The People, Respondent,v.Michael Johnson, Appellant.

Brief

N.Y.February 6, 2018

To be argued by NANCY FITZPATRICK TALCOTT (TIME REQUESTED: 15 MINUTES) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against MICHAEL JOHNSON, Defendant-Appellant. W444444444444444444444444444444444444444444444444444 BRIEF FOR RESPONDENT W444444444444444444444444444444444444444444444444444 RICHARD A. BROWN District Attorney Queens County Attorney for Respondent 125-01 Queens Boulevard Kew Gardens, New York 11415 (718) 286–6696 ROBERT J. MASTERS JOHN M. CASTELLANO JOSEPH N. FERDENZI NANCY FITZPATRICK TALCOTT Assistant District Attorneys Of Counsel JUNE 9, 2017 Queens County Indictment Number 2352/09 APL# 2016-00167 TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 THE MAPP/WADE/HUNTLEY/DUNAWAY HEARING. . . . . . . . . . . . . . . . 3 The People’s Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 The Court’s Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 THE TRIAL.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 The People’s Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Defendant’s Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Request For Missing Witness Charge.. . . . . . . . . . . . . . . . . . . . . . . . 17 POINT ONE THE APPELLATE DIVISION’S DETERMINATION THAT DEFENDANT’S STATEMENT WAS VOLUNTARY IS AMPLY SUPPORTED BY THE RECORD AND, AS A MIXED QUESTION OF LAW AND FACT, IS BEYOND FURTHER REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 A. Defendant’s Claim Is Unpreserved For Appellate Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 B. Because The Voluntariness Of Defendant’s Confession Constitutes A Mixed Question Of Law And Fact, It Is Subject to Limited Review In This Court To Determine Whether There Is Record Support For The Lower Courts’ Determinations. . . . . . . . . . . 21 C. The Appellate Division’s Finding That, Under The Totality Of The Circumstances, Defendant’s Statements Were Voluntary Is Supported By The Record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 D. Error, If Any, Was Harmless In Light Of The Overwhelming Evidence Of Defendant’s Guilt. . . . . . . . . . . . 40 POINT TWO DEFENDANT WAS NOT ENTITLED TO A MISSING WITNESS CHARGE REGARDING MARK MILLER BECAUSE DEFENDANT FAILED TO ESTABLISH THAT THE WITNESS’S TESTIMONY AS A WHOLE WOULD HAVE BEEN NON-CUMULATIVE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 POINT THREE DEFENDANT WAS NOT DENIED A FAIR TRIAL WHEN NICHOLLS INADVERTENTLY IDENTIFIED HIM AS AN ASSOCIATE IN UNCHARGED CRIMES. THE COURT PROPERLY EXERCISED ITS DISCRETION IN DENYING THE DRASTIC REMEDY OF A MISTRIAL AND INSTEAD ALLEVIATING ANY PREJUDICE BY ORDERING THE TESTIMONY STRICKEN AND INSTRUCTING THE JURY TO DISREGARD IT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 POINT FOUR THE PEOPLE PROPERLY DELAYED DISCLOSING THE EXISTENCE OF A COOPERATING WITNESS AND REDACTED CERTAIN POLICE REPORTS PURSUANT TO PROTECTIVE ORDERS .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 ii TABLE OF AUTHORITIES Page No. Cases Arizona v. Washington, 434 U.S. 497 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Chapman v. California, 386 U.S. 18 (1967).. . . . . . . . . . . . . . . . . . . . . . . . 40 Dallio v. Spitzer, 170 F.Supp.2d 327 (E.D.N.Y. 2001), aff’d on other grounds, 343 F.3d 553 (2d Cir. 2003). . . . . . . . . . . . 26 Diaz v. Senkowski, 76 F.3d 61 (2d Cir. 1996).. . . . . . . . . . . . . . . . . . . . 37-38 Dickerson v. U.S., 530 U.S. 428 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Hall v. Potoker, 49 N.Y.2d 501 (1980).. . . . . . . . . . . . . . . . . . . . . . . . . 51, 52 Matter of Jimmy D., 15 N.Y.3d 417 (2010). . . . . . . . . . . . . . . . . . . . . . 22, 38 Owen v. Stroebel, 65 N.Y.2d 658 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Parham v. Griffin, 86 F.Supp.3d 161 (E.D.N.Y. 2015). . . . . . . . . . . . . . . . 38 People ex rel. Maxian v. Brown, 77 N.Y.2d 422 (1991). . . . . . . . . . . . . . . 30 People v. Anderson, 42 N.Y.2d 35 (1977). . . . . . . . . . . . . . . . 24, 36, 37, 38 People v. Arafet, 13 N.Y.3d 460 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 People v. Baker, 14 N.Y.3d 266 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 People v. Boykins, 81 A.D.2d 922 (2d Dept. 1981). . . . . . . . . . . . . . . . . . . 26 People v. Carbonaro, 21 N.Y.2d 271 (1967). . . . . . . . . . . . . . . . . . . . . . . . 30 People v. Crimmins, 36 N.Y.2d 230 (1975). . . . . . . . . . . . . . . . . . . . . . 40, 55 People v. Dairsaw 46 N.Y.2d 739 (1978).. . . . . . . . . . . . . . . . . . . . . . . . . . 27 People v. Damiano, 87 N.Y.2d 477 (1996).. . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Frost, 100 N.Y.2d 129 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . 56 iii People v. Gause, 19 N.Y.3d 390 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 People v. Gonzalez, 68 N.Y.2d 424 (1986).. . . . . . . . . . . . . . . . . . . . . . 43, 44 People v. Guilford, 21 N.Y.3d 205 (2013). . . . . . . . . . . . . . . . . . . 24, 26, 40 People v. Hall, 18 N.Y.3d 122 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . 43, 46 People v. Harrison, 57 N.Y.2d 470 (1982).. . . . . . . . . . . . . . . . . . . . . . . . . 21 People v. Holland, 48 N.Y.2d 861 (1979). . . . . . . . . . . . . . . . . . . . . . . 22, 40 People v. Hopkins, 58 N.Y.2d 1079 (1983). . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Johnson, 139 A.D.3d 967 (2d Dept. 2016. . . . . . . . . . . . . . . 23, 47 People v. Keen, 94 N.Y.2d 533 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 People v. Kitching, 78 N.Y.2d 532 (1991). . . . . . . . . . . . . . . . . . . 43, 44, 45 People v. Lin, 26 N.Y.3d 701 (2016). . . . . . . . . . . . . . . . . . . . 22, 25, 37, 40 People v. Mirenda, 23 N.Y.2d 439 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . 30 People v. Morales, 42 N.Y.2d 129 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . 21 People v. Morris, 21 N.Y.3d 588 (2013). . . . . . . . . . . . . . . . . . . . . . . . 52, 53 People v. Neal, 133 A.D.3d 920 (3d Dept. 2015). . . . . . . . . . . . . . . . . . . . . 26 People v. Ocasio, 28 N.Y.3d 178 (2016). . . . . . . . . . . . . . . . . . . . . . . . . . . 25 People v. Oden, 36 N.Y.2d 382 (1975).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 People v. Ortiz, 54 N.Y.2d 288(1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 People v. Ortlieb, 84 N.Y.2d 989 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . 24 People v. Panton, 27 N.Y.3d 1144 (2016). . . . . . . . . . . . . . . . . . . . . . . . . . 20 People v. Porter, 9 N.Y.3d 966 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 People v. Ramos, 99 N.Y.2d 27 (2002).. . . . . . . . . . . . . . . . . . . . . 20, 22, 25 iv People v. Robinson, 273 N.Y. 438 (1937) . . . . . . . . . . . . . . . . . . . . . . . . . . 53 People v. Ross, 21 N.Y.2d 258 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 People v. Santiago, 52 N.Y.2d 865 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . 53 People v. Savinon, 100 N.Y.2d 192 (2003). . . . . . . . . . . . . . . . . . . . . . 43, 44 People v. Scott, 86 N.Y.2d 864 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22 People v. Shabazz, 99 N.Y.2d 634 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . 21 People v. Simmons, 75 N.Y.2d 738 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . 40 People v. Sivertson, __ N.Y.3d __ (June 1, 2017). . . . . . . . . . . . . . . . . 21-22 People v. Stone, __ N.Y.3d __ (May 4, 2017). . . . . . . . . . . . . . . . . . . . . . . 55 People v. Tarsia, 50 N.Y.2d 1 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 People v. Thomas, 22 N.Y.3d 629 (2014).. . . . . . . . . . . . . . . . . . . . . . . 24, 28 People v. Viruet, __ N.Y.3d __ (June 6, 2017) . . . . . . . . . . . . . . . . . . . . . . 48 People v. Williams, 5 N.Y.3d 732 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . 48 People v. Witherspoon, 66 N.Y.2d 973 (1985). . . . . . . . . . . . . . . . . . . . . . . 38 People v. Young, 48 N.Y.2d 995 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Plummer v. Rothwax, 63 N.Y.2d 243 (1984). . . . . . . . . . . . . . . . . . . . . . . . 51 Schneckloth v. Bustamonte, 412 U.S. 218 (1973).. . . . . . . . . . . . . . . . . . . . 24 United States v. Owens, 2006 WL3725547 (W.D.N.Y. Dec. 14, 2006).. . . 45 v Statutes C.P.L. § 40.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 C.P.L. § 140.20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 C.P.L. § 180.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 C.P.L. § 200.20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 C.P.L. § 240.50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 C.P.L. § 510.30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 33 vi COURT OF APPEALS STATE OF NEW YORK ----------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : MICHAEL JOHNSON, : Defendant-Appellant. : : --------------------------------------------------------------------- x BRIEF FOR RESPONDENT PRELIMINARY STATEMENT Defendant appeals from a October 12, 2011, judgment of the Supreme Court, Queens County, by which defendant was convicted of Attempted Murder in the Second Degree, Robbery in the First Degree, Assault in the First Degree, Criminal Possession of a Forged Instrument in the Second Degree, Robbery in the Second Degree, Criminal Possession of a Forged Instrument in the First Degree, Criminal Possession of Stolen Property in the Fifth Degree, and Unlawfully Operating a Motor Vehicle on a Public Highway. The court sentenced defendant, as a second violent felony offender, to an aggregate term of 32½ years’ imprisonment. INTRODUCTION As Milton Miller arrived home from work as a chauffeur on the night of May 11, 2009, defendant approached Miller, pointed a gun at his head, and demanded money and the keys to his BMW. Defendant grabbed the keys from Miller and fired about eight shots at him, striking him in the chest and abdomen. Miller survived the attack. Defendant became a suspect and, three days later, was located driving an SUV. The police followed defendant and, after he committed several traffic infractions, followed him into a gas station. Defendant did not have a valid New York State driver’s license, but claimed the car he was driving was a rental, although he was not listed on the rental agreement. When he was arrested, he possessed two identification cards bearing his photo but not in his name (both government issued), apparently counterfeit paper money, and two BMW key fobs. Police determined that the SUV had an altered VIN and was stolen, that the identification cards were fake, and that the key fobs were for cars taken in robberies, including the one of Miller’s car, who identified defendant from his hospital bed about eighteen hours after the arrest. Various law enforcement agencies with specific jurisdictions then briefly spoke to defendant, including the Port Authority and Secret Service. Police then spoke to defendant about the carjacking and shooting, and defendant, who had a lengthy criminal record and significant experience in the criminal justice 2 system, waived his Miranda rights and denied being the shooter, claiming he was merely there to steal the car. The police prepared an accusatory instrument charging defendant with crimes relating to the Queen shooting, forgery, possession of stolen property, and various traffic infractions. Defendant moved to suppress the statements he made to police. After a Huntley hearing, the court denied defendant’s motion, concluding that defendant had waived his Miranda rights and that his statement was knowing and voluntary. Defendant then proceeded to a jury trial. STATEMENT OF FACTS THE MAPP/WADE/HUNTLEY/DUNAWAY HEARING The People’s Case Detective John Roberts investigated a May 11, 2009, carjacking, robbery, and shooting that occurred on 132 Place in Queens County. Miltonnd Miller, who lived on that street, had been shot several times. Detective Roberts did not speak with Miller, who was in critical condition at Jamaica Hospital, until May 15 (26-27,54). Meanwhile, Detective Roberts and other officers spoke to witnesses and obtained a description of the perpetrator (27,54-59). Based on additional information, at around 4:00 p.m. on May 14,1 2009, Roberts and other officers drove in an unmarked police car to Brooklyn to follow defendant (19-20,26,61-62,71,161). Defendant entered and drove a black Acadia SUV, and, after he committed several traffic infractions, the This information was under protective order (61-62). 