The People, Appellant,v.Sparkle Daniel, Respondent.

Brief

N.Y.June 2, 2016

To be argued by APL-2015-00025 NATALIE REA (15 Minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against - SPARKLE DANIEL, Defendant-Respondent. BRIEF FOR DEFENDANT-RESPONDENT REDACTED SEYMOUR W. JAMES, Jr. Attorneys for Defendant- Appellant THE LEGAL AID SOCIETY Criminal Appeals Bureau 199 Water Street, 5th Floor. New York, N.Y. 10038 (Tel.) (212) 577-3300 NATALIE REA Of Counsel July, 2015 (redacted August 2015) TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... iv PRELIMINARY STATEMENT ............................................................................... 1 QUESTIONS PRESENTED ...................................................................................... 2 SUMMARY OF THE ARGUMENT ........................................................................ 3 STATEMENT OF FACTS ........................................................................................ 5 The Pre-Trial Hearing ...................................................................................... 5 The Testimony ................................................................................................. 5 The Arrest ........................................................................................................ 6 The Interrogation ............................................................................................. 7 Argument and Decision ................................................................................. 12 Respondent’s Statements ............................................................................... 13 First Statement (Written) ..................................................................... 13 Second Statement (Written) ................................................................ 16 Third Statement (Videotaped) ............................................................. 17 The Trial ......................................................................................................... 19 The People’s Case ................................................................................ 19 2003: Early Suspects ............................................................................ 19 2006: The Investigation Resumed ...................................................... 21 i 2007: Kirby calls the Police ................................................................ 23 Forensic Evidence ................................................................................ 28 The Defense’s Case .............................................................................. 30 Proceedings in The Appellate Division ......................................................... 32 Arguments ........................................................................................... 32 Decision ............................................................................................... 32 ARGUMENT POINT I THE APPEAL SHOULD BE DISMISSED BECAUSE THE PEOPLE’S CHALLENGE TO THE FINDINGS THAT THE PRE-MIRANDA QUESTIONING WAS INTERROGATION AND THE PRE- AND POST- MIRANDA INTERROGATIONS WERE A SINGLE CONTINUOUS CHAIN OF EVENTS RAISE MIXED QUESTIONS OF LAW AND FACT BEYOND THIS COURT’S JURISDICTION UNDER C.P.L. §450.90(2)(a). ..................................................................................... 35 POINT II IF THIS COURT HAS JURISDICTION OVER THIS APPEAL, THE DECISION OF THE APPELLATE DIVISION SUPPRESSING RESPONDENT’S PRE AND POST MIRANDA STATEMENTS AS THE PRODUCT OF ONE SINGLE CONTINUOUS UN- MIRANDIZED CUSTODIAL INTERROGATION -- WHERE TWO DETECTIVES QUESTIONED HER IN AN ISOLATED PRECINCT INTERROGATION ROOM, ABOUT THE MURDER OF AN OLD LADY ii FOUR YEARS EARLIER, FOR THE SOLE PURPOSE OF OBTAINING INCRIMINATING STATEMENTS -- MUST BE AFFIRMED. U.S. CONST. AMENDS. V, XIV; N.Y. CONST., ART. 1§6; PEOPLE V. PAULMAN, 5 N.Y.2D 122 (2005); MIRANDA V. ARIZONA, 384 U.S. 436 (1966). ................................................................................ 41 A. The Pre-Miranda Questioning was Interrogation……………………...42 B. Because there was no definite break between the pre and post Miranda interrogation, all custodial statements had to be suppressed……………48 CONCLUSION ........................................................................................................ 56 iii TABLE OF AUTHORITIES Federal Cases Illinois v. Perkins, 496 U.S. 292 (1990) .................................................................. 43 Miranda v. Arizona, 384 U.S. 436 (1966) ........................................................passim Missouri v. Seibert, 542 U.S. 600 (2004) ............................................................ 4, 52 Rhode Island v. Innis, 446 U.S. 291 (1980) ............................................ 4, 32, 42, 43 State Cases In Re Daniel H, 15 N.Y.3d 883 (2010) .................................................................... 38 People v. Baumann & Sons Buses, Inc., 6 N.Y. 3d 404 (2006) .......................................................................................... 40 People v. Bethea, 67 N.Y.2d 364 (1986) ..................................................... 32, 49, 52 People v. Bradford, 15 N.Y.3d 329 (2010) .............................................................. 36 People v. Brown, 25 N.Y.3d 973 (2015) ................................................................. 36 People v. Chapple, 38 N.Y.2d 112 (1975) ........................................................passim People v. Crimmins, 36 N.Y.2d 230 (1975) ............................................................ 53 People v. Cruz, 90 N.Y.2d 961 (1997) .................................................................... 36 People v. Daniel, 122 A.D.3d 401 (1st Dept. 2014) .........................................passim People v. Dercole, 52 N.Y. 2d 956 (1981) .............................................................. 40 People v. Ferro, 63 N.Y.2d 316 (1984) .......................................4, 32, 37, 42, 43, 47 People v. Garner, 174 A.D.2d 1028 (4th Dept. 1991) ............................................. 45 iv People v. Gonzalez, 68 N.Y.2d 995 (1986) ............................................................. 40 People v. Hall, 125 A.D.2d 698 (2d Dept. 1986) .................................................... 47 People v. Harrison, 82 N.Y.2d 693 (1993) .............................................................. 37 People v. Holland, 18 N.Y.3d 840 (2011) ..................................................... 3, 38, 40 People v. Johnson, 80 N.Y.2d 798 (1992) ............................................................... 53 People v. Key, 54 N.Y.2d 813 (1981) ..................................................................... 40 People v. Kollar, 305 A.D.2d 295 (1st Dept. 2003), appeal dismissed, 1 N.Y. 3d 591 (2003) ....................................................................................... 46, 47 People v. Lombardi, 97 A.D.2d 278 (3d Dept. 1983) ............................................. 45 People v. Mayorga, 100 A.D.2d 853 (2d Dept. 1984), appeal dismissed, 64 N.Y. 2d 864 (1985) ........................................................................ 3, 38, 39, 40 People v. Naradzay, 11 N.Y.3d 460 (2008) ......................................................... 3, 36 People v. Panton, 114 A.D.3d 450 (1st Dept.), leave denied, 23 N.Y.3d 966 (2014)(Graffeo, J.,), leave granted, __ N.Y.3d __ (2015)(Lippman, J.,) .................................................................................................................... 2, 30 People v. Paulman, 5 N.Y.3d 122 (2005) .........................................................passim People v. Steele, 277 A.D.2d 932 (4th Dept. 2000) ................................................ 45 People v. White, 10 N.Y.3d 286 (2008) ...........................................................passim People v. Winship, 78 A.D.2d 514 (1st Dept. 1980) ............................................... 46 State v. Mauchley, 67 P.3d 477 (Utah 2003) ........................................................... 55 Constitutional Provisions N.Y. Const. Art. I, §6 ......................................................................................... 43, 55 U.S. Const. V, XIV ............................................................................................ 43, 55 v Statutes C.P.L. § 450.90(2)(a) .............................................................................. 3, 35, 36, 38 P.L. § 125.25(1) ......................................................................................................... 5 P.L. § 125.25(3) ..................................................................................................... 1, 5 Other Authorities Alice McQuillan, Bx. Lady, 91, Found Dead, N.Y. DAILY NEWS, Jan. 11, 2003 (available at http://www.nydailynews.com/archives/news/bx-lady-91-found- dead-article-1.671785) ...................................................................................... 31 “Matriarch”, N.Y. TIMES, Jan. 11, 2003 (available at http://www.nytimes.com/2003/01/11/nyregion/police-investigate-the- death-of-a-matriarch-in-the-bronx.html) .......................................................... 31 Murray Weiss et al., Beloved Bx. Granny, 91, Murdered, N.Y. POST, Jan. 11, 2003 (available at http://nypost.com/2003/01/11/beloved-bx-granny-91- murdered/) ........................................................................................................... 31 vi COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Appellant, : -against- : SPARKLE DANIEL, : Defendant-Respondent. : ---------------------------------------------------------------X PRELIMINARY STATEMENT By permission of the Honorable Darcel D. Clark, Associate Justice of the Appellate Division, First Department, granted January 22, 2015, the People appeal the order of the Appellate Division, First Department, entered November 6, 2014. People v. Daniel, 122 A.D.3d 401 (1st Dept. 2014) (A. 2-13). 1 That order reversed the judgment entered in the Supreme Court, Bronx County, rendered October 25, 2010, convicting respondent, Sparkle Daniel, after a jury trial, of second-degree murder under P.L. §125.25(3) (felony-murder), and sentencing her to an 1 References to testimony in the selected portions of the hearing and trial transcripts are preceded by the name of the witness who so testified and “A.” when included in Appellant's Appendix and "R." when included in Respondent's Appendix. 1 indeterminate term of imprisonment of 25 years to life (A. 2). Respondent is currently detained at Rikers’ Island awaiting retrial (A. 14) (Carter, J.). Appellant had a co-defendant at the hearing below, Nadine Panton. Ms. Panton was convicted at a separate trial of second-degree murder and second- degree robbery, and her conviction was affirmed. People v. Panton, 114 A.D.3d 450 (1st Dept. 2014), leave denied, 23 N.Y.3d 966 (2014) (Graffeo, J.), leave granted, 25 N.Y.3d 991 (2015) (Lippman, J.). QUESTIONS PRESENTED 1. Whether the appeal should be dismissed because the People’s challenge to the findings that the pre- Miranda questioning was interrogation and the pre- and post-Miranda interrogations constituted a single continuous chain of events raises mixed questions of law and fact beyond this court’s jurisdiction under C.P.L. §450.90(a)(2). 2. Whether, if this Court has jurisdiction over this appeal, the decision of the Appellate Division suppressing respondent’s pre- and post-Miranda statements as the product of one single continuous un- Mirandized custodial interrogation – where two detectives questioned her in an isolated precinct interrogation room, about the murder of an old lady four years earlier, for the sole purpose of obtaining incriminating statements -- must be affirmed. U.S. Const., Amends. V, XIV; N.Y. Const., Art. 1 §6; People v. Paulman, 5 N.Y.3d 122 (2005); Miranda v. Arizona, 384 U.S. 436 (1966). 