The People, Appellant,v.Bryan Henry, Respondent.

Brief

N.Y.April 25, 2018

APL-2017-00073 Nassau County Indictment No. 184N-2011 To Be Argued by: JUDAH MALTZ, ESQ. Time Requested: 15 minutes COURT OF APPEALS STATE OF NEW YORK The People OF THE STATE OF NEW YORK , Appellant -against- BRYAN HENRY, Defendant-Respondent. RESPONDENT-DEFENDANT’S BRIEF JUDAH MALTZ, ESQ. Attorney for Respondent 125-10 Queens Boulevard Suite 12 Kew Gardens, New York 11415 (718) 544-8840 (917) 318-5147 Dated: August 2, 2017 Kew Gardens, New York TABLE OF CONTENTS Page Table of Authorities. Preliminary Statement. 2Questions Presented. Whether Respondent’s “Indelible Right To Counsel” That Attached At The Time Of His Arrest On The Marijuana And Robbery Charges, Be Extended To The Murder Accusation When As Noted By The Court Below The Two Crimes Were Related And The Two Detectives Purposefully Exploited Him While In Custody To Relentless Questioning Until He Confessed To His Role In The Commission Of These Two Crimes? .2Facts. Argument Respondent’s Indelible Right To Counsel Which The Court Below Recognized Regarding The Robbery Should Be Extended To The Murder Crime Since They Were Transactionally Related To Each Other As To Time Or Place And The Police Purposefully Exploited Him During His Period Of Confinement To Obtain Confessions On These Two Connected Crimes 7 .22Conclusion 23Certificate of Compliance TABLE OF AUTHORITIES PageCASES FEDERAL CASES 4Miranda v. Arizona, 384 U.S. 436 (1966), .7People v. Arthur, 22 N.Y.2d 325 (1968), ,7,11,12People v. Bing, 76N.Y.2d 331 (1990). .9, 10,11,18People v. Carl, 46 N.Y.2d 806, (1978), .9, 10, 13, 14, 18, 19People v. Cohen, 90 N.Y.2d 632 (1997). 17People v. Concepcion, 17 N.Y.3d 192 (2011), 19People v. Cowan, 92 A.D.3d 794 (2012), .9,10,11, 19People v. Ermo, 47 N.Y.2d 863 (1979). People v. Grant, 91 N.Y.2d 989 (1998). .9,10,12,13 .21People v. Johnson, 24 N.Y.3d 639 (2014). .7People v. Harris, 77 N.Y.2d 439 (1991) People v. Henry, 144 A.D.3d 940 (2016) People v. Henry, 29 N.Y.3d 998 (2017) People v. LaFontaine, 92 N.Y.2d 470 (1998), People v. Lopez, 16 N.Y.3d 375 (2011) People v. Madison, 22 A.D.3d 684 (2005).... People v. McLean, 24 N.Y.3d 125 (2014).... People v. Phillips, 55 A.D.3d 1145 (2008)... .8, 14,18, 19,21 .2 17 .7, 14 .19 .20,21 ,19 -Page i- 19People v. Rivera, 277 A.D.2d 470 (2000). People v. Rogers, 48 N.Y.2d 167 (1979). People v. Steward, 88 N.Y.2d 496 (1996). .8,11,12 12 People v. Taylor, 27 N.Y.2d 327 (1970), .11,12 People v. Townes, 41 N.Y.2d 97 (1976). 18 People v. Tucker, 30 A.D.3d 312 (2006). 19 People v. Uriah M., 107 A.D.3d 997 (2013). 19 .9,10,11,18People v. Vella, 21 N.Y.2d 249 (1967). STATUTES .8,17Criminal Procedure Law S. 470.15 (1), OTHER AUTHORITIES .7United States Const. Amend VI. ,7,21New York State Const., Art. 1, Sec. 6 -Page ii- COURT OF APPEALS STATE OF NEW YORK X THE PEOPLE OF THE STATE OF NEW YORK, Appellant. -against- BRYAN HENRY, Defendant-Respondent. X BRIEF FOR RESPONDENT PRELIMINARY STATEMENT Respondent, Bryan Henry, was convicted after a jury trial in the Supreme Court, Nassau County, (Robbins, Tammy S., Acting Supreme Court Justice ), of the crimes of Murder in the Second Degree, Criminal Possession of a Weapon in the Second Degree, (two counts) , Criminal Possession of Marijuana in the Fifth Degree and Criminal Possession of Stolen Property in the Fifth Degree. Appellant was acquitted of a number of counts charging him with the crimes of Robbery in the First Degree and Attempted Robbery in the First Degree. Respondent was sentenced to concurrent terms of incarceration with the highest term of 20 years to Life for the crime of Murder in the Second Degree. On November 16, 2016, the Appellate Division, Second Department, unanimously reversed Respondent’s conviction and ordered a new trial concluding that the admissions -Page 1- made by him to law enforcement officials should be suppressed. The Court below concluded inter alia that Respondent’s indelible right to counsel had attached and that during the ongoing questioning by law enforcement officials they purposefully exploited the period of his confinement to question him on both the robbery and murder charges. On April 13, 2017, Honorable Leslie E. Stein, Associate Judge of the Court of Appeals granted the People’s leave application to file this instant appeal, 29 N.Y.3d 998, (2017). QUESTION PRESENTED Whether Respondent’s “indelible right to counsel” that attached at the time of his arrest on the marijuana and robbery charges, be extended to the murder accusation when as noted by the court below the two crimes were related and the two detectives purposefully exploited him while in custody to relentless questioning until he confessed to his role in the commission of these two crimes? FACTS A brief review of the facts is essential to illustrate the course of events -the apprehension of Bryan Henry and how the detectives purposefully exploited the period of his confinement to obtain confessions in both the robbery and murder charges. On December 13, 2010, a tattoo parlor undergoing renovations