The People, Appellant,v.Eugene Polhill, Respondent.

Brief

N.Y.September 18, 2014

To be argued by DONNA ALDEA (TIME REQUESTED: 30 MINUTES) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Appellant, against EUGENE POLHILL, Defendant-Respondent. W4444444444444444444444444444444444444444444444444444 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. SPECIAL COUNSEL, PRO BONO, FOR APPELLANT BARKET, MARION, EPSTEIN & KEARON, LLP 666 OLD COUNTRY ROAD – SUITE 700 GARDEN CITY, NY 11530 (516) 745-1500 LEILA HULL, ESQ. APPELLATE ADVOCATES 2 RECTOR STREET – 10 FLOORTH NEW YORK, NY 10006 (212) 693-0085 NOVEMBER 7, 2013 Queens County Indictment Number 943/09 TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT PURSUANT TO RULE 5531 CPLR. . . . . . . . . . . . . . . . . viii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 THE JURISDICTION OF THIS COURT.. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 FACTUAL AND LEGAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . 9 The Suppression Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Arguments and Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 The Trial and Sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 The Claims on Appeal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 POINT ONE THE APPELLATE DIVISION ERRED IN FAILING TO CONSIDER THE TOTALITY OF THE CIRCUMSTANCES IN CONCLUDING THAT POLICE LACKED REASONABLE SUSPICION TO BRIEFLY DETAIN DEFENDANT FOR A SHOW-UP CONDUCTED IN CLOSE SPATIAL AND TEMPORAL PROXIMITY TO THE CRIME. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 POINT TWO THE APPELLATE DIVISION ERRED IN APPLYING AN UNPRECEDENTED PER SE RULE TO AUTOMATICALLY REQUIRE S U P P R E S S I O N O F D E F E N D A N T ’ S VOLUNTARY VIDEOTAPED STATEMENT WITHOUT ANY REGARD TO WHETHER THE INTERVIEWERS’ PRE-MIRANDA REMARKS IMPACTED THE KNOWING, INTELLIGENT, AND VOLUNTARY NATURE OF THIS PARTICULAR DEFENDANT’S WAIVER IN THIS PARTICULAR CASE. . . . . . . . . . . . . . . . . . . . . . . . . . 31 A. The Appellate Division’s Methodology Was Wrong. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 B. Under the Correct Analysis, the Record Fully Supported the Hearing Court’s Conclusion That Defendant’s Waiver Was Knowing, Intelligent, and Voluntary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 APPENDIX Corrected Certificate Granting Leave, dated May 20, 2013.. . . . . . . . . . A-1 Appellate Division’s Decision and Order Reversing Judgment, dated January 30, 2013. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-2 Defendant’s Omnibus Motion, dated May 15, 2009.. . . . . . . . . . . . . . . . A-4 People’s Response to Defendant’s Omnibus Motion, dated June 10, 2009.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-16 Judge Griffin’s Order, dated June 23, 2009. . . . . . . . . . . . . . . . . . . . . . A-25 Hearing Minutes, dated July 28, 2009. . . . . . . . . . . . . . . . . . . . . . . . . . A-28 Judge Grosso’s Order, dated July 28, 2009.. . . . . . . . . . . . . . . . . . . . . A-120 Trial Transcript. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-121 ii Defendant’s Memorandum of Law in Support of Motion to Set Aside Verdict, dated January 24, 2010.. . . . . . . . . . . . . . . . A-715 Sentence Minutes, dated January 27, 2010. . . . . . . . . . . . . . . . . . . . . . A-728 DVD of CBQ Interview, dated April 7, 2009. . . . . . . . . . . . . . . . . . . . A-744 Certificate Pursuant to 2105 of the C.P.L.R. . . . . . . . . . . . . . . . . . . . . A-745 iii TABLE OF AUTHORITIES Page No. Arizona v. Fulminante, 499 U.S. 279 (1991) . . . . . . . . . . . . . . . . . . . . . 33n.6 Brown v. Blumenfeld, 103 A.D.3d 45 (2d Dept. 2012) . . . . . . . . . . . . . 34n.7 California v. Prysock, 453 U.S. 355 (1981). . . . . . . . . . . . . . . . . . . . . . . . . 35 Colorado v. Connelly, 479 U.S. 157 (1986). . . . . . . . . . . . . . . . . . . . . . . . . 41 Colorado v. Spring, 479 U.S. 564 (1987). . . . . . . . . . . . . . . . . . . . . . . . 33, 47 Duckworth v. Eagan, 492 U.S. 195 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . 36 Fare v. Michael C., 442 U.S. 707 (1979). . . . . . . . . . . . . . . . . . . . 33, 45, 46 Florida v. Powell, 559 U.S. 50 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 In re Cy R., 43 A.D.3d 267 (1 Dept. 2007). . . . . . . . . . . . . . . . . . . . . . . . . 46st Maryland v. Shatzer, 559 U.S. 98, 108 (2010) . . . . . . . . . . . . . . . . . . . . . . . 6 McNeil v. Wisconsin, 501 U.S. 171 (1991. . . . . . . . . . . . . . . . . . . . . . . . . . 47 Miranda v. Arizona, 384 U.S. 412 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Missouri v. Seibert, 542 U.S. 600 (2004) .. . . . . . . . . . . . . . . . . . . . 32, 37n.8 Moran v. Burbine, 475 U.S. 412 (1986). . . . . . . . . . . . . . . . . . . . . . . . . 33, 48 People v. Anderson, 17 A.D.3d 166 (1 Dept. 2005) .. . . . . . . . . . . . . . . . . 26st People v. Anderson, 42 N.Y.2d 35 (1977). . . . . . . . . . . . . . . . . . . . . . . 43-46 People v. Bailey, 24 A.D.3d 684 (2d Dept. 2005) . . . . . . . . . . . . . . . . . . . . 45 People v. Barnes, 4 A.D.3d 433 (2d Dept. 2004). . . . . . . . . . . . . . . . . . . . . 27 People v. Barrow, 284 A.D.2d 145 (1 Dept. 2000).. . . . . . . . . . . . . . . . . . 45st People v. Batista, 88 N.Y.2d 650 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . 26 iv People v. Berrios, 28 N.Y.2d 361 (1971) . . . . . . . . . . . . . . . . . . . . . . . 41-42 People v. Chapple, 38 N.Y.2d 112 (1975) . . . . . . . . . . . . . . . . . . . . 32, 37n.8 People v. Chavis, 147 A.D.2d 582 (2d Dept. 1989) . . . . . . . . . . . . . . . . . . 42 People v. Chipp, 75 N.Y.2d 327 (1990) .. . . . . . . . . . . . . . . . . . . . . . . . . . . 42 People v. DeBour, 40 N.Y.2d 210 (1976).. . . . . . . . . . . . . . . . . . . . . . . 25, 26 People v. Dubinsky, 289 A.D.2d 415 (2d. Dept. 2001). . . . . . . . . . . . . . . . 29 People v. Dunbar, 104 A.D.3d 198, 207 (2d Dept. 2013), leave granted, 2013 N.Y. LEXIS 1487 (2013).. . . . . . . . . . . . . passim People v. Evans, 65 N.Y.2d 629 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . 3, 29 People v. Gonzalez, 55 N.Y.2d 720 (1981) . . . . . . . . . . . . . . . . . . . . . 50n.10 People v. Grady, 6 A.D.3d 1149 (4 Dept. 2004).. . . . . . . . . . . . . . . . . . . . 42th People v. Harrison, 57 N.Y.2d 470 (1982).. . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Hicks, 68 N.Y.2d 234 (1986). . . . . . . . . . . . . . . . . . . . . . . . . 27, 28 People v. Hollman, 79 N.Y.2d 181 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Huntley, 15 N.Y.2d 72 (1965).. . . . . . . . . . . . . . . . . . . . . . . . . . . 42 People v. Hutchinson, 59 N.Y.2d 923 (1983). . . . . . . . . . . . . . . . . . . . . 32, 36 People v. Keene, 148 A.D.2d 977 (4 Dept. 1989) . . . . . . . . . . . . . . . . . . . 46th People v. Lloyd-Douglas, 102 A.D.3d 986 (2d Dept. 2013), leave granted, 2013 N.Y. LEXIS 1574 (2013).. . . . . . . . . . . . . . . 7n.1 People v. Love, 57 N.Y.2d 998 (1982) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 People v. Martinez, 133 A.D.2d 572 (1st Dept. 1987). . . . . . . . . . . . . . . . . 28 People v. Martz, 26 Misc.3d 1227(A), at ***3 (Dist. Ct., Nassau Co. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 People v. Paulman, 5 N.Y.3d 122 (2005) . . . . . . . . . . . . . . . . . . . . 32, 37n.8 v People v. Perez, 37 Misc. 3d 272 (Queens Sup. Ct. 2012, Blumenfeld, J.) . . . . . . . . . . . . . . . . 34n7, 43 People v. Polhill, 102 A.D.3d at 988 (2d Dept. 2013). . . . . . . . . . . . . 4, 7, 22 People v. Prochillo, 41 N.Y.2d 759 (1977). . . . . . . . . . . . . . . . . . . 28-29, 41 People v. Riddick, 269 A.D.2d 471 (2d Dept. 2000). . . . . . . . . . . . . . . . . . 29 People v. Robinson, 282 A.D.2d 75 (1 Dept. 2001). . . . . . . . . . . . . . . . . . 27st People v. Selby, 220 A.D.2d 544 (2d Dept. 1995). . . . . . . . . . . . . . . . . . . . 29 People v. Sharpe, 470 U.S.675 (1985) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 People v. Smith, 220 A.D.2d 704 (2d Dept. 1995) . . . . . . . . . . . . . . . . . . . 42 People v. Soto, 253 A.D.2d 359 (1 Dept. 1998) . . . . . . . . . . . . . . . . . . . . . 45st People v. Stephens, 47 A.D.3d 586 (1 Dept. 2005).. . . . . . . . . . . . . . . . . . 26st People v. Thomas, 300 A.D.2d 416 (2d Dept. 2002). . . . . . . . . . . . . . . . . . 29 People v. Valerius, 31 N.Y.2d 51 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . 42 People v. Vasquez, 90 N.Y.2d 972 (1997) . . . . . . . . . . . . . . . . . . . . . . . 44, 46 People v. Watkins, 40 A.D.3d 290 (1 Dept. 2007). . . . . . . . . . . . . . . . . . . 29st People v. Williams, 62 N.Y.2d 285 (1984) . . . . . . . . . . . . . . . . . . . . . . 33, 46 United States v. Sharpe, 470 U.S. 675 (1985). . . . . . . . . . . . . . . . . . . . 26-27 Statutes C.P.L. § 60.45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 C.P.L. § 460.20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Penal Law §§ 110/160.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Penal Law § 120.00. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 vi Penal Law §160.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Other Authorities Commentary to New York Criminal Jury Instructions First Edition (CJI 1 ) 11.00, pp. 612-13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33st John Brunetti, NY Confessions, at §9.01 et.seq. [LexisNexis 2011 edition].. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34n.7 vii COURT OF APPEALS STATE OF NEW YORK --------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Appellant, : -against - : EUGENE POLHILL, : Defendant-Respondent. : -------------------------------------------------------------x STATEMENT PURSUANT TO RULE 5531 CPLR 1. The Indictment Number of the case is 943/09 (Queens County). 2. The full names of the parties are the People of the State of New York against Eugene Polhill. 3. This action was commenced in the Supreme Court, Queens County. 4. The action was commenced by the filing of an indictment on April 30, 2009. 5. This is an appeal from a January 30, 2013 order of the Appellate Division, Second Department, reversing defendant’s January 27, 2010 judgment of conviction. 6. The appendix method of appeal is being used. viii COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : : Appellant, : - against - : EUGENE POLHILL, : Defendant-Respondent. : ---------------------------------------------------------------------x BRIEF FOR APPELLANT PRELIMINARY STATEMENT By permission of the Honorable Robert S. Smith, Associate Judge of the New York Court of Appeals, the People appeal from a January 30, 2013 opinion and order of the Appellate Division, Second Department, reversing a January 27, 2010 judgment of the Supreme Court, Queens County (Buchter, J.), on the grounds that defendant’s brief detention for a show-up identification was improper, and his pre-arraignment statement, made after a Miranda waiver, should have been suppressed. By the January 27, 2010 judgment, defendant was convicted, after a jury trial, of Attempted Robbery in the Second Degree (Penal Law §160.10[1]), and was sentenced as a second-felony offender to a prison term of seven years followed by five years of post-release supervision. Defendant is currently incarcerated pursuant to this judgment. THE JURISDICTION OF THIS COURT This appeal is authorized by Criminal Procedure Law Section 450.90(1) because the Appellate Division's order reversed the judgment of the trial court on the law, and was adverse to the People of the State of New York. The appeal is taken upon a certificate granting leave to appeal, dated May 20, 2013, issued pursuant to Section 460.20 of the Criminal Procedure Law (Smith, J.). QUESTIONS PRESENTED 1: Where the cumulative information known to police established that defendant had been at the scene of the crime at the time of the crime, had jumped a turnstile and fled into a subway whose last stop was at the location where defendant was detained, and had been with another man who, along with defendant, matched the description of the robbers and acted strangely upon seeing police, did the Appellate Division err in completely disregarding these facts, which had been credited by the suppression court, to simply hold that the description of “two black men in dark clothing” was too vague alone to furnish officers with reasonable suspicion for a brief detention of defendant within minutes of the crime? 