2 SUMMARY OF THE ARGUMENT In October 2010, respondent was convicted of felony-murder and sentenced to a term of 25 years to life. The Appellate Division reversed the conviction and granted the motion to suppress respondent’s pre- and post-Miranda written statements to the police and videotaped statement to the prosecutor, finding that they were the result of a single un-Mirandized continuous custodial interrogation. On appeal, the People challenge the findings that the pre-Miranda questioning was interrogation and the statements were the result of a single continuous interrogation. The appeal should be dismissed because both findings present mixed questions of law and fact well supported by the record and therefore beyond this Court’s jurisdiction under C.P.L. §450.90(2)(a). People v. Naradzay, 11 N.Y.3d 460, 468 (2008) (“Whether the police have engaged in custodial interrogation is a mixed question of law and fact”); People v. Holland, 18 N.Y.3d 840, 841-42 (2011) (dismissing an appeal because attenuation is a mixed question of law and fact); People v. Mayorga, 64 N.Y.2d 864, 865 (1985) (same). If the Court finds that the appeal does not present mixed questions of law and fact, the decision of the Appellate Division should be affirmed for two reasons. First, the pre-Miranda questions by the detective “do you know why you are here?” to which she answered “no,” followed by his comment that he was investigating 3 the murder of an old lady, and his subsequent more insistent question “do you know what I am talking about now,” in an interrogation room in the Bronx, after respondent’s arrest in Brooklyn, a 45 minute car ride with two detectives from Brooklyn to the Bronx, and a 15 to 20 minute wait in a holding cell, amounted to express interrogation, Miranda v. Arizona, 384 U.S. 436, 444 (1966), or, at the very least, its “functional equivalent," Rhode Island v. Innis, 446 U.S. 291, 300- 301 (1980); People v. Ferro, 63 N.Y.2d 316, 322-323 (1984). Respondent’s answer, placing herself at the scene of the crime with the other suspected perpetrator and the victim, was clearly incriminating. Indeed, at that point, the detective finally read her Miranda warnings. Second, the post-Miranda interrogation followed the pre-Miranda interrogation seamlessly, in the same room, with the same detectives taking notes on the same sheet of paper in a question and answer form. There was no break in the interrogation, let alone a definite break. As the Appellate Division concluded, respondent’s post-Miranda statements were the result of one single chain of events mandating suppression of all her statements. See People v. Paulman, 5 N.Y.3d 122, 130 (2005); Missouri v. Seibert, 542 U.S. 600 (2004); People v. White, 10 N.Y.3d 286 (2008). 4 STATEMENT OF FACTS On January 10, 2003, Nellie Hocutt, 91 years old, was found dead in her apartment in the Bronx (A. 14). Four years later, respondent, Sparkle Daniel, was charged with first- and second-degree murder and first- and second-degree robbery for her alleged involvement in the death of Ms. Hocutt (A. 14). 2 A co-defendant, Nadine Panton, was indicted on the same charges (A. 14). The Pre-Trial Hearing Before trial, respondent moved to suppress her custodial statements to the police and prosecutor on the night of her arrest. A Huntley hearing was held (A. 14, 28-174). The Testimony The People called Detectives Nicholas Ciuffi and James McSloy of the Bronx Homicide Task Force, who testified about respondent’s arrest and questioning (A. 14). On June 6, 2007, four years after the death of Nellie Hocutt, Det. McSloy received a call from an anonymous woman, later identified as Larissa Kirby, claiming to have information about the robbery, which she then changed to the murder, of an elderly woman, some years ago in the winter (McSloy: A. 29-30, 2 The first-degree murder charge of intentional felony murder was dismissed before trial. The second-degree murder charges were intentional murder, P.L. §125.25(1), and felony murder, P.L. §125.25(3). 5 36-37, 42-43). 3 Det. McSloy eventually determined that the information was related to the unresolved January 2003 murder of Nellie Hocutt (McSloy: A. 19, 30, 33). According to Kirby, two of her friends, Sparkle Daniel and Nadine Panton, were responsible for the murder (McSloy: A. 30-31; Ciuffi: A. 53). She learned about their involvement while overhearing a “recent” phone conversation between the two women (McSloy: A. 31).4 Kirby later provided the detectives with details about the crime that led to respondent's arrest (Cuiffi: A. 56-57, 63-64).5 The Arrest On July 19, 2007, around 1:00 p.m., Detectives Ciuffi and Mulroy watched respondent’s building from an unmarked car (Ciuffi: A. 61, 86). Detective McSloy and his partner, Detective Tracey, arrived later to assist (McSloy: A. 37). The detectives had a photograph and description of respondent (Ciuffi: A. 88; McSloy: 3 The caller said she had already called Crime Stoppers and the Bronx 47th Precinct, but she was not getting any help (McSloy: A. 29). Crime Stoppers is a unit within the police department that takes anonymous calls, passes them off to detectives, and offers monetary rewards for callers (Ciuffi: A. 55). Ciuffi testified that in the Nellie Hocutt case, there was a $2000 Crime Stoppers Reward and a “Mayor’s Reward” of at least $10,000 (Ciuffi: A. 55). 4 During an interview with Det. Ciuffi one week later, Kirby provided a different account of how she learned this information. She said that respondent first disclosed her involvement in Hocutt’s death during a phone conversation with Kirby in 2003, in which respondent described “the facts of the case and how it was done” (Ciuffi: A. 58). Kirby said that shortly thereafter, she overheard a phone conversation between respondent and Panton in which they discussed the crime (Ciuffi: A. 58). 5 Ciuffi tried to verify that Kirby’s information had not been disclosed to the press by reviewing several Daily News articles about the Hocutt murder (Ciuffi: A. 83-84). 6 A. 38-39). Shortly before 5:00 p.m., they saw her come out of her building wearing a t-shirt, shorts, and flip-flops (Ciuffi: A. 89-90, 65). As she walked to the corner store, detectives McSloy and Tracey approached and asked for her name (McSloy A. 40, 129-31). When she refused to answer, McSloy said, “just tell me your name.” (McSloy: A. 40-41). She became “very agitated,” “raising her voice” (McSloy: A. 40; Ciuffi: A. 66).6 McSloy testified that he “just reiterated” “if you could tell me your name we can end this right now” (McSloy: A. 41). She eventually said, “I’m fucking Sparkle Daniel” (McSloy: A. 41, 128, 132). At 5:10 p.m., she was handcuffed and placed in a car with detectives Ciuffi and Mulroy and driven to the Bronx Homicide Task Force (McSloy: A. 41; Ciuffi: A. 66, 94, 96, 137 4). The drive took 45 minutes (Ciuffi: A. 66, 96). At one point, respondent asked where they were going and Ciuffi said, “we are going to the Bronx.” (Ciuffi: A. 67, 96). No one said anything else (Ciuffi: A. 95-96). She was not read her Miranda warnings (Ciuffi: A. 97). The Interrogation They arrived at the Bronx Homicide Task Force, between 6:00 p.m. and 6:30 p.m., and respondent was taken directly to a private holding cell (Ciuffi: A. 97-98). Det. Cuiffi could not remember if he questioned her in the holding cell but he 6 An “anxious” crowd had gathered around respondent, including her brother (McSloy: A. 40). 7 conceded that it was “possible” (Ciuffi: A. 99). After informing his superior that they had arrested Sparkle Daniel, Det. Ciuffi prepared the interrogation room (Ciuffi: A. 67, 99). The room had a table, chairs, a door and two interior windows with blinds usually closed (Ciuffi: A. 68, 115). After about 10 to 15 minutes, Detectives Ciuffi and Mulroy uncuffed respondent and took her from her holding cell to the interrogation room (Ciuffi: A. 68, 99). As soon as they sat down, Det. Ciuffi filled out the header on respondent’s statement sheet, listing the time as “1855 hours or 6:55 p.m..” (Ciuffi: A. 73-74, 99). He then started questioning her (Ciuffi: A. 73-74). “I put my heading on the pad, and I told her do you know what you are here for . . . I asked her if she knew why she was here,” Ciuffi said (Ciuffi: A. 68, 99-100). Respondent said “no.” (Ciuffi: A. 68, 100). “I said we are investigating a murder of an old lady;” she did not respond (Ciuffi: A. 68, 100). At that point, there was a knock at the door and Det. Ciuffi stepped out for a “couple of minutes,” leaving respondent in the room with Det. Mulroy (Ciuffi: A. 79, 100). Outside, Det. Ciuffi’s supervisor asked him for pedigree information of respondent’s future co-defendant, Nadine Panton; Det. Ciuffi complied and returned into the interrogation room where he immediately resumed questioning (Ciuffi: A. 69, 116). Det. Ciuffi testified, “[w]hen I came back in is when I said to Ms. Daniel, do you know what I am talking about now [?]” “I believe I said I know 8 you know what I am talking about . . . .” (Ciuffi: A. 100-01).7 Respondent replied, “yes” (Ciuffi: A. 101). Det. Ciuffi testified that she then said: "I went to my aunt's house on Laconia Avenue, and I saw -- I don't -- I think she said Ms. Nellie. And I asked her to use the phone" (Ciuffi: A. 69, 101).8 After obtaining this admission, Det. Ciuffi read respondent her Miranda warnings for the first time at 7:10 p.m. (Ciuffi: A. 69, 74). “Once [he] went through the Miranda warnings with Ms. Daniel . . . she was willing to continue talking to [him] about the incident that took place on Laconia Avenue.” (Ciuffi: A. 70-71). On the statement sheet begun at 6:55 p.m., he noted that the warnings were given at 7:10 p.m. and wrote down the rest of respondent’s statements (Ciuffi: A. 73-74).9 This first statement ended at 7:57 p.m., 47 minutes after the Miranda warnings, one hour after he started the questioning, and three hours after she was 7 At trial, Ciuffi testified, “I said you know what I’m talking about, don’t you.” (Ciuffi: A. 237). 8 Ciuffi admitted that when he questioned her, he “certainly hoped” that she would say something fully incriminating (Ciuffi: A. 79). 9 There are time gaps in Ciuffi’s narrative. He said that the officers arrested respondent at 5:10 p.m. (Ciuffi: A. 137), and that the drive took 45 minutes (Ciuffi: A. 66). This would put them in the Bronx at 5:55 p.m. The interview did not officially begin until an hour later, at 6:55 p.m. (Ciuffi: A. 73). He testified that respondent was not searched after they arrived (Ciuffi: A. 98), and there is no evidence that she was asked pedigree information or fingerprinted during this time (McSloy: A. 136). To the contrary, Ciuffi said she was brought directly up to the holding cell and then brought directly to the interview room (Ciuffi: A. 98-99). If respondent was in the holding cell for 10 to 15 minutes (Ciuffi: A. 99), then 45 to 50 minutes remain unaccounted for. Based on this testimony, respondent must have either remained in the holding cell for considerably longer than 10 to 15 minutes, or the interview started much earlier than 6:55 p.m. In any event, Ciuffi held appellant in his nearly continuous personal custody for two full hours before administering Miranda warnings at 7:10 p.m. (Ciuffi: A. 74). 