at Carle Place, Nassau County was the subject of an armed robbery. Five people were inside the shop when two masked armed individuals entered the shop. One of the victim’s blackberry cell phone was removed from him while the others had their personal effects taken. The -Page 2- store’s videotape was recovered and depicted a dark colored vehicle with tinted windows leaving the location. The People alleged that Henry was the getaway driver. On December 15, 2010, the victim James McClenic was sitting in the front passenger seat inside the Citgo Gas Station , located on Fulton Avenue in Nassau County, when a masked gunman approached his side of the vehicle and fired two times striking him in the neck. Prior to the shooting, a man seated inside his vehicle outside the gas station observed a fast moving vehicle stop outside the station and observed one of the men wearing a mask get out of the dark colored Hyundai Sonata with tinted windows with a gun at his side enter the gas station. After shots were fired the witness observed the male jump back into the back seat and the Hyundai drove off. Again the People take the position that the same vehicle was used during both the robbery and murder crimes and that Bryan Henry was the getaway driver who drove the same dark colored Hyundai Sonata. On December 20, 2010, during the late evening hours in the Town of Roosevelt, Nassau County, the police stopped Bryan Henry who was driving a 2007 dark colored Hyundai Sonata for traffic violations. Two plain clothes officers in an unmarked vehicle approached him on the driver’s side and smelled an odor of marijuana and noticed a quantity of marijuana. One of the officers noticed a number of cell phones inside the vehicle. Henry and another person inside the vehicle were both arrested and charged with Criminal Possession of Marijuana, a Misdemeanor. The police impounded the Hyundai Sonata for further investigation. At the precinct Henry admitted ownership to three of the -Page 3- phones but denied knowledge regarding the seized Blackberry cell phone. The investigation officer separated the Blackberry phone and ascertained it was taken during the armed robbery at the tattoo shop on December 13, 2010. However, at this time, Henry was charged only with possession of marijuana and arraigned in the District Court. He was assigned a Legal Aid Society Attorney and released on bail. Several days later, during the early morning hours Bryan Henry driving a Mercury was stopped by another set of police officers in the Town of Roosevelt for violating the vehicle and traffic laws. While one of the officers was checking on the vehicle, another officer was on his radio and received notification to bring Henry to the precinct for questioning regarding the stolen Blackberry cell phone. While Henry was at the precinct, he requested an opportunity to use the phone to reach out to his family. However, the detective told him he would have to wait until the morning hours before he can make his telephone calls. The next morning at approximately 10:00am, two detectives, Matthew Ross, who was in charge of the robbery at the tattoo shop and Robert Brzeski , who was the lead detective in the murder at the Citgo Gas station, entered the room to interrogate Henry on both the robbery and murder accusations. Detective Brzeski started the interview by reading him his Miranda (Miranda v. Arizona, 384 U.S. 436(1966) rights. According to the testimony given at the suppression hearing, Brzeski testified that Henry understood the warnings and agreed to speak to him. The detectives admitted that they were in the room and questioned Henry for a period of close to 7 hours with short breaks taken for Detective Ross to continue the -Page 4- examination with him. The two detectives, Brzeski and Ross took turns in their relentless questioning of him concerning both the Citgo gas station homicide and the tattoo parlor robbery. When Henry denied any information on this matter, he was told that a witness at the scene gave the police a description of the auto and that there was a surveillance tape. Henry made admissions to his role regarding this matter while Detective Ross waited his turn to question him regarding the robbery. During the lengthy period of interrogation, Henry made admissions that he was the driver but denied he was involved in the shooting. He made several oral and written admissions. Detective Bzeski left the room and this time Detective Ross continued to interrogate him regarding the tattoo robbery. Henry again admitted he drove two persons to the location . However, his admissions did not contain the identity of his passengers. A short time later, Detective Bzeski re-entered the room and got Henry to make another admission this time he identified the persons he drove to the gas station and the individual who was the shooter. Henry placed his initials on the written statements and photographs. After Henry completed his statements with Brzeski, Detective Ross continued to question him on the robbery and pressed him to name the individuals he drove to