they were part of a program, systematically applied in thousands of cases, crafted to “creativ[ly] ... circumvent Miranda”, designed to delay arraignment and prevent attachment of the right to counsel, and targeting indigent defendants (Defendant’s Brief at 17, 32). Defendant’s arguments 19 about the impact of the pre-Miranda remarks, properly viewed under the totality of the circumstances of this case, do not undermine the validity of his waiver. And defendant’s remaining arguments, relating to the subjective intentions and systemic impact of the Central Booking Interview Program in general, are legally and factually inaccurate, and, in any event, irrelevant to the issues before this Court. 1. The Content of the Pre-Miranda Remarks did not Undermine the Validity of this Defendant’s Waiver As discussed in the People’s main brief, the record in this case showed that Jermaine Dunbar was a persistent violent felony offender, 35- years old at the time of this crime, with a history of prior robbery convictions. Based on his background, he was intimately familiar with the role of a District Attorney in a criminal prosecution, and the fact that he would have opportunities after arraignment to speak to his attorney, tell his story, and have his case investigated by his own lawyer. He spoke and understood English perfectly, and, at the time of his interview, he was lucid and coherent, having had food, water, and sleep during his less-than-24 hour detention in Central Booking. As shown on the videotape, he listened attentively during the Miranda warnings, and unequivocally indicated that he understood each one, and was willing to speak to investigators. He had not been subjected to any period of lengthy interrogation – nor, indeed, any interrogation at all about this incident – prior to his 11-minute interview in Central Booking. 20 Moreover, at the time that he chose to waive his Miranda rights and speak to investigators in Central Booking, he already knew that he had been identified by the victim in a show-up conducted less than five minutes after the crime, and that both the imitation gun he had wielded, and the distinctive blue, striped shirt and Yankee hat that he had worn during the robbery, had all been recovered from the floor of the seat in front of him in the getaway car. He also knew that the getaway driver, with whom he had planned the robbery, had been arrested by police. Under these circumstances, and based on his extensive past experiences with the criminal justice system, defendant knew, as he candidly admitted in Central Booking, that he “couldn’t say it wasn’t [him]” – the evidence against him was overwhelming. Instead, he believed that his last, best hope was to try to work out a cooperation agreement, where the DA would offer him some leniency in exchange for his testimony against others. And that is precisely what he kept trying to negotiate throughout his interview (see DVD at 05:37-06:25; 08:45; 09:56, A-457). Viewed through this prism, as it must be, but as the Appellate Division and defendant simply refuse to do, there is nothing in the pre- Miranda remarks that undermined defendant’s understanding of his rights, or the knowing, intelligent, and voluntary nature of his waiver. Nevertheless, defendant complains that “the instructions to ‘give as much information as you can,’ that ‘this is your opportunity to tell us your story,’ and that you ‘have to’ ‘tell us now,’” directly undermined defendant’s 21 understanding of his right to remain silent (Defendant’s Brief at 29, 39). But defendant’s argument on this point is premised on his act of taking these words not only out of the greater context of the totality of the circumstances , but also out of the specific context of the sentences in which they were uttered. Contrary to defendant’s contentions, he was not given blanket “instructions” to “give as much information as you can” – he was told, “If you have an alibi, give me as much information as you can, including the names of any people you were with.” (see transcription in Appellant’s Brief at 10, DVD at 12:04:33- 12:05:03, A457). Since defendant did not, in fact, provide any alibi – to the contrary, he indicated that he did not have one and could not say that it wasn’t him – this pre-Miranda statement clearly had no impact whatsoever on his decision to waive his right to remain silent. Similarly, while defendant now selectively quotes and structures the pre-Miranda remarks as informing defendant that if he wanted an opportunity to tell “your story”, “‘you have to’ ‘tell us now,’” in fact, that is not what defendant was told. Indeed, the cited language does not pertain to defendant’s “story” at all, but to an investigation: “If there is something you need us to investigate about this case, you have to tell us now so we can look into it.” (see transcription in Appellant’s Brief at 10, DVD at 12:04:33- 12:05:03, A457). Not only is the mandatory language tempered by the use of the permissive word “if”at the beginning of this sentence, which properly highlights that defendant has a choice about whether to decide to speak, but, 22 again, defendant did not ask the interviewers to investigate anything at all “about this case,” thus, this language could not have impacted defendant’s waiver. 