The People, Appellant,v.Bryan Henry, Respondent.BriefN.Y.April 25, 2018APL -2017-00073 Appellate Division No. 2012-04514 Nassau C.Ountyindictment No. 184N-2011 To Be Argued by. Cristin N. C.Onnell Time Requested· 15 minutes QCourt of ~ppeals ~tate of ~ew ~ork 1HE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - BRYAN HENRY, Defendant-Respondent. APPELLANT'S BRIEF Tammy J. Smiley Judith R Sternberg Jason R Richards Cristin N. O:mnell Assistant District Attorneys of Counsel Brief and Appendix O>mpletedJuly13, 2017 MADELINE SINGAS District Attorney, Nassau Comity Attomey for Appellant 262 Old Country Road Mineola, New York 11501 (516) 571-3800 FAX (516) 571-3806 TABLE OF CDNfENTS Page Table of Authorities ...... .. ...................................................................................................... i I f R . . .. ssues or ev1ew .................................................................................................................. lll Prelim.inaty Statement .......................................................................................................... vi Statement of Facts Introduction ........................................................................ ....... ..................................... 1 The Pretrial Suppression Hearing The People's Evidence .................... ......................................................................... 4 Defendant's Evidence .............................................................................................. 8 The Decision of The Hearing Court ..................................................................... 10 The Trial The People's G.se ................................................................................................... 11 Defendant's G.se .................................................................................................... 16 The Verdict and Sentence ...................................................................................... 17 The Appellate Division's Order Modifying The Judgment Of Conviction ........... 17 Argument The Appellate Division Misapplied People v. Cohen To The Facts Of This Case, Extending The Right To Counsel, By Proxy, From A Misdemeanor Drug C.ase On Which Defendant Was Represented By Counsel To An Unrelated Murder Case ................................................................................................................... 19 A The Evolution Of Right To Counsel Jurisprudence In New York .............. 19 B. The Appellate Division Improperly Analyzed This Case Under The Cohen Tests As If Defendant Had Counsel On The Robbery Charges, Which He Did Not. That Flawed Analysis Improperly Extended The Right To Counsel By Proxy To A Charge Two Degrees Removed From That On \Vhich Defendant Was Represented By Counsel. .................................................................................. .. 25 C Undisputed Facts In This Record Allow This Court To Reverse The Lower Court's Decision On The Law ...................................................... 35 Conclusion ............................................................................................................................ 3 7 C.ertif icate of Service TABLE OF AUTHORITIES CASES FEDERAL CASES Kirby v. Illinois, 406 U.S. 682 (1972) .................................................................................. 20 STATE CASES People v. Arthur, 22 N.Y.2d 325 (1968) ............................................................................ 20 People v. Bing, 76 N.Y.2d 331 (1990) ................................................................................. 21 People v. Bongarzone, 69 N.Y.2d 892 (1987) .............................................. ......................... 32 People v. Burdo, 91 N.Y.2d 146 (1997) ............................................................................... 20 People v. Claudio, 83 N.Y.2d 76 ........................................................................................... 20 People v. Cohen, 90 N.Y.2d 632 (1997) .......................... iii, 3, 4, 18, 19, 21, 22, 23, 24, 25, 26,27,28,30,31,32,33,34 People v. Cunningham, 49 N.Y.2d 203 (1980) ..................................................................... 20 People v. Ermo, 47 N.Y.2d 863 (1979) ................................................................................ 22 People v. Gehy, 238 AD.2d 354 (2d Dept. 1997) .............................................................. 29 People v. Grant, 91N.Y.2d989 (1998) ............................... 3, 18, 19, 23, 27, 30, 33, 34, 36 People v. H enry, 144 AD.3d 940 (2d Dept. 2016) .............. iv, 3, 4, 17, 18, 26, 31, 33, 34 People v. H enry, 29 N.Y.3d 998 (2017) .................. ............................ ................................. v People v. Hobson, 39 N.Y.2d 479 (1976) ............................................................................. 20 People v. Johnson, 2009 WL 2475629 [Sup. G., Rockland Gy.,June 9, 2009] ...................... 29 People v. LopeZJ 16 N.Y.3d375 (2011) ........................................................................ 19, 21 People v. Marin, 215 AD.2d 267 (1st Dept. 1995) ........................................................... 29 People v. Miller, 54 N.Y.2d 616 (1981) ............................................................................... 23 People v. Rivera, 277 AD.2d 470, 471 (2d Dept. 2000) ................................................. .. 29 People v. Rogers, 48 N.Y.2d 167 (1979) ............................................................................... 21 People v. fuif.f, 81N.Y.2d330 (1993) .................................................................................. 23 People v. S teward, 88 N.Y.2d 496 (1996) ............................................................................ 21 1 People v. Taylor, 27 N.Y.2d 327 (1971) ........... .......................... ........................................... 21 People v. Townes, 41N.Y.2d97 (1976) ............................. ............................................. 21, 27 People v. Ve/fa, 21 N.Y.2d249 (1967) ........................................................................... 21, 22 People v. West, 81 N.Y.2d370 (1993) .......................................... ...................................... .. 20 STATUIBS Oi.minal Procedure Law § 200.20 ................................................................ ..... ... ............... 2 Oi.minal Procedure Law§ 200.20(2)(b) ........................... ........................................ ... ...... 32 Oi.minal Procedure Law§ 460.20 ................................................... .................................... v Penal Law§ 125.25(1) .......................................................................................................... iv Penal Law§ 165.40 ................................................................................................................ v Penal Law§ 221.10(1) ..................................................................... ................. ..................... v Penal Law§ 265.03(1b) ................................................................................... .. .. ................. iv Penal Law§ 265.03(3) .......................................................................................................... iv OTHER AUTHORITIES U.S. <=onst. Amend. V ........................................................................................................ 20 U.S. <=onst. Amend. VI .................................................................... ................................... 