the tattoo shop. This time Henry told the detectives he hand nothing more to say. The interviews lasted until 4:40p.m., approximately 7 hours . During the period of interrogation, Henry gave the police written and verbal statements identifying the individuals he drove to both locations. Acting Supreme Court Justice, Honorof denied Henry’s motion to suppress all of -Page 5- his statements he gave to the police. The Court concluded that he was properly given his rights and that he voluntarily waived them. However, the Court acknowledged that Henry had been assigned counsel when he was arrested and charged with possession of marijuana. The Court also took notice that when the police initially stopped his auto, they seized possession of the stolen blackberry phone taken during the robbery. Under the circumstances, Henry’s “indelible right” to counsel attached from the date of his arraignment on the marijuana charge and continued when he was interviewed by the detectives regarding the robbery charges. However, the court declined to extend this constitutional protection to the murder charges. The Court concluded that the homicide charges was “completely unrelated” and that the police had the right to question him even though he had counsel on the robbery and marijuana charges. The Grand Jury returned a 27 count indictment charging respondent, inter alia with multiple counts of Robbery in the First Degree, Criminal Possession of a Weapon in the Second Degree, Murder in the Second Degree and Criminal Possession of Marijuana. During motion practice, the People vehemently opposed defense counsel’s motion to sever the robbery and murder counts on the grounds that the two crimes- the robbery at the tattoo parlor and the murder charges were not properly joined in the same indictment and it was prejudicial . After reviewing the Grand Jury testimony, the Court agreed with the position taken by the prosecution that the joinder of these crimes were proper and the Court concluded that “the two incidents sufficiently alike and distinctive to establish a modus operandi”. -Page 6- At trial, Henry was acquitted on all charges relating to the robbery crimes but due to the introduction of his signed written admissions, he was convicted on all of the homicide related crimes. ARGUMENT RESPONDENT’S INDELIBLE RIGHT TO COUNSEL WHICH THE COURT BELOW RECOGNIZED REGARDING THE ROBBERY SHOULD BE EXTENDED TO THE MURDER CRIME SINCE THEY WERE TRANSACTIONALLY RELATED TO EACH OTHER AS TO TIME OR PLACE AND THE POLICE PURPOSEFULLY EXPLOITED HIM DURING HIS PERIOD OF CONFINEMENT TO OBTAIN CONFESSIONS ON THESE TWO CONNECTED CRIMES. An accused’s fundamental right to effective assistance of counsel has long been established in our legal jurisprudence in both the Federal and New York State Constitutions (Sixth Amend. U.S. Const., Article 1, Sect. 6, N.Y. State Const.). This Court in more than five decades of litigation regarding this fundamental right have often recognized that it is the attorney who often plays the essential role in safeguarding an accused’s right to a fair trial. Under the circumstances the fundamental right to counsel is often regarded as a “cherished and valuable protection that must be guarded with the utmost vigilance,” (see, People v. Lopez. 16 N.Y.3d 375 at 380, (2011), citing People v. Harris. 77 N.Y.2d 434, 439, (1991). The right to counsel becomes “indelible” when it attaches thus safeguarding the accused’s right to remain silent unless there is an affirmative “waiver of this right in the presence of counsel”, People v. Bing, 76 N.Y.2d 331, 338-339 (1990). Also, see, People v. Arthur, 22N.Y.2d 325, 329, (1968). Essentially this fundamental right to counsel is a shield against the awesome and -Page 7- sometimes coercive power of the state, People v. Rogers. 48 N.Y.2d 167. 171 (1979). The decision rendered by the Appellate Division, Second Department in Henry concluding that he had the indelible right to counsel regarding both the robbery and murder charges should be adhered to since the confessions were elicited when the police officials purposefully exploited him during his period of custodial interrogation to obtain confessions on both crimes. While respondent was in police custody, the two detectives involved in a robbery and murder investigations took advantage of him during a period of 7 hours of relentless interrogation. The Court further noted that the People took the position that Henry was the getaway driver on both the robbery and murder charges and the crimes were “so distinctively similar’ and that “evidence of each offense ...was highly relevant and admissible” as evidence to prove his identity and motive to commit these crimes (People v. Henry. 