2 Likewise, defendant was not simply informed that he was being given an “opportunity to tell us your story”; rather, after being informed of the charges he was facing, and the date, time, and place where the incident was alleged to have occurred, he was told “If your version of what happened is different from what we’ve been told, this is your opportunity to tell us your story” (see transcription in Appellant’s Brief at 10, DVD at 12:04:33-12:05:03, A457). But, again, defendant did not seek to avail himself of any opportunity to correct specifics bearing on the accuracy of the charges, or the date, time, and place of the alleged offense. Thus, this, too, could not have impacted his decision to speak. And, more saliently, the characterization of the interview as an “opportunity” to speak to investigators operates only to highlight to the Defendant argues that he did ultimately “request[ ]an investigation into things ‘outside2 of this,’ obviously believing that this was what he had been offered, only to be told that they would do no such thing” ( Defendant’s Brief at 40, citing DVD 12:11). But defendant clearly was NOT offered an investigation into “things outside of this” and, absent any testimony from him at the suppression hearing that he believed something other than what he was told, such conclusion is patently improper and completely unsupported – indeed, contradicted – by the record. Moreover, to the extent that the pre-Miranda remarks can be deemed to impact an individual suspect’s decision to speak to investigators for the purpose of asking for an investigation, there would be no reason for such suspect to say anything else to the interrogators or make any statements other than a request for investigation. Having been explicitly apprised of the right to remain silent, to request an attorney, and to refuse to answer questions, even a suspect that desperately wants to provide an alibi or obtain an investigation is well equipped to make his demands and refuse to answer any other questions. 23 defendant that speaking to the investigators is NOT a mandatory or compelled course of action; but, rather, a voluntary choice that is within his personal control. There is nothing at all in this statement, or the other remarks, that runs contrary to the subsequently delivered Miranda warnings that “you have the right to remain silent and refuse to answer questions” and that “if you do not have an attorney available, you have the right to remain silent until you have had an opportunity to consult with one” (see transcription in Appellant’s Brief at 11-12, DVD at 12:05:03-12:05:50, A457). To the contrary, advising a defendant that he is going to be given an opportunity to speak, if he so chooses, and that he can decide if he wants to avail himself of that opportunity only after hearing and acknowledging his rights, is completely proper and fully consonant with the Miranda warnings advising him that he also has the right to refuse to speak. See also Missouri v. Seibert, 542 U.S. at 609 (explaining that Miranda requires that the suspect be given “a real choice between talking and remaining silent”). While defense counsel may prefer that interrogators only advise clients that they do not have to speak to investigators, there is nothing wrong with also informing them that they can choose to speak to investigators, and suggesting possible topics of discussion; indeed, the waiver decision is best made when a defendant is apprised of, and can consider, all available options, choices, and opportunities. Indeed, in the context of juvenile defendants, who are even more susceptible to the coercive impact of custodial interrogation and 24 to whom special care must be taken, courts have held that “a waiver is valid only when made with a broad understanding of the matter at issue, including ‘an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof.” In re Phillip “J”, 256 A.D.2d at 655-56, quoting Von Moltke v. Gillies, 332 U.S. 708, 724 (1948). It is interesting to note that the bulk of the standard pre-Miranda remarks now challenged on this appeal actually operate to provide defendant with some of this additional, though not required, information, by advising defendant of the nature of the charges and the statutory offenses implicated, and possible defenses to the charges, like an alibi (see transcription in Appellant’s Brief at 10, DVD at 12:04:33-12:05:03, A457). 3 Similarly misplaced is defendant’s argument that “in explaining that speaking would facilitate an investigation, the district attorneys implied that [defendant’s] words would be used to help him, thus contradicting the heart of the critical warning that anything he said would be used against him.” (Defendant’s Brief at 29). Initially, as discussed above, this is irrelevant in this case, as the defendant did not request an investigation of anything concerning this incident, and that is all that was ever mentioned in the pre-Miranda So, too, the standard remarks include an additional advisement to the defendant, which3 is not constitutionally required, that he has “the right to be arraigned without undue delay, that is, to be brought before a judge, to be advised of the charges against you, to have an attorney assigned or appointed to you, and to have the question of bail decided by the court.” Notably, defendant was asked, and replied, that he understood this right (see transcription in Appellant’s Brief at 11-12, DVD at 12:05:03, A457)). 