20 .. ll ISSUE FOR REVIEW Whether the intermediate appellate court misconstrued this Court's holding in People v. Cohen and, in doing so, improperly extended the right to counsel beyond that which this Court intended. ill ~ourt of ~ppeals ~tate of ~etu ~ork --···~: ~···-- THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against- BRYAN HENRY, Defendant-Respondent. APPELLANT'S BRIEF PRELIMINARY STATEMENT By permission of Court of Appeals Judge Leslie E. Stein, the People of the State of New York appeal from an order of the Appellate Division, Second Judicial Department, entered on November 16, 2016. People v. Henry, 144 AD.3d 940 (2d Dept. 2016). That order modified the judgment of the Supreme C.Ourt, Nassau C.Ounty, entered on August 19, 2011, convicting defendant of one count of murder in the second degree (Penal Law§ 125.25[1], two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03[1b], [3], one count of criminal possession of marijuana in the fifth degree (Penal Law § 221.10[1]), and one count of criminal possession of stolen property in the fifth degree (Penal Law§ 165.40), and sentencing lV him to concurrent prison terms, the longest of which was an indeterminate term of twenty years to life (Honorof, J., at hearing; Robbins, J., at trial and sentence). The Appellate Division modified the judgment, on the law, vacating the convictions of murder in the second degree, criminal possession of a weapon in the second degree (both counts), and criminal possession of stolen property in the fifth degree, and vacating the sentences imposed thereon. As so modified, the court affirmed the conviction on the sole remaining charge (criminal possession of marijuana in the fifth degree), ordered suppression of the defendant's statements to law enforcement officials relating to the murder charge, and remitted the case to the Supreme Court, Nassau County, for a new trial on the vacated counts of the indictment. On April 13, 2017, the Honorable Leslie E. Stein granted the People's application for leave to appeal to this Court pursuant to GP l. § 460.20. People v. Henry, 29 N.Y.3d 998 (2017). v STATE11ENT OF FACTS Introduction On December 13, 2010, defendant served as the getaway driver when two of his friends robbed the "Tattoo You" shop in Carle Place. Two days later, on December 15, 2010, defendant served as the getaway driver when his friend fatally shot James Mcdenic as McOenic sat in a parked car at a gas station in Hempstead. A black Hyundai Sonata belonging to defendant's sister was visible in a surveillance video showing the parking lot behind the tattoo parlor, and was seen by a witness near the gas station where the murder took place. On December 20, 2010, defendant was pulled over for minor traffic infractions while driving the Sonata in Roosevelt, and was arrested when he was found to be in possession of marijuana. Defendant was appointed an attorney at his arraignment for the marijuana arrest and was released on bail. During a subsequent inventory search of defendant's car, seized pursuant to his marijuana arrest, a cell phone that was later detennined to be one of the proceeds of the Tattoo You robbery was discovered on the floor. On December 23, 2010, during another traffic stop, defendant was arrested for possession of the cell phone stolen at the tattoo parlor. After being taken into custody, defendant was advised of, and waived, his Miranda rights, before admitting to detectives that he had been the getaway driver for both the robbery and the homicide. 1 After a hearing, defendant's statements about the robbery were suppressed because the hearing court found that the robbery was related to the marijuana charge and the detectives knew, or should have lmown, that defendant was represented by counsel on that charge. The court found, however, that because the murder was completely unrelated to the marijuana arrest, defendant was able to validly waive the right to counsel in the absence of counsel. Therefore, those statements related to the murder were deemed admissible at trial and were introduced into evidence on the People's direct case. Defendant was convicted, after a jury trial, of one count of murder in the second degree, two counts of criminal possession of a weapon in the second degree, one count of criminal possession of marijuana in the fifth degree, and one count of criminal possession of stolen property in the fifth degree. Defendant was acquitted of several other charges, all related to the robbery. On direct appeal to the Appellate Division, defendant argued that because of the "close connection" between the murder and the robbery, "as viewed in the minds of the two detectives" over the course of the interrogation, defendant's indelible right to counsel extended to those portions of the interrogation related to the homicide. See Defense CDunsel's Appellate Division Brief at 45-59. In addition, defendant argued that the robbery and murder charges should have been severed because they were not properly joinable under CP .L. § 200.20. See Defense CDunsel's Appellate Division Brief at 64. 2 In a decision and order dated November 16, 2016, the Appellate Division modified the judgment, vacating all of defendant's convictions, save that for criminal possession of marijuana in the fifth degree, suppressing defendant's statements to law enforcement officials relating to the murder charge, and remitting the case to the Supreme Gmrt, Nassau County, for a new trial. People v. Henry, 144 AD.3d 940 (2d Dept. 2016). The Appellate Division determined that it was bound bythe hearing court's suppression of defendant's statements about the robbery. Henry, 144 ADJd at 944. Those statements were suppressed after the court determined that the robbery was related to the marijuana arrest for which defendant had been assigned counsel. In light of that determination, the Appellate Division held that defendant's right to counsel "was violated by questioning on the factually interwoven homicide matter. Indeed, the robbery and the murder cases were so closely related that questioning about the gas station shooting 'would all but inevitably elicit incriminating responses regarding' the robbery." Id. (quoting People v. Cohen, 90 N.Y.2d 632, 638 [1997] . The court further held that "the hearing record also support[ed] a conclusion that the impermissible questioning of the defendant on the robbery charges was not fairly separable from questioning on the murder charge, and 'was purposely exploitive in the sense that it was calculated to induce admissions' on the murder charge." ~Henry, 144 AD.3d at 945 (quoting People v. Grant, 91 N.Y.2d 989, 996 [1998]. The People now seek additional review of the Appellate Division's decision that defendant's indelible right to counsel on the marijuana charge extended to preclude 3 quest10rung on not only the robbery charges, but also on the homicide charge. Although it is undisputed that defendant did not yet have representation on the robbery charges during his simultaneous interrogation on the robbery and the homicide, because the hearing court deemed the robbery charges to have been "related" to the marijuana charge for which defendant had counsel, the Appellate Division improperly analyzed the interrogation under the Cohen tests as if defendant had counsel on the robbery charges themselves. That analysis was flawed, and the resulting decision improperly extended the right to counsel, by proxy, beyond what was contemplated in Cohen. This C.ourt should reverse the Appellate Division's holding on the law, and remand the case to the intermediate court to address defendant's remaining claims on appeal.1 The Pretrial Suppression Hearing The People's Evidence On the night of December 20, 2010, Police Officer MIG-IAEL MULLEN was on patrol with his partner in Roosevelt. A black Hyundai Sonata with tinted windows sped away when the officers approached it in their unmarked car. Mullen followed the car for roughly two or three minutes and, after seeing the car drive through two stop signs, he activated his lights and sirens and pulled the car over. The driver -- defendant 1 The Appellate Division's November 16, 2016, order modified the judgment solely on the basis of defendant's claim that his right to counsel was violated. Because that decision vacated all of defendant's convictions except one -- that for marijuana possession -- it did not go on to address defendant's remaining claims on appeal. People v. Henry, 144 AD.3d 940 (2d Dept. 2016). 4 -- and his passenger were cooperative during the stop, but Mullen immediately noticed the odor of marijuana emanating from the car. Mullen saw marijuana in the car, including loose marijuana on defendant's lap. The officers also saw numerous cell phones on the floor of the car (Mullen: A 5-12, 16-36).2 Once defendant and his passenger had both been arrested for possession of the drugs, they were brought to police headquarters, and the car was impounded and inventoried. In the car were five cell phones, one of which defendant claimed as his own, three of which his passenger claimed, and one remaining Blackberry smart phone. Defendant said the Blackberry was not his, and that he thought it was broken. After defendant had been released on bail, Mullen turned on the Blackberry, ascertained its phone number, and searched the police records for any mention of the phone. He then learned that a phone with that number had been stolen in a robbery only days before (Mullen: A 12-15, 36-39, 41-46). Three days later, on December 23, 2010, Police Officer RAFAEL MORALES was briefed before he began his nightly patrol. Morales was told of recent criminal activity in the Roosevelt area, including defendant's arrest. Defendant had, by that point, been arraigned for the marijuana and traffic-related charges, and had been released on bail (Morales: A 47-48, 56, 67-71, 73). 