144 A.D.3d 940. at 944 (2016). Additionally, the trial court sanctioned the joinder of these crimes - marijuana possession, robbery and murder charges- in a single 27 count indictment concluding it was distinct enough to establish a modus operandi. Regarding the admissions made by Henry to the police regarding the robbery charges, - the Appellate Division recognized that a decision favorable to the accused must be adhered to under Criminal Procedure Law, Section 470.15 (1). Consequently, the Court adhered to the suppression court’s determination that respondent had the “indelible right” to counsel regarding the robbery charges since he was assigned counsel when he was arrested on the marijuana charge. However, the suppression’s court failure to extend this right to the murder crimes was in error since the robbery and murder crimes were intertwined and related to each other as to time or place. -Page 8- The Appellate Division, citing People v. Cohen 90 N.Y.2d 632, (1997) concluded that the two crimes robbery and murder were “ ‘closely related transactionally, or in space or time, and that the questioning on the unrepresented matter would all but inevitably elicit incriminating responses regarding the matter in which there had been an entry of counsel...interrogation on the unrepresented crime is prohibited even in the absence of direct questioning regarding the crime on which counsel had appeared’ (People v. Cohen, 90 N.Y.2d at 638-639; see People v. Carl, 46 N.Y. 2d 806, 807-808; People v. Vella, 21 N.Y.2d 249, 251’” (People v. Henry, supra at 944 ). The Court also noted a second circumstance where the police are prohibited from questioning a subject where a statement was obtained during “... impermissible questioning on a represented charge was, when viewed as an integrated whole, not fairly separable from otherwise permissible questioning on the unrepresented matter and was, in fact, purposefully exploited to aid in securing inculpatory admissions on the (unrepresented matter)’ People v. Grant, 91 N.Y.2d 989, 996...; see People v. Cohen, 90 N.Y.2d at 641; People v. Ermo, 47 N.Y.2d 863, 865)”, (People v. Henry, supra, at 944 ). The Appellate Division concluded that since the two crimes were so related that the questioning of Henry. regarding the Citgo gas station shooting inevitably led the police to eliciting incriminatory statements regarding the robbery. The Court further recognized that the People took the position that the crimes were interwoven in that the same person who was the getaway driver in the black Hyundai Sonata was the same person who took his accomplices to the gas station. Additionally, the police here “purposefully exploited” him “calculated to induce admissions” in the murder charge. -Page 9- The facts in the Henry case, bear out the lower court’s conclusion that his right to counsel had attached regarding the robbery and murder charges and that they were interwoven as conceded by the People. The People in the court below maintained throughout these proceedings that the operation demonstrated a modus operandi and that Henry was the getaway driver on these two crimes. Despite the People’s arguments to the contrary, the Appellate Court’s decision in Henry is consistent with a litany of cases. See, People v. Cohen. 90 N.Y.2d 632, (1997); People v. Grant. 91 N.Y. 2d 989, (1998); People v. Ermo. 47 N.Y.2d 863 (1970); People v. Carl. 46 N.Y.2d 806, (1978); People v. Vella. 21 N.Y. 2d 249 (1967). In People v. Vella, (supra, defendant there was charged with possession of stolen property in New York County. He was arraigned and assigned an attorney. Suffolk County Police picked him up for a burglary of the home where the property was taken from. He was questioned by the police without notifying his attorney. He made admissions which implicated him in both crimes. This Court concluded that the interrogation by the police was “impermissible” and should have been ordered suppressed. Additionally, this Court recognized that the two crimes were sufficiently connected and violated his right to counsel. His statements were ordered suppressed. In People v. Ermo. (1979), the defendant was represented by counsel on a misdemeanor assault charge and represented by counsel. The police were interested in questioning him on other matters about two sex allegations and a homicide, even though they were aware he was assigned an attorney on the open case. On three separate dates, the same officers questioned him regarding these open matters. The Appellate Division -Page 10- agreed with the lower court that his statements on these matters should have been suppressed since the police violated his right to counsel. The Appellate Division concluded that the police purposefully exploited him during the three days of interrogation to obtain confessions. This Court agreed and looked at the period of interrogation as an “integrated whole” and concluded that the assault charge could not be separated from the other charges since the police “exploited “ him and used the assault charge to advance their interrogation on the homicide charge” during the “impermissible questioning”. Under the circumstances any waiver of his rights including the right to counsel was deemed ineffective and this Court upheld the suppression of his confessions (People v. Ermo. at 865). In People v. Carl, (supra), defendant was in custody on an open case represented by counsel who informed the Sheriffs Office in Suffolk County not to question him. Nevertheless, the officers ignored the request and questioned him regarding another case without notifying his attorney. The defendant made statements implicating him on both crimes. Both incidents involved burglary and attempted burglary crimes that took place at the same location and within a week time span. This Court also noted that the Grand Jury recognized the similarity of the two crimes and joined the crimes in the same indictment. In suppressing the confession, this Court having cited People v. Vella, (supra) and concluded the police should not have questioned him without the presence of his attorney. In People v. Bing. 76 N.Y.2d 331 (1990), and in People v. Rogers. 