25 remarks. Moreover, the interviewers NEVER told defendant or implied in any way that his words would be used to help him – only that they would “look into” any information concerning the incident that defendant might ask them to investigate (see transcription in Appellant’s Brief at 10, DVD at 12:04:33- 12:05:03, A457). And then defendant was clearly and forcefully apprised that “anything you do say may be used against you in a court of law” (see transcription in Appellant’s Brief at 11-12, DVD at 12:05:03-12:05:50, A457). Thus, far from contradicting the heart of the critical warning that anything he said would be used against him, the pre-Miranda remarks were in perfect harmony with that warning; apprising the defendant only that his version of events would be listened to, if he chose to provide it, and his request for investigation would be honored. Thus, here too, there is simply no contradiction, and no reason to believe that this pre-Miranda remark undermined defendant’s understanding that anything he said could be used against him in a court of law, or the knowing, intelligent, and voluntary nature of his waiver.4 Defendant’s related argument, that the fact that he “spoke at all was evidence of [his]4 reliance on the script’s inaccurate message that doing so would be beneficial” (Defendant’s Brief at 40), is patently meritless. While it is certainly true that this defendant – like each and every other defendant who has ever waived Miranda and made a statement – believed that speaking to the investigators might help him, there is nothing in the record to suggest that this belief was engendered by any “inaccurate message” conveyed by the script. As discussed in the People’s main brief, the requirement that a waiver be “knowing and intelligent” does not equate with a requirement that it also be wise (See Appellant’s Brief at 37, n.10). To adopt defendant’s stance would be to require suppression of every confession and incriminating statement ever made by a defendant. That is clearly is not, and should not, be the law. Relatedly, albeit not necessary to the analysis, it is wrong to assume, as defendant does, that a defendant will never benefit from speaking to the investigators in Central 26 Likewise meritless is defendant’s claim that telling defendant that “the pre-arraignment interrogation was his ‘only opportunity’ falsely suggested that requesting counsel would hurt him because, by doing so, he would forego forever the chance to speak with the district attorneys” (Defendant’s Brief at 29). In this regard, defendant was actually told, “Even if you have already spoken to someone else, you do not have to talk to us. This will be your only opportunity to speak to us before you go to court on these charges” – a statement that was followed almost immediately by an advisement that defendant “ha[d] the right to be arraigned without undue delay” and a definition of the process: “that is, to be brought before a judge, to be advised of the charges against you, to have an attorney assigned to or appointed for Booking. To date, there have been 123 defendants who have been completely exonerated – prior to arraignment and any charges being filed – based upon their Central Booking interview. And while many of these defendants would have probably also been cleared of the charges after being assigned an attorney who could also investigate the case and present defenses or alibis to the District Attorney, this would only occur days, weeks, or months after arraignment, by which time the suspect would have already been charged, may have already spent time in prison, or else would have likely posted a bail bond, which would involve a non-refundable fee to the bail bondsman. More problematically, some defenses and alibis are very time sensitive, and may disappear if not immediately investigated, which is precisely why the standard remarks impart a sense of urgency. For example, in one case, the suspect told investigators in Central Booking that he was at a McDonalds during the time of the incident, and, thus, could not have committed the crime. While he did not have a receipt or any other direct proof of this, the interviewers called the restaurant from Central Booking to request that the video surveillance tape be preserved. This was accomplished – with only minutes to spare – as the restaurant only maintained 24 hours of surveillance video. This air- tight alibi immediately cleared the defendant, but would have definitely been lost if he had not spoken to investigators, as the assigned defense attorney representing defendant and a hundred other clients in the arraignment part could not have realistically ordered preservation of the tape before its destruction. And, beyond this, hundreds of charges are reduced or lower bail recommended as a result of defendant’s statements in Central Booking, and the system as a whole benefits from the more thorough investigation and the availability of a reliable videotaped statement from the accused made shortly after the crime. 