2 - A: Did the Appellate Division err in finding that a short statement made to a suspect prior to Miranda warnings, that does not constitute interrogation or its functional equivalent, should automatically require suppression in every case, irrespective of its impact on an individual suspect 2 and the voluntariness of his waiver? 2 - B: Where defendant, a 50-year old parolee, familiar with the criminal justice system, was read and waived his Miranda rights, agreeing to answer “a few questions,” and then controlling the scope and extent of the questioning in a manner that clearly showed that he fully understood the nature and extent of his rights, did the Appellate Division err in automatically suppressing his videotaped statement, without considering his individual background and the circumstances of his waiver? SUMMARY OF THE ARGUMENT I. As this Court explained decades ago, the reasonable suspicion required to justify a brief detention for a show-up minutes after a crime should not be based on an assessment of individual details, viewed in isolation and out of context; but, rather, on the totality of the circumstances fluidly unfolding before a reasonable, trained officer. See, e.g., People v. Evans, 65 N.Y.2d 629 (1985). While the principle is still valid, its import has been lost; for with ever-increasing frequency, courts are failing to engage in the case-by-case, totality-of-the-circumstances analysis required to properly understand and evaluate the propriety of police conduct based on the fluid events unfolding before the officer in real time on the street. Instead, courts have fallen into the flawed practice of isolating individual facts from the cases before them to make it easier to squeeze them into the pre-formed mold of cases past; a practice that 3 works well to ensure uniformity in some areas of the law, but is particularly ill- suited in the search-and-seizure context, where the minute subtleties of each unique case are often the key to ensuring the correct result. In this case, the Appellate Division held, on the basis of ample past precedent, that the victim’s identification of defendant during a show-up should have been suppressed because the vague description of the perpetrators as “two black males in dark clothing,” one shorter than the other, “did not provide the police with reasonable suspicion to stop and detain the defendant, who was dressed in a dark gray and dark green camouflage jacket and was standing alone, outside a liquor store, 20 blocks away from the crime scene.” People v. Polhill, 102 A.D.3d 988 (2d Dept. 2013) (A2). But, as the suppression court had properly, and more subtly, determined, the victim’s description of the perpetrators did not stand alone, and was not actually incongruous with the detaining officer’s observations of defendant; for what was starkly absent from the Appellate Division’s reasoning on this point, but key to the analysis, is that within minutes of the crime, and just prior to receiving the radio-run of the robbery and responding to the crime scene, the detaining officer was on patrol and had observed defendant and a taller individual exiting at the last stop of the F-train which the perpetrators had boarded, noting they both appeared “startled” upon seeing the officer. Thus, although defendant was standing alone when the officer returned to canvass the area minutes later, he did not stop defendant for matching the “vague 4 description” of one of the perpetrators of the crime, as the Appellate Division’s decision suggested; rather he stopped defendant because he recognized him as the shorter of the two startled men he had seen exiting the train on which the perpetrators had fled just minutes after the robbery. And although defendant was then “20 blocks away from the crime scene”, he was less than a block away from the F-train station at 179 street – the last stop of the train theth perpetrators had boarded to flee, and a mere two short subways stops away from the location of the crime (Id.). Far from a disagreement over facts, this decision reveals an incorrect analysis, and presents an opportunity for this Court to reiterate that the reasonable suspicion required to justify a brief detention for a show-up minutes after the crime should not be based on an assessment of individual details, viewed in isolation and out of context from the perspective of a reviewing judge in the comfort of chambers; but, rather, on the reasonable inferences to be gleaned from the totality of the circumstances that rapidly developed on the street, in real time, before a trained officer. II. The latitude afforded law enforcement to seek and obtain a suspect’s voluntary and reliable confession prior to arraignment, before the right to counsel indelibly attaches and bars further interrogation, is not a necessary evil, as the tenor of the Appellate Division’s decision suggests, but, rather, “an unmitigated good, essential to society’s compelling interest in 5 finding, convicting, and punishing those who violate the law.” See Maryland v. Shatzer, 559 U.S. 98, 108 (2010) (internal quotations omitted). The Queens District Attorney’s Central Booking Interview Program, launched as a pilot- program in 2007 in response to the call for videotaped interrogations, and since used in almost 14,000 cases, has obtained hundreds of such voluntary and reliable confessions – along with thousands of other statements from suspects about the details and circumstances of the crime, and also hundreds of credible statements from suspects denying their involvement and providing alibis or other information that resulted in immediate investigation and dismissal of those cases prior to arraignment, and before the filing of any charges. The program has thus proved invaluable – not because of the number of exonerations or convictions it has helped to secure – but because it has helped the District Attorney to get it right: to fulfill his dual responsibility to aggressively prosecute as many of the guilty as possible and none of the innocent; to ensure that the charges about to be filed at the arraignment are appropriate to the offense and that appropriate bail is recommended; to allow for thorough investigation of the case by quickly identifying investigative leads before they grow cold or disappear altogether; in short, to get to the truth, irrespective of whether it implicates or exonerates any individual defendant. For nothing is more relevant or probative – one way or another – than a videotape taken mere hours after the crime, showing not just the suspect’s final statement in isolation, divorced from the hours of interrogation that preceded 6 and led to it, as has been commonly done for decades in homicide cases, but, rather, the entire interrogation with nothing said to the suspect before, and nothing left off of the tape. In this case, which was part of a trilogy of cases argued together and decided on the same date, the Appellate Division, Second Department,1 reversed defendant’s felony conviction, holding that his videotaped Central Booking statement – made prior to the filing of an accusatory instrument, and after the waiver of Miranda rights – should have been suppressed because the Miranda warnings had been “muddled” by the standard introductory remarks read by the investigator immediately before the Miranda warnings. People v. Polhill, 102 A.D.3d 988 (2d Dept. 2013) (relying on full decision in People v. Dunbar, 104 A.D.3d 198, 207 [2d Dept. 2013]). In so holding, the Appellate Division refused to engage in traditional voluntariness analysis, which had been properly applied by the suppression court to find that defendant’s waiver in this particular case was knowing, intelligent, and voluntary given the defendant’s background and the totality of the circumstances surrounding his waiver. Instead, the Appellate Division applied a per se rule, reasoning that voluntariness analysis was inapplicable because the District Attorney’s pre- Miranda remarks compromised the clarity of the Miranda warnings themselves – making it as though Miranda warnings were never read at all (Id.;) – and See also People v. Dunbar, 104 A.D.3d 198, 207 (2d Dept. 2013), leave granted, 20131 N.Y. LEXIS 1487 (2013); People v. Lloyd-Douglas, 102 A.D.3d 986 (2d Dept. 2013), leave granted, 2013 N.Y. LEXIS 1574 (2013). 7 because the introductory remarks were not “offhand remarks” by an individual interviewer, but, rather, used systematically in Queens County in thousands of cases (Id. at 211-212). The per se rule applied by the Appellate Division in this case is directly contrary to the case-by-case analysis mandated by both this Court and the United States Supreme Court to determine the validity of a Miranda waiver in cases where, as here, Miranda warnings were fully read and acknowledged. Its secondary rationale – that the validity of a suspect’s waiver can be impacted by the subjective intent of the investigator or by whether the investigator’s comments are standardized or ad hoc – is logically untenable. Its holding not only effects an inequitable and incorrect result in this case – where defendant was a 50-year old parolee with a significant criminal history, who both fully understood , and repeatedly exercised his rights during the interview to both control the scope of the questioning and ultimately terminate the interrogation – but it has staggering implications, changing the method by which the validity of a Miranda waiver is gauged, entirely eliminating defendant’s burden of persuasion at a suppression hearing, potentially requiring suppression of statements obtained in thousands of cases, and jeopardizing similar pre- arraignment interview programs used by District Attorney’s Offices and Police Departments throughout the state in response to the ever-increasing demand for videotaped interrogations. In short, the Appellate Division’s decision was 8 wrong in both methodology and result and will have far-reaching consequences that reverberate throughout the state. Its decision should be reversed. FACTUAL AND LEGAL BACKGROUND2 On the rainy evening of April 6, 2009, just before 10 p.m., defendant, Eugene Polhill, a 50-year-old predicate felon with a significant criminal record, who was on parole at the time of the incident in this case, approached 22-year old Mohammed Munim as he exited the F-train station at Parsons Boulevard and Hillside Avenue on his way home from college (Munim: T183-88, A304-09). While Munim looked through his backpack for an umbrella, defendant grabbed him by the throat and said, “Give me all your money. Give me all your God damn money”, and defendant’s accomplice simulated a weapon in his pocket and told the victim “you better give him the money” (Munim: T188-190, A309-11). Defendant then punched Munim in the face repeatedly as Munim screamed for help and tried to cover the pockets containing his cell phone and ipod with his hands to prevent his assailants from taking them (Munim: T191-98, A312-19). As defendant stepped back to punch Munim again, Munim slipped from defendant’s grasp and ran to the Dunkin Donuts, a few stores away, where he called 911 (Munim: T199-200, A320-21). Meanwhile, defendant and his accomplice fled down the stairs into the subway station, asked the token booth clerk if they could go in for free, and, when she The trial evidence is briefly summarized in this section. Further references to the trial2 evidence and pre-trial motions appear in the points of argument where relevant to the legal issues before this Court. 