48 N.Y.2d 167, (1979), this Court modified its prior decision in People v. Tavlor. 27 N.Y.2d 327 (1970) -Page 11- where it was determined that the police could question the suspect on crimes that were unrelated to the crimes in which he was presented by counsel. This Court instead recognized where the two crimes are sufficiently related or where the police exploited the custodial interrogation in which the accused had counsel - the Taylor rule was eviscerated. The Court stated in People v. Bine, (supra), that the Tavlor rule necessarily gave way to insure that questioning stopped and ‘accidental’ interference with the established lawyer client relationship was avoided,” (People v. Bing, at 340). In Bing, this Court re-affirmed the Rogers rule. (People v. Rogers. 48 N.Y. 2d 167, ), that the accused already protected by counsel, while in custody could not be questioned by the police and could not waive his right to counsel in the absence of his attorney, (People v. Bing, supra, at 169). Also see, People v. Steward. 88 N.Y.2d 496. 501-502. (1996), where this Court modified the rule by recognizing that the police can question the suspect who is in custody and represented by counsel on an open case in the absence of his attorney so long as the investigation involved totally unrelated matters, ( People v. Steward, at 501-502). Additionally, the Court in Steward, rejected defendant’s argument that his statements to the police regarding the murder charges should be suppressed due to his representation by counsel on a open misdemeanor charge. Although this Court re-affirmed the Rogers principle, People v. Rogers, (supra), it nevertheless rejected the contention that an accused has an automatic derivative right to counsel on new unrelated matters. In People v. Grant. 91 N.Y. 2d 989 (1998), this Court concluded that the two crimes-possession of a 9mm. pistol that was pending in Brooklyn, in which he was -Page 12- represented by counsel was not related to the pending murder charges that took place in Schenectady, New York. In the latter matter, defendant was questioned by the police and made admissions regarding the same firearm used in commission of the homicide. This Court concluded 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 ground factual element linking the two was that both involved the same 9 millimeter Glock pistol...that fortuity has no independent legal significance...”, (People v. Grant, at 991). This Court, however, referred this matter back to the lower court to determine whether the defendant’s right to counsel was violated in that they “purposefully exploited “ his period of incarceration and pressured him to confess. In People v. Cohen. 90 N.Y.2d 632 ( 1997), defendant was represented by counsel on a burglary charge and his attorney notified the police not to question him in his absence. The police ignored the request, maintaining he was a suspect at a robbery and homicide that took place at the Citgo Gas Station. The police sought to connect the weapon used during the robbery and homicide were related to the burglary crime that occurred several months before this crime. The police officials interrogated the defendant regarding the gas station homicide and also questioned him regarding the burglary crime in which he was represented by counsel. The Court of Appeals concluded “...that the questioning on the burglary and theft was purposefully exploited and designed to elicit statements on the murder and robbery. Thus, the People failed to satisfy their heavy burden to demonstrate that defendant’s confessions to the robbery and murder was uninfluenced by the taint of the violation of defendant’s state constitutional right to -Page 13- ”, (People v. Cohen, 90 N.Y.2d at 642). Additionally, this Court concludedcounsel that the police questioning of him on the burglary crime was “completely interrelated and intertwined” and not “discrete or fairly separable” from the homicide crime”, People v. Cohen , (supra, at 641-642). However, this Court recognized that the police are not barred from questioning a suspect on unrelated matters in which he is represented by counsel. Where the crimes are not related or intertwined with each other the police can question the suspect on the new matter. This Court noted: “...Discrete questioning of defendant concerning the Citgo 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 Citgo crimes merely because he was already represented by counsel on the Thompson’s Garage Investigations.” (People v. Cohen. 