27 you, and to have the question of bail decided by the court.” (see transcription in Appellant’s Brief at 10-11, DVD at 12:04 - 12:05, A457). Contrary to defendant’s contentions, there is NOTHING in the pre-Miranda remarks that states, suggests, or even hints at the possibility that by exercising his right to counsel, defendant would “forego forever” the chance to speak with the district attorneys. To the contrary, the remarks clearly and accurately apprised defendant that the interview was his only opportunity to speak with them “before you go to court on these charges” – and he was clearly told, immediately thereafter, that this will occur imminently. Moreover, this particular defendant – who had been through the process many times before, and was familiar both with the arrest and arraignment process, and with the various opportunities he would thereafter be afforded to approach the district attorney though his lawyer – was surely not confused or misled by this wholly accurate statement.5 Defendant implicitly acknowledges that both his statement and waiver were “voluntary,”5 as his will was not overborne, and focuses his analysis on whether the waiver was “knowing and intelligent” in view of the pre-Miranda remarks. However, to the extent that defendant’s argument can be read as implying that the interrogators’ deception impacted the validity of the waiver, this Court’s recent decisions in People v. Thomas, 2014 N.Y. Slip Op 1208 (Feb. 20, 2014), and People v. Aveni, 2014 N.Y. Slip Op. 1209 (Feb. 20, 2014), are instructive. Not only do those decisions reiterate that the deception must be “sufficiently potent to nullify individual judgment,” (Thomas at *15), and involve conduct in no way similar to the conduct challenged herein, but they also firmly reiterate the principle that the impact of deception must be viewed by reference to the “totality of the circumstances” of each case and the individual background of the particular suspect before the court. Thus, to the extent that defendant and the Appellate Division before him posit that “deception” in the pre-Miranda remarks furnishes a basis to suppress Dunbar’s statement, not only is the conclusion factually flawed, but, more fundamentally, the refusal to look to the totality of the circumstances is, itself, reversible error. 28 2. The Analysis is no Different as a Result of the Pre-Miranda Comments Being Standardized Rather than Ad Hoc As detailed in the People’s main brief, it is irrelevant to the analysis that the statement in this case was obtained as part of a “systematic practice developed by the District Attorney’s office” and used in thousands of cases (Dunbar at 211). While a court is certainly free to evaluate the tone and manner in which an interview is conducted as one of many circumstances that might impact the voluntariness of an individual suspect’s waiver, this one factor is not dispositive and cannot obviate the need to engage in a case-by- case, totality-of-the-circumstances analysis. Specifically, the number of times that the pre-Miranda remarks were used by the investigator in cases past, and whether it was uttered ad hoc or was carefully crafted, is irrelevant to the analysis because none of this is known to the defendant, and, thus, cannot impact his waiver. See. e.g., Fare v. Michael C., 442 U.S. 707 (1979); People v. Anderson, 42 N.Y.2d 35 (1977); People v. Vasquez, 90 N.Y.2d 972 (1997); People v. Williams, 62 N.Y.2d 285 (1984) (all recognizing that voluntariness must be gauged based on the totality of the objective circumstances confronting the suspect at the time that the suspect makes the statement). Relatedly, whether the District Attorney’s intention in reading a brief pre-Miranda statement is to orient a defendant, elicit exculpatory information, or put a suspect at ease so that he is more likely to talk to the interviewers and confess (see Dunbar at 213, questioning the DA’s purpose), this consideration, too, is entirely irrelevant; for the subjective intent of the 29 interviewer – which is not known to the suspect – similarly cannot possibly impact the voluntariness of his waiver. See. e.g., Fare v. Michael C., 442 U.S. at 707; People v. Anderson, 42 N.Y.2d at 35; People v. Vasquez, 90 N.Y.2d at 972; People v. Williams, 62 N.Y.2d at 285 (voluntariness must be gauged based on the totality of the objective circumstances confronting the suspect at the time he makes the statement); see also, In re Cy R., 43 A.D.3d 267 (1st Dept. 2007)(explaining that the crucial issue is not what was said to the suspect or whether it was true, but, rather, whether it intimidated the suspect into waiving his rights); People v. Keene, 148 A.D.2d 977 (4 Dept. 1989) (“Theth test for involuntariness is not whether the police actually do what they promise; it is whether the promise itself creates a substantial risk that defendant might falsely incriminate himself”). Nevertheless, defendant challenges this proposition, claiming that it was rejected by the majority of the Court in Seibert, and that it merely restates the concerns of the Seibert dissent, which, according to defendant, “is not the law” (Defendant’s Brief at 42-43, citing Missouri v. Seibert, 542 U.S. at 600). Defendant’s characterization of Seibert’s holding is simply wrong. Contrary to defendant’s contentions, the plurality did not hold that the subjective intent of the interrogator was relevant to the Miranda inquiry; only Justice Kennedy so opined. Rather, in accordance with settled law, the plurality “correctly decline[d] to focus its analysis on the subjective intent of 30 the interrogating officer,” (Id. At 624), and the four-Justice dissent agreed with that assessment: The plurality’s rejection of an intent-based test is also, in my view, correct. Freedom from compulsion lies at the heart of the Fifth Amendment and requires us to assess whether a suspect’s decision to speak truly was voluntary. Because voluntariness is a matter of the suspect’s state of mind, we focus our analysis on the way in which suspects experience interrogation. ... ‘[W]hether intentional or inadvertent, the state of mind of the police is irrelevant to the question of the intelligence and voluntariness of respondent’s election to abandon his rights.’ Missouri v. Seibert, 542 U.S. at 624-625, citing Moran v. Burbine, 475 U.S. at 423; Stansbury v. California, 511 U.S. 318, 324-25 (1994) (per curiam) (“one cannot expect the person under interrogation to probe the officer’s innermost thoughts”). Indeed, as the Seibert dissent wrote, in agreement with the plurality, analysis of the subjective state of mind of the interrogator is not only contrary to established law and the crux of the inquiry regarding the voluntariness of a Miranda waiver, but it is also “an unattractive proposition that we all but uniformly avoid”, as the subjective intent of the interrogator is “unverifiable,” and “sending state and federal courts on an expedition into the minds of police officers would produce a grave and fruitless misallocation of judicial resources”, and inconsistent results. Id. at 625-26, citing United States v. Leon, 468 U.S. 897, 922 n. 23 (1984). For these reasons, the Supreme Court has rejected an intent-based test in other criminal procedure contexts as well. 31 See, e.g, New York v. Quarles, 467 U.S. at 656 (rejecting inquiry into subjective intent of officer in crafting public safety exception to Miranda because, inter alia, officers’ motives will be “largely unverifiable”); Whren v. United States, 517 U.S. 806, 813-14 (1996) (“the evidentiary difficulty of establishing subjective intent” was one of the reasons for refusing to consider intent in Fourth Amendment challenges generally). Therefore, contrary to defendant’s contentions, Seibert, which was a very extreme continuous-interrogation case, did nothing more than adopt a common-sense rule – already recognized by this Court for years in People v. Chapple, 38 N.Y.2d at 112 and People v. Bethea, 67 N.Y.2d at 364 – barring law enforcement from effecting an end-run around Miranda by obtaining a full un-Mirandized confession, and then giving warnings and having the suspect repeat the confession. It is not directly applicable to this case, and does not change the fact that the validity of a suspect’s Miranda waiver – obtained prior to any custodial interrogation – must be ascertained by reference to the totality of the circumstances known to, and confronting the suspect, at the time of his waiver; not by a per se rule or an analysis of the subjective intent of the interrogator. 3. Defendant’s Remaining General Complaints About the Central Booking Interview Program are not Properly Before this Court and Furnish No Basis for Suppression Presumably to lend support to the positions articulated by various defense organizations in the amicus briefs filed in this Court and the court 32 below, defendant argues generally that the pre-arraignment interview program is also problematic because it unduly delays suspects’ arraignments and the concomitant attachment of the right to counsel, and because it disproportionately impacts indigent defendants, who cannot afford to retain an attorney to represent them at the arraignment, and, thus, do not have access to an attorney up until that point (see Defendant’s Brief at 30-31, 32-33; see also Amicus Brief of New York Civil Liberties Union and American Civil Liberties Union). In addition to being outside of the scope of this appeal, and unpreserved for this Court’s review, these arguments are also meritless. First, this Court has already expressly held that a delay in arraignment caused by law enforcement’s desire to question a defendant or obtain a confession before the right to counsel indelibly attaches will not implicate a right-to-counsel claim, and will not furnish an independent ground for suppression. See People v. Ramos, 99 N.Y.2d 27 (2002). Instead, a delay- in-arraignment claim must be litigated in a motion pursuant to CPL §140.20, and will constitute only one factor to be evaluated under the totality of the circumstances as bearing on the voluntariness of defendant’s statement. Id. Here, even if this factor were to be considered on the question of voluntariness, it would not tip the scales in favor of defendant, as the total arrest-to- arraignment time was less than 24 hours (See People ex rel. Maxian v. Brown, 33 77 N.Y.2d 422, 425 [1991]), and defendant’s arraignment was delayed by only approximately 10 minutes as a result of the interview.6 Similarly, defendant’s argument that the interview program unfairly targets indigent defendants is meritless (Defendant’s Brief at 32). Indigent defendants are no more targeted by the CBQ interview program than they are by precinct interviews, which also cannot be conducted if a suspect has retained counsel or if an attorney retained by the suspect’s family calls the precinct to enter the case. And such arguments of disparate