1 3 officers followed defendant into a gas station. There, Detective Roberts asked defendant for his license and “paperwork” (20-22,25,63-65). Defendant, who identified himself as Mike, did not have a valid New York driver’s license and claimed that the car was a rental for which he was not on the agreement (23-24,65-66,73-74). The officers arrested defendant and recovered the following items from his person: a Louisiana driver’s license and a JFK airport employee identification card, both bearing defendant’s picture and the name Anis Saleh; paper bills bearing the same serial number; and two BMW key fobs (23-26,66-71). The police took defendant to the precinct, where he was placed, uncuffed, in a locked interview room (25, 71, 77, 87-88, 125). Auto Crime Division officers arrived and determined that the Acadia had been stolen and its public view VIN plate had been “re-tagged” (25-26,64-65,67-69,76). In the morning, Detective Roberts took the key fobs to a BMW dealership. One belonged to Miller’s stolen car. The other fob was for a car stolen in an earlier carjacking on May 11 in Suffolk County (28). On May 15, at about 2:00 p.m., Detective Roberts showed Miller a photo array at Jamaica Hospital. Miller looked at the array for “[a] moment,” and identified defendant as the person who had shot him and taken his car (29- 31,81-83,86-87,102-03). Miller signed his name underneath the photo and wrote “he shot me” (31). Detective Roberts returned to the precinct, where defendant remained in custody (35). 4 At around 2:00 p.m. on May 15, Port Authority Police Department (PAPD) officers arrived at the precinct. They informed Detective Roberts that the JFK identification recovered from defendant was a forgery. PAPD then spoke with defendant. Detective Roberts did not know whether they advised defendant of his rights, or if defendant requested counsel (45-46,72-73,75, 79,98-99). On the afternoon of May 15, Secret Service agents confirmed that the money recovered from defendant was counterfeit, and interviewed defendant (46,74-75). At about 7:30 p.m., Suffolk County Police officers spoke to defendant (75). At about 8:30 p.m., Roberts, with Detective Bonner, read defendant his Miranda rights from a typed form. Defendant indicated verbally and in writing that he understood each right. In response to Roberts’ question, defendant said and wrote that he was willing to give a statement. Defendant and both detectives signed the Miranda form (35-38,41,78-79,81,98). Roberts and defendant then spoke about the incident involving Miller for about thirty- five minutes. When given the option, defendant stated that he preferred to speak, and agreed to have Roberts write the statement (39,41,44-45,78-81,98). Defendant acknowledged he was involved in the carjacking, but said an individual named “G” was the shooter. Defendant said that after the shooting he and “G” left the location (39-41). 5 Roberts wrote the three-page statement and read it back to defendant. Defendant looked it over, signed the top and bottom of each page, without making any changes (42-44). Defendant made two additional statements, which Detective Roberts did not write down. In response to Roberts’ question, defendant said he had the Port Authority identification and Louisiana license because he had felony convictions. After Roberts had obtained information from the BMW dealership regarding a Suffolk County case, defendant acknowledged that he was involved in the Miller robbery and carjacking to steal “the same kind of car to make some kind of retribution for his girlfriend [Rachelle] who was incarcerated in Suffolk County” (46-48). Defendant was brought to Central Booking on May 15, after he made his statements (77-80). During the time Roberts was with defendant, defendant did not ask for or mention having a lawyer (71,101). At the precinct, defendant was kept in a large interview room with a table and chairs. The room was locked, but defendant was not cuffed (87-88). A prisoner log contains prisoners’ names and times they were in the station (76, 99). The prisoner log for May 14-15 did not indicate what time defendant was brought to the precinct or left for central booking, although it should have (100,118-19,121-22). Detective Roberts checked on defendant while he was in the precinct, but did not record it. He did not recall if 6 defendant was kept in the interview room overnight or placed in the holding cell. The prisoner log did not indicate when defendant was given food or used2 the bathroom (77,79,99,120-23). A police report indicated that defendant was arrested in Brooklyn on May 14 at about 7:00 p.m. Defendant was transported to Queens Central Booking in the late hours of the 15 into the early morning hours of the 16 . th th The Criminal Justice Agency interviewed defendant at central booking at 1:19 a.m. on May 16 (100,122-23). On December 2, 2009, Miller viewed a lineup. Defense counsel was present. Miller recognized defendant as the person who shot him and took his car (48-50,52-53,105-06). Arguments Defendant argued that he had been in the precinct over twenty- four hours, during which time “at least” “five different agencies” interviewed him while he asked for a lawyer. Law enforcement did not provide him with a lawyer, but continued to interrogate him and took “a statement that was not written by him.” Defendant added that “the detectives already have an idea or have a story in their minds. They are the ones who wrote out the statement.” Defendant posited that he may have been at the precinct for more than twenty- four hours “because it is not documented.” Defendant alleged that officers “went in and out of the [] room where he was cuffed to the wall.” Defendant Overnight detainees usually remain supervised in the squad (124-27). 2 7 asked that “the statement be suppressed as it was basically a forced confession of some sort written by a detective” (133-36). The People argued that upon finding certain evidence, the police called other agencies and investigated additional crimes to which defendant might be linked (136-37). Moreover, defendant voluntarily gave the statement after the police advised him of his Miranda rights, which he voluntarily waived. And the largely exculpatory content of the statement showed its voluntariness and established that the detectives did not “put the words in his mouth.” The prosecutor added that there was no evidence that defendant had asked for a lawyer or that the statement was taken improperly (143-44). The Court’s Decision The court denied defendant’s motion, finding that the police properly took defendant to the precinct, where several agencies saw him between the night of his arrest and into the next day. The court noted that the police uncovered certain evidence and engaged in “good police work and good investigation technique” in conducting a proper photo array. The court found that defendant had waived his Miranda rights and that his statement was knowing and voluntary. The court noted that the statement was largely exculpatory “in terms of the most serious count . . .” (149-51). 8 THE TRIAL The People’s Case In late December, 2008, defendant went to Carlos Nicholls’s home and asked Nicholls to make him an identification and credit card in the name of Byron Miller for defendant’s associate to use to rent a car from Enterprise. Nicholls made the identification card with a picture of defendant’s3 associate. About three hours later, defendant was driving a black GMC Acadia and said that he was going to get the VIN number switched. Defendant drove the Acadia regularly between December 2008 and May 2009 (Nicholls:619,637-43). Nicholls made defendant a driver’s license and JFK identification card bearing defendant’s photograph and the name Anis Saleh. A week or two before May 11, 2009, defendant asked Nicholls to make him new identification papers because he had possessed the others for awhile. Nicholls refused, and told defendant that the papers were still good (Nicholls:643-44). At about 9:00 p.m. on May 11, 2009, Nicholls, who had known defendant for about one year and had seen him almost daily, was in a car with Nicholls had convictions for theft by deception, possession of a forged credit card,3 petit larceny, and disorderly conduct. In August 2010, Nicholls was charged with federal offenses. Nicholls entered into a cooperation agreement with federal prosecutors, wherein he pled guilty to nine counts and faced a prison sentence of up to ninety years. In exchange for his cooperation with law enforcement agencies, and his truthful testimony against defendant, the federal prosecutor promised to write a letter to the federal judge detailing Nicholls’s cooperation. Nicholls received about $8,000 from federal and state prosecutors for “moving assistance” (Nicholls:537-40,543-44,580,613,650-56,657-61,708-22,726- 27,730,734-35,739-40,757-58,761-63). 9 defendant and defendant’s girlfriend, Rachelle Clayborn. Defendant wore black sweatpants, a black hoodie, and had black Nike gloves in his back pocket. Nicholls, who was in the rear passenger seat, saw defendant’s chrome pistol with a wood handle in a gym bag on the back seat. He had seen the gun “a few hours” earlier (Nicholls:534-36,580-83,588,724-25,773-75,789). Upon seeing a silver BMW, defendant said that he was going to shoot up the block, and when everyone ran, he was going to take the car. Nicholls went home, and, about fifteen minutes later, turned on the police scanner that he used to warn his employees when police were alerted to their crimes (Nicholls:583-85,763,773,775,779). Meanwhile, at about 10:00 p.m., Milton Miller, a chauffeur, arrived at the home he shared with his wife, Carmen Miller, and their adult son Mark, on 132 Road. There was a sensor light outside the house and a streetnd light in front of the house. Miller parked his employer’s 2007 black BMW 750 in front of his house, unloaded some papers from the car, and approached his front door. As Miller put his keys in the door, defendant approached, and, standing to Miller’s side, put a silver .380 semi-automatic handgun to his head and demanded Miller’s money and car keys. Defendant, a black male in his twenties, was about 5' 10", 170 pounds, medium build, with medium to dark skin tone, dark brown oval eyes, and a “pudgy” nose. He wore all black clothing and a partial cloth mask that covered his face from his eyebrows up 10 and his nostrils down (Carmen:283,285-86,288,302,306; Milton:1034- 36,1040,1042-43,1046-47,1051-56,1070-72,1075,1079-85,1091-92,1095). Miller said he had no money. Defendant grabbed his keys and began backing away. Miller followed defendant into the street, telling him that what he was doing was wrong and that he needed his belongings from the car. Defendant kept the gun pointed at Miller’s chest. As Miller kept talking to defendant, they were face-to-face, and one or two arm-lengths away. Defendant fired a shot, hitting Miller in the chest. Miller backed up, but then approached defendant again. Defendant fired about seven more shots, hitting Miller in the abdomen. Defendant then drove away in the BMW with the lights off. Defendant was alone and Miller did not see any cars follow defendant (Milton:1044-49,1071). At about 9:49 p.m., Mrs. Miller was in her first-floor bedroom when she heard Miller put his keys in the front door. She heard muffled voices and, thinking that Miller was talking to a neighbor, waited a few minutes. When Miller did not come inside, Mrs. Miller went to the window. Miller, whose back was towards her, was face-to-face with another person, as they both walked out of the gate. Mrs. Miller knew from Miller’s body gestures that something was