9 refused, jumped the turnstile and ran downstairs to the platform, where the east-bound F train, heading towards 179 Street, was just pulling into theth Parsons Boulevard station (Munim: T199-200, A320-21; Goodlet: T439-41, 470-71, A561-63, 592-93). Minutes later, Police Officer Kevin Bonner, on uniformed patrol at the 179 Street F-train station -- the last stop on that line -- heard a train pullth into the station and noticed defendant and his accomplice walking upstairs towards the exit (Bonner: T348-49, A470-71). The men drew Officer Bonner’s attention because they paused and seemed startled when they saw him (Bonner: T350-51, A472-73). Seconds later, Bonner received a radio-run of a robbery at Parsons and Hillside, two train stops away from his location (Bonner: T352- 53, A474-75). He immediately responded to the scene, and obtained a description of the perpetrators as two black men, one tall, one shorter, both wearing dark jackets and jeans – a description that matched that of the two startled men he had just seen exiting the 179 street station (Bonner: T350,th 354, A472, 476). Bonner further learned that the possible suspects had boarded the east-bound F train while fleeing the crime (Bonner: T350, A472; Goodlet: T442-43, A564-65). Bonner immediately returned to 179 Street and Hillside toth canvass the area. As he drove up, he saw defendant standing just outside a liquor store near the station, and recognized him as the shorter of the two startled men he had seen exiting the F-train station seconds before he received 10 the radio-run (Bonner: T355-56, A477-78). Bonner approached defendant, explained that the police were looking for a suspect, and asked him if he would wait there for a few minutes. Defendant agreed (Bonner: T356-57, A478-79). Minutes later, Officer Alvarez drove Mohammed Munim to the location where defendant was waiting, and, as they approached the location, Munim began to point and scream from the back seat of the police car, “that’s him, that’s him,” and subsequently identified defendant as the man who had punched him and tried to rob him (Bonner: T358, A480; Munim: T210, A331; Alvarez: T306- 08, A427-29). Defendant was arrested and brought to Central Booking, Queens (“CBQ”). While he was being processed in CBQ, and prior to the filing of the felony complaint and his arraignment, defendant was questioned by an Assistant District Attorney and a Detective Investigator from the Queens District Attorney’s Office (Picone: T486-89, A608-10). After waiving his Miranda rights, defendant gave a videotaped statement acknowledging that he had punched Mohammed Munim outside of the Parsons and Hillside F-train station, but denying that he had tried to rob Munim, and claiming, instead, that Munim had attacked defendant when defendant would not tell him where to buy “marijuana” and “cigarettes” (CBQ Interview, Trial Exhibit 8, A744). Defendant was subsequently indicted by a Queens County Grand Jury for two counts of Attempted Robbery in the Second Degree (Penal Law 11 §§110.00/160.10[1]; [2-a]); and Assault in the Third Degree (Penal Law §120.00[1]) (Queens County Indictment No. 943/09). The Suppression Hearing Prior to trial, defendant moved to suppress the identification and his videotaped CBQ statement on the grounds that the police lacked reasonable suspicion to stop him, and that both the identification and the statement were fruits of the illegal stop. A hearing was held on July 28, 2009, before the Honorable Joseph A. Grosso of the Supreme Court, Queens County. At the hearing, Officer Kevin Bonner testified that on April 6, 2009, at approximately 9:55 p.m., he and a partner were patrolling the 179th Street F-train station (Bonner: H18-19, A45-46). As the officers prepared to leave the station, walking near the turnstiles, a train pulled into the station and discharged its passengers. Bonner noticed two black men, one shorter than the other, coming up the stairs from the platform towards the exit. The shorter man was wearing a camouflage jacket (Bonner: H22, 25-26, 28, A49, 52-53, 55). When the men saw the police, they appeared to be startled and paused for a second, then began joking about the female sergeant accompanying Bonner, and exited the station (Bonner: H 22, 29, A49, 56). Less than one minute later, Bonner received a radio run of a robbery at Parsons Boulevard and Hillside Avenue, which was two stops away on the F-train (Bonner: H19, 26-27, A46, 53-54). Although Bonner did not recall hearing the suspects’ description at that time, the radio run described the 12 suspects as “two male blacks wearing black jackets, black jeans; one wearing blue jeans, on the corner of Hillside and Parsons” (Alvarez: H71, A98). Bonner drove to the location, arriving within five minutes, and saw multiple police cars on the street, and officers running into the subway station (Bonner: H20, A47). Inside the station, Mohammed Munim, whose face was swollen, bruised, and bleeding from minor lacerations, was already speaking to Officer Reinaldo Alvarez of the 103 Precinct, and told him that “two men wearingrd dark clothing, one taller than the other, the shorter one ...with a hood” had tried to rob him, demanding his money and cell phone; and that the shorter one had punched him in the face when he resisted (Alvarez: H45-47, 56-57, 75, A72- 74, 83-84, 102). Alvarez also spoke to the token booth clerk, who told him that she had seen two men fitting the description receive summonses earlier that night for drinking in public and disorderly conduct, and that they had recently gone downstairs into the subway system, and might now be at the next stop (Alvarez: H48-49, A75-76). Meanwhile, Bonner arrived at the train station, where he saw Munim talking to other officers. Bonner then overheard someone say that they were looking for a “male black wearing a camouflage jacket” (Bonner: H20, 34, A-xx). Bonner left the station and drove back to 179 Street and Hillside3 th Although at the hearing, Bonner could not recall the original source of the “camouflage3 jacket” description, and, thus, this far more specific description was not relied upon by the hearing court in evaluating the propriety of the stop, the trial testimony ultimately revealed that the source of that description was Monica Goodlet, the token booth clerk at the Parsons 13 Avenue, the last stop on the F-train, to conduct a canvass (Bonner: H21, A48). When he arrived, he saw defendant – whom he recognized from their previous encounter at the 179 Street station, where defendant had appeared startled andth had joked about the female sergeant – standing in front of a liquor store, alone (Bonner: H21-23, 31, A48-50, 58). Bonner stopped the car and approached defendant, instructing him to stand still and not to put his hands in his pockets (Bonner: H23, 32-33, A50, 59-60). He then radioed the 103 Precinct to respond to the location for a show-up (Bonner: H23, A50). As he was driving Munim towards 169 Street and Hillsideth Avenue to canvass the next train station, Officer Alvarez received Bonner’s communication and, within less than ten minutes, pulled up to his location at 180 and Hillside, where Bonner was standing with a man wearing a darkth camouflage-print jacket with a hood, and blue jeans (Alvarez: H49-50, 73-74, A76-77, 100-01; Bonner: H24, A51). As they pulled up, Munim exclaimed, “That’s him. That’s him”, and subsequently identified defendant as the man who had punched him in the face and tried to rob him (Alvarez: H52-53, 63-64, and Hillside station, who saw defendant and his accomplice jump the turnstile towards the east-bound F-train immediately after Mohammed Munim started screaming for help, and shortly before the police canvass of the station (Goodlet: 426-45, A548-67). Goodlet testified that she frequently saw defendant and his accomplice outside the station, had seen defendant receive two summonses earlier that day, and that defendant was wearing a dark camouflage jacket, while his taller friend was wearing a black jacket (Id.). She also testified that she provided this description to the police, and, specifically, to Officer Bonner (Goodlet: 444, A566). In this brief, the People now limit their legal argument to the facts adduced at the suppression hearing and credited by the hearing court, and do not now rely upon the trial testimony regarding Goodlet’s “camouflage jacket” description; nevertheless, to the extent that defendant suggested below that Bonner’s hearing testimony was tailored to meet constitutional objections or contrary to the proof, defendant’s accusations were exposed as baseless in view of the record and were properly rejected. 14 65, A79-80, 90-91, 92). After the identification, at approximately 10:20 p.m., Officer Alvarez handcuffed defendant, and arrested him (Alvarez: H53, 61, A80-88; Bonner: H24, 51, A51, 78). As Alvarez walked defendant to the police car, defendant became irate and told Alvarez, “I’m going to fucking kill you” (Alvarez: H66, A93). Subsequently, Alvarez tried to obtain defendant’s pedigree information, but he refused to give it (Alvarez: H66-67, A93-94). However, after defendant’s arrest, Alvarez obtained defendant’s pedigree information from two summonses in defendant’s pocket, which had been issued, as the token booth clerk had said, at Parsons Boulevard and Hillside Avenue shortly before Mohammed Munim’s robbery (Alvarez: H67, A94). After his arrest and processing, defendant was brought to Queens Central Booking (“CBQ”). While there, on April 7, 2009 at 5:39 p.m., prior to the filing of the felony complaint, defendant waived his Miranda rights and agreed to participate in a videotaped interview conducted by Sgt. Mary Picone of the Queens County District Attorney’s Office and an Assistant District Attorney (Picone: H7-8, 10-11, A34-35, 37-38). As shown on the video – which was a complete recording of all interaction between defendant and the interviewers, from the moment defendant entered the room until the moment he left – defendant was read a very brief introductory statement, containing no questions, which was immediately followed by Miranda warnings. Specifically, the interviewers began by seating defendant in the room, telling 15 him that he was in the Queens District Attorney’s interview room in Central Booking, and introducing themselves as a Detective with the Queens District Attorney’s Office and an Assistant District Attorney (DVD at 17:39:07 - 17:39:49, A744). They then informed defendant of the charges he will be facing when he goes to court, the date and time of the incident at issue, and that he would be read his rights in a few moments, after which he would “be given an opportunity to explain what happened at that date, time, and place.” (DVD at 17:39:49 - 17:40:15, A744). The interviewers specified the type of information they would want him to provide if he decided to speak with them, and again highlighted that he did not have to decide if he wanted to speak with them until after he heard his rights: If you have an alibi, give me as much information as you can, including the names of any people you were with. If your version of what happened is different from what we’ve been told, this is your opportunity to tell us your story. If there is something we need to investigate about this incident, you have to tell us now so we can look into it. 