The People, Respondent,v.Scott F. Doll, Appellant.

Brief

N.Y.September 3, 2013

To be Argued by: WILLIAM G. ZICKL, ESQ. Time Requested for Argument: 30 Minutes STATE OF NEW YORK COURT OF APPEALS -----------0---------- THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff-Respondent, v. SCOTT F. DOLL, Defendant-Appellant Appellate Division (4th Dept.) Docket Number: KA 11-00150 Genesee County Indictment No. 5222 BRIEF FOR PLAINTIFF-RESPONDENT By: Brief completed: January 25, 2013 LAWRENCE FRIEDMAN, ESQ. District Attorney of Genesee County WILLIAM G. ZICKL, ESQ. MELISSA LIGHTCAP CIANFRINI, ESQ. ASSISTANT DISTRICT ATTORNEYS Attorneys for Plaintiff-Respondent Genesee County Courts Facility One West Main Street Batavia, New York 14020 Telephone: (585) 344-2550, Ext. 2250 Fax: (585) 344-8544 Statement Pursuant to 22 NYCRR 500.13(a) As of the date of the filing of this appeal, there is not any pending related litigation. TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................................................ iii QUESTIONS PRESENTED ... .. ..... .. ..... . ... ... ...... ... ... .. ... .... ... . .. . .. ... .. .... ... .. . ..... 1 1. Were the Defendant's Statements Properly Admitted at Trial? The Appellate Division, Fourth Department Held That They Were 1 2. Was the Detention of the Defendant Constitutionally Permissible? The Appellate Division, Fourth Department Held That It Was ............................. . 1 3. Was the Seizure of Property From the Defendant Proper? The Appellate Division, Fourth Department Held That It Was 1 STATEMENT OF FACTS .. .. . . ...... . ..................... . .. . ......... . .. . . . . ...... . ...... . ....... 1 Preliminary Statement 1 Factual Background Established at the Suppression Hearing ....... . ...................... 1 Procedural Posture .......................................................................... .... 36 ARGUMENT .. . .. . . . ...... . ......... . ... . ... . ..... . ......... .. ..... .. .................................. 38 POINT I THE STATEMENTS MADE BY THE DEFENDANT WERE PROPERLY ADMITTED AT TRIAL ............................................................................. 38 A. Introduction ........... .. ....................... . ................................................. .... 38 B. The Issues Raised By The Defendant Are Largely Outside The Scope of Review of This Court ...................................................................................... 38 C. The Defendant's Custodial Statements Were Properly Admitted At Trial Pursuant to the Emergency Doctrine and the Lower Court Properly Determined That the Defendant's Friend Was Not An Agent ofthe Police .. . .. . ..................... 40 1. Statements to the Deputies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 40 2. Statements to Teresa Zelaszkiewicz ...... ... .. ....... ...... .... .. .. .... ...... ......... 48 D. Harmless Error . .. .. ....... .. ....... . ............ . .... . .. .. . ........ . ............. . .. ,. . .. .. . ... . .. 51 CONCLUSION ........ . ............................ . .......................... . .... . .................. 52 POINT II ........... . ......... . ............................................................. .. ............. 52 THE APPROACH AND DETENTION OF THE DEFENDANT WERE PROPER .... .. 52 A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 52 B. The Issues Presented By the Defendant Are Largely Beyond The Scope of Court of Appeals Review ............. ,. .......... .. ... ......... ... ... .. . .. . .. . ... ... .. ..... .. ..... 53 C. The Defendant's Claim That His Detention Violated His Right to Be Free From Unreasonable Seizure Is Without Merit, and the Trial Court Properly Admitted His Statements and the Items of Physical Evidence Seized From Him At Trial .. . ...... . .. . ..... ...... ... .. .. .. . .. .. .. .. . .. .. . .. . ... ... . .. ... ... .. . ...... . .. .. .. .... 53 1. The Defendant's Detention .................................... .. ........................ 54 2. Fruit of the Poisonous Tree ....... . .... ...... ...... ... ...... .. .. .... .. .. .......... .. .. . 59 CONCLUSION .. . ... ... .. ................. . .... . .. ... ....... ......................... . ..... . .......... 60 POINT III ............ . .......... ... . . ... . ..... ...... . . .. .................. . . , .. . ..... . .. .. . .. ... ... ...... 61 THE SEIZURE AND SUBSEQUENT SEARCH OF DEFENDANT'S VEHICLE WAS PROPER AND THE EVIDENCE SEIZED PURSUANT TO THE SEARCH WARRANTS ISSUED BY THE GENESEE COUNTY COURT WAS PRO PERL Y ADMITTED AT TRIAL ............................................................................ 61 CONCLUSION .. . .. ... ........ .. . .. .. ... .... . .... .. ... .. ...... . .. ..... . ... .. .. .. ... . .. .. . .... ... .. ... 65 11 T ABLE OF AUTHORITIES CASE LAW Brewer v Williams, 430 US 387 ................................................................ 50 Brigham City v Stuart, 547 US 398 ........................................................ ... 56 Dunaway v New York, 442 US 200 ........................................................... 54 Kyllo v US, 533 US 27 ..................................................................... 47,48 Michigan v Fisher 130 US 546 .................................... . ........................... 65 Michigan v Fisher, 558 US 45 .................................................................. 57 NY v Quarles, 467 US 649 ............................................................... 45, 58 Oliver v US, 466 US 170 ........................................................................ 48 People v Ambrose, 264 AD2d 629, Iv denied 94 NY2d 876 .............................. 42 People v Andino-Nieves, 9 NY3d 12 ......................................................... 45 People v Bahr, 35 AD3d 909, Iv denied, 8 NY3d 919 ...................................... 61 People v Benefield, 203 AD2d 925, 4th Dept, Iv denied, 84 NY2d 822 .............. .... 64 People v Bongarzone-Searcy, 6 NY3d 787 .................................................. 39 People v Boyd, 3 AD3d 535, Iv denied 2 NY3d 737 ....................................... 45 People v Brewer, 28 AD3d 265, Iv denied, 7 NY3d 753 .................................... 41 People v Carby, 198 AD2d 366, Iv denied 82 NY3d 922 ................................... 42 People v Cardona, 41 NY2d 333 .............................................................. 40 People v Carvalho, 60 AD3d 1394, Iv denied 13 NY3d 742 ............................... 48 People v Cascio, 79 AD3d 1809, Iv denied 16 NY3d 689 .................................. 50 People v Castillo, 80 NY2d 578 ............................................................... 63 III People v Catalano, 80 AD2d 587 .............................................................. 52 People v Chestnut, 51 NY2d 14 .................. .......................... . ......... 41,55,57 People v Crimmins, 36 NY2d 230 .............................................................. 51 People v Dallas, 8 NY3d 890 ......................................................... 39,56,57 People v DeBour 40 NY2d 210 ............................................................ 55,58 People v Desmarat, 38 AD3d 913, Iv denied 10 NY3d 933 ................................ 41 People v Dillon, 44 AD3d 1068 (2d Dept 2007) ...... ......... ............ ...... ..... ..... 47 People v Douglas, 4 NY3d 777 ................................................................. 51 People v Etoll, 51 NY 2d 840 ............................................................... ... 64 People v Ferro, 63 NY2d 316 ................................................................. 50 People v Gomez, 5 NY3d 416 .............................................. . .................. 54 People v Grant, 94 AD3d 1149 (2nd Dept, April 2012) .................................... 60 People v Green, 74 AD3d 1899, Iv denied 15 NY3d 852 ................................. 52 People v Greenidge, 91 NY2d 967 ........................................ . .................. 53 People v Harrison, 82 NY2d 693 .............................................................. 40 People v Hernandez, 43 AD3d 1412, Iv denied 9 NY3d 1043 ...... ..................... 51 People v Herring, 179 AD2d 549, Iv denied 79 NY2d 948 ............ . .................... 41 People v Hetrick, 80 NY2d 344 ............................................................... 61 People v Hicks, 68 NY2d 234 ............................................................. 43, 54 People v Hill, 12 Cal 3d 731 (1974) ........................................................... 41 People v Hodge, 44 NY2d 553 ................................................................. 41 People v Hodge, 44 NY3d 553 ................................................................. 54 People v Holmes, 63 AD3d 1649, Iv denied 12 NY3d 926 ................................. 60 IV People v Isidro, 6 AD3d 1234, Iv denied 3 NY3d 659 .................. . .................. 42 People v Jackson, 17 AD3d 148, Iv denied 5 NY3d 790 .................................... 60 People v Jassan J, 84 AD3d 620, Iv denied 18 NY2d 925 at p. 623 ..................... 52 People v Jassan J, 84 AD3d 760, Iv denied 18 NY3d 925 .................. 42,46,47,55 People v Jean, 13 AD3d 466, Iv denied 5 NY3d 764 ....................................... 49 People v Johnson, 66 NY2d 398 .......................................................... ..... 