2 Numbers in parentheses preceded by "A" refer to the pages in the Appellant's Appendix. Names preceding numerical references ref er to the witnesses who provided the recounted testimony. 5 At roughly 2:30 a.m., while on patrol in Roosevelt, Morales stopped a Mercury driven by defendant for speeding. After Morales called defendant's information in over the police radio, the officer was told to arrest defendant for possession of stolen property, and defendant was arrested (Morales: A 48-54, 73-78). Defendant never mentioned, or asked to call, an attorney, and was never subject to any threats or coercion while under Morales's supervision (Morales: A 54-55, 78-88). Later that morning, Detective MATIHEW ROSS and his partner, Detective Robert Brzeski, interviewed defendant. Brzeski was investigating a murder at a Gtgo gas station and Ross had been assigned to investigate a robberyatthe Tattoo You tattoo parlor. After defendant had been released from custody on the marijuana arrest, Ross had confirmed that a Blackberry cell phone recovered from his car belonged to one of the robberyvictims (Ross: A 93-96, 113-21, 129-33, 171). Ross and Brzeski read defendant his Miranda rights. Defendant signed the Miranda rights card, indicating that he aclmowledged and waived those rights and that he was willing to speak with the detectives without an attorney present. Detective Brzeski questioned defendant about the Gtgo station murder, but defendant initially denied any lmowledge of the murder. After defendant was told that there was a witness who had seen his car at the scene, however, he conceded that he had been parked next to the Gtgo station when the murder took place. Defendant's statement was reduced to writing and signed by him (People's Hearing Exhibit 2; A 101). Up to this point, defendant never asked Ross or Brzeski to allow him to speak with an attorney, or asked 6 to make a phone call. Detective Ross knew defendant had been recently arraigned on the marijuana charges and assumed that defendant was represented by com1sel at that arraignment (Ross: A 96-102, 133-55). After a break, Detective Ross spoke with defendant about the robbery at Tattoo You. Defendant admitted that on the night of the robbery, he drove two friends to the shop. Defendant said his friends directed him to the shop, and he aclmowledged that he stopped in the lot behind the shop. Defendant's statement was reduced to writing, and defendant signed the statement (People's Exhibit 3; A 103). Again, defendant never told Ross or Brzeski that he wanted to speak with an attorney, or asked to make a phone call (Ross: A 102-05, 155). When the detectives pressed defendant to disclose who had been with him on the nights of the robbery and the murder, he eventually told them that Eric Smith and Sterling Henderson had been with him on the night of the murder. The identities of the men were included in a third statement reduced to writing and signed by defendant (People's Exhibit 4; A 106). Defendant was shown photographs of the two men by the detectives, and he confirmed that those were the two friends who had been with him on the night of the murder (People's Hearing Exhibits 5 and 6; A 108). When asked about the robbery, defendant admitted that the two men, Smith and Henderson, had also been with him on the night of the robbery, but he balked when asked to commit a fourth statement to writing. It was only then, at roughly 4:40 p.m., that defendant told the detectives that he wanted to call his mother and wanted to speak 7 with a lawyer. There was no further interrogation of defendant after that point; he was asked only for pedigree information. No threats were made against defendant at any time he was with the detectives, and no promises were made to induce his statements (Ross: A. 105-11, 161-65). Defendant's Evidence Defendant's sister, LISA PIPPINS, testified that on December 23, 2010, she was present at his arrest by Officer Morales. Pippins claimed that it was only after 6 p.m. the next evening that the family heard from defendant, who told them he was going to be charged with murder and robbery. Defendant asked his family if they had contacted Michael Biniakewitz, an attorney who had represented defendant months before on a now-closed case. Biniakewitz had not yet been retained to represent defendant on the marijuana charges stemming from his arrest on December 20, 2010, and was subsequently retained to represent defendant on all charges (Pippins: A 192-96, 209-13). Defendant, BRYAN HENRY, testified that, when he was pulled over on the night of December 20, 2010, he did not have marijuana in his lap. Defendant claimed the only drugs in the car were possessed by defendant's passenger, who told the officers it was his marijuana before both men were arrested. Defendant claimed he was threatened when he refused to tell the officers his cell phone number (Henry: A 215- 22, 224-25, 245-49, 253-54). 8 Defendant testified that he was pulled over by Officer Morales in the early morning hours of December 23, 2010. Defendant claimed that he told Morales that he wanted to speak with an attorney, but was ignored. Defendant said that he was soon told that he was being taken into custody because his name "came up" with fellow officers, and he was taken to the First Precinct at roughly2:30 a.m. (Henry: A 225-33, 257-63). Defendant said that he was isolated upstairs at the precinct, where he waited for the detectives who wanted to speak to him. He testified that he asked to speak to an attorney when at the scene of his arrest, and again when he was brought to the station. He also said he asked to call his mother, but was told that would have to wait (Henry. A 233-36, 264-66). At about 10 a.m., defendant met with the two detectives who acted as if he "wasn't speaking English" when he asked to speak with an attorney, and they told him he could not speak with his mother. Defendant claimed that he tried to sleep through the interrogation, but that the detectives pushed him, woke him, and slapped him to keep him talking. He said the men promised him they could get him a five-year sentence if he gave them information, and claimed they had spoken with the prosecutor, who believed that he "didn't do it" and "didn't pull the trigger'' but that he did "know something." Defendant claimed that he was never shown any pictures, other than a picture of the murder victim which hung on the wall, and that he signed only the first page of one of the statements, but none of the others. Defendant claimed that he did 9 not give the detectives any information about the robbe1y or murder, other than an admission that he was "in the area" of the Gtgo station, and that the rest of the information in his statements was fabricated. Defendant said he was never read his Miranda rights, and signed the card waiving his Miranda rights only because he believed he was invoking his right to an attorney. Defendant claimed that he asked repeatedly to speak with an attorney, but was not allowed (Henry: A 237-41, 266-78, 288-89). Defendant said that, at a later date, he and his counsel met with Assistant District Attorney ("AD.A") ANNA ACQUAFREDDA for a debriefing. Detective Ross was present. At this meeting, defendant alleged that Ross had kept him from his attorney on previous occasions. Defendant testified that Ross reacted angrily to defendant's accusation, and cursed at him (Herny: A 241, 279-85). Neither Ross, nor AD.A Acquafredda, when she was called to testify as a defense witness, recalled this angry exchange (Ross: A 111; Acquafredda: A. 296-306) . The Decision of the Hearing Court After hearing closing arguments from both sides, the court issued its ruling from the bench. The court determined that Officer Mullen reasonably detained defendant after Mullen saw defendant drive through two stop signs and at an unreasonable rate of speed, and that Mullen had probable cause to arrest defendant upon the discovery of marijuana in defendant's car. The court found that defendant was "assigned counsel the fallowing day by the Court, thereby invoking his right to counsel for him" (A 403). 