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 with us before you go to court on these charges. This entire interview is being recorded with both video and sound. 16 I’m going to read you your rights now, and then you can decide if you want to speak with us, ok?. (DVD at 17:40:15 - 17:40:48, A744). Defendant was then immediately advised of his rights – including his right to a prompt arraignment, at which he would have an attorney appointed – was asked if he understood each right individually, and replied that he did. He was also asked if, having heard his rights, he wished to answer questions, and he replied that he did: DETECTIVE: You have 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 to or appointed for you, and to have the question of bail decided by the court. Do you understand that? DEFENDANT: Um Hm. DETECTIVE: You have the right to remain silent and refuse to answer questions. Do you understand? DEFENDANT: Yes. DETECTIVE: Anything you do say may be used against you in a court of law. Do you understand? DEFENDANT: Right. DETECTIVE: You have the right to consult an attorney before speaking to me or to the police and to have an attorney present during any questioning now or in the future. Do you understand? DEFENDANT: Yes. DETECTIVE: If you cannot afford an attorney, one will be provided to you without cost. Do you understand? 17 DEFENDANT: Yes. DETECTIVE: 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. Do you understand? DEFENDANT: Yes. DETECTIVE: Now that I have advised you of your rights are you willing to answer questions? DEFENDANT: I’ll answer a few. DETECTIVE: Okay. Whatever you want. Allright? (DVD at 17:40:48 - 17:41:42, A744). In his statement, defendant admitted that he had punched Munim just outside of the F train station at Parsons Boulevard and Hillside Avenue, but denied trying to rob him, claiming instead that Munim had attacked him when defendant refused to tell him where to buy marijuana and cigarettes. During the course of the interview, defendant repeatedly took control of the questioning, revealing an understanding of his rights to tell investigators only what he chose. For example, when asked how he got an injury to his leg, defendant refused to answer, telling the interviewers, “it’s not important” (DVD: 17:58, A744). And when asked about whether he remembered what Munim looked like, defendant stated, “I’m not answering any more questions,” thus invoking his right to remain silent and concluding the interrogation (DVD: 18:00, A744). Significantly, defendant never asked the ADA to investigate 18 anything, and never provided an alibi. A DVD of defendant’s Central Booking interview was admitted into evidence at the hearing (Hearing Exhibit 1). 4 Arguments and Decision At the conclusion of the hearing, defendant argued that the description of the perpetrators was not sufficient to permit police to stop and detain defendant for the show-up, particularly where Officer Bonner’s description of a “camouflage jacket” differed from the victim’s account of a “dark jacket,” and that, accordingly, both the identification and defendant’s subsequent statements were tainted by the illegal stop and should be suppressed (Proceedings: H76-79, A103-06). In response, the People argued that under the totality of the circumstances, Officer Bonner had reasonable suspicion to briefly detain defendant for the show-up, that defendant matched the description provided, and that once the victim identified defendant, Officer Alvarez had probable cause for the arrest. The People further argued that defendant had validly waived his Miranda rights prior to making his statement in CBQ, and, accordingly, the suppression motion should be denied in its entirety (Proceedings: H79-82, A106-09). In an oral decision, Justice Grosso denied defendant’s suppression motion, reasoning that the description of the suspects as black males wearing “dark clothing” coupled with the information of the transit clerk at Parsons and Hillside that the suspects boarded the train there, and defendant’s presence A copy of this DVD, which is relevant to the resolution of defendant’s claims on appeal,4 is provided to the Court at Appendix 744. 19 right outside of the 179 and Hillside stop minutes after the robbery, togetherth justified the limited detention (Proceedings: H86-87, A113-14). In this regard, the court rejected defendant’s argument that his “camouflage” jacket did not match the description of “dark clothing” transmitted to the police, holding that his jacket could clearly be seen in the videotape of the CBQ interview, and that it was very dark in appearance – and probably appeared even darker outside on the street at night (Proceedings: H87, A114). The court further reasoned that5 the subsequent show-up, conducted within 10 minutes of the stop, was proper, and the victim’s identification of defendant provided probable cause for his arrest (Proceedings: H87-88, A114-15). Finally, the court held that defendant’s CBQ statement was preceded by Miranda warnings, which were acknowledged and waived by the defendant, and that his statement was properly and voluntarily made. Thus, the court denied the motion in its entirety (Proceedings: H88, A115). The Trial and Sentence Thereafter, defendant proceeded to trial before Justice Richard L. Buchter, Supreme Court, Queens County, and a jury. At the trial, defendant was identified by Munim as one of his two assailants. He was also identified by token booth clerk Goodlet as one of the two men who jumped the turnstile at the Parsons Boulevard F train station shortly after she had heard Munim The court also noted that in conducting its analysis, it relied on the “dark clothing5 description” given by the victim to Officer Alvarez, rather than on “the overheard statements concerning the camouflage jacket” that Officer Bonner recounted, but whose source he could not recall. 20 yelling and screaming, as the east-bound train was pulling into the station. And he was identified by Officer Bonner as one of the two men he saw exiting the 179 Street station after the east-bound F train pulled into the station, andth just before Bonner received the radio call for a robbery two train stops away. At the conclusion of the trial, defendant was found guilty of attempted robbery. He was sentenced on January 27, 2010, as noted above. The Claims on Appeal On appeal, defendant argued, inter alia, that the police, armed only with a general description of the perpetrators, lacked reasonable suspicion to stop him, thus requiring suppression of the show-up identification and defendant’s statements to police. Additionally, defendant contended that the prosecutor’s standard prefatory remarks just prior to the reading of the Miranda rights in CBQ were misleading, rendering defendant’s waiver and videotaped statement involuntary. In response, the People argued, first, that the victim’s description of the perpetrators coupled with the other circumstances known to the police -- including that defendant and a taller black male had taken an east-bound F train to 179 street immediately after the robbery, just like the suspects; thatth defendant was startled and reacted oddly when he first saw police upon exiting the train station; and that defendant was standing just outside that train station minutes after the crime -- were sufficient to justify defendant’s brief detention for a show-up, thus defeating his motion to suppress the show-up 21 identification. Second, the People countered that defendant’s Miranda waiver and statement were both voluntarily made, as clearly seen on the videotape. In a decision dated January 30, 2013, the Appellate Division, Second Department, held that, for the reasons stated in the companion case of People v. Dunbar, 104 A.D.3d 198, and without regard to the facts of defendant’s particular case or his individual circumstances, the pre-Miranda remarks made by the interviewers in CBQ deprived defendant of an adequate advisement of Miranda warnings as a matter of law, and “was not effective to secure the defendant’s constitutional privilege against self-incrimination and right to counsel”. People v. Polhill, 102 A.D.3d at 989. The court also held that the hearing court should have suppressed the identification testimony because the descriptions of the perpetrators, as two black males wearing dark or black jackets, one in blue jeans and one in black jeans, one taller than the other, and one with a hood, did not provide reasonable suspicion to stop and detain defendant, “who was dressed in a dark grey and dark green camouflage jacket and was standing alone, outside a liquor store, 20 blocks away from the crime scene.” Id. Notably, the court made no mention of any of the facts adduced at the hearing and relied upon by the suppression court in combination with the general description to find that reasonable suspicion existed – namely, that the transit clerk had told police that the suspects boarded the east-bound train at Parsons Boulevard just after the robbery, that the officer’s had seen defendant with another taller black man exit 22 the nearby 179 street station when that east-bound train arrived there, and thatth the officer stopped defendant, who was then alone on the street just outside the 179 street station, only after he recognized him as one of the two men he hadth previously seen in the station (Proceedings: H86-87, A113-14). Both facets of the Appellate Division’s decision suffer from the same analytical flaws: its failure to give any deference to the hearing court’s factual determinations, its choice to view selected facts in isolation, rather than to view them as threads in a tapestry forming the totality of the circumstances relevant to the issues before it, and its use of broad strokes to apply a generalized, across-the-board rule of suppression instead of carefully tailoring its decision, and remedy, to the case before it. For all of these reasons, both prongs of the Appellate Division’s decision were wrong, and in clear contravention of this Court’s caselaw and general public policy disfavoring suppression of reliable and probative evidence that furthers the primary truth- seeking function of the trial. Both prongs of the decision should be reversed. 