61 People v Jones, 2 NY3d 235 .................................................................. 59 People v Kello, 96 NY2d 740 .................................................................. 51 People v Kimes, 37 AD3d 1; Iv denied 8 NY3d 881 ........................................ 45 People v Krom, 61 NY2d 187 ................................................................. 45 People v Levan, 62 NY2d 139, citing Payton v New York, 445 US 573 .................. 47 People v Loomis, 17 AD3d 1049, Iv denied 5 NY3d 830 .................................. 60 People v McCloud, 262 AD2d 661 (2d Dept 1999) .......................................... 41 People v McLaurin, 70 NY2d 779 ......................................................... . ... 54 People v Mitchell, 39 NY2d 173 ....................................................... 55, 56, 57 People v Molnar 98 NY2d, at p. 333 .......................................................... 45 People v Molnar, 98 NY2d 328 ............................................. 39,47,48,54,58 People v Molnar, 98 NY2d 328 at p. 335 ................................................. . .. 60 People v Oquendo, 252 AD2d 312, Iv denied 93 NY2d 901 ..................... 45,54,58 People v Padilla, 28 AD3d 236, Iv denied 7 NY3d 760 .................................... 60 People v Ray 65 NY2d 282 ................................................................ 49, 50 People v Reyes, 62 AD3d 570, Iv denied 13 NY3d 748 ..................................... 52 People v Richardson, 9 AD3d 783, Iv denied 3 NY3d 680 ................................ 60 v People v Rivers, 56 NY2d 476 ................................................................... 51 People v Robinson 282 AD2d 75 ............................................................. 54 People v Rodriguez, 77 AD3d 280, Iv denied 15 NY3d 955 ......... 41,42,46,48,56,57 People v Rossi, 99 AD3d 947 (2d Dept 2012) .............................................. 42 People v Ryan, 12 NY3d 28, etc. ........................................................... ... 54 People v Salazar, 290 AD2d 256, Iv denied 97 NY2d 760, citing People v Mitchell, 39 NY2d 173 .............................................. 42, 43 People v Stein, 306 AD2d 943, Iv denied 100 NY2d 599 .................................. 60 People v Sweezey, 215 AD2d 910, Iv denied 85 NY2d 980 ............................... 61 People v Tankleff, 84 NY2d 992 ............................................................... 39 People v Thomas, 188 AD2d 569, Iv denied 81 NY2d 1021 ............ ............ ...... 60 People v Tolentino, 14 NY3d 382 ............................................................. 60 People v Trovato, 68 AD3d 1023, Iv denied 14 NY3d 806 ............................. 49,50 People v Velazquez, 68 NY2d 533 ............................................................ 49 People v Walker, 55 AD3d 343; Iv denied 11 NY3d 931 ................................... 41 People v Wannamaker, 93 AD3d 426 (15t Dept March, 2012) ............................. .42 People v Watkins, 59 AD3d 1128, Iv denied 12 NY3d 922 .. .......... ........ ........... 51 People v Welch, 2 AD3d 1354, Iv denied 2 NY3d 747 ..................................... 63 People v White, 70 AD3d 1316, Iv denied 14 NY3d 835 .................................. 61 People v Williams, 16 AD3d 151, Iv denied, 5 NY3d 771 ................................. 42 People v Williams, 17 NY3d 834 ............................................................. 53 People v. Rodriguez, 77 AD3d 280, Iv denied 15 NY3d 255 .............................. 56 Rhode Island v Innis, 446 US 291 ............ . ............................................. ... 50 USv Chipps, 410 F3d438 (8th Cir2005) ..................................................... 41 VI STATUTES Criminal Procedure Law Section 710.30 .................................................... 37 Environmental Conservation Law Section 11-0901(4)(b)(10) ............................ 44 Environmental Conservation Law Section 11-0907(2)(f) ................................. 44 Environmental Conservation Law Section 71-0921 (1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .... 44 Penal Law Section 120.05(1) ................................................................... 58 Penal Law Section 120.10(1) ...... .................. ...... ........ .......... ............ ..... 58 Penal Law Section 124.20(1) ................................................................... 58 Penal Law Section 125.25(1) ................................................................... 58 Vehicle and Traffic Law Section 600-2(c)(i) ................................................. 58 TREATISE 3 LaFave, Search and Seizure Section 6.6[a], 4th Edition .................................. 