9 put into the police car (Ciuffi: A. 74). Eight minutes later, at 8:05 p.m., questioning resumed and respondent began her second statement, which ended at 8:27 p.m. (Ciuffi: A. 74). Det. Ciuffi described the statements as the product of “Q and A” (Ciuffi: A. 103-04). Respondent “didn’t just reel off and say all this." He explained that "there is always questions that are asked in between, whether for my clarity or because I didn’t understand something” (Ciuffi: A. 104). Though both detectives asked questions, Det. Ciuffi did most of the questioning (Ciuffi: A. 110). When respondent did not mention something, it is “possible” that he asked her for specific details (Ciuffi: A. 108). He also admitted that, contrary to his normal practice, here he wrote the statement: “in this case being it was so long I didn’t want to go over it again. We already had gone over it twice. So I don’t believe I asked her. I think I just chose to write it myself” (Ciuffi: A. 111). He wrote the statements, read them, and she assented to each statement; she never read them (Ciuffi A. 71-72, 112). Det. Ciuffi testified that they did not tape the interview, though they had the equipment nearby, and Det. Mulroy did not keep notes (Ciuffi: A. 110). As a result, Det Ciuffi’s written statements are the only record of what happened (Ciuffi: A. 116-18). In his view, the two statements had “pretty much the same content” (Ciuffi: A. 71). Asked on direct examination why he had asked for a second 10 statement, Det. Ciuffi said that he wanted to put the first statement into a more organized form (Ciuffi: A. 71). Asked the same question on cross-examination, he admitted that he “didn’t believe everything” she said and felt she “was leaving something out” (Ciuffi: A. 118-19). In fact, between the first and second statement, he considered how to “elicit more truthful information;” he went back and said he did not believe that Panton had been the primary actor (Ciuffi: A. 118-19, 152).10 He said that by “asking her or telling her that I didn’t believe she was telling the truth, I was looking for additional facts” (Ciuffi: A. 155). Det. Ciuffi admitted that he might have told her that she could get the death penalty (Ciuffi: A. 109). He also admitted that she may have asked to make a phone call and he may have told her that he “wasn’t going to stop . . . in the middle of a statement to do that” (Ciuffi: A. 116, 153). The detectives gave respondent food and soda once they completed the second statement (Ciuffi: A. 76, 274). After the second statement, Det. Ciuffi spoke to respondent about making a videotaped statement to the district attorney (Ciuffi: A. 158-59). He may even have told her to “repeat what [she] told us on the video in front of [the] D.A.” (Ciuffi: A. 158). At 11:00 or 11:15 p.m., in the same interrogation room, Det. 10 Ciuffi acknowledged that he told the Grand Jury that he “asked her if she wanted to provide any other facts to this case,” and “if she wanted to explain her [first] statement.” (Ciuffi: A. 120-22). 11 Ciuffi and A.D.A. Charriott began the videotaped interrogation (Ciuffi: A. 158).11 The video statement was essentially the same as the written statements. Argument and Decision At the end of the hearing, counsel argued that respondent’s initial incriminating statement had to be suppressed because it was the product of a custodial interrogation that occurred before Miranda warnings. Her post-Miranda statements also had to be suppressed because they followed “the initial unwarned statements as a continuous chain of events” (see A. 19-21). The prosecution conceded that respondent had been in custody but argued that the pre-Miranda questioning had not been interrogation and all subsequent statements should not be suppressed (A. 19) (Carter, J.). The hearing court found that the pre-Miranda response to Ciuffi’s questioning was not the product of an interrogation because it “would make sense that Detective Ciuffi, who had no prior contact with Daniel, would ask her if she was aware why she was at the precinct” (A. 22) (Carter, J.). In addition, “even if the first question posed by Ciuffi at 6:55 p.m. was custodial interrogation, the break between Ciuffi leaving the room and returning approximately 10-15 minutes 11 Ciuffi testified at trial that the third statement began at 11:00 pm, that it was made in the interview room, that he sat next to respondent during the statement, and that A.D.A. Charriott had the two written statements when she conducted the interview (Ciuffi: A. 274; A. 19 (Carter, J.)). The precise start time was not established at the suppression hearing. 12 later is enough to dissipate any taint that occurred, particularly in light of the brevity of the exchange.” Id.12 The court denied respondent’s motion to suppress. Id. Respondent’s Statements First Statement (Written) The notes of Det. Ciuffi provide: What happened to old lady who lived next door to my aunt who was murdered? Female black, old, wore glasses. She would bring candy [to] my cousin D.,13 who lived next door, in 2003. I’m not sure. I think was around spring time. It was cold outside. I was at Nadaine’s house that morning. House was on 216th and Laconia. I got up. Took a shower. Hung out with Nadaine. Me and Nadaine walked to my aunt’s house. But, she was not there. I knocked on Ms. Nellie’s door. The top door. Ms. Nellie opened the door. I asked Ms. Nellie if I could use the phone to call my aunt. She let us both in the house. I made a call from the phone by the dining area. I called my aunt’s phone number. House phone. [ ]. It kept ringing, but I didn’t bother to leave a message. I don’t like leaving messages on people’s voice mail. Ms. Nellie was standing in the kitchen by the counter. She was talking. She said, “I remember you,” to Sparkle. I said that Nadaine is my friend after I used the phone. Nadaine asked if she could use the phone to call her sister. I asked to use the bathroom. I used the one by the front door. I came out of the bathroom, and said, “if you have seen my aunt tell her I came by.” Nadaine pulled me aside by the bathroom. Nellie was past the 12 Ciuffi testified that he left the room for a “couple of minutes” (A. 100). 13 Pursuant to Rule 500.5(d), sensitive materials and non-testifying witnesses are referred to by their initials. 13 stairs by the living room. Sparkle said, “let’s go to your house so I could go to sleep.” Nadaine said, “nah, let’s just rob her.” I said, “no. She knows my aunt. She knows what I look like.” Nadaine said, “well, I’m not going no where.” Then, Nadaine pushed Nellie. Nellie fell toward the steps. I said, “I’m leaving.” Nadaine said, “you’re not going no where.” I said, “what do you mean I’m not going no where?” I know her a long time. I know what she is capable of. I know she gets into a lot of altercations. She drinks a lot, and smokes a lot of weed. Nadaine went to the kitchen, and got a knife. Bigger than a kitchen knife with a black handle. Nadaine told Nellie to sit down in the chair. Nellie sat down. Nadaine was pointing the knife at Ms. Nellie. Nadaine said, “where all your money at?” Ms. Nellie said, “over there. It is in my pocketbook.” Nadaine said, “Sparkle, go over there and get the money.” The pocket book was on the table. I searched through it. It was like a bundle, but about 100 – a hundred to 120. I gave it to her. I said, “you got the money, so let’s go.” She was like, “no, no. I’m going to do something to her.” I said, “what are you going to do to her? She is old.” She closed the curtains in the front, and locked the front door. She made her sit in the chair in the living room. Then, tied her up with tape around the chair, and her head, and her hand on her foot. I was standing by the steps. 14 She said, “I’m getting – I’m gonna cut her neck,” but she didn’t do it. She started choking her with her hands but it didn’t work. She [Nellie] was stronger. There was a bottle of kosher wine. She made Ms. Nellie drink it all. She held her head back, and poured it down her throat. It was red, or maroon wine. She made her drink it until she died. Nadaine checked her pulse by putting her finger on her neck. Nadaine took her chain around Ms. Nellie’s neck. She left Ms. Nellie tied up. She put a plastic bag over her head. She got it in the kitchen. She kept it over her head, and tied it with a scarf. Nadaine said that we can’t go through the front door. Someone is going to see us. It was in the afternoon. The sun was still out. I said, “we can’t go through the back door because there is no exit through the backyard.” I said, “there is a downstairs door you could try that.” I said, “come on. Let’s go. We are going together.” Went down stairs because her apartment is just like my aunt’s. We went through the basement door. Nadaine took the house keys, a bunch of keys. I said, “why you taking the keys?” She said, “mind your business. Don’t worry about it.” She also took the paper towels from the basement area. She closed the inside door, opened, but left the outside door opened. We walked left, and turned on 220th Street. Walked left on the next block, and down to 216th Street. From 216th Street we went to her house. I was living with Nadaine at the time. When we got back in she took all her clothes off, everything she had on except her bra, and panties, and threw it in a garbage bag. She [threw] it out in a garbage can outside her house. I took off my white hoodie, and put it in the bag with the stuff. After that she said, “you know you can’t tell anybody because you could get in trouble too because I was there.” The next day we were watching the news on television. She said, 15 “it’s on the news.” I was like, “oh, my God.” She said if I tell somebody that she was going to kill me. So, for a couple of days later she had an attitude . . . . After this happened, me and Nadaine never spoke about it again. (A. 23-25). Second Statement (Written) Eight minutes after the end of the first statement, Det. Ciuffi started writing out a second statement. It began in the middle, after Panton had forced the victim into the chair: When Ms. Nellie was forced into the chair by Nadaine, Nadaine made Nellie get up. And said, “come on. Where is the tape.” Ms. Nellie said, “why are you doing this to me?” Nadaine said, “I have to. If I let you live you’re going to call the police.” All of us walked towards the kitchen area. I found the tape in one of the drawers. Duct tape. We all walked back to the living room area. Nadaine made her sit down. She said to me, “come over here, and tie up her foot while I hold her hand.” I got on my knees. Ms. Nellie tried to kick me with her foot. I said, “you might as well let me do it because she is going to do something to both of us.” I tied her foot to the chair. I gave Nadaine the tape. Then Ms. Nellie started screaming. She pulled the knife and said, “you better stop screaming before I cut your throat.” After she said that, she said, “give me the tape so I could tape her hands up.” Then she tied her hands up. Nadaine told me to get something to put in her mouth. I went to the kitchen and got a dish rag. Nadaine put it in Nellie’s mouth. Nadaine then choked Ms. Nellie with her hand. I was standing by the steps. That’s when made Nadaine held her head back, and poured wine down her throat until she couldn’t breath[e] no more. After that 16 she told me to get a bag. I got a bag. A little grocery bag in the kitchen. I gave it to Nadaine. She put it over her head. Her scarf was nearby. Nadaine picked it up, and put it around her neck. She said, “okay. She’s dead let’s go. Check around the house to see if we find anything.” I responded, “no, I’m not going.” She put a knife at me. She said, “let’s go upstairs.” We went upstairs. There was a bathroom, and we made a right to the bedroom. She said, “you’re going to stand next to me, and I’m going to search the drawers.” She searched the drawers. Now there was only clothes. She didn’t take anything. Nadaine took towels from the closet in the upstairs hallway, and took them home with her carrying them in the street in her hands. She took the knife home with her too. I didn’t see her throw it out. I might have tied her with the phone cord, too. (A. 26- 27). Third Statement (Videotaped)14 Respondent generally followed the two previous written statements during her videotaped interview with A.D.A. Charriott. In an uninterrupted narrative at the beginning of the video statement, respondent stated that she had “taped” the victim’s feet to the chair with “duct tape”; that Panton had put a cloth in the victim’s mouth and unsuccessfully tried to choke her with two hands; and that Panton then took a bottle of “the Kosher wine,” held the victim’s head back, and “made her drink all of it until she couldn’t breathe no more.” She said that after the victim had stopped breathing, Panton asked respondent to get a plastic bag, and 14 This account is based on counsel’ viewing of the videotape. 