23 POINT ONE THE APPELLATE DIVISION ERRED IN FAILING TO CONSIDER THE TOTALITY OF THE CIRCUMSTANCES IN CONCLUDING THAT POLICE LACKED REASONABLE SUSPICION TO BRIEFLY DETAIN DEFENDANT FOR A SHOW-UP CONDUCTED IN CLOSE SPATIAL AND TEMPORAL PROXIMITY TO THE CRIME. The evidence at the suppression hearing demonstrated that Officer Bonner properly detained defendant for a show-up identification procedure conducted within minutes of the crime, and the hearing court properly denied suppression on this basis. Nevertheless, the Appellate Division reasoned that defendant’s detention was improper because the general description of two “black men in dark clothing” was insufficient to make it reasonably likely that defendant, found standing alone in a camouflage jacket, was one of the perpetrators. As such, the Appellate Division held that the show-up identification should have been suppressed as the fruit of an illegal detention. But the Appellate Division’s reasoning on this point, which ignores all of the other key facts known to the police prior to defendant’s stop, and adduced at the suppression hearing, is incomplete and incorrect. Here, the victim’s description of the perpetrators did not stand alone and was not incongruous with defendant’s appearance, as the Appellate Division intimated. Rather, as the suppression court found, defendant was wearing dark clothes, as clearly seen on the CBQ video, which would have appeared even darker at night; he 24 had been observed exiting the train station towards which the perpetrators had fled just five minutes after the crime; he was then accompanied by a taller black male also in dark clothes; and both he and his companion had paused and acted “startled” upon initially seeing the police in the train station. Thus, the victim’s description, coupled with all of the other information that the police had at the beginning of their encounter with defendant, amply provided them with the requisite reasonable suspicion to briefly detain defendant for investigative purposes. And, following the victim’s identification, the police clearly had probable cause to arrest defendant for the attempted robbery. The Appellate Division’s decision to the contrary, premised on a failure to look at the facts in totality, should be reversed. To evaluate the propriety of police-initiated encounters, this Court has devised a four-tier approach. People v. DeBour, 40 N.Y.2d 210 (1976). First, the minimal intrusion of approaching and requesting information is permissible when an officer has some objective credible reason, not necessarily indicative of criminality. Second, the common-law right of inquiry is activated by a founded suspicion that criminality is at hand. With the common-law right of inquiry, an officer’s questions may be extended and accusatory so that the individual stopped may believe that he or she is suspected of some wrongdoing. Third, when an officer has a reasonable suspicion that a particular individual was involved in a crime, the officer may forcibly stop and detain that person. Fourth, a police officer may arrest a person when he or she 25 has probable cause to believe that the individual has committed a crime. People v. Hollman, 79 N.Y.2d 181, 184-85 (1992); DeBour, 40 N.Y.2d at 223. Reasonableness is the governing standard in assessing the appropriateness of police conduct in search and seizure cases. DeBour, 40 N.Y.2d at 218. Assessing the reasonableness of police conduct requires a balancing of the defendant’s interest in being free from government interference against the interest of the state in apprehending criminals. Id. at 217. Thus, before the police can forcibly or constructively detain an individual, there must be some articulable facts, which initially or during the course of the encounter, establish reasonable suspicion that an individual was involved in, or about to become involved in, criminal acts. People v. Harrison, 57 N.Y.2d 470 (1982). And the question of whether that threshold is satisfied must be gleaned by reference to the “totality of the circumstances” rather than a “frame by frame” analysis of the facts. People v. Batista, 88 N.Y.2d 650, 653 (1996); People v. Stephens, 47 A.D.3d 586 (1 Dept. 2005); see also People v.st Anderson, 17 A.D.3d 166 (1 Dept. 2005) (“discrete analysis of each factor ...st is inappropriate as the officers are confronted only with a complete set of circumstances”). Once the basis for investigative detention is formed, the length of a detention is constitutionally justified where the police “diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly – during which time it was necessary to detain the defendant.” United 26 States v. Sharpe, 470 U.S. 675, 686 (1985); People v. Hicks, 68 N.Y.2d 234, 240-243 (1986); People v. Barnes, 4 A.D.3d 433 (2d Dept. 2004); People v. Robinson, 282 A.D.2d 75 (1 Dept. 2001).st Applying these principles to this case, it is clear that the police acted properly in briefly detaining defendant for a show-up, and then subsequently arresting him once the victim identified him. Defendant, who matched the general description given by the victim of a black male wearing a dark colored jacket and jeans, was standing less than one block away from the 179 Street F-train station – the last stop on the train that the perpetratorsth had taken to flee the crime – approximately 10 minutes after the robbery. Moreover, Officer Bonner recognized defendant as the man he had seen exiting that train station within seconds of the radio-run of the robbery. And, at that time, defendant was with a taller black man in dark clothes – thus perfectly matching the description of the two suspects. Additionally, Officer Bonner had noticed that defendant and his companion were “startled,” and that they briefly paused upon initially seeing the police officers in the train station. Thus, under the totality of the circumstances – knowing that the two robbery suspects had fled on a east-bound F train, knowing that defendant had exited that same train just minutes after the robbery, knowing that defendant was then with a taller black male, knowing that both had reacted oddly upon seeing the police, and knowing that both defendant and his companion matched the general description of the perpetrators’ race, clothing, and relative height – Officer 27 Bonner clearly had reasonable suspicion to approach and briefly detain defendant for a show-up. Finally, in light of the brevity of defendant’s detention, and the diligence of the police in attempting to quickly confirm their suspicions, defendant’s detention was justified. The hearing testimony showed that after stopping defendant, Officer Bonner immediately radioed for officers to bring the victim to the location for a show-up, and, in fact, the victim arrived less than ten minutes later. Defendant’s brief detention was, thus, certainly reasonable. See People v. Sharpe, 470 U.S.675, 686 (1985) (twenty minute detention was justified); People v. Hicks, 68 N.Y.2d at 243 (detention of less than ten minutes during which defendant was transported back to the scene of the crime for identification was justified); People v. Martinez, 133 A.D.2d 572, 574 (1st Dept. 1987). And once the victim identified defendant as the man who had punched him and tried to rob him, the police had probable cause for defendant’s arrest. The Appellate Division nevertheless reasoned that the police did not have a detailed description of the robbery suspects, and that defendant, found standing alone and in a camouflage jacket, did not even match the general description they did have. Thus, the Appellate Division concluded, the police did not have reasonable suspicion to detain him. The court’s analysis was flawed, however, because, first, it accorded no deference whatsoever to the hearing court’s findings of fact (see People v. Prochillo, 41 N.Y.2d 759 28 [1977]), and, second, it exacerbated this error by simply ignoring all of the other factors, as detailed above, that provided reasonable suspicion for defendant’s stop – including the fact that Officer Bonner had seen defendant exiting the train station that the suspects had fled towards immediately after the robbery; that just after the robbery, defendant had been accompanied by a taller, black man, also dressed in dark clothing, and that together they matched the description of the two suspects; that both defendant and his companion had paused and appeared startled by the police presence; and that defendant’s jacket was very dark and would have appeared even darker on the street at night. Thus, despite the fact that the description of the defendant – if taken alone – was somewhat general, here, Officer Bonner did not act on defendant’s description alone. Cf. People v. Thomas, 300 A.D.2d 416 (2d Dept. 2002); People v. Dubinsky, 289 A.D.2d 415 (2d. Dept. 2001); People v. Riddick, 269 A.D.2d 471 (2d Dept. 2000). Rather, his reasonable suspicion was based on a totality of factors that, together, justified the stop. See People v. Evans, 65 N.Y.2d 629 (1985) (reasonable suspicion can be based on a totality of factors, none of which, standing alone, would be sufficient to justify a stop); People v. Watkins, 40 A.D.3d 290 (1 Dept. 2007); People v. Selby, 220 A.D.2d 544 (2dst Dept. 1995). In sum, the hearing court correctly found that the brief detention of defendant was reasonable under the circumstances. Its decision was fully supported by the record, and was based on an application of the proper legal 29 standard established by this Court, which requires courts to look determine reasonable suspicion based on an evaluation of the totality of the circumstances fluidly unfolding before a trained officer – not on a piecemeal evaluation of facts in isolation. Therefore, the Appellate Division had no reason – and provided no valid justification – for disturbing the suppression court’s decision; indeed, it only did so by misapplying the legal standard to only a selected portion of the evidence adduced at the suppression hearing, rather than to all of the available evidence that had been presented to, and considered by, the hearing court. As a result, its decision was flawed in both methodology and result, and it should be reversed. 30 POINT TWO THE APPELLATE DIVISION ERRED IN APPLYING AN UNPRECEDENTED PER SE RULE TO AUTOMATICALLY REQUIRE SUPPRESSION OF DEFENDANT’S VOLUNTARY VIDEOTAPED STATEMENT WITHOUT ANY REGARD TO WHETHER THE INTERVIEWERS’ PRE-MIRANDA REMARKS IMPACTED THE KNOWING, INTELLIGENT, AND VOLUNTARY N A T U R E O F T H I S P A R T I C U L A R DEFENDANT’S WAIVER IN THIS PARTICULAR CASE. The hearing court properly denied defendant’s motion to suppress his videotaped CBQ statement, reasoning that his statement was voluntarily made, after a valid Miranda waiver, and before his right to counsel had attached under New York law. The court, thus, correctly concluded that there was no ground for suppression. Nevertheless, without affording any deference to the hearing court’s findings of fact, and without any regard to the individual circumstances of defendant’s case or the totality of the circumstances surrounding the waiver, the Appellate Division held that defendant’s Miranda waiver was invalid because the brief set of remarks by the interviewers “muddled” Miranda, and, thus, had the legal effect of making it as though Miranda had never been read at all. The Appellate Division was wrong in both its analysis and its result. Its decision should be reversed. 31 A. The Appellate Division’s Methodology Was Wrong. 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. 