52 Vll QUESTIONS PRESENTED 1. Were the Defendant's Statements Properly Admitted at Trial? The Appellate Division, Fourth Department Held That They Were 2. Was the Detention of the Defendant Constitutionally Permissible? The Appellate Division, Fourth Department Held That It Was 3. Was the Seizure of Property From the Defendant Proper? The Appellate Division, Fourth Department Held That It Was STATEMENT OF FACTS Preliminary Statement: February 16,2009 would be the last day of Joseph Benaquist's life. On that day, he would be brutally attacked by his business partner and friend, Defendant Scott F. Doll. The Defendant dispatched his victim by delivering seven to eight crushing blows to the victim's head with a blunt instrument. The Defendant left Mr. Benaquist's body between two parked cars in the driveway of Mr. Benaquist's home and departed. After the Defendant left the murder scene, the following events unfolded as testified to at a suppression hearing held on June 16,2009 and during a 13-day jury trial held from May 3,2010 - May 20, 2010: Factual Background Established at the Suppression Hearing: On or about February 16, 2009 at approximately 8:44 p.m., Genesee County Sheriff's Office Dispatcher Jason Holman (hereinafter, "Dispatcher Holman") received a call from a member of the Pembroke Fire Department regarding a suspicious person. (A. 213 - 215). [FNl] I All citations to the Appendix shall hereinafter be abbreviated as "CA. -----.J" followed by the corresponding page number of the Appendix filed previously. 1 Thereafter, Deputy James Diehl (hereinafter "Dep. Diehl") heard a report from the Genesee County Sheriff s Office (hereinafter "GCSO") Dispatch Center regarding a suspicious person located on North Lake Road in the Town of Pembroke. (A. 225). Dep. Diehl was on duty, in uniform and in a marked patrol vehicle at the time. (See id.). After hearing the dispatch, Dep. Diehl patrolled to the area of Route 5 and North Lake Road. (A. 227). Dep. Diehl testified that he found a person matching the description of the suspicious person wearing a one-piece full camouflage suit located on the east side of North Lake Road just south of the intersection of Knapp and Gabbey Roads. (See id and 229). The man was walking northbound on North Lake Road and was wearing a white hood. (See id and 228). Upon seeing the person matching the description, Dep. Diehl pulled his patrol vehicle to the east side of North Lake Road. (A. 229). The man turned towards Dep. Diehl and started walking slowly towards him. (See id). Dep. Diehl exited his patrol vehicle and noticed that a large (12 - 12.5 inch), black, cylinder object fell from the individual's pocket. (A. 229 - 230). Dep. Diehl further noticed a black cylinder object sticking out of the person's right waist pocket. (A. 230). Dep. Diehl asked the person what he was doing. (See id) The man replied, "walking." (Id). Dep. Diehl thereafter motioned to the object in the individual's pocket, because he was concerned that it could possibly be a weapon. (See id.). The man placed his left hand in the air and using his two fingers on his right hand slowly removed the object from his pocket so that Dep. Diehl could see it. (See id.). It appeared to Dep. Diehl to be a "lug wrench or something like that used to change a tire." (Id). At this point, Dep. Diehl also noticed that the individual had wet marks on his knees and thigh 2 areas of his camouflage suit, which Dep. Diehl said appeared to be fresh blood. (A. 230 - 31). Dep. Diehl also saw a quarter-sized blood mark on his right knuckle. (A. 231). While speaking to the individual, Dep. Diehl was able to see that the individual was also carrying a screwdriver in his pocket. (See id.). Dep. Diehl again asked the man where he was going. (See id.). The man replied that he "was just going for a walk" and he was "trying to lower his heart rate and cholesterol because he had a doctor's appointment the next morning." (A. 231 and 246). Dep. Diehl requested and was given two forms ofID: a New York State Driver's License and a State Correctional ID card from the individual. Both contained the name Scott Doll. (A. 231 - 232). At the hearing, Dep. Diehl made an in-court identification of the Defendant Scott Doll (hereinafter, the "Defendant"). (A. 232) Thereafter, Dep. Diehl inquired from where the Defendant was coming. (See id.). The Defendant indicated that he was coming down from the comer and that he had parked his mother's van there. (A. 232 - 33). After questioning from Dep. Diehl, the Defendant stated that he lived in Corfu. (A. 233). Dep. Diehl knew Corfu to be a "nice village" and asked why he was walking in this area if he lived in Corfu. (See id.). The Defendant responded that "he had just come back from dropping off a car at ADESA,[FN2] and on the way back he just stopped to walk." (Id.). After Dep. Diehl made further inquiries regarding the Defendant's trip from ADESA and his mother's van, the Defendant asked Dep. Diehl to give him a ride back down to the comer. (A. 233). Dep. agreed to give the Defendant a ride and asked him to step to the passenger side of his patrol car. (See id.). The Defendant walked back to the mailboxes and retrieved the jack that had fallen from his pocket when he initially 2 ADESA is a dealer - only wholesale automobile auction facility. 