17 Panton “took a scarf and tied it around her neck.” Respondent later told A.D.A. Charriott that Panton had removed a necklace from the victim’s neck after she had put a plastic bag and scarf over her head and neck. In response to the subsequent A.D.A.’s questions, respondent said that Panton poured “as much wine as she can to make sure Ms. Nellie can’t breathe anymore.” She said that the victim was “guzzling” and “spitting it out,” and that the wine spilt on the victim and was “all over.” She thought wine must have spilt on Panton as well. She said that after Panton poured the wine down the victim’s throat, Panton “checked her pulse and there was none.” Respondent did not mention a phone cord during her initial narrative. A.D.A. Charriott, who was in possession of the second written statement, asked, “was anything else used to tape or tie the victim to the chair?” Respondent said, “I think a phone cord or something like that.” Respondent said Panton threatened her with a knife before and during the crime. After Panton first said she wanted to rob the victim, respondent told her she wanted to leave. Panton forced her to stay. “She put a knife to my neck and said, nobody’s not going no where.” After forcing the victim to the chair, Panton threatened respondent with physical force again. “She put a knife to me and made me tape her foot up,” respondent said. Panton also “put a knife” to respondent before they went upstairs and threatened “to kill” respondent if she told anyone. Panton held the knife throughout the crime. 18 The Trial The People’s Case In addition to respondent’s statements, the People presented evidence of the four-year investigation into the crime. Immediately after the crime, Detectives Ciuffi and Mulroy started an intense investigation. They interviewed neighbors who found it strange that the victim’s car had been in the driveway because she always parked in the garage (Ciuffi: A. 213-14). They also mentioned that she had been “very security minded”; she would not let anyone – even people she knew -- into the house unless “you had a specific reason to be there” (Ciuffi: A. 216, 288). So. H., one of the victim’s granddaughters, confirmed that the victim did not open her door to strangers (Ciuffi: A. 288). There was no sign of forced entry (Ciuffi: R. 8-9). The victim’s car was in the driveway outside the garage (Ciuffi: A. 213). A pocketbook and its strewn contents were found on the dining room table and groceries on the floor by the refrigerator (Ciuffi: A. 208). 2003: Early Suspects Because of the victim’s security concerns and the lack of forced entry, Det. Ciuffi believed that the perpetrators were “familiar” with the victim (Ciuffi: A. 215). “S. H. [another granddaughter of the victim] was considered a suspect throughout the investigation until the arrest of the two defendants” (Ciuffi: R. 93). On the first day of the investigation, the detectives went to her house to tell her 19 about her grandmother’s death (Ciuffi: R. 18, 43). She was not there and the detectives told her boyfriend, D.M.S., that Nellie Hocutt was dead; he said, “[w]hat’s wrong, did someone kill her?” (Ciuffi: R. 18). Ciuffi thought that was “a strange comment” (Ciuffi: R. 18). A few weeks later, Det. Ciuffi talked to a neighbor who said that days before the murder, she saw a man who fit D.M.S.’s description – 6’2” to 6’4”, African- American, clean-shaven, with a “bodybuilder” type frame – stand outside the victim’s house and walk away while “looking around and acting nervously” (Ciuffi: R. 17-18). A beige pillow with a footwear print was found at the scene next to the victim’s foot on the living room floor (Detective Curtis Harris: A. 189). The shoe or boot print took up almost the entire length of the pillow and “covered a large part” of it (Harris: R. 5; Ciuffi: R. 8). Due to the heavy tread, Harris believed that the foot had exerted heavy pressure on the pillow (Harris: R. 6). Det. Ciuffi also interviewed Nellie Hocutt’s other granddaughter, So. H. (Ciuffi: R. 19). So. H. said that Sa. H. visited the victim regularly (Ciuffi: R. 20). Detectives Ciuffi and Mulroy eventually ruled out everyone except Sa. H. and D.M.S. 15 They learned that Sa. H. believed she was the beneficiary of her 15 They investigated Hocutt’s newspaper delivery man, H.R.F. He initially told them that he had never been inside the victim’s home, but he later admitted that she “might have offered him a drink on a couple of occasions” (Ciuffi: R. 24). H.R.F. appeared nervous during interviews with the detectives (Ciuffi: R. 24). They investigated T.V. repairman E. F., who had a conflict with the victim’s family (Ciuffi: R. 25). Both H.R.F. and E.F. underwent polygraph tests, 20 grandmother’s will (Ciuffi: R. 39) and on February 3, 2003, a month after the death of Nellie Hocutt, they asked Sa. H. to take a polygraph test (Ciuffi: R. 96, 97). She refused. Sa. H. “knew she was a suspect from pretty early on in the investigation and at one point, she stopped communicating with the police (Ciuffi: R. 144, 184). “There was some attempts made, but we met with no response” (Ciuffi: R. 184). 2006: The Investigation Resumed Three years later, Sa. H.’s boyfriend, M.R., contacted the police, saying that Sa. H. and D.M.S. had killed Nellie Hocutt (Ciuffi: R. 29, 255, 143).16 Det. Ciuffi testified, “I do remember that D.M.S., and Sa. H., according to M.R., was somehow involved” (Ciuffi: R. 29). M.R. had heard Sa. H. talking about her grandmother’s death in her sleep and when he asked her about it, she admitted to her involvement in the murder (Ciuffi: R. 54). M.R. described how Sa. H. and M.D.S. went to Nellie Hocutt’s house “to distract her” and “steal her money” (Ciuffi: R. 40). She let them in, and they all drank “Chivas Regal, scotch” and “red wine” together and, consistent with the forensic evidence, he said that they had left wine and scotch bottles at the scene (Ciuffi: R. 57, 95, 158). M.R. also told the detectives that the victim had been and their fingerprints were compared to the latent prints at the scene (Ciuffi: T. 224-225). But their prints did not match (Ciuffi: R. 24-25). The only match remained the palm print of Sa. H., found on the victim’s living room wall (Ciuffi: R. 27-28). 16 He was also an informant with the narcotics unit (Ciuffi: R. 29). 21 (continued…) “taped to the chair” and “tied to the chair,” which he correctly described as a “blue chair” (Ciuffi: R. 57, 93, 94, 140). Again, consistent with the physical evidence, he said that Sa. H. and M.D.S. had caused the victim’s death by gagging her and putting a “plastic bag” over her head (Ciuffi: R. 37, 95). M.R. also knew that Sa. H. had refused to take a polygraph test (Ciuffi: R. 96). She had told him that the only evidence the police had on her was a handprint (Ciuffi: R. 96). M.R later heard Sa. H. have a conversation with “Nadine” about how the murder was committed (Ciuffi: R. 59). Ciuffi admitted that M.R.’s information was significant because it included non-public facts, and the detectives continued working with him even after he took a polygraph test in 2006 (Ciuffi: R. 93, 98). 17 “I’m not saying he wasn’t worthy of belief,” Ciuffi said (Ciuffi: R. 61). They continued investigating Sa. H.’s role in her grandmother’s death (Ciuffi: R. 93).18 17 Ciuffi said he told the victim’s family how her body was found, but did not disclose “the facts about the scotch bottle, and things like that.” (Ciuffi: R. 133). He said the police had secured the house by padlocking the front door, and the family was not allowed back in until “sometime later.” (Ciuffi: R. 135). The bottles of alcohol were taken away on January 10, 2003 as part of scene processing (Ciuffi: R. 136). 18 The detectives might have bugged a house to gather information on her involvement (Ciuffi: R. 62). 22 2007: Kirby calls the police Larissa Kirby, who had been respondent’s friend, testified to the events that led to respondent’s arrest. Between 2001 and 2003, she and respondent were very close and saw one another “almost every day,” and they remained close friends until 2007 (Kirby: R. 205, 213). In April 2007, however, respondent told Kirby’s husband, who was serving a life sentence upstate, that she had “cheated on him” with many different men (Kirby: A. 422, R. 201).19 “I was all-out upset. I was very upset,” she said (Kirby: A. 423). Over the next two months, Kirby grew increasingly mad at respondent, and, on June 6, 2007, she decided to call Crime Stoppers to get her in trouble (Kirby: A. 422, 465-66). She had “no” reason to call Crime Stoppers except that she was “so mad at Sparkle” she wanted “to get even with Sparkle.” (Kirby: R. 209; A. 411-13, 434). After Crime Stoppers “kept blowing [her] off,” Kirby contacted a Bronx precinct and was eventually transferred to Det. McSloy (Kirby: A. 422). First, she told him about a “robbery that occurred some years in the past,” but later clarified that she actually had information about the homicide of an elderly woman (McSloy: A. 360-61). She provided details about the crime, including that “wine was poured 19 Respondent wrote the letter after Kirby had been “very disrespectful” to respondent's mother (Kirby: A. 421). Kirby met her husband in 2002 at Rikers Island as she was visiting her boyfriend (Kirby: A. 420; R. 182, 190). 23 down her throat, [and] that she was bound and gagged” (McSloy: A. 362).20 Kirby mentioned seeing the case on the television show “New York’s Most Wanted” and asked if the same two Italian detectives were still investigating it (McSloy: A. 364). Kirby said respondent and Panton were somehow involved in the crime, but she was not specific at first (McSloy: A. 362).21 Det. McSloy said that “she told me that Sparkle Daniel was confiding in her that she was having bad dreams” (McSloy: A. 383). “She didn’t get into, exactly, what her role was.” (McSloy: A. 383-84). She also said that her discussion with respondent about the crime had occurred “recently.” (McSloy: A. 383-84). She eventually agreed to come to the station and talk to detectives McSloy and Ciuffi (McSloy: A. 366). On June 11, 2007, Kirby met with Ciuffi, Mulroy, and McSloy at the Bronx Homicide Task Force station house (Ciuffi: A. 126). They asked “her a lot of questions” and she agreed to write a statement (Kirby: A. 423). Kirby told Ciuffi that respondent and Panton had asked to use the victim’s phone; forced her to drink wine; and placed a “sock” in her mouth and a bag over her head (Ciuffi: A. 409- 10). Kirby said that the victim had been tied to the chair, but she did not specify 20 McSloy testified that Kirby also stated in the first call that a bag was placed over the victim’s head, but this is not in his contemporaneous notes of the call (McSloy: A. 362). 