wrong. The other person was about 5' 8" or 5' 9", medium build, wearing dark clothing (Carmen:287-91,301-02,309-11). Mrs. Miller opened the door “a crack” and asked Miller if he was okay. Miller did not respond and kept walking toward the other person. When 11 they got to the middle of the street, the other person extended his hand and five to eight gunshots rang out. Her husband’s body was jerking. Mrs. Miller called her son Mark, who ran down the stairs. She ran outside to assist Miller, who looked like he was going to fall. As she laid him on the sidewalk, Miller had a blank stare on his face, there was blood on his shirt, and his breathing was labored (Carmen:291-96,310-11,315;Milton:1050).4 Meanwhile, at about 9:49 p.m., Michael Keirsey was at his car parked on the corner of 132 Road and 217 Street. Hearing “feet scuffle” andnd th “aggressive” voices, Keirsey turned and saw two men in the middle of the street, one walking backwards and the other forward. The older man, who wore business attire, was about 6'2" to 6'4". The smaller black male, who was about 5' 9" to 5' 10", wore dark clothing. He was in his twenties, and had a medium skin tone and medium build (Keirsey:322-26,335-36). The shorter man shot the older man in the chest from “pointblank range,” and fired eight or nine additional shots. The victim fell to the ground and the shooter, who was alone, drove off in a BMW. Keirsey got in his car, called 911, and reported a shooting and car theft (Keirsey:323-24,326,329,332- 33,337). Police and an ambulance arrived. Officer Anil Jacob spoke to Miller briefly. Miller was coherent, but was bleeding from his chest and had Mark came downstairs and “tr[ied] to come out of the doorway,” but “held back.” 4 Mark was behind Carmen, trying to pull her back. After Miller was shot, Carmen ran outside. She did not know where Mark was at the time, and whether he went to call the police or get dressed (Carmen:294-96). 12 difficulty breathing. Miller gave a brief description of his assailant, including the fact that he wore a mask. The officer broadcast that description, and a description of Miller’s car, over the radio. Miller was taken to Jamaica Hospital (Jacob:247-48,251-55,259-60,273-74,278;Milton:1051-57,1080- 81,1084-85,1092). 5 The police recovered eight .380 shell casings and a deformed bullet near the front of Miller’s home, and two deformed bullets near a neighbor’s fence (Detective Thomas Jacob:348,352-53,390;Detective David Hernandez:410,413-14,416). Meanwhile, shortly before 10:00 p.m., Nicholls learned of a carjacking and shooting from his police scanner. Sometime before 11:30 p.m., defendant came to Nicholls’s house, wearing different clothes than earlier. Nicholls asked defendant what happened, explaining that he had heard about it on the police scanner. Defendant gestured to Nicholls not to talk about it in front of Nicholls’s friend. Defendant then left (Nicholls:586-89,780). Sometime that morning, defendant returned to Nicholls’s house and told Nicholls that he got a black BMW. Nicholls told defendant not to tell him because he did not want to be put in the position of having to testify Miller was in the hospital for ten days, with a gunshot wound to his chest and5 another that entered his abdomen and exited his buttocks. He underwent an exploratory laparotomoy and had a chest tube inserted. The bullet that entered his chest was not removed. Left untreated, the chest wound could have killed him. As a result of the shooting, Miller could not work. At trial, he was still in pain, experienced shortness of breath, and tired easily (Chan:684-90,692,697,700;Carmen:296-97,300-01,308-09;Milton:1051,1057- 58). 13 against defendant. Defendant left to return a car that his girlfriend had rented. He later returned to Nicholls’ house and showed Nicholls several photographs of a black BMW. Defendant wanted Nicholls to download the photos, but Nicholls could not. Defendant also showed Nicholls a BMW keyfob. Defendant asked Nicholls to hold onto the keyfob, but then took it back. Defendant said that after he had the VIN removed from the firewall, he was going to sell the BMW for $15,000. Defendant showed Nicholls counterfeit money that he said that he was going to use to purchase items (Nicholls:589- 98,604,648-50,777-80). Detective Roberts testified regarding defendant’s apprehension and property recovered incident to that arrest. Other officers established that the money was counterfeit, the identifications were forged, and the key was for Miller’s car (Roberts:819-24,828-33,841,847-49,890-91,901-903,905,907,911- 13;Secret Service Agent Kris Tatara:946-48; BMW Service Director David Lubertazzo:957-60;PAPD Detective Curtis King:974-75). The police determined that the Acadia that defendant was driving had been rented from Enterprise on December 18, 2008, under the name Byron Miller. The car was not returned and was reported stolen. The VIN number had been altered (Roberts:833,839-40,914;Enterprise Rent-A-Car District Manager Anthony Belina:963-66;Detective John Wright:987-93,996). At 12:00 p.m. on May 15, 2009, Detective Roberts went to Jamaica Hospital and briefly spoke with Miller, who told Roberts what 14 happened. Miller did not describe the perpetrator, but said that he saw the perpetrator’s face (Roberts:847-48,927;Milton:1074,1086-87,1096). At 8:30 p.m., Detective Roberts advised defendant of his Miranda rights. After waiving his rights, defendant made both oral and written statements, admitting that he was present during the crime, but was not the shooter. Defendant said that a black male he knew as “G” called him and they met on the corner of Mott Avenue and Beach Channel Drive at about 9:00 p.m. As they drove, “G” saw a black BMW 750 and said, “there it go.” They made a u-turn and followed the BMW until it parked. “G” drove past the BMW and pulled over. “G” said, “I got to get this one,” got out of the car, and walked back towards the BMW. Defendant got into the driver’s seat of “G’s” car, and, after hearing about five or more gunshots, drove off. He saw the black BMW “fl[y] past me.” Defendant drove to Francis Lewis and Springfield Boulevards, where he had agreed to meet “G.” “G” ran up, got in, and defendant drove away. Eventually defendant and “G,” who had a silver automatic handgun, switched seats, and “G” drove to Brooklyn. En route, “G” spoke on the phone and said “I had to hit him.” When they got to Pennsylvania Avenue and Linden Boulevard, “G” gave defendant four rolls of money and the BMW key. As defendant drove home, he threw away a cell phone on Snake Road (Roberts:850-51,858-61). A week or two after defendant’s arrest, Nicholls visited him, along with defendant’s wife Toni. Defendant said that he did not care that the victim 15 was a retired police officer. Defendant told Nicholls what he told the police. Defendant was sure that the victim could not identify him (Nicholls:605-08). Defendant instructed Nicholls to pick up “the thing” from Toni, which Nicholls understood to mean a gun. A few days later, Toni gave Nicholls a bag containing a sneaker box. The box contained a pair of boots with a .380 gun and magazine wrapped in socks. The gun was defaced in that it had no serial number. Nicholls disassembled the weapon and cut the barrel into three pieces, which he discarded in various locations. Nicholls kept the gun frame in his safe, along with an associate’s gun (Nicholls:608- 11,616,722,772-73,781,786). When Nicholls was incarcerated in August 2009, he asked someone to get the guns from the safe, and turn them into the police Cash for Guns program. This was never done. Nicholls was arrested on federal charges on August 6, 2010. On October 4, 2010, Nicholls met with Postal Inspector Darnell Edwards, and gave him the two guns from his safe (Nicholls:611- 13,736,781-82,786).6 On December 2, 2009, Detective Roberts conducted a line-up at the precinct. Defendant’s attorney was present and raised no objection. Miller The .380 handgun had evidence of discharge. The eight shell casings recovered from6 the scene were fired from that gun. The two deformed bullets and the piece of lead recovered from the scene were fired from the same gun. It could not be determined if they were fired from the gun defendant gave to Nicholls because the gun’s barrel had been destroyed (Detective Robert Nowak:1005-12,1017;DiCostanzo:1102,1106,1110,1112-17,1121). 16 viewed the line-up and identified defendant as his assailant (Roberts:863- 66,918,920;Milton:1076-77,1093). Defendant’s Case At about 9:45 p.m. on May 11, 2009, Hazel McCain, who lived on 132 Road, heard about four gunshots. McCain looked out the window andnd saw people screaming. A car sped away, followed by a dark SUV. Both speeding cars had their lights off (McCain:1154-58). Request For Missing Witness Charge As the People sought to rest, defense counsel stated that she had informed the prosecutor that she would request a missing witness charge regarding Mark Miller. Counsel noted that Mark was an eyewitness to the crime and had “provided some identifying description of the shooter” to the police on the night of the shooting (1126). Defendant later argued that he had established the four factors necessary to warrant a missing witness charge, positing that Mark had seen the incident from a different vantage point, called 911, and relayed information about the shooting, including a different description of the shooter. Defendant noted that Mark was available to be produced at trial, as the A.D.A. had been in contact with his parents (1186-87). After noting that Mark was willing to testify for the defense, who chose not to call him, the People argued that Mark could not provide any material facts – Mark heard shots from inside the home and behind his mother, 17 and could not identify the perpetrator. And, his description to the police – namely, that the perpetrator was 6'1" or 6'2" tall – was consistent with the descriptions provided by other witnesses. Thus, his testimony was cumulative and not material (1187-88). Defendant replied that he had no burden to call any witness, and that that was not a factor for the court to consider. Defendant reiterated that Mark had provided a “completely different identification” and described the assailant as taller than defendant (1189). The court denied defendant’s request (1189). POINT ONE T H E A P P E L L A T E D I V I S I O N ’ S DETERMINATION THAT DEFENDANT’S STATEMENT WAS VOLUNTARY IS AMPLY SUPPORTED BY THE RECORD AND, AS A MIXED QUESTION OF LAW AND FACT, IS BEYOND FURTHER REVIEW. The determination of both lower courts that defendant’s statements were voluntary is amply supported by the record and, as a mixed question of law and fact, is not subject to further review. Defendant, an experienced criminal with prior arrests, was given his Miranda warnings, waived his rights without hesitation, and demonstrated he voluntarily wanted to speak to the police to advance his largely exculpatory version of events – admitting what could not deny and denying what he could. Moreover, the police did not interrogate defendant for over nineteen of the approximate twenty-five hours from the time of defendant’s 18 arrest to his statement, and thus he was not subject to such prolonged interrogation as to make his statement involuntary. Furthermore, during that7 time, the police were engaged in a process necessary to arraign him – determining what crimes would be charged in the accusatory instrument. Indeed, under the specific facts here, it was necessary to determine whether: 1) the multiple car keys in defendant’s pockets belonged to stolen vehicles, such as the one he was driving, so that he would be charged with the unlawful possession of them; 2) the identification cards and paper money in defendant’s pocket which appeared to be fake were in fact forged or counterfeit; and 3) because one of the cars to which he possessed the key was stolen from a shooting victim, whether the victim would identify him such that he would be charged with that offense. These charging decisions also directly affected another essential arraignment function – the setting of bail – since bail would be vastly different if defendant were charged with traffic infractions, for which he was arrested, or attempted murder, for which he was arraigned. The police performed all of these functions with dispatch, in an approximate twenty-five hour overnight period, and the minimal additional delay – during which agencies with specific jurisdictional mandates, like the secret service, were allowed to speak with defendant – did not so prolong the Detective Roberts testified that the police went to Brooklyn to look for defendant7 around 4:00 on May 14 (19). Although he initially testified that defendant was brought to the precinct at around 4:00 (77), after checking the police report, he clarified that defendant was arrested in Brooklyn at 7:00 (100). 