412, 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. Paulman, 5 N.Y.3d 122, 130 (2005) (same). But where no interrogation precedes a suspect’s Miranda waiver, and where Miranda rights are fully administered, acknowledged, and waived, any issue regarding law enforcement’s statements or conduct prior to the suspect’s Miranda waiver bears only on the question of whether the waiver was knowing, intelligent, and voluntary under the totality of the circumstances 32 surrounding it. See Colorado v. Spring, 479 U.S. 564 (1987); Moran v. Burbine, 475 U.S. 412 (1986). This inquiry is, as this Court has recognized, “essentially a factual issue that must be determined according to the circumstances of each case.” People v. Williams, 62 N.Y.2d 285, 288 (1984). And while, as the Appellate Division noted, the intelligence and voluntariness of a Miranda waiver is a separate inquiry from the question of whether the suspect’s statement was voluntarily made (Dunbar at 213), it is an analysis6 that similarly depends on an evaluation of the totality of the circumstances. See, generally, C.P.L. §60.45; see also 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”); Commentary to New York Criminal Jury Instructions First Edition (CJI 1 )st 11.00, pp. 612-13 (“... each and every ‘circumstance’ which entered into the determination of involuntariness under the inherently coercive test and the ‘totality of circumstances’ test, is presently a circumstance to be considered in determining whether ... the defendant ‘knowingly and intelligently waived his For example, there are situations where suspects are interrogated but are not in custody6 for purposes of Miranda. Miranda rights need not be read and waived before such non- custodial interrogation, but coercive and improper interrogation tactics can still render a confession involuntarily made and, thus, unreliable and inadmissible as a matter of due process. See CPL §60.45; see also, Arizona v. Fulminante, 499 U.S. 279 (1991) (paid informant, acting as agent of government, coerced defendant’s confession to crime for which he was not in custody by using threat of violence that overcame defendant’s will). 33 privilege against self-incrimination and his right to retained or appointed counsel’”). The Appellate Division missed this key point. It refused to engage in the case-by-case voluntariness analysis mandated by the law, urged by the People, applied for half-a-century by every court reviewing the validity of a Miranda waiver, and properly applied by every suppression court that has ever reviewed the admissibility of a suspect’s CBQ statement since the program’s inception in 2007. Instead, it concluded that it could avoid such analysis by7 couching its decision as a finding of a defect in the content of the Miranda warnings themselves, and not on a finding that the suspect’s waiver was not knowingly, intelligently, and voluntarily made. Thus, while the Appellate Division acknowledged that “ordinarily, the question of whether a defendant Indeed, while some Queens judges have criticized the program over the years on7 various grounds, no court has ever applied a per se rule to invalidate the Miranda waiver and suppress the statements. Even the program’s harshest critics have recognized that suppression necessarily depends on an evaluation of the voluntariness of each individual suspect’s Miranda waiver under the totality of the circumstances; and, beyond this, that in view of the shifting burdens of production and persuasion at a Huntley hearing (see, generally, John Brunetti, NY Confessions, at §9.01 et.seq. [LexisNexis 2011 edition]), any finding that the pre-Miranda remarks might have impacted the knowing, intelligent, or voluntary nature of a suspect’s waiver would require the defendant to testify at the hearing that, notwithstanding his videotaped acknowledgment that he understood each warning, he was actually confused or misled by the pre-Miranda remarks. See People v. Perez, 37 Misc. 3d 272, 291 (Queens Sup. Ct. 2012, Blumenfeld, J.) (reasoning that because “defendant never testified” at the suppression hearing “it is impossible to determine” whether the standard pre-Miranda remarks read to him as part of the Queens Central Booking Interview Program undermined defendant’s ability to make a knowing, intelligent, and voluntary waiver); see also People v. Perez, 8/9/10 proceedings at pp.19-20, submitted as Exhibit 11 to Petition for Article 78 in Brown v. Blumenfeld, 103 A.D.3d 45 (2d Dept. 2012) (available at NYLJ.com) (“THE COURT: ...every one of the cases so far they have one thing in common. Not a single defendant got on the stand and said what he thought what he was being told or she was being told. I don’t know if that’s ever going to happen. It may be counsel wisely chose not to. I don’t know the answer to that. But if the standard is totality of the circumstances and they all chose not to testify, then you may have an unbeaten strength ...”). 34 knowingly and intelligently waived his or her rights ... is determined upon an inquiry into the totality of the circumstances,” it deemed this irrelevant here, because “we are not faced with the question of whether the defendant was a person capable of understanding his rights and making a knowing and intelligent waiver .... Rather, the problem is that defendant never received a clear and unequivocal advisement of his rights ....” Dunbar at 210; see also id. at 213 (“The question upon which we pass in the instant matter is not one of the voluntariness of the defendant’s inculpatory statement as a matter of due process. Rather, Miranda established a bright-line rule separate and apart from the question of voluntariness. The failure to adequately advise a suspect of his or her rights as required by Miranda requires suppression of even voluntary statements”) (internal quotations omitted). The Appellate Division’s use of an automatic per se rule in this circumstance was unprecedented and incorrect. 1. The Appellate Division’s Analysis Was Inapplicable Where Miranda Was Fully, Accurately, and Completely Read Prior to Any Interrogation. Fundamentally, the Appellate Division’s central justification for applying a per se rule is flawed because, unlike in the cases it cited, where there was some deviation from Miranda, here there is no question that defendant did receive “a clear and unequivocal advisement of his rights” before any interrogation commenced and any statements were made: he was read the standard Miranda rights used in New York City for decades, and repeatedly approved by this Court, from a pre-printed form, verbatim, with no deviation 35 whatsoever, and he expressly acknowledged and waived those rights. Cf., Duckworth v. Eagan, 492 U.S. 195, 203 (1989) (where there is deviation from Miranda, courts must inquire “whether the warnings reasonably ‘conve[yed] to [a suspect] his rights’”), quoting California v. Prysock, 453 U.S. 355, 361 (1981); Florida v. Powell, 559 U.S. 50, 60 (2010) (suspect not told that he had right to presence of lawyer during questioning); People v. Hutchinson, 59 N.Y.2d 923, 924 (1983) (defendant not told he was entitled to counsel during questioning by officer). Contrary to the Appellate Division’s decision, the automatic suppression required for a failure to give some or all of the Miranda warnings, is simply not applicable – and has never been applied – to a circumstance like this one, where the warnings were completely, carefully, and clearly read to defendant while he listened attentively, and which were fully acknowledged and waived by the defendant before he decided to make any statements at all. The Miranda warnings cannot simply be erased or ignored, as though they were never uttered at all, which is precisely what the Appellate Division did to achieve its result. Simply stated, this is not a case where Miranda was not properly read before custodial interrogation; it is a case where something was said prior to Miranda that might have impacted the knowing, intelligent, and voluntary nature of the waiver. And this is precisely why the “ordinary” and “traditional” case-by-case totality-of-the-circumstances analysis, which the Appellate Division refused to apply, should have been 36 applied to determine whether, under the unique circumstances of this particular case, law enforcement’s statements and conduct prior to administration of proper Miranda warnings vitiated the validity of this individual defendant’s waiver. The Appellate Division’s failure to engage in this mandatory analysis was flatly wrong and requires correction. Indeed, neither this Court nor the Supreme Court has ever eschewed a case-by-case voluntariness analysis in any other situation where a complete set of Miranda warnings were actually read prior to any custodial interrogation – such8 holding is entirely unprecedented and unsupported. But, more importantly, the Appellate Division’s fundamental failure in this regard was not a mere oversight; it was an intentional, reasoned, and central premise of its decision, which, if allowed to stand, will effect a sea- change in the law. Under the Appellate Division’s holding, any statement uttered to a suspect prior to Miranda can be characterized as changing the meaning, or “muddling” the warning that follows. Thus, other than non-verbal In this regard, and as the Appellate Division recognized, continuous interrogation cases8 like Missouri v. Seibert, 542 U.S. 600 (2004), People v. Chapple, 38 N.Y.2d 112 (1975), and People v. Paulman, 5 N.Y.3d 122 (2005), are inapposite, for they all involved situations where custodial interrogation preceded the suspects’ Miranda waivers, and, in each of those cases, the suspects made statements prior to Miranda, thus letting “the cat out of the bag” before being advised of their rights (Dunbar at 209). Here, by contrast, there was no pre- Miranda interrogation, as nothing in the pre-Miranda remarks was reasonably likely to elicit an incriminating response or, indeed, any response at all; no questions were asked by the interviewers and no statements were made by the suspects prior to the waiver (see Respondent’s Appellate Division Brief at 17-21, for full discussion). Indeed, the Appellate Division correctly declined to adopt defendants’ arguments that the pre-Miranda remarks were, themselves, the functional equivalent of interrogation and had to be preceded by Miranda warnings (Dunbar at 212 n. 2), and agreed with the People that Miranda warnings need not be the first words uttered by law enforcement (Dunbar at 211). 37 conduct preceding Miranda -- like actual physical deprivations or violence -- any other conduct by law enforcement, which is necessarily verbal in nature, can easily be couched by a clever defense attorney as a failure to properly and effectively administer Miranda warnings, and, thus, can, under the Appellate Division’s precedent, be deemed to require suppression, per se, without any need for a hearing or a case-by-case evaluation of the impact on an individual suspect under the circumstances of his individual case. And the fallacy of this approach is particularly pronounced when the court’s conclusions about the impact of the pre-Miranda language is, itself, not the result of any testimony at a suppression hearing about the individual defendant before the court from which a concrete finding of fact can be made, but, rather, is based only on the court’s own speculation about how a theoretical suspect might have interpreted the language, or might have misunderstood it. Indeed, while the Appellate Division purported to base its decision on a finding of a clear facial deficiency in the content of the Miranda warnings themselves, so as to justify rejection of a traditional case-by-case analysis, even a cursory review of its decision exposes that its holding does not follow from the actual words uttered or omitted by law enforcement, but, rather, depends on layers upon layers of speculation about the potential meaning that might be gleaned by potential suspects, and the potential impact upon their decisions to waive their rights (see Dunbar at 207-209). 