21 She explained that she and respondent were friends, but no longer on good terms (Ciuffi: A. 225), and that she had met Panton through respondent (Ciuffi: A. 224). Panton was older than respondent or Kirby and had several children (Kirby: R. 209) 24 what “items . . . were used” (Ciuffi: R. 32).22 Ciuffi found the information credible because he thought some of it was non-public (Ciuffi: A. 225; R. 31, 41).23 Kirby said she learned about respondent and Panton’s involvement in the crime through two conversations in 2003 or 2004. In the first conversation in the spring of 2003, respondent said that she had been having bad dreams, and then described how she and Panton had killed the old lady who lived next door to her aunt (Kirby: A. 460).24 The second conversation occurred “beginning or like middle of 2004,” after Kirby had called respondent to tell her that she had seen a segment on “New York’s Most Wanted” in August 2003 about the murder (Kirby: A. 409-411, 415- 17).25 Respondent told her “hold on, I will call you back, I got to call Nadine.” (Kirby: A. 416). Kirby knew that respondent had intended to hang up, but Kirby 22 Ciuffi did not testify that Kirby told him that a phone cord had been used (Ciuffi: R. 32; A. 58). 23 Ciuffi found Kirby’s statements that the victim had been forced to drink “red wine,” and that appellant went to the victim’s house to “use the phone,” to be significant non-public facts (Ciuffi: R. 41). Both of these facts were inconsistent with objective evidence. See (Gill: A. 358; Ciuffi: R. 121-22). 24 According to Kirby, respondent said: she and Panton could not get into respondent’s aunt’s house; they saw an old lady standing outside her house; they asked to use her phone; respondent used the phone to call her aunt and Panton went through the lady’s belongings; the lady asked them to leave; they “tied the lady up to a chair with a telephone cord, made the lady drink wine, and tied a scarf around the lady’s head”; after “a while the lady stopped breathing, stopped moving”; and they took some things and left (Kirby: A. 409). Respondent did not tell Kirby that they used tape; that they put a bag over her head; or that there was a whiskey bottle (Kirby: R. 233-34). 25 Kirby was not sure whether she called respondent on her cell phone or house phone (Kirby: R. 602-03). 25 decided to listen to “see if she was going to talk about me” (Kirby: A. 416-17). Kirby stayed on the line and heard a “ringing sound,” and then overheard a conversation between respondent and Panton about whether they would get caught (Kirby: A. 417). Kirby waited nearly four years before contacting the police.26 Kirby remained “close friends” with respondent after she allegedly learned of her involvement in the murder an old woman (Kirby: A. 438). Respondent was even a witness at Kirby’s wedding in 2005 at a State Correctional Facility where her husband was incarcerated (Kirby: R. 191-93). They remained friends until April of 2007 when respondent started insulating her and calling her fat (Kirby: A. 402, 420-21). McSloy redirected Kirby’s first call to Crime Stoppers so she could get a login number to “possibly” get reward money (McSloy: A. 382). Kirby received a $1000 reward in August of 2007 (Kirby: R. 166). Two weeks before trial, the Assistant District Attorney informed her that she was eligible for a total reward of $12,000, due to an additional $10,000 mayor’s reward (Kirby: R. 167; see Ciuffi: R. 65-67). At trial, Kirby admitted that beginning in July of 2007, she received assistance from Iris Negron of the Bronx Attorney Crime Victim’s Unit (Kirby: R. 26 Kirby said that she told her grandmother about respondent's admission, but she gave conflicting testimony regarding whether she told her grandmother in 2003 (Kirby: A. 460) or in 2007 (Kirby: A. 453-54). 26 170).27 Ms. Negron gave her money to put on her cell phone so Kirby could keep in touch with the District Attorney’s office (Kirby: R. 170). “$20 dollars, $15 dollars. It was odd numbers, like $10 dollars here. $20 there. Maybe one time a $100, one time” (Kirby: R. 171). Kirby also received “car fare” and food money from Ms. Negron (Kirby: R. 172). Three weeks before trial, Kirby told Ms. Negron she was “behind on my rent by three months” (Kirby: R. 172-73, 219-20). The Crime Victim’s Unit paid off part of her debt (Kirby: R. 172, 219). “I got $1,574.50 which, was the half of my rent that I needed to pay in order to get back into my apartment. And, I received bus fare to get back home . . . . Well, I was given money for lunch” (Kirby: R. 173-74). 28 Det. Ciuffi tried to confirm that Kirby had not been involved in the crime (Ciuffi: R. 45). He submitted the prints of “L. H.” – believing this to be Kirby’s alias – for comparison with the latent prints (Ciuffi: R. 45, 64). Det. Campesi said that he ran L. H.’s prints and found they did not match any of the latent prints, but he never ran Kirby’s prints (Det. Dominic Campesi, NYPD Latent Crime Unit: A. 27 She met Ms. Negron in person 10 times, and spoke to her on the phone 15 to 20 times (Kirby: R. 170-71). 28 Kirby also admitted that she had been fired from [ ] Car Rental after she was accused of “giving someone a discount that I did not know,” although she denied any wrongdoing (Kirby: R. 174-76, 189). She also received [ ] for smuggling marijuana into Riker’s Island. In addition, Kirby applied for an identification card using without permission the name of her husband’s former wife, who later refused to cooperate with divorce proceedings (Kirby: R. 193-95). 27 480).29 Based solely on Kirby’s information, the police apprehended respondent on July 19, 2007. Forensic Evidence The cause of death was “asphyxiation due to a cloth gag and a plastic bag that was over her head.” (Dr. James Gill, Office of the Medical Examiner: A. 336, 350). The findings of the pathologist were inconsistent with strangulation and inconsistent with respondent’s subsequent assertions that the cause of death was forced wine drinking (Gill: R. 163-64; see A. 23-37). Dr. Gill found that the victim had unabsorbed alcohol in her stomach, showing that the ingestion occurred shortly before she died, but the concentration of alcohol in the stomach was “kind of meaningless” and did not reveal the level of intoxication (Gill: A. 345, 356). The toxicology results were inconsistent with the victim ingesting 1.5 liters of wine or with the victim being forced to drink an entire bottle of wine (Gill: A. 358; A. 23-27). 30 The victim was found taped to a “blue chair” in her first floor living room, wearing pants and a sweater that were unstained (Ciuffi: R. 94; A. 332-33, 355; Harris: A. 180). One piece of telephone cord tied her legs and ankles to the chair, 29 Kirby said that she was at home on January 9, 2003 because her mother had grounded her after she had been caught smuggling marijuana into Riker’s Island (Kirby: A. 431). 30 Dr. Gill could not determine how the alcohol entered the victim’s system (Gill: A. 357- 58). 28 another tied her wrists together (Harris: A. 180, 181, 192; Gill: A. 333). Clear cellophane packaging tape around her abdomen and arms also bound her to the chair (Harris: A. 185-86; Ciuffi: R. 140). Her head was in a beige plastic bag, secured with a red scarf (Harris: A. 180). Inside the bag, a white cloth covered her face and there was condensation (Harris: A. 180). According to Dr. Gill, a cloth gag was found stuffed in her mouth (Gill: A. 336, 350).31 A roll of “clear cellophane” packaging tape sat on a table by the window (Harris: R. 2-3).32 A disconnected phone, removed from upstairs, rested on the partition between the living room and the kitchen (Ciuffi: R. 127). 33 Latent fingerprints were recovered at the scene. One palm print, found on the living room’s south wall, matched the victim’s granddaughter Sa. H. (Campesi: R.237- 39).34 Four years later, two prints found on the telephone receiver in the kitchen would match respondent's (Campesi: A. 475). 31 Ciuffi testified at trial that a sock gag was not found in the victim’s mouth (Ciuffi: R. 140). But, in his statement supporting the indictment, Ciuffi said respondent and Panton had “placed a cloth gag in her mouth.” (Bx. Ind. No. 044762/07). Ciuffi also testified at Panton’s trial that “a white washcloth . . . was stuffed in her mouth.” (People v. Panton, Bx. Ind. No. 3237/07, Trial Minutes at 37). 32 There were also “wire sort of wraps” on the floor and tables in the living room (Harris: A. 54-55). 33 Elsewhere in his testimony, Ciuffi testified, “I think the phone cord was still there” (Ciuffi: R. 42). But crime scene photographs introduced at trial show the phone disconnected on the floor, with the cord apparently missing. 34 This contradicted Ciuffi’s assertion at the suppression hearing that before respondent’s arrest, the police had found no match to the latent prints at the victim’s home (Ciuffi: A. 51). 29 The Defense’s Case The defense called Lavron Daniel (“Lavron D.”), respondent’s aunt, and Joseph Ryce, a leader of Ebenezer Seventh Day Adventist Church attended by respondent (Ryce: R. 244). Ryce described respondent as a peaceful and jovial person who participated in a church youth club, attended bible classes, and visited his home to braid his wife’s hair (Ryce: R. 245-48). She laughed, had a lot of friends, and “wasn’t a person that seem violent or outrageous in any type of behavior,” he said (Ryce: R. 249). Respondent’s aunt and the victim were close (Daniel: A. 488). They were neighbors and helped each other with household tasks and errands (Daniel: A. 488). According to Lavron D., the victim liked respondent (Daniel: A. 506). Respondent visited the victim often and had been to her house for Christmas a few weeks before she died (Daniel: A. 504). Lavron D. testified that after the murder of Nellie Hocutt, the police and neighbors told her details about the crime. The police told her that: “Ms. Nellie was gagged and bound with a plastic bag over her head” and “taped with duct tape” (Daniel A. 498). They told her that “there was a bottle of wine that’s been opened and there was a glass of wine that was against – that was on the table sitting next to her that has been served” (Daniel A. 499). She told respondent 30 about these discussions (Daniel: A. 501). The incident was also reported in the press and on television (Kirby: A. 458). The New York Times wrote that the victim had been “bound” and “tied to a chair in her home”; a “bag had been taped over Ms. Hocutt’s head”; and “some objects in the home had been moved.”35 The Daily News reported that the victim had been found “tied up on a chair in her living room” with a “plastic bag over her head.”36 The New York Post reported that the victim had been “taped to a chair,” and “bound and suffocated” with a “plastic bag over her head,” and that “thugs ransacked her home as the woman was dying of asphyxiation.”37 The television show “New York’s Most Wanted” aired a segment on the murder in August of 2003. The show disclosed that the victim had been taped to the chair with duct tape, “forced to drink alcohol,” and “strangled” (Kirby: A. 458). 35 Tina Kelley, Police Investigate the Death of a “Matriarch”, N.Y. TIMES, Jan. 11, 2003 (available at http://www.nytimes.com/2003/01/11/nyregion/police-investigate-the-death-of-a- matriarch-in-the-bronx.html) (last visited 6-12-15). The Times also reported that the victim had not been stabbed or shot, and that the car had been found in the driveway. 36 Alice McQuillan, Bx. Lady, 91, Found Dead, N.Y. DAILY NEWS, Jan. 11, 2003 (available at http://www.nydailynews.com/archives/news/bx-lady-91-found-dead-article-1.671785) (last visited 6-12-15). 