19 arraignment process as to preclude the conclusion that defendant’s statements were voluntary. Defendant nevertheless claims that the police “deliberately” and excessively delayed his arraignment in order to coerce a confession, and that the proof of voluntariness was deficient due to the People’s failure to call agents from the other investigating agencies or establish that defendant was provided food and drink and allowed to sleep. These claims are unpreserved for appellate review and without merit. Defendant did not raise these claims in the hearing court and the People’s alleged failure to call other agents or to elicit, specifically, that he was given food and drink, did not defeat a finding of voluntariness as a matter of law. Thus, the determinations of the courts below should be upheld. A. Defendant’s Claims Are Unpreserved. Initially, defendant failed to preserve his claims for this Court’s review. To preserve a claim for appellate review, a defendant must raise the claim with specificity in the lower court. People v. Panton, 27 N.Y.3d 1144, 1144-45 (2016); People v. Ramos, 99 N.Y.2d 27, 30 (2002). At the conclusion of the Huntley hearing, defendant noted that he had been held at the precinct for over twenty-four hours and interrogated by various agencies, but argued only that the detective who wrote out the statement already had “an idea” or “a story” in his mind. Defendant posited that his statement should be suppressed because “it was basically a forced 20 confession of some sort written by the detective” (133-36). Defendant never argued, as he does now, that the police “deliberately” delayed his arraignment in order to obtain a confession or that the statement should be suppressed because the People failed to establish what had occurred at the precinct during the delay – such as whether defendant was given necessities or what occurred during the interrogations by other agencies. Nor did defendant raise any claim that he had been denied food or use of bathroom facilities. Therefore, defendant should not now be heard to complain that the hearing court’s decision was wrong on the basis of arguments not made to that court. Accordingly, these claims are unpreserved for this Court’s review. B. Because The Voluntariness Of Defendant’s Confession Constitutes A Mixed Question Of Law And Fact, It Is Subject To Limited Review In This Court To Determine Whether There Is Record Support For The Lower Courts’ Determinations. Mixed questions of law and fact are not reviewable in this Court when there is record support for the determination made by the lower courts. See People v. Porter, 9 N.Y.3d 966, 967 (2007); People v. Shabazz, 99 N.Y.2d 634, 636 (2003); People v. Scott, 86 N.Y.2d 864 (1995); People v. Oden, 36 N.Y.2d 382 (1975). This is so because “questions of the reasonableness of conduct can rarely be resolved as a matter of law even when the facts are not in dispute.” People v. Harrison, 57 N.Y.2d 470, 478 (1982); see People v. Morales, 42 N.Y.2d 129, 137-38 (1977). This “rule applies ‘where the facts are disputed, where credibility is at issue or where reasonable minds may differ as to the inferences to be drawn.’” People v. Sivertson, __ N.Y.3d __ (June 1, 21 2017). Indeed, “[u]nless there is no possible view of the evidence that would support the determination of the lower courts,” this Court is “bound by the finding of the suppression court.” People v. Damiano, 87 N.Y.2d 477, 486 (1996). The voluntariness of a defendant’s confession is a mixed question of law and fact, subject to limited review in this Court. This Court’s “review is limited to whether record support exists for the court’s resolution of factual questions underlying the court’s totality of the circumstances assessment, including any reasonable inferences drawn therefrom, unless we determine, as a matter of law, that the proof does not meet the reasonable doubt standard at all.” People v. Lin, 26 N.Y.3d 701, 719 (2016). See also Matter of Jimmy D., 15 N.Y.3d 417, 423 (2010); Scott, 86 N.Y.2d at 883. This case presents a classic question of voluntariness. See Lin, 26 N.Y.3d at 719-720(undue delay in arraignment properly considered in assessing voluntariness of defendant’s confession)(quoting Ramos, 99 N.Y.2d at 35); Jimmy D., 15 N.Y.3d at 423(whether defendant was isolated from mother, improperly induced to speak by offer of help, and validly waived Miranda warnings constituted question of voluntariness that was mixed question of law and fact subject to limited review); People v. Hopkins, 58 N.Y.2d 1079 (1983); People v. Holland, 48 N.Y.2d 861, 862 (1979). The trial court determined that defendant had waived his Miranda rights and that his statement was knowing and voluntary. The Appellate 22 Division affirmed this finding and stressed that proof of voluntariness depends on the circumstances or “totality” of each case, concluding that the detective’s admitted failure to document defendant’s status when he checked on him was not fatal and did not demonstrate that defendant’s largely self-serving statement was involuntarily given. People v. Johnson, 139 A.D.3d 967, 969-72 (2d Dept. 2016). This choice of inferences from the evidence presents a mixed question of law and facts. Even the dissenter in the Appellate Division, failed to identify an issue of law. Focusing on the delay between the time of defendant’s arrest and arraignment, Justice Hall concluded that the People failed to establish the voluntariness of the statements in the absence of evidence that defendant had the opportunity to sleep, eat, drink, or use the bathroom during that time. Justice Hall also pointed to other factors bearing on voluntariness generally, in opining that the conviction should be reversed. Johnson, 139 A.D.3d at 977. Thus, this Court may review defendant’s current contention only to determine whether there exists record support for the lower courts’ determinations. C. The Appellate Division’s Finding That, Under The Totality Of The Circumstances, Defendant’s Statements Were Voluntary Is Supported By The Record. The record below fully supports the Appellate Division’s finding that defendant’s statements were voluntary. Defendant was not subject to any interrogation for the overwhelming majority of the period from the arrest to his 23 statement, the police fully informed him of his Miranda rights, and defendant, an experienced felon with many prior arrests who had already tried to talk his way out of trouble when he was stopped, voluntarily chose to speak to police to advance his false, mostly exculpatory, version of events. While terms like “involuntary” and “coerced” are difficult to define, they encompass both unreliable confessions and those that “invoke societal disapproval of police methods so extreme that they offend our notions of fundamental fairness . . . .” People v. Anderson, 42 N.Y.2d 35, 38 (1977). An analysis of the voluntariness of a statement depends upon “the totality of all the surrounding circumstances – both the characteristics of the accused and the details of the interrogation” to determine whether the defendant’s will was overborne. Dickerson v. U.S., 530 U.S. 428, 434 (2000)(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 223 ([1973]); People v. Thomas, 22 N.Y.3d 629, 642 (2014); see also People v. Guilford, 21 N.Y.3d 205, 208 (2013). An unnecessary delay in arraigning the defendant, while he or she is in custody, is one factor to consider among the totality of circumstances reflecting on the issue of voluntariness. Ramos, 99 N.Y.2d at 34; see also People v. Ortlieb, 84 N.Y.2d 989 (1994). Under C.P.L. § 140.20, police must perform without unnecessary delay all “preliminary police duties required in the particular case,” bring defendant to a local criminal court, and “file therewith an appropriate accusatory instrument charging him with the offense or offenses in question.” An accusatory instrument must specify the crimes 24 with which defendant is charged and must include factual allegations from identified sources providing reasonable cause to believe defendant has committed all of the elements of the crimes charged. See People v. Ocasio, 28 N.Y.3d 178 (2016). Under C.P.L. § 180.10(6), a court may dismiss an unsupported accusatory instrument, and, if it does not, must issue a securing order either setting bail or releasing a defendant on his or her own recognizance. In making that determination, a court must consider the weight of the evidence against the accused establishing the charged crimes, the probability of conviction of the charged crimes, and the sentence that may be imposed for the charged crimes upon conviction. C.P.L. § 510.30(2)(a)(viii),(ix). “To be clear, the overriding concern is not with the mere fact that a delay has transpired, but rather with the effect of an unnecessary time lag between arrest and arraignment on a defendant’s ability to decide whether to speak and how to respond to questioning.” Lin, 26 N.Y.3d at 720(emphasis added). “Thus, while unwarranted prearraignment delay is a suspect circumstance, the Court has acknowledged that except in cases of involuntariness, a delay in arraignment, even if prompted by a desire for further police questioning, does not warrant suppression.” Id.(emphasis added). See also Ramos, 99 N.Y.2d at 35. Here, there was ample evidence that defendant, a recidivist with numerous prior arrests and convictions, voluntarily waived his rights, and was 25 in fact anxious to advance his version of events at the earliest opportunity. Under these circumstances, the period from arrest to confession, most of which was taken up by the essential determination of which crimes to include in the accusatory instrument, was not so unnecessarily lengthy as to render defendant’s confession involuntary as a matter of law. Additionally, the People amply established that defendant’s statement was voluntary. First, as an experienced criminal, defendant was unlikely to be awestruck or intimidated by the custody in which he found himself and unlikely to be swayed by ordinary interrogation techniques. Indeed, defendant, who was sentenced as a second violent felony offender, had at least four prior arrests. These resulted in a conviction after trial of unauthorized use of a vehicle, and convictions after guilty pleas to first-degree robbery and conspiracy, disorderly conduct, and attempted first-degree assault. Defendant’s experience thus clearly supported the lower court’s finding of voluntariness. See Dallio v. Spitzer, 170 F.Supp.2d 327, 339 (E.D.N.Y. 2001)(in determining voluntariness of statement, court noted that defendant, “no stranger to the law,” was “familiar with police interrogation tactics and unlikely to be confused or overwhelmed”), aff’d on other grounds, 343 F.3d 553 (2d Cir. 2003); People v. Neal, 133 A.D.3d 920 (3d Dept. 2015)(same); People v. Boykins, 81 A.D.2d 922 (2d Dept. 1981)(same); cf. Thomas, 22 N.Y.3d at 642(“highly coercive deceptions” were “manifestly 26 lethal to self-determination when deployed against . . . unsophisticated individual without experience in the criminal justice system”). Second, defendant was not subjected to continuous interrogation during the period between arrest and arraignment. Indeed, no interrogation occurred during the first eighteen hours. Defendant’s first