38 For example, though defendant in this case was accurately told, “This will be your only opportunity to speak with us before you go to court on these charges,” the Appellate Division condemned this language, concluding that “it is not reasonable to expect an individual with no legal training to appreciate the subtle distinction that there may be other opportunities to tell his or her story after arraignment” (Dunbar at 208 n. 1). But, of course, in the absence of a case-by-case analysis, and given the Appellate Division’s steadfast refusal to consider the defendant’s background in determining the impact of the pre-Miranda remarks, there is simply no basis to conclude that defendant had no legal experience in the first place. 9 Similarly, though the court found it problematic that suspects were told, “If there is anything you need us to investigate about this case you have to tell us now so we can look into it,” as this could compel a suspect to waive his right to remain silent to avoid the “adverse, and irrevocable consequences” of losing his only chance to have his case investigated (Dunbar at 208), such concern could only possibly apply to a case where the suspect did, in fact, ask the People to investigate something concerning his case – which, ironically, Indeed, although defendant was not a lawyer, as discussed in section B below, his9 lengthy criminal record dispelled any concern that he lacked legal “experience” and eliminated any possibility that he did not understand precisely what would happen after arraignment, and the various “opportunities” he would subsequently be afforded. So, too, did the additional warning read by the investigators in this case, but omitted from the Appellate Division’s analysis, advising defendant that he had a 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 to or appointed for you, and to have the question of bail decided by the court.” Notably, defendant was asked if he understood these rights, and affirmed that he did (see DVD, A744). 39 defendant in this case did not do. And, of course, this is an individual circumstance – one of the “totality of the circumstances” surrounding the waiver – and necessarily requires reference to the facts of each individual case. Thus, the court’s own reasoning exposes the fiction of the analytical construct it has created: its decision is not based simply on a facial deficiency in the Miranda warnings that might justify suppression per se, but, rather, requires reference to speculative deficiencies in the defendant’s background and experience and an evaluation of how, based on these presumed circumstances, the pre-Miranda remarks impacted his understanding of the rights and his decision to waive them. By simply substituting its own “theoretical” defendant into the equation instead of looking at the one standing before it, the court has stripped the suppression hearing of all meaning as a forum in which findings of fact can be made and weighed, has deprived the People of any opportunity to satisfy their burden of showing the voluntariness of an individual defendant’s waiver by pointing to his unique background and circumstances, and, most alarmingly, has based its legal holding on a set of “facts” that are based entirely on speculation rather than on any testimony in the record before it. 2. The Appellate Division’s Decision Afforded no Deference to the Hearing Court’s Findings of Fact and Disregarded the Burdens of Proof at a Suppression Hearing. Beyond improperly applying a per se rule as though Miranda warnings were never read at all, instead of looking at the individual 40 circumstances of the case before it to determine the impact of the pre-Miranda comments on the validity of this defendant’s waiver under the totality of the circumstances, the Appellate Division’s decision was also wrong because it afforded no deference whatsoever to the hearing court’s factual determinations based on the record before it (see People v. Prochillo, 41 N.Y.2d 759 [1977]), and because it was based on a fundamental misapprehension of the burdens of proof at a suppression hearing. While it is true, as the Appellate Division said, that the People have a “heavy burden” to prove that defendant’s Miranda waiver was knowing, intelligent, and voluntary (Dunbar at 206, citing Miranda at 475), it is clearly established that this ultimate burden at the suppression hearing is satisfied by a “preponderance of the evidence.” Colorado v. Connelly, 479 U.S. 157, 168 (1986). Thus, the Appellate Division’s finding that “when the warnings are combined with the preamble, it cannot be said with assurance that the suspects clearly understood their rights” and its ultimate conclusion that “it cannot be said with reasonable certainty that suspects subjected to the Program understand their rights and the consequences of foregoing them” (Dunbar at 207, 214) did not justify reversal; for “assurance” is not required, and the People need not prove the validity of a Miranda waiver at a suppression hearing with “reasonable certainty” – only by a preponderance of the evidence. And, more fundamentally, the burdens of proof at any suppression hearing are not stagnant; but, rather, shift from party to party. See, e.g., People 41 v. Berrios, 28 N.Y.2d 361 (1971) (re: suppression of physical evidence); People v. Chipp, 75 N.Y.2d 327 (1990) (re: identification). With respect to the validity of a Miranda waiver, it is well settled that the prosecution has the burden of production to prove, beyond a reasonable doubt, that Miranda warnings were fully administered and waived by the defendant (People v. Huntley, 15 N.Y.2d 72 [1965]; People v. Valerius, 31 N.Y.2d 51 [1972]); but, once this is done, as it clearly was here, the defendant has the burden of persuasion to show that “his state of mind at the time of his waiver” – whether impacted by the investigators’ conduct or other internal or external influences – nonetheless vitiated his understanding of the rights or rendered his seemingly explicit waiver invalid. See People v. Love, 57 N.Y.2d 998, 999 (1982) (defendant’s psychiatric institutionalization at the time of his waiver “is not sufficient to meet defendant’s burden of persuasion, the People having shown the legality of the police conduct in the first instance”); People v. Grady, 6 A.D.3d 1149, 1150 (4 Dept. 2004) (“People met their initial burden ofth establishing the legality of the police conduct and defendant’s waiver of rights, and defendant failed to establish that he did not waive those rights, or that the waiver was not knowing, voluntary, and intelligent”) (internal quotations omitted); People v. Smith, 220 A.D.2d 704 (2d Dept. 1995) (“The defendant offered no evidence and, thus, failed to meet his burden of persuasion concerning his state of mind at the time of his waiver”); People v. Chavis, 147 A.D.2d 582 (2d Dept. 1989) (where the People “in the first instance” establish 42 that defendant was read and waived his rights, “the burden of persuasion on a motion to suppress rests with the defendant”); see also People v. Perez, 37 Misc. 3d at 291 (reasoning that because “defendant never testified” at the suppression hearing “it is impossible to determine” whether the standard pre- Miranda remarks read to him as part of the Queens Central Booking Interview Program undermined defendant’s ability to make a knowing, intelligent, and voluntary waiver); People v. Martz, 26 Misc.3d 1227(A), at ***3 (Dist. Ct., Nassau Co. 2010) (explaining shifting burdens). Here, the People proved beyond a reasonable doubt that Miranda warnings were fully administered to defendant, that defendant affirmatively acknowledged that he understood each warning, and that, after doing so – and before being asked or answering any questions at all – defendant expressly waived his rights and agreed to answer the investigators’ questions. Indeed, all of this can be plainly seen on the videotapes. This was sufficient to satisfy the People’s burden of production. And, in the absence of any testimony by the defendant that, notwithstanding his express acknowledgment and waiver, he actually did not understand his rights because of the investigators’ pre- Miranda comments, the Appellate Division had absolutely no authority – nor, indeed, any record support – for its conclusions to that effect and its reversal of the hearing court’s factual determinations to the contrary. Its apparent attempt to fashion a per se rule based on the inferences that might be drawn by a hypothetical defendant turns the applicable burdens of proof on their head. 43 3. The Appellate Division’s Rationale that a Different Rule is Justified Because the Interviewers’ Remarks Were Not Off-the- Cuff, but Standardized, Is Untenable. Nor is the Appellate Division’s use of a per se rule justified by the fact that the statement in this case was obtained under a standardized program, with all of the pre-Miranda remarks read verbatim from a form, 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. Indeed, notwithstanding the “formality” of the Central Booking program and the standardization of the words on a piece of paper, the pre- Miranda remarks are read with different tones, inflections, rates of speed, and mannerisms by each individual ADA or investigator, and may have a different impact on each individual suspect. And it defies logic to intimate, as the Appellate Division did here, that while pre-Miranda comments like the ones read by the investigators in this case would be proper if made “offhand” by an individual interrogator, they somehow become impermissible when they are read from a form and used in multiple cases. See Dunbar at 211, see also People v. Vasquez, 90 N.Y.2d 972 (1997) (approving of police first announcing that defendant should implicate 44 others to avoid facing brunt of the criminal charge, and then giving Miranda warnings before inviting a response; because the timing of the request for a response came after the administration of the warnings, the asking of the question beforehand did not matter); People v. Bailey, 24 A.D.3d 684 (2d Dept. 2005) (detective’s pre-Miranda statements advising defendant that her reason for bringing him to the interview room was that she wanted him “to tell [her] in his own words what took place,” and her statement, “I want you to tell me what happened” were proper); People v. Barrow, 284 A.D.2d 145 (1 Dept.st 2000) (preliminary introductory remarks to defendant about the case after police discovered the gun used in the crime, and inquiries about whether defendant wished to make a statement prior to administration of Miranda warnings did not constitute interrogation, and defendant’s statements – made only after he had waived his rights – were admissible); People v. Soto, 253 A.D.2d 359 (1 Dept. 1998) (police informing defendant that victim’s body hadst been recovered and displaying crime scene pictures to him after defendant had been arrested, taken to the precinct, and placed in a cell, did not affect admissibility of responses made after warnings were provided). Either the comment is proper or not. The number of times it was 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 45 N.Y.2d at 972; 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 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”). * * * 46 In short, while a per se rule may be quicker or easier to apply than a case-by-case analysis, is not permissible and it does not further justice. Exclusion of highly probative and voluntary statements is not, as the Appellate Division intimated, a societal goal to which we should aspire, so as to justify a broad rule that automatically achieves this result in as many cases as possible; rather, as the Supreme Court has repeatedly recognized, “society would be the loser” of a rule barring admission of voluntary confessions, because this would only frustrate the ultimate truth-seeking function of a trial. McNeil v. Wisconsin, 501 U.S. 171, 181 (1991). Society has clearly lost in this case – and will possibly lose thousands of times over – unless and until this Court corrects the decision below. B. Under the Correct Analysis, the Record Fully Supported the Hearing Court’s Conclusion That Defendant’s Waiver Was Knowing, Intelligent, and Voluntary. As discussed above, the Constitution strikes a necessary balance between individual liberty and societal need, and, in the context of custodial interrogation, that balance is struck by uncompromisingly requiring Miranda warnings and a waiver in every case across-the-board, but gauging voluntariness of the waiver – and, separately, of the statement – based on a case-by-case analysis of the individual circumstances unique to each suspect. Aside from using a flawed methodology, the Appellate Division also reached a clearly incorrect result under the circumstances of the case before it. And, for that reason too, the Appellate Division’s decision should be reversed. 