37 Murray Weiss et al., Beloved Bx. Granny, 91, Murdered, N.Y. POST, Jan. 11, 2003 (available at http://nypost.com/2003/01/11/beloved-bx-granny-91-murdered/) (last visited 6-12- 15). The Post further wrote that it was “unclear if anything was stolen”; that there were “no signs of forced entry” and the victim may have known the attackers; that her car was found uncharacteristically in the driveway; and that an outside door had been found ajar. 31 The jury acquitted respondent of intentional murder and convicted her of second-degree felony murder (People’s Opening Brief at 28). At sentencing, she maintained her innocence and was sentenced to 25 years to life. Id. at 28. Proceedings in The Appellate Division Arguments On appeal, Sparkle Daniel, now respondent, successfully argued that the pre- Miranda questioning amounted to interrogation, Rhode Island v. Innis, 446 U.S. 291 (1980); People v. Ferro, 63 N.Y. 2d 316 (1984), and the pre- and post-Miranda statements – two written statements and the videotaped statement -- had to be suppressed because they were part of a “single continuous chain of events” under People v. Chapple, 38 N.Y.2d 112 (1975), People v. Bethea, 67 N.Y.2d 364 (1986), and People v. Paulman, 5 N.Y.3d 122 (2005).38 In response, the People argued that the pre-Miranda questioning did not amount to interrogation and, therefore, all post-Miranda statements had been properly admitted into evidence.39 Decision With one justice dissenting, the Appellate Division ordered the conviction "reversed, on the law, defendant's motion to suppress statements granted, and the 38 Respondent also argued that the verdict was against the weight of the evidence and that the trial court had erred in denying her request to instruct the jury on the defense of duress. 39 The People also argued that the weight of the evidence supported the verdict and that the trial court had properly denied the defense’s request to instruct the jury on the affirmative defense of duress. 32 matter remanded for a new trial." People v. Daniel, 122 A.D.3d 401 (1st Dept. 2014) (A. 2). Rejecting in a footnote the People’s contention that respondent had not been subjected to custodial interrogation, the court found that the two post- Miranda written statements were “part of a single continuous chain of events” (A. 6, n.2). Among the Paulman factors the court listed to support its finding were: the detective’s initial pre-warning inquiry and statement, i.e. “that he was investigating the death of an elderly woman,” respondent’s pre-warning acknowledgement that she knew why she had been brought in, her pre-Miranda statement that she and the alleged perpetrator “had asked to use the victim’s phone outside the latter’s house,” the absence of any time differential between the pre- and post-Miranda statements, the same police personnel involved in both, the same location, and the absence of any change in the nature of the questioning, the absence of any indication by respondent that she was willing to speak. Id. at 403-04. Against these factors, the court weighed the brevity of the pre-Miranda interrogation and the absence of admission of actual criminal conduct and concluded that there had not been “such a ‘definite, pronounced break in the interrogation to dissipate the taint from the Miranda violation’” “return[ing] [defendant], in effect, to the status of one who is not under the influence of questioning.” Daniel, 122 A.D.3d at 404 (citing People v. White, 10 N.Y.3d 286 (2008)). 33 Because the People never tried to argue at the hearing or on appeal that the videotaped statement was admissible under a different theory such as the possible attenuation between the written and videotape statements, the court noted that it was without power to reach the issue and, therefore, was “compelled to grant defendant’s suppression motion as to all the statements.” Id. at 405 (citing People v. Paulman, 5 N.Y.3d 122 (2005); People v. Chapple, 38 N.Y.2d 112 (1975)). The dissenting judge would have placed more weight on the brevity of the pre-Miranda interrogation and, finding defendant’s un-Mirandized statement placing herself at the scene and in the presence of the victim to be not incriminatory, would not have suppressed respondent’s statements. Daniel, 122 A.D.3d at 405-06 (Clark, J., dissenting)(A. 10-11). 34 ARGUMENT POINT I THE APPEAL SHOULD BE DISMISSED BECAUSE THE PEOPLE’S CHALLENGE TO THE FINDINGS THAT THE PRE-MIRANDA QUESTIONING WAS INTERROGATION AND THE PRE- AND POST- MIRANDA INTERROGATIONS WERE A SINGLE CONTINUOUS CHAIN OF EVENTS RAISE MIXED QUESTIONS OF LAW AND FACT BEYOND THIS COURT’S JURISDICTION UNDER C.P.L. §450.90(2)(a). The Appellate Division suppressed respondent’s custodial statements and reversed her conviction for two reasons: (1) the pre-Miranda police questioning amounted to custodial interrogation and (2) given the absence of a definite break between the pre- and post-Miranda interrogations, the statements were the result of one single and continuous un-Mirandized interrogation. The People challenge both findings. Because the reversal was not on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal, it presents mixed questions of law and fact beyond this Court’s jurisdiction, C.P.L. §450.90(2)(a), mandating dismissal of the appeal. Section 450.90(2)(a) of the Criminal Procedure Law defines this Court’s jurisdiction to review the reversal of a criminal conviction by the Appellate 35 Division. This Court may only review determinations based on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal. C.P.L. §450.90(2)(a). Where the intermediate appellate court’s reversal concerns a mixed question of law and fact, this Court lacks jurisdiction to review the decision and must dismiss the appeal unless there is no evidentiary support in the record. People v. Brown, 25 N.Y.3d 973, 975 (2015); People v. Bradford, 15 N.Y.3d 329, 333 (2010); People v. Paulman, 5 N.Y.3d 122, 129 (2005). Here, the Appellate Division, exercising its independent fact-finding powers and drawing its own well supported inferences from the established facts, found that the pre-Miranda questioning amounted to interrogation. Daniel, 122 A.D.3d at 407, n.2; A. 6, n.2. This Court has expressly found the question of whether the police engaged in interrogation to be a mixed question of law and fact. People v. Naradzay, 11 N.Y.3d 460, 468 (2008) (“Whether the police have engaged in custodial interrogation is a mixed question of law and fact”); People v. Paulman, 5 N.Y.3d 122, 129 (2005) (“Whether a suspect has been subjected to custodial interrogation presents a mixed question of law and fact over which this Court has limited powers of review”); People v. Cruz, 90 N.Y.2d 961, 962 (1997) (holding that whether defendant’s statements were the product of custodial interrogation 36 was a mixed question that could not be reviewed if support existed in the record); People v. Harrison, 82 N.Y.2d 693, 694 (1993) (same). The People claim that it is “not a question of drawing inferences from the facts” and suggest that the Appellate Division applied an improper subjective standard to determine whether the questioning was interrogation. In their view, “[t]he only fair and logical inference" to be drawn from Ciuffi’s statement that he “certainly hoped” respondent would make incriminating statement, is that he "had not intended to elicit a pre-Miranda confession” (Opening Brief Submitted by the People at 41). The Appellate Division did not apply a subjective standard but relied on People v. Ferro, 63 N.Y.2d 316, 322 (1984), quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980), A. 6, n.2, setting forth the proper objective standard. At this point, the People are simply asking this Court to conduct a factual inquiry, hoping that it will reweigh the facts in their favor. The Criminal Procedure Law simply does not vest this Court with such power. The Appellate Division’s determination has ample support in the record. The People’s argument that the issue of whether questioning is interrogation is not a mixed question must be rejected. The Court must also reject the People's challenge to the Appellate Division's finding that the pre- and post-Miranda statements were part of a single continuous interrogation. This Court has consistently held that the continuity of an 37 interrogation presents a mixed question of law and fact. See People v. Holland, 18 N.Y.3d 840 (2011) (dismissing an appeal because attenuation is a mixed question of law and fact); In Re Daniel H, 15 N.Y.3d 883, 884 (2010) (“The issue of whether a defendant’s inculpatory statement is attenuated from his prior un- Mirandized statement presents a mixed question of law and fact”); People v. Mayorga, 64 N.Y.2d 864, 865 (1985) (“Whether there has been an attenuating break in an interrogation is, as are most other determinations made in suppression matters which require the drawing of inferences from the facts, a mixed question of law and fact”). The determination requires the court to weigh a number of factors, including, the time differential between the Miranda violation and the subsequent admission, whether the same police personnel were present and involved in eliciting each statement, whether there was a change in the location or nature of the interrogation, the circumstances surrounding the Miranda violation, such as the extent of the improper questioning, whether, prior to the Miranda violation, defendant had indicated a willingness to speak to police, and the incriminating nature of the statement. People v. White, 10 N.Y.3d 286, 291 (2008) (citing People v. Paulman, 5 N.Y.3d 122, 130-31 (2005)). Here, the Appellate Division did just that. In reaching its decision, it explicitly considered each factor, People v. 38 Daniel, 122 A.D.3d 401, 403-04 (2014) (A. 6-8), and there is considerable evidence in the record to support its findings. The Appellate Division’s comment that it was “compelled” to suppress all the statements does not transform its finding that there had been a single continuous interrogation into a question of law. The court’s comment did not even refer to its finding that there had been a single interrogation. It referred to the scope of the suppression, i.e. all the statements included the videotaped statement for which the People had not made a separate argument against suppression. See Daniel, 122 A.D.3d at 405; A. 9-10. Even if the court was referring to its finding that there had been a single continuous interrogation, that finding remains a mixed question of law and fact. See People v. Mayorga, 64 N.Y.2d 864 (1985). A similar situation occurred in Mayorga. There, the defendant was detained, asked without prior Miranda warnings “do you know what’s going on here?” and answered that he “was doing a favor for a friend.” People v. Mayorga, 100 A.D.2d 853 (2d Dept. 1984), leave granted and appeal dismissed, 64 N.Y. 2d 864 (1985). The police subsequently Mirandized him and obtained further statements. The Appellate Division stated that “[b]ased upon a practical ‘assessment of external events’ we are compelled to conclude that the defendant was ‘subjected to such a continuous interrogation’." Id. (citing People v. Chapple, 38 N.Y.2d 112 (1975)) (emphasis added). The 39 “compelled to conclude” language used by the Appellate Division did not prevent this Court from later dismissing the appeal on the grounds that it presented a mixed question of law and fact. Mayorga, 64 N.Y.2d at 865. The Court should reach the same conclusion in this case. Finally, the Appellate Division’s statement in the decretal paragraph of the opinion that its decision is “on the law” is not binding on this Court. Indeed, this Court has recognized its power to make its own determinations as to the character of an intermediate appellate court order as required by C.P.L. §450.90(A)(2). See People v. Holland, 18 N.Y.3d 840 (2011) (finding attenuation to be a mixed question of law and fact despite the Appellate Division’s characterization of its suppression order as “on the law”); People v. Baumann & Sons Buses, Inc., 6 N.Y. 3d 404 (2006); People v. Gonzalez, 68 N.Y.2d 995 (1986); People v. Dercole, 52 N.Y. 2d 956 (1981); People v. Key, 54 N.Y.2d 813 (1981). The court’s statement “reversed, on the law,” People v. Daniel, 122 A.D.3d 401 (2014), does not transform its well supported findings that the pre-Miranda questioning was interrogation and the pre- and post-Miranda interrogation was a single un- Mirandized interrogation from a mixed question of fact and law into a question of law. The appeal should be dismissed for lack of jurisdiction. 