10 One of the proceeds of the arrest was the Blackberry smart phone. The court found that the police had reason to believe the phone was stolen and was connected to the marijuana stop, and they knew that defendant had an indelible right to counsel related to that stop. Therefore, the court suppressed the statement that resulted from questioning defendant about the robbery because the police knew or should have known that the stolen phone was related to the marijuana arrest, and that defendant had counsel for that charge (A 403-04). With regard to the questioning about the homicide, however, the court found that the crime was "completelyunrelated and the police had a right to disregard the fact that he had an attorney on the marijuana [charge]. They had a right to ask him if he was willing to waive his constitutional rights" (A 404). The court went on to find that defendant was read his Miranda rights, which he waived knowingly and voluntarily, and that the statement about the murder was therefore admissible as part of the People's direct case (A 404). The Trial The People's Case On the night of December 13, 2010, two men robbed the Tattoo You shop in Carle Place. The men wore masks, one carried a gun, and they ordered the five men who were in the shop onto the floor. The occupants were searched, and among the items stolen was MACKENSON PIERRE's Blackbenycell phone. The two robbers 11 quickly fled, and the occupants of the shop called the police (EV AN GROVER [victim]: A 843-53; Pierre: A 860-64; ROBERT ALLIE [victim]: A 1071-73; JOHN RAYNOR[victim]: A 928-30;ANIHONYNEALE [victim]: A 1067-69). Two days later, on December 15, 2010, ANIHONY RIG-IARD and his friend NYA RAlvIPERSAD spent the afternoon with their friend James McOenic. Richard drove them in his father's truck, and the men stopped at a Gtgo station in Hempstead (Richard: A. 980-84; Rampersad: A 1145-46). Richard went to the shop window and Rampersad and Mcdenic stayed in the truck As Richard approached the shop window to make a purchase, MATIHEWREISTETIER and KENNETHJACKSON stood nearby at the station's A1M machine, waiting for money to be disbursed (Richard: A 984-86, 995, 998-1000; Rampersad: A 1146-48; Reistetter: A 1054-57; Jackson: A 1060-62). As he made his purchase at the store window, Richard was passed by a man wearing a ski mask, dark clothing, and a hood. The man carried a gun, and headed straight for Richard's truck The man tapped on the passenger window next to Mcdenic, raised his gun, and shot at Mcdenic three times. As the shots rang out, Richard and the two men near the A1M all took off in different directions, and Rampersad ducked in his seat. As soon as the man stopped shooting, he was gone (Richard: A 986-91, 999-1002; Rampersad: A 1147-49; Reistetter: A. 1056-58;Jackson: A 1061-64) . 12 Moments before the shooting, LUIS NARANJO CASTILLO sat wanning up his car on the street just east of the Gtgo station. He saw a black Hyundai Sonata speed by. The Hyundai, which had tinted windows, no hubcaps, and appeared to Castillo to be a 2003 to 2007 model, raced towards the gas station before making a quick U-tum. Castillo saw a man wearing all black clothing and a hood jump from the front passenger side of the car and run towards the gas station with a gun in his hand. Another man left the car's back seat and took the now-vacant front passenger seat. Soon, Castillo heard three gunshots, after which he saw the hooded man run back to the car, which then sped away. A frightened Castillo quickly drove off as well, but went to the police later that night to report what he had seen (Castillo: A. 1020-31, 1036-45, 1048-50). Back at Richard's truck, Richard and Rampersad attempted to speak with and help their friend Mcdenic, who had been shot in the neck and was bleeding profusely. Rampersad removed his own sweatshirt and used it to try to slow the bleeding as Mcdenic slumped over on him. Within minutes, the police arrived. Nineteen-year-old James Mcdenic died of a gunshot wound to the neck (A 1271-72 [stipulation]. On the night of December 20, 2010, Police Officer 11.IGIAEL MULLEN and his partner Officer Carbone were on patrol in Roosevelt when they saw a black Hyundai Sonata drive through two stop signs. The officers pulled the car over and smelled marijuana as they approached on foot. They then saw that defendant, the driver of the car, had marijuana in his lap. Mullen also saw a marijuana cigarette in the ashtray and a small bag of marijuana next to the passenger door. The officers recovered the 13 evidence and placed defendant and his passenger under arrest (Mullen: A 932-4 3, 945- 56, 958-64).3 The officers searched the car and recovered five cell phones. Defendant was brought back to the First Precinct, as was the car, which was impounded. Defendant and his passenger were both asked which of the five cell phones belonged to them, and four of the phones were spoken for. When Mullen later took the remaining cell phone, a Blackbeny smart phone, and checked its phone number against police records, he discovered it matched a phone that had been stolen in a recent robbery (Mullen: A 94 3- 45, 974-77). The car was registered to defendant's sister, Lisa Pippins (Mullen: A 975; DONNA WEISSBARD [New York Department of Motor Vehicles]: A 1128-32). In the early morning hours of December 23, 2010, Police Officer RAPHAEL MORALES was on patrol with his partner in Roosevelt. At approximately2:30 in the morning, Morales saw a man jump fr01n a nearby Mercury, nm to an SUV across the street and engage in a brief conversation with the occupants. The Mercury and the SUV drove off quickly in the same direction, and Morales followed. Both cars were driving over the speed limit, and Morales stopped the Mercury (Morales: A. 1081-85, 1090-94). The officers spoke with defendant, the driver of the Mercury, who provided them with identification, and they noted that the vehicle's inspection had expired (Morales: A 1085-86, 1094-97, 1106). The officers called in defendant's information 3 The parties stipulated, and the jury was informed, that the substance found in defendant's car was marijuana, and the aggregate weight was 1.527 grams (A 1273-75; O:mrt Exhibit 6). 14 over the police radio and were told that defendant had recently been arrested for marijuana possession and was wanted for possession of the stolen property. Defendant was arrested and brought to the First Precinct (Morales: A 1086-88, 1097-1101, 1107- 11). Detective MATIHEWROSS and his partner, Detective ROBERT BRZESKI, interviewed defendant later that morning. Detective Ross had become involved in the case two days before, when Detective Brzeski asked him to investigate the robbery at the Tattoo You shop. Ross took the Blackberry recovered during defendant's arrest to Mackenson Pierre, who confirmed that it was his phone, and had been stolen during the robbery. Ross also visited the Citgo station where James Mcdenic had been murdered, and spoke with Luis Castillo, who told him about the Hyundai Sonata he had seen fleeing the scene (Ross: A 1155-59, 1182-84). Before speaking with defendant, Ross knew that defendant had been arrested and released on the marijuana charges and that he had been assigned a lawyer for his arraignment (Ross: A 1192-94) . Detective Brzeski, who was investigating the Mcdenic murder, also visited the Citgo station and later met with the victim's family. After Brzeski spoke with Castillo about the Hyundai Sonata, he was informed that a black Hyundai Sonata had been impounded after defendant's marijuana arrest (Brzeski: A 1201-09, 1235-39). At roughly 10 a.m. on the morning of December 23, Ross and Brzeski met with defendant in an interview room at the precinct. Before the interrogation, defendant was read his L\11.iranda rights, and signed a rights card indicating that he waived those 15 rights. Defendant was never threatened by the detectives, and it was only at the close of the questioning, late in the afternoon, when defendant first told them that he would no longer speak to them without an attorney. Before or during the interrogation itself, however, defendant never asked to speak with an attorney (Ross: A. 1159-67, 1186-98; Brzeski: A 1209-16, 1282-86). During the interrogation, defendant initially denied being at the scene of J aines McOenic's murder or knowing anything about the crime itself. After Brzeski told defendant about the video he had seen, in which defendant could be seen driving a black Hyundai Sonata near the scene, and about the witness who had seen a black Hyundai Sonata adjacent to the Gtgo station during the shooting, defendant conceded that he had been driving the car that day. He would not, however, name the friends who were with him in the car, including the man who had gone into the gas station. This initial statement was reduced to writing, and defendant reviewed it, initialed any necessary corrections, and signed the statement (People's Trial Exhibit 33). Defendant later told the detectives the names of the men who had been riding in the car with him that day, and another statement was reduced to writing and signed. Finally, at roughly 4 p.m., defendant asked to speak with an attorney and the interrogation ceased (Brzeski: A 1217-23, 1242-47, 1258-59, 1262). Defendant's Case Defendant did not present any evidence at trial (A 1276). 