3 encountered Dep. Diehl and proceeded to the passenger side of Dep. Diehl's patrol vehicle. (A. 234). Upon the Defendant sitting in the back of the patrol vehicle, Dep. Diehl requested and was given the jack, screwdriver and lug wrench. (See id). Dep. Diehl advised the Defendant that he was taking these items so thatthey would not damage the leather seats of his vehicle. (See id). After the Defendant entered the patrol vehicle, Dep. Diehl noticed that the Defendant was wearing very worn - and apparently bloody - sneakers. (A. 234 - 35). Dep. Diehl inquired of the Defendant why he was carrying the jack, screwdriver and lug wrench. (A. 235). The Defendant replied that he was going to a friend's house "just up the road." (Jd). The Defendant could not remember the name of the road, but motioned to the intersection of Gabbey and Knapp Roads and stated that you take a right and then another right - away from what the police later learned was the victim's home. (See id). As the Defendant and Dep. Diehl were speaking, the 9] 1 caller drove past Dep. Diehl's vehicle, exited his pick-up truck and approached the deputy. (A. 236). The 911 caller advised Dep. Diehl that he had seen the person now in the rear of his patrol vehicle at the corner of Route 5 and North Lake Road. (See id.). He further stated that, as he turned the corner, the individual had turned away from him and crouched down between two parked vehicles. (See id). The 911 caller told Dep. Diehl that he watched the individual walk up North Lake Road. (A. 236 - 37). The 911 caller's passenger also affirmed the account told to the deputy. (A. 237). After speaking with the 911 caller and his passenger, Dep. Diehl returned to his vehicle, asked the Defendant to step out, had the Defendant face the patrol vehicle, 4 placed his hands behind his back, and then handcuffed and patted the outer layer of the Defendant's clothes. (A. 237 - 38, 260). The Defendant asked Dep. Diehl what was going on. (A. 238). Dep. Diehl testified that "[I] didn't know what was going on, that some of the statements [the Defendant] made to [me] weren't making much sense. I told him that at the time he wasn 'f under arrest, but he was being detained until I could figure out what had happened or what was going on." (Id.)( emphasis supplied). Dep. Diehl testified at the suppression hearing that the Defendant had blood on his body and camouflage suit. (A. 244 - 245). Specifically, Dep. Diehl observed what appeared to be fresh blood on the knee and thigh area of the Defendant's camouflage suit, on the Defendant's left cheek, above the Defendant's left eyebrow, and on the Defendant's nose. Dep. Diehl testified that the areas on the camouflage suit appeared to be "very, very wet blood that ... soaked into his coveralls." (A. 246). The deputy asked the Defendant, "what's the deal with all this blood?" (A. 238). The Defendant stated, "1 butcher deer." and further, that "it was cold out and [1] threw the coveralls on. They were sitting in the garage, and [I] just threw them on." (A. 240). After this exchange, Dep. Diehl drove the Defendant to the location where the Defendant had parked his mother's van on Route 5. (A. 238). While driving, Dep. Diehl asked the Defendant questions about the type of van he was driving. (A. 239). The Defendant told him it was a red Ford van. (See id.). Dep. Diehl testified that, while this was occurring, his primary concern was to "try ... to figure and piece together everything, and with the blood 1 wanted to see what was in the van, what - pretty much where the blood had come from." (A. 240). When the Deputy arrived at the location where the van was parked, he exited his patrol vehicle and 5 walked towards the back of the van. (See id). After reaching the back of the van and turning around, the Deputy saw a pair of what appeared to be bloody, winter work gloves on a blue vehicle parked next to the van. (A. 240 - 41). At approximately 9:28 p.m. Deputy Patrick Reeves (hereinafter "Dep. Reeves") arrived in uniform and in a marked patrol vehicle at the secondary scene, the repair shop, and pulled in behind Dep. Diehl's patrol vehicle. (A. 241, 259, 278 and 338). Dep. Reeves