interrogators did not arrive until the afternoon of May 15, when PAPD officers and Secret Service came and spoke with defendant (45-46, 72-75). Even assuming that interrogation after that point was more or less continuous, defendant was not subjected to any interrogation during the overwhelming majority of time he was in custody. Third, defendant was not physically restrained while at the precinct, although under arrest. Detective Roberts specifically testified that when he was placed in a room with tables and chairs, he was not handcuffed while he waited (25, 125). Fourth, defendant made the statement only after he had been advised of, and knowingly waived, his Miranda rights. Detective Roberts read defendant his rights before the interview. Defendant acknowledged and waived each right – verbally and in writing – and agreed to speak with the officer, and voluntarily answered the officer’s questions (35-39, 41, 78-79, 81, 98). See People v. Dairsaw 46 N.Y.2d 739 (1978). And, as noted, because of defendant’s experience with the criminal justice system, he was more likely to understand and appreciate the significance of the warnings. Defendant does 27 not dispute that his statements were made after a full waiver of his Miranda rights. Fifth, after he was advised of his Miranda rights, defendant began his statement immediately. Detective Roberts never made any promises or threats to convince defendant to make a statement, which militates against a finding of involuntariness. Cf. Thomas, 22 N.Y.3d at 643(police told defendant that wife would have to be arrested if he did not speak). Nor does the record contain any indication that the police engaged in any unfair deception to get defendant to speak. Similarly, nothing suggested defendant sweated, cried, fumbled, or resisted making a statement in any way. Indeed, defendant was immediately ready to talk, without the slightest bit of inducement, suggesting that he spoke freely and readily on his own, for his own purposes. Sixth, the hearing evidence also established that the purpose of defendant’s statement may have been to deliver to police a substantially exculpatory version of events, conceding his guilt of only lesser crimes he could not avoid admitting, but denying the more serious crime that he knew he could dispute. A defendant is more likely to give an exculpatory statement freely and use it as an opportunity to offer an explanation or lay the groundwork for a defense. Defendant, an experienced criminal litigant, would have appreciated that a promptly articulated story makes trial testimony more believable. Here, while defendant admitted to the less serious crimes such as 28 possession of forged documents and car theft – something he could hardly have denied – his statement regarding the shooting was an attempt to absolve himself of responsibility, since he stated only that he was present during the carjacking, and completely denied that he was the masked man who shot Miller. Seventh, added to these circumstances was the hearing evidence that showed, independent of the exculpatory statement, that defendant was both deliberately deceptive and prone to advancing false accounts to talk his way out of trouble. Indeed, defendant had already attempted to do just that, volunteering a false story at the time he was stopped that the car he had been in was a rental car and not stolen, which the police learned was false, as the car was in fact stolen and the VIN number had been changed. Defendant also possessed fake identification cards in names other than his own, and he even had counterfeit currency – a particularly elaborate form of deception. This suggested defendant’s proclivity for deception generally and specifically for attempting to deceive the police with false exculpatory accounts. This evidence thus supported the conclusion that defendant, a career criminal experienced at deception, likely decided to make the largely exculpatory statement thinking he could convince the police that while he had a peripheral role in the case, he was not a significant player and had not committed the shooting. This conclusion is further supported by the fact that this is precisely what defendant told Nicholls he said to the police (Nicholls: 29 605-08), such that Nicholls, if questioned by police, could have supported defendant’s story. Thus, although the common law tests of voluntariness apply to exculpatory statements (People v. Mirenda, 23 N.Y.2d 439 [1969]; People v. Ross, 21 N.Y.2d 258 [1967]), defendant’s exculpatory version of events here supports the conclusion that defendant was anxious to provide the statement as soon as possible and thus, it was given freely for defendant’s own reasons. In short, there is ample support for the conclusion that defendant spoke because he wanted to, with full knowledge of his rights, not because he was forced to. Faced with the evidence against him, defendant “succumbed not to improper police pressure but to the realities of the situation.” People v. Carbonaro, 21 N.Y.2d 271, 279 (1967). Defendant argues that an excessive delay in arraignment rendered his statement involuntary. But the twenty-five hours between arrest and defendant’s statement was largely attributable to matters necessary in order to properly arraign the defendant, and thus was neither unwarranted nor excessive. Indeed, the hearing testimony explained over eighteen hours of the delay as necessary for the determination of the charges to be included in the accusatory instrument, which was necessary for arraignment and the determination of bail. Nor was the total elapsed time so lengthy as to render defendant’s confession involuntary as a matter of law. This Court has held that, in the city of New York, a period of twenty-four hours is presumptively permissible (People ex rel. Maxian v. Brown, 77 N.Y.2d 422 [1991]), and the 30 one additional hour that elapsed here did not render defendant’s confession involuntary as a matter of law. Therefore, the mere fact that defendant had been in custody for slightly over twenty-four hours when he made his largely exculpatory statement does not, in and of itself, establish that the statement was involuntary. Initially, the hearing evidence showed that the vast majority of time between defendant’s arrest and interrogation was taken up with determining the charges to be included in the accusatory instrument and obtaining accurate information from specified sources regarding those charges. The hearing testimony showed that defendant was stopped around 4:00 p.m. on May 14 for minor traffic-related offenses, and admitted that he was inth possession of a rental car for which he had no rental agreement. In his possession at that time were: two identification cards with his picture but in a different name, one of which indicated he was a Port Authority employee; two unexplained BMW key fobs, which turned out to be for stolen vehicles; and paper money that appeared to be counterfeit. To check out defendant’s assertion regarding the supposed rental car, and determine whether he should be charged with possession of stolen property for that vehicle, the officers requested and obtained the presence of an officer specifically assigned to the Auto Crime Division, who examined the VIN numbers, placed at various locations on the car, and determined that the visible VIN number had been altered and the car was in fact stolen. The 31 identification cards in apparently false names also required involving the Port Authority police to determine if the card was genuine or forged – it was forged – and contacting the Louisiana DMV about that license – it was fake. The police were also required to contact the Secret Service so that they might investigate the counterfeit paper bills. Further, in light of defendant’s possession of the stolen Acadia, police properly sought to check on his possession of the BMW key fobs – which entailed Detective Roberts going to a BMW dealership the next morning when it opened. There, the police confirmed one key fob was related to the carjacking and shooting of Milton Miller. It was only then that the police compiled and showed Miller a photo array to determine if defendant was a principle actor in the shooting. And it was only after Miller identified defendant as the perpetrator – which was around 2:00 p.m. (30) – could the8 police properly prepare the accusatory instrument with necessary factual allegations relating to the carjacking and shooting of Milton Miller. Significantly, in preparing the complaint, Detective Roberts noted that in addition to his own training and experience, the source of his information was Milton Miller, PAPD Detective Curtis King, local BMW dealer George Carrera, and Suffolk County Police Department Detective Favata. Thus, the detective’s discussions and confirmations of facts with all The officers went to the hospital around 12:30, but had to wait to see Miller (30).8 32 of these parties was integral to the preparation of the accusatory instrument in this case. In addition to conferring jurisdiction on the court, a facially sufficient and accurate accusatory instrument was crucial for the arraignment court to properly determine what, if any, bail to set. See C.P.L. § 510.30(2)(a). Here, the bail determination – a critical arraignment function necessary to ensure defendant’s return – was heavily dependent on the crimes charged: defendant was arrested for arguably minor traffic infractions but, based on the items he possessed at that time, was ultimately charged with crimes as serious as carjacking and attempted murder. A determination of the proper charges to present was thus critical to the arraignment in this case. Moreover, the gathering of the facts necessary to prepare a valid and accurate accusatory instrument for these arraignment purposes did not take an inordinate amount of time. Defendant’s arrest in the evening in a different county, the number of different agencies involved, the need to have the key fobs read at the dealership the next morning, and the fact that Miller was still hospitalized when it was learned that one of the cars belonged to him, all served to delay the inquiries, which were nevertheless completed in eighteen to nineteen hours. This period of time, then, far from being “unnecessary,” was fully warranted for arraignment-related purposes. Nor were the limited inquires here prohibited by this Court’s decision in Lin, as defendant seems to suggest. While Lin establishes that there 33 is no general exception for investigation allowing limitless delay in arraignment, some limited inquiries are sometimes necessary to determine the specific charges to be included in the accusatory instrument and to contact the necessary parties and agencies to ensure that the allegations for those crimes are properly made. This is important – indeed essential – for the purposes of arraignment and for the purpose of setting bail. Indeed, police are often required to verify information or confer with others to prepare the accusatory instrument, such as contacting an owner and determining whether they can affirmatively identify particular property as theirs for the purposes of making a proper allegation in the complaint that the defendant did not have permission or authority to possess the property. Lin in no way prohibits this “investigation.” Similarly, police are sometimes faced with significant charging decisions that require resolution, such as determining whether defendant should be charged with both the possession and the taking of stolen property possessed upon arrest, and whether other property possessed by the defendant at the time of arrest is similarly stolen or contraband, like the key fobs and the fake identification cards and currency here. Such items, possessed at the same time and thus part of the same criminal transaction, may be included in the same accusatory instrument. See C.P.L. §§ 200.20, 40.10. They thus present police with choices regarding the proper preparation of the accusatory instrument, and sometimes give rise to inquiries necessary to resolve what crimes should be charged in that document. There is simply no 34 basis to interpret Lin to preclude the consideration of such charging decisions, the limited inquiries to which they give rise, or the careful and accurate preparation of the accusatory instrument. Nor is their any authority for the proposition that the police were required to process defendant and take him to court the moment that they could charge him with any single crime. No legitimate interest would be served by requiring police to send defendant to court on a single charge, re-arrest him on a successive accusatory instrument prepared a day later based on charges that could properly have been included in the first accusatory instrument, and then require criminal courts to separately arraign him on each instrument at different times, with no arraigning court having the full picture of defendant’s crimes for the purpose of imposing bail. Indeed, the police properly declined to engage9 in such a laborious and fruitless procedure, instead making reasonable charging decisions and presenting the arraigning court with a full picture of the crimes arising from defendant’s possession of stolen property and contraband at the time of his arrest, including the fake IDs, the forged currency, the constructive possession of other stolen vehicles, and defendant’s involvement in the shooting that accompanied the taking of one of those vehicles. Additionally, the fact that other agencies may have interviewed defendant after 2 p.m. but before Detective Roberts spoke with him does not dictate a finding of involuntariness. Both the Port Authority and the Secret On the contrary, such a procedure could actually encourage a defendant’s flight on9 minimal bail, before being able to include the most serious charges on an instrument. 