16 The Verdict and Sentence On August 19, 2011, defendant was convicted of one count of murder in the second degree, two counts of criminal possession of a weapon in the second degree, one count of criminal possession of marijuana in the fifth degree, and one count of criminal possession of stolen property in the fifth degree. Defendant was acquitted of the remaining charges (A 1432-35). On April 9, 2012, defendant was sentenced to twenty years to life imprisonment for the murder conviction, fifteen years' imprisonment for each conviction of criminal possession of a weapon, one year of imprisonment for the criminal possession of stolen property, and ninety days' imprisonment for criminal possession of marijuana. All sentences were ordered to run concurrently(A 1451). The Appellate Division's Order Modifying the Judgment of G::mviction On November 16, 2016, the Appellate Division, Second Judicial Department, modified defendant's judgment of conviction, vacating all of defendant's convictions, save that for criminal possession of marijuana in the fifth degree, suppressing defendant's statements to law enforcement officials relating to the murder charge, and remitting the case to the Supreme G:mrt, Nassau G::>unty, for a new trial. People v. Hmry, 144 ADJd 940 (2d Dept. 2016). Bound by the hearing court's detennination that questioning defendant about the robbery violated defendant's right to counseL and "in light of" that determination 17 (Henry, 144 A.D.3d at 944), the Appellate Division found that questioning concerning the murder was also precluded. The court first determined that "the robbery and the murder cases were so closely related that questioning about the gas station shooting would 'all but inevitably elicit incriminating responses' regarding the robbery." Id. (quoting People v. Cohen, 90 N.Y.2d 632, 638 [1997], and that suppression of defendant's statements concerning the murder was required on that ground. Moreover, the court held, suppression was required because "the impermissible questioning of the defendant on the robbery charges was not fairly separable from questioning on the murder charge, and 'was purposefully exploitive in the sense that it was calculated to induce admissions' on the murder charge." 1-Ienry, 144 AD.3d at 945 (quoting People v. Grant, 91 N.Y.2d 989, 996 [1998, Titone,]., concurring in part] . 18 ARGUMENf The Appellate Division Misapplied People v. Cohen To The Facts Of Th.is Case, Extending The Right To Counsel, By Proxy, From A Misdemeanor Drug Case On Which Defendant Was Represented By Counsel To An Unrelated Murder Case Right-to-counsel jurispn1dence in New York "has continuously evolved with the ultimate goal of achieving a balance between the competing interests of society in the protection of cherished individual rights, on the one hand, and in effective law enforcement and investigation of crime, on the other." People v. LopeZJ 16 N.Y.3d 375, 381 (2011) (internal citations and quotation marks omitted). For that reason, this O:mrt has sought to define "the parameters of the indelible right to counsel ... through the adoption of ... pragmatic and simple tests grounded on common sense and fairness in order to provide an objective measure to guide law enforcement officials and the courts." Id (internal citations and quotation marks omitted). In this case, the Appellate Division misapplied those "pragmatic and simple tests" and, as a result, reached a conclusion that defies common sense and is manifestly unfair. A. The Evolution of Right to C.OunselJurispmdence in New York In People v. Grant, 91 N.Y.2d 989 (1998), this Court explained that its right-to- counsel jurisprudence had evolved to be "more expansive than the federal counterpart because 'the presence of an attorney is the most effective means we have of minimizing the disadvantage at which an accused is placed when ... confronted with the awesome 19 law enforcement machinery possessed by the State."' Id (quoting People v C111t11ingham, 49 N.Y.2d 203, 207 [1980]. A criminal defendant's "right to counsel arises from two significantly different scenarios: (1) upon the commencement of formal proceedings, and (2) when an uncharged individual has retained a lawyer, or while in custody has requested a lawyer." People v. Burdo, 91N.Y.2d146, 151 (1997) (Wesley, J., dissenting) (citing People v. West, 81 N.Y.2d 370, 373 [1993]. "The first parallels to some degree the right to counsel arising under the Sixth Amendment to the United States Constitution, which also attaches with the commencement of formal proceedings." Burdo, 91 N.Y.2d at 151 (citing Kirby v. Illinois, 406 U.S. 682 [1972]. The second "originated in the context of custodial interrogation" and, "[l]ike the privilege against self-incrimination under the Fifth Amendment to the United States Constitution," is meant to '"preserve the integrity of an accused's choice to communicate with police only through counsel"' Burdo, 91 N.Y.2d at 152 (quoting People v. Claudio, 83 N.Y.2d 76, 81 [1993] (alterations omitted). "Once a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer." People v. Hobson, 39 N.Y.2d 479, 481 (1976) (citing People v. Arthur, 22 N.Y.2d 325, 329 [1968]. "The right to counsel is referred to as 'indelible' because, once it 'attaches,' interrogation is prohibited 20 unless the right is waived in the presence of counsel." Lopev 16 N.Y.3d at 380 (citing People v. Bing, 76 N.Y.2d 331, 338-39 [1990]. Initially, under People v. Taylor, 27 N.Y.2d 327 (1971), police officers were allowed to interrogate a suspect who was in custody and represented by an attorney about any matter unrelated to the custodial charge. In People v. Rogers, 48 N.Y.2d 167 (1979), this Court amended T qyior to establish the new rule that when a defendant is in police custody for a criminal charge on which he is represented by counsel, a derivative right to counsel attaches and custodial interrogation about any subject, whether related or unrelated to that charge, must cease. The Rogers right to counsel, however, bars questioning on unrelated matters only "when a defendant is in custody on the initial charge upon which the right to counsel has attached. It does not extend to questioning and result in suppression when the defendant is subsequentlytaken into custody on an unrelated charge.'' People v. S teward, 88 N.Y.2d 496, 502 (1996). Where a defendant is not in custody for charges on which the right to counsel has indelibly attached, there are two categories of precedent governing police interrogation on the subject of a new crime. This Court discussed the evolution of that case law in People v. Cohen, 90 N.Y.2d 632, 638-41 (1997). The first category, stemming from this Court's decisions such as People v. Velia, 21N.Y.2d249 (1967), and People v. Townes, 41 N.Y.2d 97 (197 6), concerns "two criminal matters [that] are so closely related transactionally, or in space or time, that questioning on the unrepresented matter would all but inevitably elicit incriminating responses regarding the matter in which there had 21 been an entry of counsel. In such cases, interrogation on the unrepresented crime is prohibited even in the absence of direct questioning regarding the crime on which counsel had appeared." Cohen, 90 N.Y.2d at 638-39; see also Vella, 21 N.Y.2d at 251-52 (holding that where defendant was arraigned and assigned counsel in New York County on charge of receiving stolen property, then picked up and interrogated, in the absence of his arraignment attorney, on Suffolk County burglary and theft of the property upon which the New York County charge was based, right to counsel was violated). The second line of cases discussed in Cohen involves interrogations concerning two crimes that were less intimately connected, but where the police were aware that the defendant was actually represented by an att01ney in one of the matters. Cohen, 90 N .Y.2d at 640. For instance, in People v. Enno, 47 N.Y.2d 863 (1979), a case relied on in Cohen, the police conducted one interrogation in which they asked defendant about a March 1972 sexual assault -- on which he had already been