90 N.Y.2d at 639-640). In People v. Lopez, 16 N.Y.3d 375 (2011), this Court noting the long standing protection of the accused’s right to counsel stated the following, “...an officer who wishes to question a person in police custody about an unrelated matter must make a reasonable inquiry concerning the defendant’s representational status when the circumstances indicate that there is a probable likelihood that an attorney has entered the custodial matter, and the accused is represented on the custodial charge, “ (People v. Lopez. 16 N.Y. 3d , at 383). Clearly this was not the situation in the case at bar. The police officers failed to inquire whether or not Henry while in police custody was still represented by counsel on the open marijuana matter in which their officers were involved in the arrest. As the -Page 14- result of a car stop for traffic violations, one of their officers took Henry into custody, seized the marijuana, recovered a stolen cell phone and then impounded a dark colored Hyundai Sonata, for investigation. At the time the detectives engaged him in relentless interrogation they had to know that he was arraigned on the marijuana possession charge, assigned an attorney and released on bail The detectives commenced their interrogation of him without asking him for the name of his attorney or even contact the attorney or even the Nassau County District Attorney’s office to ascertain the identity of his attorney. Instead, during the relentless 7 hour questioning, the two detectives were primarily focused on solving two open matters- the tattoo armed robbery and the Citgo Gas station homicide. The detectives took turns in questioning him on both related crimes. By the time they conducted this interview, they had knowledge that the same vehicle, a dark colored Hyundai Sonata was used in the commission of both crimes. The detectives had a surveillance tape from the tattoo robbery parlor showing images of the vehicle and persons entering and leaving the crime scene. When the police initially stopped Henry for violating the traffic laws he was driving a late model dark Hyundai Sonata. The police seized a cell phone, Blackberry and upon further investigation the detectives ascertained it was connected to the robbery of the tattoo shop. Additionally, the Nassau homicide detective conducted his investigation and ascertained it was the same type of vehicle, its color and distinctive wheels that was described by a witness. That person told the detective that one of the men wearing a mask over his head left the vehicle holding a firearm in his hand and returned only after gunshots were fired. The two detectives , Ross and Brzeski, putting their heads together believed Henry was the getaway driver -Page 15- for both crimes. They knew that the two crimes were related and intertwined with each other. Their goal was to solve both crimes and to ascertain the identity of the individuals who committed these crimes. They engaged him in simultaneous and relentless questioning while he was at the precinct. To accomplish this they denied him access to his family who came to the precinct and denied him access to the telephone until the interviews were completed. Detective Brzeski commenced the interview by reading Henry his constitutional rights and made inquiry regarding the gas station homicide. His partner, Detective Ross stood by waiting his turn to question him regarding the tattoo robbery. Both detectives were there to extract admissions by him as to his role in both the robbery and murder crimes and to gather information as to the identity of his accomplices. During the lengthy period of interrogation, Henry initially denied knowledge related to the Citgo murder. Detective Brzeski continued to question him even lied to him when he told him there was a video tape at the crime scene showing the vehicle. He told him about a eyewitness at the scene who described the vehicle and what he observed. After an intense interrogation, Henry made admissions to him that he was only the getaway driver. After a break was taken, Detective Ross resumed the interrogation and questioned him regarding the robbery at the tattoo shop and the seizure of the stolen cell phone- the same one that was seized when one of their officers arrested him on the marijuana charge. The police still had the Hyundai Sonata in their custody when they arrested him on the marijuana crime. When the police recovered the surveillance tape at the tattoo shop they noticed the same vehicle that was used during the robbery was also used during -Page 16- the gas station robbery. The detectives knew the two crimes were connected. When Detective Ross completed his questioning, Detective Brzeski reappeared in the room and continued to question him. this time he wanted more information he wanted to ascertain the names of the shooter and persons involved in the crime. Both detectives got Henry to make