35 Service had significant interests in speaking with defendant based upon their specific jurisdictions, and Detective Roberts’ decision to allow these agencies access to defendant over a relatively short period of time did not so delay the arraignment as to render it coercive. Indeed, even with the involvement of these agencies, the period of delay barely crept over the twenty-four-hour presumptively-valid period from arrest to arraignment in New York City. Moreover, the interrogation by the other agents was by no means excessive in duration. The record showed that these interrogations, at most, collectively took six and one-half hours, far less than in other cases finding confessions involuntary. Cf. Guilford, 21 N.Y.3d at 212 (49½ hours of continuous interrogation); Anderson, 42 N.Y.2d at 37, 39 (19 continuous hours of interrogation of 21-year old). Additionally, it is unlikely that these separate interrogations by different agencies were conducted without at least some break between them. The interrogations commenced at the earliest around 2 p.m. on the 15 , when PAPD arrived (45-46, 73, 75, 100), the Secret Serviceth arrived sometime later that afternoon, and the Suffolk County Police did not interview defendant until 7:30 p.m. (75). Given the disparate arrival times, it is likely that the questioning was intermittent. Significantly, the relatively minimal delay occasioned for this purpose in no way encouraged an unreliable or coerced confession. The procedure of allowing other agencies with specific jurisdictions access to defendant on such a limited basis was simply not an example of “police 36 methods so extreme that they offend our notions of fundamental fairness,” Anderson, 42 N.Y.2d at 38, nor did it in any way suggest that defendant’s will was overborne at the time he was questioned. Indeed, the totality of the circumstances show that defendant was treated, if not with complete speed, than fairly gently. Defendant was spared questioning for the majority of the time and, once he was questioned, it occurred on a compressed schedule, resulting in a statement that is just shy of useless. Moreover, unlike in Lin, upon which defendant relies (Defendant’s Brief at 42), this was not a situation where there was a “delay without end in sight.” Lin, 26 N.Y.3d at 723. Rather, it was clear that the time spent before arraignment would end once the nature of the property defendant possessed upon arrest was determined and the relevant agencies had an opportunity to speak with defendant about those items. Indeed, as far as the questioning itself went, at least three different agencies had come and gone in a relatively short period of time between 2 p.m. and 8:30 p.m., and defendant had no reason to believe that the interview with Roberts would last any longer, much less that he would be held indefinitely. Nor was the failure to call agents from the different agencies that interviewed him, or to affirmatively establish that he was provided food, water, and sleep, fatal to the lower courts’ findings of voluntariness. Initially, while food, drink, and sleep are relevant considerations, they are not indispensable to finding voluntariness. Diaz v. Senkowski, 76 F.3d 61, 63 (2d Cir. 37 1996)(defendant’s statements voluntary where no evidence he was denied food, bathroom access, or sleep); cf. Anderson, 42 N.Y.2d at 39-40. And while the People have the burden of proof at the hearing, “[t]his does not mean, however, that the People are mandated to produce all police officers who had contact with the defendant from arrest to the time that the challenged statements were elicited.” People v. Witherspoon, 66 N.Y.2d 973, 974 (1985). This Court has upheld voluntariness findings despite the absence of affirmative evidence that defendant was fed and allowed to sleep. See Jimmy D., 15 N.Y.3d at 423(“Although [defendant] was doubtless tired, there is no evidence that he asked for food or water and was denied it.”); People v. Tarsia, 50 N.Y.2d 1, 12 (1980)(no claim that during eleven hours defendant was in custody he was mistreated or denied refreshment; “Without more,” length of time did not render confessions inadmissible)(emphasis added). Indeed, the Eastern District addressed a similar issue in Parham v. Griffin, 86 F.Supp.3d 161 (E.D.N.Y. 2015). In looking at the totality of circumstances, the Court found that the testifying officer gave “uncontradicted testimony” that the defendant had been advised of Miranda rights, indicated that he understood those rights before waiving them, and gave an exculpatory statement. Significantly, although the detective was never personally asked whether the defendant had been allowed to use the bathroom, eat, or smoke, the Court found that “[the defendant] has never claimed on the record that he was 38 not allowed to do any of these things.” Id. at 172. The Court concluded that the officer’s “unchallenged testimony, and the lack of any circumstances that cast doubt on said testimony, [were] sufficient to show beyond a reasonable doubt” that the defendant’s statement and waiver of rights were voluntary. Id. at 173. Here, the prosecution established that defendant was fully informed of his rights, wished to make a statement to police, and gave an exculpatory version consistent with his other attempt to manufacture a story when he was stopped. Moreover, no evidence at the hearing suggested that these other agents had denied defendant any right or engaged in any coercive tactics. To the contrary, in all of Detective Roberts’ checks on and conversations with defendant, defendant never suggested to him that he had previously invoked his rights nor did he complain about being denied food or not being allowed to sleep (71-73). Although Detective Roberts did not document those checks, under the circumstances, there is no reason to believe defendant was deprived of any necessity. The cases upon which defendant relies do not require a different result. In Anderson (Defendant’s Brief at 40-41), the police detained defendant, a twenty-one-year old, without probable cause and interrogated him continuously for nineteen hours. The hearing testimony also affirmatively reflected that defendant was not allowed to sleep, as police repeatedly shook him awake each time he showed signs of falling asleep, and the record also 39 showed defendant was not given any food over a period encompassing three meals. Here, defendant, an experienced criminal, was not questioned at all for eighteen hours, was then only questioned for at most six and one-half hours, probably intermittently, and defendant never claimed, either to Detective Roberts or in any motion papers or at the hearing, that he was not allowed to sleep or eat. Cf. Guilford, 21 N.Y.3d at 210 (49½ hour continuous interrogation causing defendant to “give up” and “weep” resulted in tainted confession and tainted defendant’s post-arraignment confession). Here, “the totality of circumstances . . . does not ‘bespeak such a serious disregard of defendant’s rights, and [was not] so conducive to unreliable and involuntary statements, that the prosecutor ha[d] not demonstrated beyond a reasonable doubt that [] defendant’s will was not overborne.” Lin, 26 N.Y.3d at 725(quoting Holland, 48 N.Y.2d at 863). D. Error, If Any, Was Harmless In Light Of The Overwhelming Evidence Of Defendant’s Guilt. In any event, error, if any, in the admission of defendant’s largely exculpatory statement was harmless in light of the overwhelming evidence of defendant’s guilt, including an independent lineup identification, defendant’s possession of the key to Miller’s BMW upon arrest, his possession of the weapon linked to the shooting, and his inculpatory statements to Nicholls, who also linked defendant to the weapon. Chapman v. California, 386 U.S. 18, 24 (1967); People v. Simmons, 75 N.Y.2d 738, 739 (1989); People v. Crimmins, 36 N.Y.2d 230 (1975). 40 Miller positively identified defendant at the line-up and at trial as the man who shot him and stole his car. Miller had ample opportunity to view most of defendant’s face – focusing on the eyes of the person he thought would kill him – under good lighting conditions. Miller noted that defendant’s partial mask covered only from above his eyebrows and below his nostrils – thus, Miller could see defendant’s eyebrows, eyes, nose, cheek bones, and skin tone. His detailed and accurate description, along with his subsequent identification, confirms his opportunity to see defendant. Carmen Miller and Keirsey corroborated many details surrounding the shooting, including the basic description of the shooter – his height, build, and clothing. They also corroborated Miller’s account regarding the complete choreography of the crime – his movements vis-a-vis the shooter, the shooting itself, the car theft, and the direction of the shooter’s flight. Damning physical evidence also connected defendant to the commission of the crime. Upon his arrest, defendant had the key to Miller’s car on his person. Defendant had shown the key fob to Nicholls and initially asked him to hold it. Furthermore, Nicholls’s established that defendant conveyed his desire to shoot up the block and steal the BMW. Nicholls’s testimony regarding the timing of the report on the police scanner and defendant’s arrival at his home dove-tailed with defendant having had the opportunity to commit the crime. And when defendant returned to Nicholls’s home, he admitted to 41 Nicholls that he had taken a black BMW. Defendant even showed him photos of the car. Moreover, defendant had his wife give Nicholls the gun that was later linked to the shooting. Under the circumstances, even disregarding defendant’s largely exculpatory statement, there is no reasonable probability that the jury would have acquitted defendant had the statement not been admitted. POINT TWO DEFENDANT WAS NOT ENTITLED TO A MISSING WITNESS CHARGE REGARDING MARK MILLER BECAUSE DEFENDANT FAILED TO ESTABLISH THAT THE WITNESS’S TESTIMONY AS A WHOLE WOULD HAVE BEEN NON-CUMULATIVE. The trial court did not abuse its discretion in denying defendant’s request for a missing witness charge regarding the victim’s son, Mark Miller. Mark stood inside the house, behind his mother during a portion of the incident, and initially tried to pull his mother back inside. But there was no reason to believe