treatment have been repeatedly made and rejected. See, e.g., Ross v. Moffitt, 417 U.S. 600, 612, 616 (1974) (while the constitution guarantees indigent defendants the right to be represented by counsel, equal protection “does not require absolute equality or precisely equal advantages” and does not impose upon the State a duty to “duplicate the legal arsenal that may be privately retained by a criminal In this regard, defendant and amici are also wrong in suggesting that there is something6 insidious and improper about an Assistant District Attorney questioning a defendant in Central Booking -- minutes before his arraignment and the attachment of his right to counsel -- in a final attempt to obtain an uncounseled statement. Whether such questioning occurs at the precinct or in Central Booking, or is conducted by detectives or ADA’s, is completely irrelevant to the voluntariness analysis. And, far from being insidious or improper, it is perfectly logical and desirable for the District Attorney’s Office to want to personally question a suspect at this precise moment – in Central Booking, just prior to the filing of the accusatory instrument -- for it is precisely at this stage that the District Attorney must draft and evaluate the complaint that will be filed, determine that the charges are congruent and appropriate to the facts, and decide on an appropriate bail recommendation. See People ex rel. Maxian v. Brown, 77 N.Y.2d 422, 425 (1991) (explaining what occurs in Central Booking while a defendant awaits arraignment). A final interview with a willing and unrepresented suspect (or, in many cases, the first and only interview ever conducted by any member of law enforcement) is always helpful, and sometimes essential, to allow the District Attorney to do her job properly, fairly, and efficiently, which benefits the system as a whole and all parties to the litigation. Additionally, with respect to the claim of delay, it should be noted that Queens has long had the fastest arrest-to-arraignment time in New York City, and continues to maintain that record even after instituting the Central Booking Interview program. 34 defendant” who can afford it); Ake v. Oklahoma, 470 U.S. 68 (1985) (“a State [need not] purchase for the indigent defendant [all the necessary] assistance that his wealthier counterpart might buy”); People v. Stuckey, 175 Cal. App. 4 898, 919 (Cal. App. 3d Dist. 2009). In any event, Miranda protections areth fully afforded every suspect in CBQ, none of whom are questioned prior to a valid Miranda waiver or if they choose to invoke their right to counsel. And, in fact, those indigent defendants who have been wrongly charged are particularly likely to benefit from the CBQ interview, as it provides an effective mechanism for prompt – and often immediate – investigation of any alibis and exculpatory leads that might otherwise be lost with the passage of time inherent in an assigned attorney’s subsequent investigation of the case. It is particularly an indigent defendant, who may be unable to post even relatively low bail, that will most benefit from the opportunity to convince the ADA to reduce the amount of bail sought. And it is particularly an innocent indigent defendant, who cannot afford to miss days, or weeks, or months of work while his case is investigated by an assigned defense attorney, that will most directly benefit from the often-immediate investigation that is conducted by the ADA’s and investigators in Central Booking. * * * If the pre-Miranda remarks are accurately read, instead of being paraphrased, and are fairly viewed under the totality of the circumstances, rather than being isolated, then it is apparent that they did not undermine the 35 validity of the Miranda waiver in this case – a waiver that was made by a savvy and experienced defendant, for a clearly strategic purpose. In other words, whatever the impact of the pre-Miranda remarks in some other hypothetical case that may one day arise, the impact on this defendant, in this case, was nil. And under these circumstances, suppression is neither warranted nor permitted. CONCLUSION The record in this case clearly shows that the Appellate Division erred in reversing the suppression court’s decision and in thereby reversing defendant’s conviction. Unlike the suppression court, which did engage in a full and proper voluntariness analysis, the Appellate Division refused to look at the totality of the circumstances surrounding this defendant’s waiver, deeming this analysis irrelevant and simply applying a per se rule, as though Miranda warnings were never read at all. That is where it erred as a matter of law, and, in so doing, announced a new rule of law that is unprecedented, unsound, and unwise. The order of the Appellate Division should be reversed and the judgment of conviction reinstated; or alternatively, the matter should be remanded to the Appellate Division for reconsideration of defendant’s suppression claim under the correct legal standard. 36 Respectfully Submitted, RICHARD A . BROWN District Attorney Queens County By: ________________________ DONNA ALDEA Counsel for Appellant, pro bono DONNA ALDEA Barket, Marion, Epstein & Kearon, LLP Counsel for Appellant, pro bono JOHN M. RYAN JAMES C. QUINN ROBERT J. MASTERS Assistant District Attorneys of Counsel March 11, 2014 37