charged and assigned an attorney -- and an August 1971 sexual assault/ homicide for which he had not yet been charged or retained counsel. This Court affirmed the lower court's reversal of the conviction and suppression of the confession to the earlier homicide, and found that the Appellate Division "was correct in evaluating the police interrogation as an integrated whole, in which the impennissible questioning as to the assault was not discrete or fair!J separable." Ermo, 47 N.Y.2d at 865 (emphasis supplied). The E17no Court found it particularly relevant that questioning on the represented charge was used to secure the defendant's confession to the sexual assault/ homicide 22 charge, and emphasized that the "critical factor" to examine was whether the police "exploited concededly impermissible questioning" in order to advance their interrogation on the unrepresented charge. Id (emphasis supplied); see also People v. Grant, 91 N.Y.2d at 996 (1998) (Titone, J., concurring); People v. Rtiff, 81 N.Y.2d 330, 334 (1993) (discussing that police interlerence with an attorney-client relationship by questioning about the pending matter, in a manner designed to elicit statements on an unrelated matter, is barred); People v. JV!iller, 54 N .Y.2d 616, 618-19 (1981) (holding that suppression was required where interrogation was an integrated whole and impermissible questioning was ((interrelated and intertwined" with, and not fairly separable from, questioning on the unrepresented crime). In light of these two categories of precedent, the Cohen Court analyzed the case before it, in which the police officers investigating a robbery and homicide at a Gtgo gas station in Lake George learned from an informant that, many months earlier, the defendant had stolen several guns during the course of a burglary of Thompson's Garage in the same geographical area, and that the defendant had made subsequent statements to the informant that he intended to rob the Gtgo gas station. Based on this information, the police believed that the defendant was one of the participants in the gas station robbery/ homicide, and that, during the course of that crime, he had used one of the guns that had been taken in the earlier burglary. Although the police knew the defendant had counsel on the earlier burglary charges, and that the attorney previously told police that his client was not to be questioned outside his presence, the 23 officers questioned the defendant about both the Gtgo robbery/ homicide and the earlier burglary, and used the questioning about the earlier crimes to put pressure on the defendant to confess his involvement in the murder. Cohen, 90 N.Y.2d at 635-37. The Cohen Court found that those facts did not fall into the first category of cases because the represented and unrepresented crimes were not so thoroughly interrelated that questioning on one would have almost necessarily elicited incriminating responses on the other. Indeed, it found that "[ d]iscrete questioning of defendant concerning the Gtgo crimes, by a police officer mindful and respectful of the indelible attachment of defendant's right to counsel regarding the Thompson's Garage matter, would not have created any serious risk of incriminating responses as to the latter crimes." Cohen, 90 N.Y.2d at 639-40. The Court did find, however, that the questioning on the Thompson's Garage matter was completely "interrelated and intertwined" and "not discrete or fairly separable" from interrogation on the Gtgo robbery-homicide, as relevant under the second category of cases. Cohen, 90 N.Y.2d at 641-42 (citations omitted). Furthermore, the Court found that "the concessions by the officers in their testimony at the suppression hearing demonstrate as a matter of law that the questioning on the Thompson's Garage matter was pmposely exploitive" and "designed to elicit statements on [the Gtgo crimes]." Id at 642 (citations omitted). Accordingly, the Cohen Court reversed the decision of the Appellate Division and ordered that the statements made with regard to the Gtgo crimes be suppressed. Id The critical 24 differences between Cohet1 and the case at bar require reversal of the Appellate Division's order here. B. The Appellate Division Improperly Analyzed This Case Under The Cohen Tests As If Defendant Had Counsel On The Robbery Charges, Which He Did Not. That Flawed Analysis Improperly Extended The Right To C.Ounsel By Proxy To A Charge Two Degrees Removed From That On Which Defendant Was Represented By C.Ounsel. On December 20, 2010, defendant's car was stopped by police for a traffic infraction and defendant was subsequently arrested for the possession of marijuana. Defendant was assigned counsel at his arraignment for that charge, and was released on bail. On December 23, 2010, after another traffic stop, defendant was arrested for the possession of a stolen cell phone that was recovered from his car after the marijuana arrest. Upon this second arrest, defendant was questioned by two detectives who were partners: one was investigating the robbery during which the cell phone had been stolen and the other was investigating a murder that had occurred two days after the robbery. These two crimes had different victims, and took place in different towns. Detective Brzeski began the questioning, asking defendant only about the murder. At this point, defendant conceded that he had been parked outside the Gtgo station when the murder took place. Defendant gave a statement that was reduced to writing before he signed it. After a break, Detective Ross spoke to defendant about the robbery. Eventually, both detectives inquired together and defendant gave statements implicating himself as the getaway driver in both the robbery and the murder. 25 In its decision below, the Appellate Division applied People v. Cohen to the undisputed facts of this case and found that defendant's right to counsel was violated under both tests outlined in Cohen. The Appellate Division erred. Building on the hearing court's determination that the robbery charges were "related" to the marijuana charge for which defendant had counsel, the Appellate Division improperly analyzed the interrogation under the Cohe1t tests as if defendant were actually represented by counsel on the robbery charges themselves. This was not the case, and the resulting holding improperly extended the right to counsel, by proxy, far beyond that which this Court provided in Cohen. Because the suppression court ruled that defendant's right to counsel was violated due to the connection between the robbery case and the marijuana charge for which defendant had an attorney, the Appellate Division held that defendant's right to counsel was also "violated by questioning on the factually interwoven homicide matter. Indeed, the robberyand the murder cases were so closely related that questioning about the gas station shooting 'would all but inevitably elicit incriminating responses regarding' the robbery." Henry, 144 AD.3d at 944 (quoting Cohen, 90 N.Y.2d at 638). 4 4 Although appellant cannot now challenge the validity of the hearing coun's decision, it is significant that the Appellate Division's reversal of the judgment was premised on an unjustified windfall bestowed by the hearing court. Application of the two Cohe11 tests plainly demonstrates that the hearing coun's analysis was incorrect. Defendant should not have been awarded the right to counsel on the robbery charges simply because evidence from that crime was discovered during the marijuana arrest. The marijuana possession and the robbery were not so closely related that questioning about the robbery "would all but inevitably elicit incriminating responses regarding" the marijuana (Cohen, 90 N.Y.2d at 638), and there is no indication in the record that the detectives questioned defendant about the marijuana arrest at all, let alone in a waythat "was putposelyexploitive 26 The Appellate Division's analysis was misdirected. The question should not have been whether the robbery and murder cases were "so closely related" that the interviews conducted by the two detectives during the same time period would elicit admissions of defendant's involvement in both crimes. It should have been whether the marijuana and murder charges were so related and connected. Defendant was assigned counsel for the marijuana charge only, not the robbery charges. The hearing court deemed the robbery charges to have been "related" to the marijuana charge because evidence implicating defendant in the robbery was seized during the marijuana arrest. The homicide arrest, on the other hand, was, as the hearing court found, "completely unrelated" to the marijuana arrest (A 404), and there is nothing in the record to demonstrate that the questioning about the homicide would have "almost inevitably involve[ d] some potentially incriminating discussion of the facts of" the marijuana arrest. Townes, 41 N.Y.2d at 104. Moreover, the Appellate Division's analysis of Cohen overlooked this C.Ourt's finding that, notwithstanding the fact that the police lmew that defendant C.Ohen was represented by a lawyer in connection with the earlier burglary, questioning him about the gas station homicide alone would not have been improper because the matters were not so interrelated that his responding to questions about the latter incident (on which in the sense that it was calculated to induce admissions" (Grant, 91 N.Y.2d at 996). Accordingly, the Appellate Division's decision not only improperly extends the right to counsel to the homicide charge, it does so based entirely on a hearing court decision that improperly found that defendant had the right to counsel on the robbery. 