that any of Mark’s testimony about the evening would have been non-cumulative, except at most in one minor respect, his general estimate of the height of the shooter. But given Mark’s partial and distracted view of the events as he attempted to pull his mother inside, his testimony on this issue was of minimal probative value. Moreover, a generic adverse inference charge, allowing the jury to conclude that the testimony could have been wholly adverse to the prosecution in any and every respect, rather than adverse in this one particular aspect, would have provided a windfall to defendant to 42 which he was not entitled under the particular circumstances. Further, any possible error in this regard was harmless, as defendant was identified in a lineup, possessed the key to the victim’s car upon arrest, possessed the gun used in the shooting, and made damning statements to one of the People’s witnesses who knew him well, such that defendant’s identity was never seriously in doubt. A missing witness charge permits the “jury to draw an unfavorable inference based on a party’s failure to call a witness who would normally be expected to support that party’s version of events.” People v. Savinon, 100 N.Y.2d 192, 196 (2003); see People v. Hall, 18 N.Y.3d 122, 131 (2011). The instruction rests on the “commonsense notion that ‘the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause.’” Savinon, 100 N.Y.2d at 196(quoting People v. Gonzalez, 68 N.Y.2d 424, 427 [1986]). The party requesting the charge must demonstrate to the court that the uncalled witness is knowledgeable about a material issue relating to the testimony already admitted into evidence, that the witness would be expected to provide non-cumulative testimony favorable to the party who failed to call him, and that the witness was available to that party. Gonzalez, 68 N.Y.2d at 427; Hall, 18 N.Y.3d at 131; People v. Keen, 94 N.Y.2d 533 (2000); People v. Kitching, 78 N.Y.2d 532, 536 (1991). Once the party requesting the charge 43 meets its burden, the opposing party may defeat the request by demonstrating that the charge would not be appropriate because the witness is not knowledgeable about the issue, the issue is not relevant, the testimony would be cumulative, or the witness is not under the party’s control. Kitching, 78 N.Y.2d at 536; Gonzalez, 68 N.Y.2d at 428. This Court will reverse the trial court’s decision whether to grant a missing witness charge only if it finds an abuse of discretion. Savinon, 100 N.Y.2d at 197. Here, defendant’s showing foundered most conspicuously because he failed to establish that the witness’s testimony as a whole would be non- cumulative. This is understandable for several reasons. First, although defendant had the police report of the interview with the witness, defendant could point to only one item in attempting to show that the testimony would not have been cumulative; namely, only one part of his description of the shooter –the height estimate. This meant that defendant effectively conceded that every other aspect of the testimony could be expected to be perfectly consistent with the testimony of the other witnesses, including every other aspect of the description of the shooter. Second, this estimate would have been of minimal probative value. This was especially true given Mark’s limited and likely impeded view of only part of the incident. As noted, Mark’s view was from inside the house, behind his mother, as he tried to pull her back. To the extent he had a view of the shooter, therefore, his view was limited and likely obscured. Given his 44 weak and distracted vantage point, that Mark estimated the shooter’s height as a few inches taller than defendant’s height was of no import. See United States v. Owens, 2006 WL3725547 (W.D.N.Y. Dec. 14, 2006)(height discrepancies in excess of four inches “not significant” when considering circumstances under which defendant was viewed, as numerous factors could impede witness’s more exact estimation). Nor was it likely, in light of Mark’s obscured fleeting view, that the estimate was other than the most general of estimates, with the most minimum degree of confidence or accuracy. Indeed, Mark was quite likely to testify that his initial estimate was a general one founded on little if any observation. And if he revised his estimate of the shooter, the original estimate could not have been admitted for its truth but only to impeach a witness who it was unnecessary to call in the first place. Thus, this single detail of Mark’s potential description, was insufficient to establish that the testimony as a whole would qualify as “non-cumulative.” Third, unlike in other cases cited by defendant, he had ample opportunity to make the showing that the testimony would have been non- cumulative. Cf. Kitching, 78 N.Y.2d at 537(defendant unable to establish that missing witness’s testimony would not have been cumulative because he had no access to witness and therefore could “[not] know what that witness knows or what the witness would say if called.”). Counsel had the police report and was also given the opportunity to interview Mark and call him to testify. There 45 was never any allegation that Mark would not cooperate or meet with the defense. Although the fact that Mark was available to the defense is not determinative (Hall, 18 N.Y.3d at 131), defendant had ample opportunity to build a foundation upon which to support his request for the charge but failed to do so. Moreover, here – where the only non-cumulative aspect of the testimony would have been limited, at most, to a single possible discrepancy in a specific past description – a generic missing witness charge would have provided a windfall to defendant. Indeed, a generic charge would have allowed the jury to infer that Mark’s testimony would have been adverse to the People in any number of respects or even in its totality, allowing the jury to speculate that the testimony would have been far more damning than it was – for example, that the son would have testified that defendant was not the shooter. Because defendant’s foundation only gave reason to believe that the testimony may have been adverse at most as to one limited aspect of one prior description, the trial court could exercise its discretion to decline to give a charge that would have far exceeded the scope of the showing made by defendant. Far more appropriate would have been evidence from Detective Roberts regarding the inconsistent description, which would have directly addressed the issue, but which defendant never sought or attempted. That defendant chose not to elicit this testimony – which mirrored the proposed 46 testimony of Mark Miller – but sought a missing witness charge instead, establishes that defendant made a strategic decision to seek the windfall of a missing witness charge. Finally, perhaps most damning to defendant’s claim that the failure to give the charge requires reversal is the fact that, on this record, identity was not seriously at issue. Johnson, 139 A.D.3d at 974. As the Appellate Division noted, the identification by the victim– who saw defendant for several minutes before being shot and gave a detailed description of defendant, including his eyes, skin color, and build – was strong. Significantly, Milton Miller identified defendant in a photo array and a non- suggestive lineup. Moreover, because Miller was only an arm’s length from defendant, his height estimate was far more likely to be accurate than Mark’s. And, as noted, Carmen Miller and Keirsey – both of whom had better views of the shooter than Mark Miller – estimated the shooter’s height and build to be similar to that given by Milton. And, multiple witnesses established the good lighting conditions at the scene. In addition to the “powerful” identification by the victim (Johnson, 39 A.D.3d at 974), the salient details of which two other witnesses corroborated, physical evidence recovered from defendant linked him to the crime – namely, the key to Miller’s car that the shooter stole. And, defendant identified himself when he acknowledged his presence at the scene to the police, and when he admitted to Nicholls that he 47 had stolen a black BMW and gave him the gun used in the shooting during the theft of that vehicle. Defendant’s insistence that the charge was critical to the outcome is belied by counsel’s conduct at trial. Notably, defense counsel did not ask the jury to question why Mark did not testify, even though the court never precluded such an argument. See People v. Williams, 5 N.Y.3d 732, 734 (2005)(defendant not entitled to missing witness charge may try to persuade jury to draw inferences from People’s failure to call available witness with material, noncumulative information about the case). Counsel obviously viewed Mark’s purported testimony as non-material and any added value from the charge was negligible. In any event, error, if any, in the failure to give an adverse inference charge was harmless in light of the overwhelming evidence of defendant’s guilt. See People v. Viruet, __ N.Y.3d __ (June 6, 2017) (nonconstitutional error harmless where proof of defendant’s guilt, without reference to the error, is overwhelming and there is no significant probability jury would have acquitted defendant but for the error). Miller, who had ample opportunity to see defendant, identified him as his assailant. Nicholls, who had a relationship with defendant, established that defendant had the weapon used to shoot the victim. The day after the crime, defendant told Nicholls that he got a black BMW, and intended to have the VIN removed and sell it. Defendant had the key to the victim’s stolen car on his person days later. 48 Finally, defendant himself acknowledged his presence at the scene. See Point One, supra at 40-42. POINT THREE DEFENDANT WAS NOT DENIED A FAIR TRIAL WHEN NICHOLLS INADVERTENTLY IDENTIFIED HIM AS AN ASSOCIATE IN UNCHARGED CRIMES. THE COURT PROPERLY EXERCISED ITS DISCRETION IN DENYING THE DRASTIC REMEDY OF A MISTRIAL AND INSTEAD ALLEVIATING ANY PREJUDICE BY ORDERING THE TESTIMONY STRICKEN AND INSTRUCTING THE JURY TO DISREGARD IT. During his testimony, Nicholls identified people involved in various crimes as “associates” A, B, C, and D. After Nicholls testified that one of the two guns he pleaded guilty to possessing – the gun that was linked to the Miller shooting and, therefore, defendant – belonged to Associate A, the court struck any reference to the letters from the record, and also struck any reference by Nicholls to forged documents and VIN numbers and any reference to any involvement by associates with regard to Nicholls’ guilty plea to conspiracy to alter or remove VINs from stolen cars. Despite this corrective action, defendant claimed that he was deprived of his due process right to a fair trial because Nicholls’s testimony, in effect, identified him as his accomplice in the creation of false identifications and car theft. Defendant was not prejudiced by this brief, vague testimony because, as noted, the court immediately ordered it stricken from the record and instructed the jury to disregard it. 49 At the outset of the trial and before Nicholls testified, the People stated that they would not be eliciting any evidence of defendant’s involvement in uncharged crimes (189, 209-10). The prosecutor advised that Nicholls would not refer to defendant by name, but would instead refer to him as an “associate” (527). To this end, the court granted the prosecutor’s request to lead Nicholls so as to prevent any testimony regarding defendant’s participation in criminal activity unrelated to the crimes charged (527). 