further oral statements and then written statements. There is no doubt that the two crimes were sufficiently related as to time or place and that the police engaged in coercive method of interrogation to get him to make full detailed confessions in the absence of his attorney. The suppression court also recognized the connection between the marijuana possession and the robbery charges when he barred the statements into evidence. In Justice Hoftorof s decision the two crimes were interwoven and the police violated his indelible right to counsel. However, the Court’s ruling didn’t go far enough. He clearly erred when he limited his ruling only to statements Henry made to the Detective Ross who were interviewing him on the robbery charges. Under Criminal Procedure Law, Section 470.15 (1), the statute bars the court from reviewing any ruling that was rendered in favor of the defendant. See, People v. La Fontane. 92 N.Y. 2d 470, (1998); People v. Concepcion. 17 N.Y.3d 192, 196, ( 2011). Henry’s indelible right to counsel attached and the lower court’s correctly suppressed his statements he made to Detective Ross but failed to extend it to statements he made to Detective Brezeski. The Appellate Division’s decision was correct in concluding that the two crimes were factually interwoven. The Court stated the following: “Indeed the robbery and the murder cases were so closely related that the -Page 17- questioning about the gas station shooting ‘would all but inevitably elicit incriminating responses regarding’ the robbery (People v. Cohen, 90 N.Y.2d at 638; see People v. Carl, 46 N.Y. 2d at 807-808; People v. Vella, 21 N.Y.2d at 251)”, (People v. Henry, at 944). The Court further noted that the prosecution in opposing defendant’s motion to sever the multiple counts in the indictment took the position that the crimes was related in that Henry was “the getaway driver for both the robbery and the shooting was so distinctly similar that “(e)vidence of each offense ...was highly relevant and admissible to prove the identity of the perpetrator...and ...intent to commit these crimes.” (supra, People v. Henry, at 944-945). Under the circumstances the people’s own admission in their motion practice maintained that the two crimes were interwoven. Additionally, the Court below was correct when it concluded that the police questioning “was purposefully exploitative in the sense that it was calculated to induce admissions on the murder charge (People v. Grant, 91 N.Y.2d at 996 )”, (People v. Henry at 945). This Court’s decision, in People v. Townes. 41 N.Y.2d 97, (1976), is relevant in this case. In Townes, this Court stated the following: “Here, the subject of the interrogation on the subject of the criminal charges are so inextricably interwoven in terms of both their temporal proximity and factually interrelationship as to render unavoidable the conclusion that any interrogation concerning the arrest would almost inevitably involve some potentially incriminating discussion of the facts of the crime itself. To separate the arrest from the crime itself and more importantly to ask the defendant to make that distinction is to seek to draw far too fine a line....” (People v. Townes, at 104). There are lower court decisions that recognized the police may question suspects on unrelated cases even though they were represented by counsel. However, in those cases, the defendant was not questioned by the police on matters that were “so closely -Page 18- related in time or space” or that the “police purposefully exploited” him to raise the issue regarding his right to counsel on the unrelated matter. See, for example, People v. Cowan. 92 A.D.3d 794 (2d Dept., 2012); People v. Uriah M.. 107 A.D.3d 997 (2d Dept., 2013); People v. Phillips. 55 A.D.3d 1145 (3rd Dept., 2008); lv. den. 11 N.Y.3d 899 (2008); People v. Tucker. 30 A.D.3d 312 (Is* Dept., 2006); lv. den. 7 N.Y.3d 818 (2006); People v. Madison. 22 A.D. 3d 684, (2d Dept., 2005), lv. den. 6 N.Y.3d 778 (2006), where the defendant was taken into custody for a homicide and another unrelated matter but represented by counsel on an open unrelated robbery charge. The People’s reference in their brief (see APL at p. 29), to the case of People v. Rivera. 277 A.D.2d 470, (2d Dept., 2000), lv. den. 96 N.Y.2d 833 (2001), can easily be distinguished since while the defendant was represented by counsel on an open case of robbery, the police only questioned him on the kidnapping and murder charges. Even though the case involved the same victim, the Appellate Court noted at no time did the police question him regarding the open robbery charges. Instead the detectives limited their attention strictly to the disappearance of the victim and not on the robbery matter. Additionally the Court noted that the police “did not exploit ‘concedely impermissible questioning’ related to the robbery charge to advance their interrogation of the murder case....” (supra, at 471) Additionally, the Court in Rivera, cited both the Cohen and Ermo cases. This case is not inconsistent with the Henry case. The