27 he was not represented) would inevitably incriminate him with regard to the earlier matter (on which he was represented). See Cohen, 90 N.Y.2d at 639-40. Indeed, this C.Ourt said: The instant case does not fall into the foregoing category where the represented and unrepresented crimes are so thoroughly interrelated that questioning on one will ahnost necessarily elicit incriminating responses on the other. Discrete questioning of defendant concerning the Otgo crimes . . . would not have created any serious risk of incriminating responses as to the [burglary]. Thus, the police officers would not have been wholly barred from questioning defendant on the Gtgo crimes merely because he was already represented by counsel on the Thompson's Garage Investigation. Cohen, 90 N.Y.2d at 639-40. Even analyzing these facts from the Appellate Division's view-- that defendant's marijuana representation meant that he should have been treated as though he had representation on the robbery charges -- the homicide and the robbery were not sufficiently factually interwoven that questioning about the murder would necessarily have incriminated defendant in the robbery. The crimes took place in different towns, at different hours of the day, and involved different victims. The earlier crime was a robbery for profit committed when two men entered a tattoo parlor and stole from its occupants. The latter crime was a mindless murder committed when one man shot through the window of a car parked at a gas station. There is nothing in this record to indicate that questioning defendant about the murder would have necessarily implicated him in the robbery. 28 Similar minimal connections have repeatedly been held "insufficient to meet the transactionally related standard" (People v. Johnsott, 2009 WL 2475629 at ·~4 [Sup. G., Rockland Qy., June 9, 2009]. For instance, in People v. Niari11, 215 AD.2d 267, 267-68 (1st Dept. 1995), the defendant slashed a victim at the very same location where he attempted to assault the same victim three months earlier. The Appellate Division found that "the prior pending incident was not a bar to his knowing and voluntary waiver of Miranda rights [on the second incident] even in the absence of counsel." Id. In People v. Gehy, 238 AD.2d 354, 355 (2d Dept. 1997), the defendant was arrested for a robbery, and three days later he murdered the man he claimed committed the charged robbery -- for which the defendant now had counsel -- along with a witness. The Appellate Division found that the fact that the "robbery may have provided a motive for the homicides does not alone make the two crimes related such that representation on the robbery precluded the defendant from effectively waiving his right to counsel regarding the new crimes." Id. In People v. Rivera, 277 AD.2d 470, 471 (2d Dept. 2000), the defendant and his accomplice were being prosecuted for a robbery, and they abducted and murdered the robbery victim to prevent her from testifying. The Appellate Division found that although the defendant implicated himself in the murder and kidnapping during questioning outside the presence of his cotmsel for the robbery, "the robbery and murder charges were not so interwoven in terms of their temporal proximity and factual interrelatedness that any interrogation concerning the victim's 29 disappearance would 'almost necessarily' elicit statements pertaining to the robbery." Id (quoting Cohen, 90 N.Y.2d at 640). Indeed, this C.Ourt has found that the use of the same instrumentality-- in this case, the Hyundai Sonata, the most serious link between the two crimes here -- on its OV/Il is insufficient to render two crimes "interwoven." In People v. Grant, 91 N.Y.2d at 991, the police were permitted to question the defendant, in the absence of counseL about a homicide in Schenectady, notwithstanding the fact that he was already represented by counsel on a gun possession charge in Brooklyn. Although the weapon at issue in Brooklyn was the same as that used by the perpetrator of the homicide, this Omrt found that the charges "were not so interwoven that any interrogation on the latter would almost necessarily elicit incriminating responses on the former. The only common factual element linking the two was that both involved the same 9 millimeter Glock pistol. Without any other significant unifying factor, that fortuity has no independent legal significance." Grant, 91 N .Y.2d at 991.5 Likewise, in this case the "fortuity'' that both the robbery and the murder involved the same automobile did not 5 Six months after the Appellate Division rendered its decision in Grant, this C.Ourt decided People v. Cohen, and the defendant in Grant subsequently changed the focus of his argument from the "relatedness" of the two cases to the question of whetherthe interrogation was " purposely exploitive" and " designed to add pressure on defendant to confess" to the unrepresented crime. Grant, 91 N .Y.2d at 991-92 (quoting Cohen, supra, 90 N.Y.2d at 642). On that basis, this C.Ourt sent the case back to the trial court, so the new precedent set forth in Cobell could be applied. The trial court, on remittal, concluded that there was no violation of defendant's right to counsel on the basis urged and denied the suppression of defendant's statements. People v. Grant, 260 AD.2d 860, 860 (3d Dept. 1999). 30 make the crimes so interwoven that any interrogation on the latter would almost necessarily elicit incriminating responses on the former. In any event, although it is true that defendant was questioned intermittently about the homicide and the robbery, the fact remains that unlike the situation in Cohen, the robbery was not the crime for which defendant had been assigned counsel. There is no evidence in the record that defendant was questioned about anything that could have further incriminated him with regard to the December 20, 2010, marijuana arrest -- the only crime for which he had secured an attorney. Although the hearing court found that the robbery was related to the marijuana arrest because the possession of the Blackberry cell phone linked the two, there was no such link between the homicide and the marijuana arrest and neither logic nor law supports the argument that the robbery questioning tainted the homicide questioning. As support for its finding that the robbery and the murder were "factually interwoven," and that this closeness tainted defendant's interrogation about the murder, the court below extensively referenced the People's second argument on appeal, made in opposition to defendant's unrelated severance claim, that defendant's role as the getaway driver was so distinctly similar in both the robbery and the later shooting that "[e]vidence of each offense was ... highly relevant and admissible to prove the identity of the perpetrator ... and [defendant's] intent to commit those crimes." Henry, 144 AD.3d at 945. See also Respondent's Appellate Division Brief, Point Two. The lower court's attempt to use the People's severance argument as support for its 31 conclusion was misplaced. Although it is true that the robbery and the murder shared evidentiary similarities such that joinder was warranted pursuant to C.P .L. § 200.20(2)(b), the assessment of that issue was wholly different from the considerations relevant to the issues here. Two crimes are sufficiently factually inteiwoven for joinder purposes if the offenses, "based on separate and distinct criminal transactions ... are of such a nature that proof of either offense would be material and admissible as evidence-in-chief upon the trial of the other." People v. Bongarzone, 69 N.Y.2d 892, 895 (1987). The purpose of joinder is to allow a prosecutor to present a comprehensive and logical evidentiary narrative to a jury. On the other hand, for two matters to be sufficiently "factually interwoven" that right to counsel on one would implicate the other, those matters must be so closely related that questioning about one "would all but inevitably elicit incriminating responses regarding" the other. Cohen, 90 N.Y.2d at 638. The former analysis is done after all the evidence has been gathered, and a prosecutor with knowledge of that evidence seeks to present it together; the latter involves scrutiny of actions taken by the police, long before a suppression hearing or trial, and often before they have even been able to establish probable cause for an arrest. Because the two are so dissimilar, the factual analysis that warranted joinder was simply irrelevant for right- to-counsel analysis, and did not demonstrate that defendant's right to counsel was implicated under the first line of cases discussed in Cohen. 