47 In order to be valid, a suspect’s waiver of his Miranda rights must be both voluntary, in the sense that it is “the product of free and deliberate choice” and knowing, in that it is made with “full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” See Colorado v. Spring, 479 U.S. 564 (1987); Moran v. Burbine, 475 U.S. 412 (1986). The test for a valid waiver of Miranda rights must be viewed under the “totality of the circumstances,” and factors relevant to the inquiry include the length of the interrogation, the use of any threats, the use of physical force, the interviewer’s tone, the suspect’s experience with the criminal justice system, the suspect’s emotional state, any intoxication or drug addiction, and any language or communication problems. Here, the testimony at the hearing and the videotape of defendant’s Central Booking interview clearly demonstrate that, under the totality of the circumstances, defendant’s waiver in this case was voluntary, knowing, and intelligent, notwithstanding the pre-Miranda remarks. First, and contrary to the Appellate Division’s analysis, the content of the brief pre-Miranda remarks – while certainly one of the factors relevant to the validity of the waiver – clearly did not mislead this defendant into believing that he had to make a statement now and could not remain silent, that the District Attorney was not an adverse party, or that if defendant requested an attorney he would lose the opportunity to have his case investigated. As the Appellate Division recognized, the specific language used by the interviewers 48 was completely accurate: “This will be your only opportunity to speak with us before you go to court on these charges.” And the Appellate Division’s condemnation of this accurate statement on the grounds that “it is not reasonable to expect an individual with no legal training to appreciate the subtle distinction that there may be other opportunities to tell his or her story after arraignment” (Dunbar at 208 n. 1), is completely inapplicable to this defendant, whose extensive experience with the criminal justice system dispelled any concern that he did not understand precisely what would happen after arraignment, and the various “opportunities” he would subsequently be afforded. Similarly, though the court found it problematic that suspects were told, “If there is anything you need us to investigate about this case you have to tell us now so we can look into it,” as it could compel a suspect to waive his right to remain silent to avoid the “adverse, and irrevocable consequences” of losing his only chance to have his case investigated (Dunbar at 208), such concern could only possibly apply to a case where the suspect did, in fact, ask the People to investigate something concerning his case – which, ironically, defendant in this case did not do. 10 Additionally, the meaning with which the Appellate Division imbued the pre-Miranda10 remarks is, itself, unfounded. Telling a suspect, “If you want a cup of coffee, you have to tell me now so I can get you one”, may convey some sense of immediacy, but it certainly does not imply to a rational person that if he declines the offer, he will never get coffee again. So, too, telling a suspect, “this will be your only opportunity to get a cup of coffee from me before you go to court on these charges” does not imply, by any stretch of the imagination, that the suspect will be unable to get a cup of coffee after he goes to court, and it requires no “legal training” to appreciate such “subtle[ty]”. Ordinary words should be presumed to have (continued...) 49 And, of course, the impact of the pre-Miranda remarks in this case must be viewed through the prism of the clear, forceful, and unequivocal Miranda warnings that follow, which preceded any interrogation and were given before defendant agreed to make any statements. He was specifically told that he had 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 to or appointed for you, and to have the question of bail decided by the court;” a right he said he understood. He was clearly advised that he had “the right to remain silent and refuse to answer questions”; which he said he understood. He was forcefully warned that “anything you do say may be used against you in a court of law;” and he agreed that he understood this. He was told that he had “the right to consult an attorney before speaking to [the interviewers] or to the police and have an attorney present during any questioning now or in the future;” which he also understood. He was advised that if he “cannot afford an attorney, one will be provided to [him] without cost; which he acknowledged. And it was explained that if he did “not have an attorney available, [he] ha[d] the right to remain silent until [he] ha[d] had an opportunity to consult with one;” a right he affirmed that he understood. (...continued)10 ordinary meaning, and, in the absence of any credible testimony from a defendant at a suppression hearing that he actually misunderstood them, such conclusion should not – and may not – be drawn by a reviewing court. See, e.g., People v. Gonzalez, 55 N.Y.2d 720 (1981) (even when People do not prove the actual content of the warnings read to defendant, but only that “warnings” were given, this will still satisfy their burden “in the absence of any proof whatsoever that such reading was or might have been deficient in some particular.”). 50 While the Appellate Division blew past the impact of these warnings in its analysis, referring to them in passing as a “mere recitation of the litany” which is not always adequate (Dunbar at 209), it was wrong to discount them, and to simply assume – without any record support – that the suspect must have misunderstood them in spite of his history and his unequivocal assurances to the contrary. Indeed, in reading the pre-Miranda remarks in a manner that contradicted, rather than worked in conjunction with, the Miranda warnings that immediately followed, the Appellate Division not only factually misinterpreted the import of what the suspect was told, but again violated the fundamental rule that the issue of whether a waiver is knowing and voluntary must only be answered with regard to the “totality of the circumstances.” If the District Attorney’s prefatory 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 validity of the Miranda waiver in this case – a waiver that was made by a savvy and experienced defendant, who did not ask the District Attorney to investigate anything, and who did not provide any alibi as requested in the pre-Miranda remarks. 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. Additionally, the Central Booking interview in this case was relatively brief, spanning approximately 20 minutes in length. And the District 51 Attorney’s introductory remarks – which were, notably, the only subject of the Appellate Division’s concern – were very short, spanning less than two minutes in duration (see DVD, A744). Moreover, the overall tone of the interview was civil and polite. Defendant was never threatened in any way, and, certainly, was never subjected to any kind of physical force whatsoever. Indeed, defendant was specifically told that the interview would be videotaped, thus providing further reassurance (Id.). The interviewers never yelled at defendant, or even raised their voices above a normal speaking volume. And defendant was calm during the interview, and appeared lucid and clear-headed. He spoke and comprehended English without any problem, and was visibly eager to convey his version of events to the interviewers (Id.). Moreover, under the circumstances of this case, where defendant was a 50-year-old parolee at the time of the crime, and had a criminal history punctuated by repeated arrests and significant contact with law enforcement, it would strain logic to conclude that he did not understand the ADA’s role as an adversary, his right to counsel, or that his statements could be used against him. Additionally, the video clearly showed that defendant understood the full parameters of his right to remain silent and that he, not the interviewers, was in control of the extent and nature of the interrogation. In this regard, after attentively listening to his Miranda rights, and acknowledging each one, defendant told the interviewers that he would “answer a few questions,” evincing his understanding that he could choose what questions to answer and 52 when to stop talking (DVD, A744). Later, during the course of the questioning, when the interviewers asked defendant how he got an injury to his leg, defendant refused to answer, telling them, “it’s not important” (Polhill DVD: 17:58). And when asked about whether he remembered what Munim looked like, defendant stated, “I’m not answering any more questions,” thus invoking his right to remain silent and concluding the interrogation (Polhill DVD: 18:00). Thus, when the unique facts before the hearing court are considered, as they must be, there can be no question in this case that defendant did, in fact, clearly and completely understand his rights. In view of this record, had the Appellate Division applied the correct standard, it would have been compelled to conclude that, in spite of what it deemed to be potentially-confusing language in the People’s pre-Miranda remarks, there was absolutely no evidence that this defendant did not understand his rights in this case; to the contrary, the record affirmatively proved that the waiver was valid and that defendant had a very full and clear understanding of his rights. 53 CONCLUSION For the reasons stated above, the order of the Appellate Division suppressing the identification and defendant’s videotaped statement 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 claims under the correct legal standard. Respectfully Submitted, RICHARD A . BROWN District Attorney Queens County By: __________________________ Donna Aldea Special Counsel, Pro Bono, for Appellant DONNA ALDEA Barket, Marion, Epstein & Kearon, LLP Special Counsel, Pro Bono, for Appellant JOHN M. RYAN JAMES C. QUINN ROBERT J. MASTERS Assistant District Attorneys of Counsel November 7, 2013 54 55