difference is that in the Henry case the two Nassau County detectives worked in tandem in questioning him regarding both the robbery and homicide crimes and exploited him to obtain confessions to both crimes. -Page 19- Lastly, the People in their Appellant Brief make the suggestion that this Court consider treating the two interviews Henry had with the detectives separately maintaining his confession on the murder related charges took place before the detectives “purposefully exploited” him to induce the confession on the robbery related charges, (See Appellant’s Brief pg. 34). However this disingenuous argument was never raised by the prosecution in the court below whether it be in their brief or at oral argument. Nevertheless there is no way of separating the fact that Detective Ross was present throughout the interview with the defendant during the time period he was questioned by Detective Brzeski. In conclusion , there is no doubt that the two detectives purposefully exploited defendant’s confinement to get him to admit to his involvement in both the robbery and murder charges and to identify his accomplices. The police knew he was represented by counsel after he was arraigned on the marijuana charges but choice instead to proceed without notifying his attorney. The detectives could have made an effort to reach out to his attorney and determine whether or not he still represented him on other matters. The police never contacted the Nassau County District Attorney’s office to inquire about the open cases or even ascertain the identity of the attorney who was representing him on the undisposed marijuana crime. There was no waiver by his attorney that he no longer represented him on other matters, like the situation in People v. McLean. 24 N.Y. 3rd 125 (2014), whereby the attorney there informed the police that he no longer represented his client on any new unrelated matters. Instead in the Henry case, upon being assigned counsel on the marijuana charge, his attorney remained on the case -Page 20- and the police never contacted him to ascertain the status of his representation and whether he continued representing him on other legal matters. Contrast the Mclean , (supra), case with that of People v. Johnson. 24 N.Y.3d 639, (2014), whereby this Court noted that counsel continued to represent his client on the unrelated stabbing charge when his client entered into a cooperation agreement with the police to gain leniency on his pending burglary charge. When the police became skeptical with the information he provided to the police they then focused their attention on him as the person who stabbed the victim in the parking lot. This Court concluded that his “ right to counsel encompassed his conversations with police about the stabbing as long as those conversations were part of an effort to obtain leniency in the burglary case in which Schwarz represented him. Thus unless the right to counsel was waived the police should not have questioned defendant about the stabbing in his lawyer’s absence....” (People v. Johnson, supra at 645). Unlike the attorney, in People v McLean. (24 N.Y.3d at 128 ), who told the police he no longer represented his client, counsel in Johnson, continued to represent him even on the unrelated assault charges. The decision rendered by the Appellate Division, Second Department was properly decided on the law and the facts. It is consistent with the New York State Constitution, Art. 1. Sec. 6 and a litany of cases cited decided within the past five decades. There is no doubt that the facts established that as consequence of defendant’s arrest on the marijuana crime and the evidence recovered from him, the police ended up arresting him on the robbery and murder related crimes. The prosecutor was aware of the close -Page 21- connection between these crimes and thus the Nassau County Grand Jury recognized the similarity of these crimes to establish a modus operandi or common scheme or plan. There is no doubt defendant’s confessions that was ordered suppressed on the robbery charges should also be suppressed regarding the murder charges. CONCLUSION For the reasons stated herein, the decision rendered by the Appellate Division, Second Department in People v. Henry. 144 A.D.3d 940 (2016) should be affirmed. Dated: Kew Gardens, New York August 2, 2017 Respectfully Submitted, JUDAH MALTZ, ESQ. Attorney for Defendant-Respondent 125-10 Queens Boulevard, Suite 12 Kew Gardens, New York 11415 (718) 544-8840 (917-318-5147 -Page 22- CERTIFICATE OF COMPLIANCE WITH 22 NYCRR S. 670.10.3 (f) I, JUDAH MALTZ, hereby states as follows: This brief was prepared by computer; the body of the brief is double spaced and utilizes a mono spaced typeface (Courier New) of 12-point size; and according to the word count of the word processing system the brief contains 6724 words, exclusive of any pages containing the table of contents, table of citations proof of service and Certificate of Compliance. Dated : Kew Gardens, New York August 2, 2017 JUDAH MALTZ, ESQ. Attorney for Respondent-Defendant BRYAN HENRY -Page 23-