32 The Appellate Division also evaluated defendant's case under the second line of cases discussed in Cohen and held that the hearing record supported a conclusion that the impermissible questioning of the defendant concerning the robbery was not fairly separable from questioning on the murder and "was purposely exploitive in the sense that it was calculated to induce admissions" on the murder charge. H enry, 144 A.D.3d at 945 (citing People v. Grant, 91 N.Y.2d at 996). The Appellate Division, once again, skipped a crucial step in its reasoning because although the hearing court found that defendant's right to counsel had been triggered on the robbery charges -- because of the relationship between the evidence from the robbery found pursuant to the marijuana arrest, for which he had representation -- defendant was not represented by counsel on the robbery charges. Just as it did in its analysis under the first line of cases found in Cohen, the Appellate Division extended the right to counsel one step too far, by proxy, not just from the marijuana case to the robbery charges, but to a third case, the murder case, which the hearing court found unrelated to the case for which defendant had an attorney. Indeed, the only link between the marijuana crime and the murder was the use of the same automobile, which certainly did not make the crimes so interwoven that any interrogation on the latter would almost necessarily elicit incriminating responses on the former. The Appellate Division not only wrongly overturned a murder conviction on an insufficient showing of relatedness, it improperly extended the right to counsel in a broad and far- reaching way that was not anticipated by Cohen's analysis. It improperly 33 extended right-to-counsel protections to any case where interrogation is intertwined with questions about an earlier case that simply bears some minimal similarityto a still earlier case on which defendant's indelible right has actually attached. Accordingly, the decision of the Appellate Division should be reversed. Finally, should this C.Ourt agree that the robbery and murder cases were not sufficiently interwoven to violate the first inquiry under Cohen, this C.Ourt should, at the ve1y least, order that defendant's first signed statement to Detective Brzeski was properly admissible at trial. During Brzeski's initial interrogation of defendant, they spoke only about the murder. After defendant was told that there was a witness who had seen his car at the scene, he conceded that he had been parked next to the Gtgo station when the murder took place. Defendant's statement was reduced to writing and he signed it (People's Hearing Exhibit 2; A 101), all before the detectives took a break, and before Detective Ross began his interrogation about the Tattoo You robbery (Ross: A 96-103, 145-57). Because these initial statements about defendant's involvement in the murder were made before he was interrogated about the robbery, the robbery interrogation was separable and could not have been "purposely exploitive in the sense that it was calculated to induce admissions." Henry, 144 ADJd at 945 (citing People v. Grant, 91 N.Y.2d at 996). Thus, the interrogation that resulted in defendant's initial statements about the murder could not have violated defendant's right to counsel under the second Cohen inquiry, and ought to be deemed admissible. 34 C Undisputed Facts In This Record Allow This C.ourt To Reverse The Lower C.Ourt's Decision On The Law. The facts necessary to evaluate the Appellate Division's holding are not in dispute. Defendant was arraigned on a misdemeanor marijuana charge on December 21, 2010, was represented by counsel at the arraignment, and was released on bail (Henry: A 222-24, 239-40, 256). At this point, Michael Binial\:ewitz, who later represented defendant on the robbery charges, did not represent defendant on the marijuana charge (Ross: A 117-18, 154; Pippins: A 198-99; Herny. A 240, 243, 256). Defendant testified that Biniakewitz (defendant's attorney on all the criminal charges going forward, including the robbery charges), was retained to represent defendant only after he was arraigned on the robbery and murder charges (Henry: A 243). Accordingly, defendant's own testimony conceded that he was not yet represented by counsel on the robbery charges when he waived his JVl.iranda rights and agreed to speak with detectives about both the robbery and the murder during the interrogation on December 23, 2010. The Appellate Division's holding was erroneous because it failed to take into account defendant's lack of representation on the robbery charges about which he was questioned. Instead, the court analyzed defendant's interrogation on the robbery and murder charges as if defendant had an attorney on the robbery charges themselves, rather than on the related marijuana charges for which he had already been arraigned. Because "there is no ambiguity and no serious question as to how the established 35 legal principles should be applied to the undisputed evidence on the record" ( Gra11t, 91 N.Y.2d at 995), this Court can, and should, rule on the law and reverse the Appellate Division's decision. 36 CDNCLUSION The Appellate Division's Order Modifying Defendant's .h!dg:ment of C.Onviction Should Be Reversed. Dated: Mineola, New York July 13, 2017 Tammy J. Smiley J udit.h R Sternberg Jason R Richards OisL.in N. Connell Assistant District Attorneys Of Counsel Respectfully submitted, MADELINE SINGAS District Attorney, Nassau County Attorney for Appella11t 262 Old Country Road Mineola, New York 11501 (516) 571-3800 By. 37 Oiscin N. Connell Assistant District Att01ney CERTIFICATE OF CD11PLIANCE WITH22 NYCRR § 670.10.3(f) CRISTINN. CONNELL does hereby certify as follows: This brief was prepared by computer; the body of the brief is double-spaced and utilizes a serifed, proportionally spaced typeface (Garamond) of 14-point size; the footnotes are single-spaced and utilize the same typeface of 12-point size; and, according to the word count of the word processing system used (Microsoft Word 2016), the brief contains 9,590 words, exclusive of any pages containing the table of contents, proof of service, and certificate of compliance. Dated: Mineola, New York July 13, 2017 CRISTIN N. CONNELL Assistant District Attorney STATE OF JEW YORJ<) ) ss.: COUNTY O F NASSAU ) MIRL\M lvU\NNO, being dL1ly sworn, deposes and says that: D eponent is nor a party to the action and is over 18 years of age. On July 14, 2017, depo nent served three true copies of the .APP ELLANT'S BRl EF and separately bound APP ELLANT'S APPENDIX VOL. 1, and i\PPELL\ IT'S APPENDIX VOL. 2, upon J UDAH ~IALTZ, ESQ., atcorney for appellam, BRYAN HE NRY, by depositing ttue copies of the same, enclosed in a pos tpaid properly addressed wrnpper, jn an official depository under the exclusi \re care and cusrody of the Un.ired States post office deparm1em within the State of New York, directed to said attorney, for the with.in named appellant, at 125-10 QUEENS BOULEVARD, SUJTE 12, KEW GARDENS, NEW YORK 1141 5, tha t being the address wirh.in the smte designated by him/ her for [hat pm-pose upon the preceding papers in th.is action, or the place where he/ sl1 e kep t an office, bet\veen which places there then was and now is a regular comnrnnication by mail. Sworn to before me this 14th cl ay of July, 2017 MARIEL MURPHY NOTARY PUSUC STATE OF NEW YORK NASSALl COUN1Y LIC. #01M'J 1S3r.:&s COMM.EXP. i MJlU AM ~tlANN 0