10 Nicholls testified that he pleaded guilty in Federal Court to conspiracy to alter or remove VINs on stolen cars. He explained that he made fake credit cards and identifications and gave them to Associate A. Associate A gave the items to Associate B, who used them to obtain cars from rental agencies for Associate A, who then had Associate C alter the cars (Nicholls: 708-09). Nicholls also testified that he pleaded guilty to possession of two firearms, one of which belonged to him and the other to Associate A. After Nicholls testified that the .45 belonged to him, defense counsel moved to strike his testimony, arguing that by testifying that the .380 belonged to Associate A, Nicholls had identified defendant as Associate A, whom he had implicated in uncharged crimes (715-18). The court denied defendant’s mistrial motion, but Contrary to defendant’s suggestion (Defendant’s Brief at 59), the prosecutor did not10 “blatantly” violate any court ruling. As established, the prosecutor did not intend to elicit any such evidence. The connection to Associate A and defendant was entirely inadvertent. 50 struck the letter identifiers from the record, so that the record reflected only that Nicholls engaged in crimes with an “associate” (719-20).11 The court subsequently struck Nicholls’s testimony “regarding the forged documents and VIN numbers . . .[,] any mention of the fraudulent documents that he created for them; how they used these documents and the testimony of VIN numbers being altered.” The court instructed the jury that Nicholls’s testimony regarding “any involvement by any associates” was stricken and was to be disregarded (1273-74). It is well settled that “the decision whether to abort a criminal trial must rest, in the first instance, in the sound discretion of the trial court” (Hall v. Potoker, 49 N.Y.2d 501, 505 [1980]; People v. Ortiz, 54 N.Y.2d 288 [1981]), who is best situated to take all circumstances into account and determine whether a mistrial is required. See Owen v. Stroebel, 65 N.Y.2d 658, 660 (1985); Plummer v. Rothwax, 63 N.Y.2d 243, 250 (1984); Hall v. Potoker, 49 N.Y.2d at 504. In ruling upon a defendant’s request for a mistrial, the court must look at the availability of less drastic means to alleviate prejudice. See People v. Young, 48 N.Y.2d 995 (1980). An appellate court should be hesitant to interfere with the exercise of this discretion, especially where the decision involves an assessment of the impact of certain events upon a jury, such as the Nicholls also testified that he and Associate A were involved in a conspiracy to steal11 and cash U.S. treasury checks (Nicholls: 713-14). The court struck all testimony regarding the treasury checks from the record (793, 805-06, 1274). 51 uttering of prejudicial comments. Arizona v. Washington, 434 U.S. 497, 509- 510 (1978); Hall v. Potoker, 49 N.Y.2d at 505. As noted, the court struck Nicholls’s testimony identifying his associates by letter, and also struck any reference by Nicholls to forged documents and VIN numbers and any reference to any involvement by associates with regard to Nicholls’s guilty plea to conspiracy to alter or remove VINs from stolen cars. The court instructed the jury to “disregard” that testimony and that it was “not evidence in this case” (1274). The court reiterated this mandate when it instructed the jury during its final charge that testimony that was stricken from the record should be disregarded by them and “dismiss[ed] from your mind” (1277-78). In the absence of any evidence to the contrary, the jury is presumed to have followed these instructions. See People v. Morris, 21 N.Y.3d 588 (2013); People v. Gause, 19 N.Y.3d 390 (2012); People v. Baker, 14 N.Y.3d 266 (2010). Moreover, there was evidence that the jury followed the instructions. The jury acquitted defendant of possession of the stolen car and possession of the VIN plate, thus demonstrating that it did not simply rush to convict defendant based on Nicholls’s testimony, but carefully considered all of the evidence in reaching its verdict and properly took into account both the presumption of innocence and the People’s burden of proof beyond a reasonable doubt. Because the instructions ameliorated any possible prejudice 52 to defendant, they provided an adequate remedy short of the requested mistrial. See Morris, 21 N.Y.3d at 598; People v. Santiago, 52 N.Y.2d 865 (1981). Moreover, a mistrial was an inappropriate remedy because, if indeed a new trial were held, it was likely that much of the testimony that was admitted would have been admitted in any event, notwithstanding that the prosecutor did not seek to admit it. The longstanding criminal relationship between defendant and Nicholls would have been relevant to understanding why defendant, for example, would have admitted the violent theft of the vehicle to Nicholls, and why he would have trusted Nicholls with the gun used in the robbery. While a fleeting and isolated criminal connection was unlikely to have inspired such trust by defendant, a longstanding and ongoing criminal relationship would have been much more likely to produce that level of confidence. Furthermore, to the extent Nicholls acted as an accomplice to some of the charged crimes, the evidence would have been admissible to show that Nicholls and defendant had acted together in the past. See People v. Arafet, 13 N.Y.3d 460 (2009). Defendant’s reliance on People v. Robinson, 273 N.Y. 438 (1937) (Defendant’s Brief at 63), is misplaced. In Robinson, the Court found that the defendant had been “irretrievably prejudiced if the jury was influenced by the statement of the witness that the matter for which the defendant was on trial was merely ‘one of the various larcenies uncovered’ by the investigation . . .” Given that the court admonished the jury to disregard the statement, the 53 question was whether it could reasonably be said that the court’s admonition removed the influence which the statement otherwise would have had. Id. at 445. Unlike in Robinson, here, defendant could not have been unduly prejudiced by the testimony. First, as noted, the court gave particularly forceful and unequivocal instructions to the jury to disregard the evidence. Second, the charges and evidence against defendant established that defendant had some connection to forged documents, counterfeit money, and stolen cars. The jury knew that the police recovered forged identification and counterfeit money from defendant. The jury also knew that defendant was driving a stolen car, was charged with stealing another car, and had the keys to a third stolen car. Additionally, Nicholls had testified – testimony with which defendant does not take issue – that he created forged documents for defendant, and that defendant had an associate use the documents to rent a car (the stolen Acadia he drove when apprehended). In light of this unchallenged testimony, defendant cannot reasonably argue that Nicholls’s stricken references to Associate A’s participation in various crimes was so prejudicial that he was denied a fair trial regardless of the court’s curative actions. Third, as noted, that defendant was not prejudiced is evidenced by the fact, not present in Robinson, that the jury acquitted defendant of significant charges, including the possession of the stolen car and possession of the VIN plate. Indeed, in light of the unchallenged testimony about 54 defendant’s fraudulent schemes and car thefts, the admitted and stricken testimony was not so "powerfully incriminating" over and above the properly admitted evidence such that reversal is required. See People v. Stone, __ N.Y.3d __ (May 4, 2017). Fourth, unlike Robinson, where the testimony of other larcenies was provided by an investigating detective whose credibility as a law enforcement officer could have powerfully influenced the jury, here, the testimony was provided by an acknowledged criminal and sometimes- accomplice. If Nicholls were deemed credible, the testimony regarding prior crimes would have effectively been irrelevant, because the remainder of his testimony would have rendered defendant guilty of the crimes charged. Finally, any error was harmless in light of the overwhelming proof of defendant’s guilt. Crimmins, 36 N.Y.2d at 241. There is no significant probability that the vague, brief, and stricken references to uncharged crimes in any way influenced the jury’s ultimate decision. POINT FOUR THE PEOPLE PROPERLY DELAYED DISCLOSING THE EXISTENCE OF A COOPERATING WITNESS AND REDACTED CERTAIN POLICE REPORTS PURSUANT TO PROTECTIVE ORDERS (Responding to pro se Brief). Prior to jury selection, the court issued a protective order, pursuant to section 240.50 of the Criminal Procedure Law, delaying disclosure of the identity of the cooperating witness, Carlos Nicholls, as well as the Rosario 55 material relating to Nicholls, until shortly before Nicholls testified. Despite the existence of the orders, defendant claims that he was deprived of his due process right to a fair trial by the delayed disclosure of Nicholls’s existence and the related Rosario and Brady material. This claim is meritless, as the People properly delayed disclosure pursuant to the orders and defendant received the materials in time for him to effectively use them at trial. Criminal Procedure Law § 240.50 allows the court to issue a protective order delaying disclosure of a witness’s identity and other discoverable material for “good cause,” including “a substantial risk of physical harm [or] intimidation” to any person. See also People v. Frost, 100 N.Y.2d 129, 134-35 (2003). Here, the court properly issued a protective order allowing the People to delay disclosing Nicholls’s existence and related discovery material because there was a substantial risk of physical harm or intimidation to Nicholls and his family. According to the People’s application, defendant had been recorded saying he wanted to tamper with the jury and go home by any means possible. Defendant was associated with people who had guns and had spoken to Nicholls about “putting hits” on people. Although Nicholls had been relocated prior to trial, defendant and his girlfriend tried to contact Nicholls through Nicholls’s wife. Defendant knew where Nicholls’s sister-in-law lived, and she knew Nicholls’s new address (6/15/11 Motion for protective order). 56 Moreover, defendant received all discovery material in ample time to use it effectively to aid the defense. To be sure, before opening statements – and a week for Nicholls began testifying, and ten days before cross- examination – defendant was informed that Nicholls was a cooperating witness who would be testifying for the People, and defendant received the proffer agreement, the cooperation agreement, notes taken during the interview of Nicholls, and Nicholls’s prior convictions. Four days later – three days before Nicholls took the stand and six days before cross-examination – the prosecutor gave defendant the federal complaint against Nicholls, and additional pages of proffer notes and statements defendant made to Nicholls. During Nicholls’s direct examination, and three days before cross-examination, the prosecutor turned over Nicholls’s federal plea. Still during the direct examination and two days before cross-examination, the prosecutor informed the defense that Nicholls was with defendant shortly before the shooting, saw the gun used in the shooting, and that defendant had said he was going to steal a BMW the day of the incident. The material, therefore, was provided to the defendant in time for him to investigate and use at trial, which he did. 57 CONCLUSION The Court should affirm the Appellate Division’s order. RICHARD A. BROWN District Attorney Queens County _________________________ By: Nancy Fitzpatrick Talcott ROBERT J. MASTERS JOHN M. CASTELLANO JOSEPH N. FERDENZI NANCY FITZPATRICK TALCOTT Assistant District Attorneys of Counsel June 9, 2017 58 CERTIFICATE OF COMPLIANCE I certify the following in compliance with Rule 500.13 of the Rules of this Court: 1. The foregoing brief was prepared on a computer. 2. The typeface used is Times New Roman. 3. The point size of the text is 14 point. 4. The brief is double spaced, except for the Table of Contents, point headings, footnotes, and block quotes. 5. The brief contains 13,835 words, exclusive of the Table of Contents, proof of service, and the certificate of compliance, based on the word count of the word-processing system used to prepare this brief. Dated: Kew Gardens, New York June 9, 2017 Assistant District Attorney 59