40 POINT II IF THIS COURT HAS JURISDICTION OVER THIS APPEAL, THE DECISION OF THE APPELLATE DIVISION SUPPRESSING RESPONDENT’S PRE AND POST MIRANDA STATEMENTS AS THE PRODUCT OF ONE SINGLE CONTINUOUS UN- MIRANDIZED CUSTODIAL INTERROGATION – WHERE TWO DETECTIVES QUESTIONED HER IN AN ISOLATED PRECINCT INTERROGATION ROOM, ABOUT THE MURDER OF AN OLD LADY FOUR YEARS EARLIER, FOR THE SOLE PURPOSE OF OBTAINING INCRIMINATING STATEMENTS -- MUST BE AFFIRMED. U.S. CONST. AMENDS. V, XIV; N.Y. CONST., ART. 1§6; PEOPLE V. PAULMAN, 5 N.Y.3D 122 (2005); MIRANDA V. ARIZONA, 384 U.S. 436 (1966). Assuming without conceding that this Court has jurisdiction over the questions presented, the decision of the Appellate Division should be affirmed. In the isolated environment of the Bronx interrogation room, in the continuous presence of at least one detective, after a 45-minute ride in a police car, Det. Ciuffi asked respondent without prior Miranda warnings whether she knew why she was there, to which she answered “no,” followed by Det. Ciuffi explaining that he was investigating the murder of an old lady, and, in a more insistent manner, asking whether she now knew why she was there. Under controlling legal standards, that was interrogation. Her incriminating answer to the question led Det. Ciuffi to read 41 her Miranda warnings for the first time and, without any break, continue his questioning, in the same format, in the same room, taking notes on the same piece of paper. Because there was no break in the interrogation, respondent was never put back in a position where she could waive her Miranda rights knowingly, willingly, and intelligently. As a result, the pre- and post-Miranda statements were the result of a single continuous Un-Mirandized interrogation, that had to be suppressed. A. The Pre-Miranda Questioning was Interrogation The People argue, as they did unsuccessfully below, that respondent’s pre- Miranda questioning was not interrogation and, therefore, her statements should not be suppressed (Opening Brief Submitted by the People at 34-35). 40 The Appellate Division found that it was interrogation and rejected the People’s argument in a footnote. Daniel, 122 A.D.3d at 407, n.2; A. 6, n.2 (citing People v. Ferro, 63 N.Y.2d 316, 322 (1984) (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980))). This Court should affirm that finding. Respondent’s questioning was in many ways the archetypical interrogation. Interrogation includes express questioning by law enforcement, see Miranda v. 40 The People concede that respondent was in police custody here and at the suppression hearing. She was handcuffed and forcibly removed from her neighborhood, driven 45 minutes to the police station, and held in a solitary holding cell and a private interview room with two detectives before questioning began. 42 Arizona, 384 U.S. 436, 444 (1966), as well as its “functional equivalent,” where the police should have known that his words or actions were likely to elicit an incriminating response, Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980); People v. Ferro, 63 N.Y.2d 316, 322-323 (1984). The environment of the questioning is an important factor in the analysis. Illinois v. Perkins, 496 U.S. 292, 296 (1990) (Miranda specifically targeted “incommunicado interrogation of individuals in a police-dominated atmosphere.”). The most coercive environment is “questioning by police officers, detectives, or a prosecuting attorney in a room in which [the suspect] was cut off from the outside world.” See Miranda, 384 U.S. at 445. Isolated questioning conducted in an unfamiliar, police-dominated atmosphere places severe pressure on the individual’s will to resist. See Miranda, 384 U.S. at 450-451 (addressing coercive interrogation tactics that “highlight isolation and unfamiliar surroundings,” where the suspect is “deprived of every psychological advantage,” the “investigator possesses all the advantages,” and the “atmosphere suggests the invincibility of the forces of the law”). The Miranda Court concluded that such incommunicado interrogation carries “its own badge of intimidation,” and unless “adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.” Id. at 457-458. 43 Here, respondent, like the defendants in Miranda, was placed in a most coercive, unfamiliar, isolated, and police dominated atmosphere. She was swept from familiar surroundings. She was handcuffed, forcibly placed in a police car, driven 45 minutes from Brooklyn to the Homicide Task Force station in the Bronx, locked up in a holding cell alone for 15 to 20 minutes, possibly interrogated in that cell, then transferred to an interrogation room where at least one detective was left in the room with her at all times, and questioned (Ciuffi: A. 98-103). She was purposefully isolated, not allowed to call anyone until the questioning ended, and the police chose not to record the interrogation (Ciuffi: A. 119, 170). This was exactly the type of “incommunicado” interrogation environment, “created for no purpose other than to subjugate the individual to the will of his examiner,” which drove the Supreme Court to mandate the Miranda warnings in the first place. Id. at 457. This was clear interrogation initiated by law enforcement. Miranda, 384 U.S. at 444. The formalities of the pre-arranged interrogation room, of producing paper and placing the time and heading on the paper for the expected written statement before the interview even began, typified a standard police interrogation. Respondent was then subjected to repeated questioning about her role in the crime. See id. at 444. Det. Ciuffi first asked if she knew why she was there (Ciuffi: A. 64). When she said no, he explained that she was being held and questioned 44 because they were “investigating a murder of an old lady.” (Ciuffi: A. 64, 104). Det. Ciuffi left her in the interrogation room with Det. Mulroy for a few minutes (Ciuffi: A. 75, 104). When he came back in the room, he returned to his question, this time in a more accusatory manner, asking either “do you know what I am talking about now,” or “I know you know what I am talking about” (Ciuffi: A. 104-105).41 See People v. Steele, 277 A.D.2d 932, 932 (4th Dept. 2000) (finding the detective engaged in interrogation where he asked “Do you know why you’re here?”); People v. Garner, 174 A.D.2d 1028, 1028 (4th Dept. 1991) (finding “no doubt” that defendant’s statement was the result of custodial interrogation or its functional equivalent where the officer asked the defendant “if he knew why he had been arrested”); People v. Lombardi, 97 A.D.2d 278, 280 (3d Dept. 1983) (finding custodial interrogation occurred where the defendant asked the officers why he had been placed in custody, and the officer said “Well, don’t you know what this is about?”). The confrontational nature of the questions, repeated after her initial denial, with the strong possibility that Det. Ciuffi mentioned that this 41 The record does not reveal to what the “now” referred. Because Mulroy did not testify and the detectives chose not to record the interview, there is no way to know what happened while Ciuffi left the room and Mulroy was left with respondent. While “now” seems to reference some intervening event, the incommunicado nature of the interrogation obscures what truly occurred. See generally Miranda v. Arizona, 384 U.S. at 461 (“As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation and trickery.”); see also Ciuffi: A. 237 (“I said you know what I’m talking about, don’t you. And she replied, ‘yes.’”). 45 was a capital case, epitomized an interrogation as well.42 See People v. Winship, 78 A.D.2d 514, 515 (1st Dept. 1980) (finding interrogation occurred where the defendant made an incriminating statement after police told the defendant that the charges against him were “serious”). He candidly admitted that he “certainly hoped” she would say something incriminating, confirming that, in his mind at least, this was an interrogation (Ciuffi: A. 66). See People v. Kollar, 305 A.D.2d 295 (1st Dept.), (finding interrogation occurred in part because “detective readily acknowledged that the object of his ‘conversation’ with defendant was to induce him to waive his Constitutional rights”), appeal dismissed, 1 N.Y. 3d 591 (2003). The People try again to argue that the pre-Miranda questioning was not interrogation (Opening Brief Submitted by the People at 40-44). They minimize the isolated police-dominated environment by noting that everyone was “sitting on chairs,” respondent was not handcuffed, and was allowed to use the bathroom. In doing so, they completely overlook respondent’s arrest in Brooklyn, being handcuffed and transported for 45 minutes from Brooklyn to the Bronx, being left in a holding cell still handcuffed, possibly interrogated in that cell, and uncuffed only before being transferred to the interrogation room. In addition, they argue that “no reasonable officer would have expected the simple introductory questions 42 As the People concede, “Det. Ciuffi did testify that he might have mentioned that this was a capital punishment case, but the record does not indicate whether the remark, if said, was made before or after the Miranda warnings” (Opening Brief Submitted by the People at 43, n.12). 46 [i.e. do you know why you are here, we are investigating the murder of an old lady] were reasonably likely to elicit an incriminating response.” Id. at 42. However, courts have found such questioning to be interrogation over and over again. See supra at 45. Finally, citing People v. Ferro, 63 N.Y. 2d 316 (1984)(where the police placed the stolen furs in front of the suspect), the People argue that the pre- Miranda questioning was not interrogation because the detectives did not confront respondent with evidence of the crimes. There is no need to confront a suspect with evidence to transform questioning into interrogation. Even subtle questioning has been found to be the functional equivalent of interrogation when done in an isolated, police-dominated environment. See Kollar, 305 A.D.2d at 298 (finding a detective subjected the defendant to custodial interrogation where, in an interrogation environment, the detective “engage[d] defendant in conversation about unrelated personal matters specifically to establish a rapport with defendant and to induce him to change his mind and answer questions about the incident”); People v. Hall, 125 A.D.2d 698, 700 (2d Dept. 1986) (holding a statement “was the product of and induced by the interrogation process,” where it occurred during an meeting with detectives and defendant in a small room, even though it was not responsive to any specific question). Faced with this clear-cut instance of custodial 47 interrogation, the Appellate Division, rejected the People’s argument to the contrary in a footnote. This Court should affirm the finding. B. Because there was no definite break between the pre- and post-Miranda interrogation, all custodial statements had to be suppressed Applying the analysis articulated by this Court, the Appellate Division properly concluded that respondent’s pre- and post-Miranda statements were the result of one continuous uninterrupted custodial interrogation, mandating suppression of respondent’s statements. People v. Paulman, 5 N.Y.3d 122 (2005); People v. White, 10 N.Y.3d 286 (2008). The decision should be affirmed. Forty years ago, addressing the legality of post-Miranda custodial statements made after un-Mirandized custodial statements, this Court held that to be effective Miranda warnings “must precede the subjection of a defendant to questioning.” People v. Chapple, 38 N.Y. 2d 112, 115 (1975) (emphasis in the original). “Later is too late, unless there is such a definite, pronounced break in the interrogation that the defendant may be said to have returned in effect to the status of one who is not under the influence of questioning.” Id. In Chapple, the Court found no pronounced break in the interrogation. Chapple had been walking on the side of the road, around 1:15 a.m., when the police stopped him and asked to talk to him. They pushed him into the police car and then questioned him about several burglaries including one that evening. They drove him to the site of one of the 48 burglaries where he freely admitted his guilt and even showed the officer how he had broken into the house. At that point, the officer gave Chapple his Miranda warnings and continued the questioning. After driving to two more sites where he made more admissions, they took him to the police station and read his Miranda warnings again. Id. at 113-14. This Court held that Chapple had been subjected to one continuous interrogation and all his statements, in the car, at the station, before and after Miranda warnings were given, were properly suppressed. Id. at 115. A decade later, in 1986, this Court again addressed the subject. People v. Bethea, 67 N.Y.2d 364 (1986). In that case, three police officers approached Bethea and his companion “whose description closely approximated” that of the perpetrators of an attempted burglary and questioned them about their activities. They took Bethea’s bag and, after finding a gun inside, placed him against the van, searched him, found marihuana and handcuffs, put him in the van and, without first reading his Miranda warnings, asked him about the items in the bag. Bethea explained that he had been ripped off and carried the gun and the handcuffs to protect himself. The officers drove to the precinct where they read Bethea his Miranda warnings and the questioning continued. Bethea repeated what he had said in the van. Id. at 366-67. As in Chapple, the close sequence between the unwarned custodial statements in the police van and warned custodial statements at the precinct were part of a single continuous interrogation warranting suppression 49 of all the statements. Id. at 368. Additionally, the Court expressly recognized that the New York Constitution provided a broader protection against self- incrimination than the Federal Constitution. Id. at 366. Since then, this Court has set forth the relevant factors to consider in determining whether the pre and post-Miranda statements were the result of a “single continuous chain of events.” People v. Paulman, 5 N.Y.3d 122, 130 (2005); see People v. White, 10 N.Y.3d 286 (2008). Courts must consider the time differential between the Miranda violation and the subsequent admission, whether there was a change in police personnel eliciting the statement, whether there was a change in the nature of the interrogation, whether the defendant had expressed a willingness to speak before the Miranda warnings, the extent of the pre-Miranda interrogation, and the substance of the pre-Miranda statement. People v. White, 10 N.Y.3d 286 (2008) (citing Paulman, 5 N.Y.3d at 130-31). “The absence of a pre- Mirandized inculpatory statement” alone does not preclude an inquiry as to whether the statements are the result of a continuous chain of events. White, 10 N.Y.3d at 5. The factors are meant to assess whether there was a sufficiently “definite, pronounced break in the interrogation” to dissipate the taint from the Miranda violation. If there is no definite and pronounced break, the Mirandized statement is inadmissible at trial. Id. (citing Paulman, 5 N.Y.3d at 130-31). 50 Looking at these factors, the Appellate Division found that there had not been a definite pronounced break in the interrogation, but one continuous chain of events. Daniel, 122 A.D.3d at 403-04. There had been no change of venue; the interrogations took place in the same interrogation room; there had been no change of personnel; Det. Ciuffi did all the questioning and his partner was there the entire time. Respondent's pre-Miranda statement “plainly tended to incriminate her by acknowledging that she knew something about the murder of an elderly woman and by placing herself at the scene of the crime, with the victim and the other alleged perpetrator.” Id. Even though the pre-Miranda questioning had been brief and the statement was not an outright admission of guilt, the Appellate Division correctly found that the interrogation had been one single event. Id. at 404 (citing White, 10 N.Y.3d 286, 291 (2008) (whether the defendant made any pre- Mirandized inculpatory statement is one of several factors to be considered)). Other factors, not specifically mentioned by the court, provide additional support for its finding that there had been one continuous interrogation. Respondent had clearly expressed her unwillingness to speak. When she was approached by the police in front of her house, they asked for her name and she refused to answer. After they pressed her, she became agitated and eventually gave her name. She later implicitly showed her continued unwillingness to speak when she did not respond to Det. Ciuffi’s statement that he was investigating the 51 murder of an old lady. While the court mentioned the drive in the police car as a factor, it did not mention that it had lasted 45 minutes during which the pressure of the situation increased. In this case, there was a seamless transition from the pre- Miranda interrogation to the post-Miranda interrogation. As soon as respondent said she had been on Laconia Avenue and seen the victim in front of her aunt’s house, Det. Ciuffi read her Miranda warnings, asked if she waived her rights, and continued his interrogation. Nevertheless, appellant claims that the Appellate Division failed to consider the brevity of the pre-Miranda interrogation and the nature of respondent’s statement, which did not include an admission of criminal conduct, and those factors require a different conclusion. They do not. The court looked at all the factors and found that there had been a single continuous interrogation. Daniel, 122 A.D.3d at 404-05. The finding should be affirmed under the broad protection against self-incrimination provided by the New York State Constitution, People v. Bethea, 67 N.Y.2d 364 (1986), as well as the Federal Constitution, Missouri v. Seibert, 542 U.S. 600 (2004) (considering factors such as the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first). 52 * * * The erroneous admission of respondent’s statements was not harmless beyond a reasonable doubt. See People v. Johnson, 80 N.Y.2d 798, 800 (1992) (citing People v. Crimmins, 36 N.Y.2d 230 (1975)). The statements were the core of the prosecution’s case.43 Without those statements, the People were left with the two fingerprints recovered from the victim’s phone, the questionable testimony of Larissa Kirby, the considerable discrepancies between her version of the events and the physical evidence, and the doubt created by the early, but later abandoned, suspects, in particular Sa. H., the victim’s granddaughter. Without respondent’s statements to the police and prosecutors, the only physical evidence connecting respondent to the crime scene was two fingerprints on the victim’s phone. However, they were fairly meaningless since respondent went to the victim’s house often and had even been there a couple of weeks earlier for Christmas. Without the statements, the People had to rely on the testimony of Larissa Kirby: Kirby who implicated respondent out of revenge; Kirby who was given over $1500 by the district attorney’s office before trial for back rent and more 43 There were considerable discrepancies between the statements and the physical evidence are set forth in detail in the brief filed by Sparkle Daniel in the Appellate Division. She described Nadine Pandon as essentially drowning the victim in wine, but the physical evidence contradicted that description. The Medical Examiner was clear, the victim died of asphyxiation, not drowning. Respondent’s statements about how the victim was tied up did not match. Inaccurate details from newspapers and public information made their way in respondent’s statements. Ciuffi admitted to feeding her information. 53 money for cab fare, and lunch money; Kirby who by testifying became eligible to receive a reward totaling $12,000; Kirby who had a criminal history and had manipulated the justice system to get a divorce. Not only was Kirby’s reliability intrinsically questionable, her story about how she overheard on her phone a separate phone conversation between respondent and Panton strains credibility. Combined with her four-year delay in reporting, these factors seriously undermine her testimony. Kirby’s testimony raised more questions than it answered and added to the mystery surrounding the removal of the victim’s granddaughter, Sa. H., from the list of suspects. Sa. H.’s boyfriend, M.R., told the police that she had confessed to committing the crime with her former boyfriend, M.D.S. M.R. plausibly described how Sa. H. and M.D.S. went to the victim’s house “to distract her” and then “steal her money,” and that the three of them socially drank “scotch” and “red wine” together before the victim’s death (Ciuffi: R. 240, 295, 358). He accurately said the perpetrators had then “taped” or “tied” the victim to a blue chair and caused her death by gagging her and putting a “plastic bag” over her head (Ciuffi: R. 237, 257, 293-95, 340). He knew that Sa. H. had refused to take a polygraph test. His story explained the lack of forcible entry and, by placing M.D.S., 6’2’’ to 6’4’’and a bodybuilder-type, at the scene, provided the only explanation for the presence of large show print on a pillow at the scene. M.R.’s awareness of specific, non-public 54 facts of the crime indicated that his information was reliable. See State v. Mauchley, 67 P.3d 477, 489 (Utah 2003).44 The police nevertheless, and without explanation, ignored it. Given the evidence, the erroneous admission of respondent’s statements simply cannot be deemed harmless beyond a reasonable doubt, and the findings of the Appellate Division must be affirmed. 44 See id. (“The degree of fit between the specifics of a confession and the crime facts is critical because the fit determines whether a confession should be deemed trustworthy.”) (citation omitted). 55 CONCLUSION FOR THE REASONS STATED IN POINT I, THE APPEAL SHOULD BE DISMISSED OR, AT THE VERY LEAST, FOR THE REASONS STATED IN POINT II, THE ORDER OF THE APPELLATE DIVISION SHOULD BE AFFIRMED. Respectfully submitted, SEYMOUR W. JAMES, Jr., The Legal Aid Society 199 Water Street, 5th Floor New York, NY 10038 Tel: (212) 577-3403 Attorney for Defendant-Appellant Natalie Rea Of Counsel July 2015 (redacted August 2015) 56 CERTIFICATE OF COMPLIANCE Pursuant to 22 NYCRR §670.10.3(f) ------------------------------------------------------------- x THE PEOPLE OF THE STATE OF NEW YORK, Appellant, vs. SPARKLE DANIEL, Defendant-Respondent. : : : : : : : : ------------------------------------------------------------- x The foregoing brief was prepared on a computer. A proportional typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line Spacing: Double The number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing table of contents, table of authorities, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules and regulations, etc., is 14081. __________________________________ Natalie Rea A - 1