exited his patrol vehicle and spoke with Dep. Diehl about Dep. Diehl's observations at the scene and of the Defendant and his conversations with the Defendant. (See id). Dep. Diehl testified that he did not give the Defendant Miranda warnings. (A. 262). Dep. Reeves and Dep. Diehl examined the outside of the van and saw blood on the back driver's side passenger door and driver's side headlight. (A. 243 - 44). They also noticed blood in the snow. (A. 243). Dep. Reeves advised Dep. Diehl that he was familiar with the Defendant as he had worked for the Defendant's family's business, had handled accidents involving the Defendant's family members and seen him countless times in the Corfu/Pembroke area. (A. 279). After speaking with Dep. Diehl, Dep. Reeves reviewed the scene at the repair shop. (A. 280). Dep. Reeves testified that he observed what appeared to be blood in the snow in the area around the van, and on the van's front driver's side fender and the rear passenger side. (See id). Dep. Reeves also observed what appeared to be "blood soaked" heavy work gloves on the hood of a vehicle parked beside the van. (A. 281). Dep. Reeves noted that Dep. Diehl appeared "concerned, scared almost." (See id). Before speaking to the Defendant, Dep. Reeves shone his flashlight inside the rear 6 compartment and saw blood on the Defendant's face - around his nasal area, and on his cheek and lower part of his jaw. (See id). Dep. Reeves noticed what appeared to be "g lot" of "fresh" blood on his right thigh and knee area of his camouflage suit. (A. 283)(emphasis supplied). Dep. Reeves first spoke with the Defendant while the latter was handcuffed and seated in the rear of Dep. Diehl's patrol vehicle, with Dep. Reeves' beside the vehicle with the door open. (A. 282). Dep. Reeves asked the Defendant, "Scott, what is going on?" (A. 283). The Defendant shrugged his shoulders and said, "I'm taking a walk, getting a cardio work-out." (Id). Dep. Reeves next asked him, "Why are you covered in, you know, blood? I mean did you just shoot a deer or something out of season? You know, what's the deal? Where are you headed to?" (Id.). The Defendant responded, "oh, just up the road going to a friend's house." (Id). Dep. Reeves then asked, "what road?" The Defendant was unable to name of the road or describe where he was going, although he had described his destination earlier in his encounter with law enforcement. (See id and 235). Dep. Reeves also noticed the Defendant's dress was inappropriate for a work-out on that cold night. (A. 289). Dep. Reeves noted that the coveralls were old and the sneakers' soles were worn with holes in them. (See id and 287). The Defendant offered in response to questions regarding the presence of blood on him and his clothing that his coveralls were old with deer blood on them. (A. 283)(emphasis supplied). Dep. Reeves responded, "no, its obvious that this is fresh blood . ... Did you shoot a deer?" (A. 283 - 284)(emphasis supplied). Defendant responded, "1 can't tell you that." (A. 284) (emphasis supplied). At this point, Dep. Reeves' heart was pounding, because he now thought it may 7 be a person's blood since the Defendant failed to confirm that the blood was from a deer or that he had just shot a deer out of season. (See id). Dep. Reeves inquired of the Defendant, "is there somebody out there that 1 can get an ambulance for (sic)?" (ld). The Defendant responded, "1 can't tell you that." (ld). Dep. Reeves begged the Defendant to tell him, "if it was human blood, ... could you tell me where 1 could go and get an ambulance for somebody [whether} he [the Defendant} hurt someone or watched somebody hurt somebody?" (A. 285)(emphasis supplied). Dep. Reeves further stated, "at least can I get an ambulance, you know, from the bottom of [the Defendant's] heart to mine?" The Defendant merely responded, "1 can't tell you that. Pat, you know me better than that." (See id and 302)( emphasis supplied). Dep. Reeves tried a different route by asking the Defendant directly to tell him it was deer blood and explained that the worst that would happen was the Defendant might lose his hunting license for a period of time or get fined. (See id). The Defendant stated to Dep. Reeves, "You know, listen, Pat. You know, I'm a few months from retiring. You know, I can't tell you that." (ld). Dep. Reeves stated to the Defendant, "what do you want me to do?" (A. 290). The Defendant said, "you know, I guess an attorney." (Id). Dep. Reeves asked for the Defendant's attorney's name, but the Defendant could not remember and simply stated, "my divorce attorney. I don't know his name." (1d). Dep. Reeves removed the Defendant from the patrol vehicle to show him the apparent blood spots on his mother's van. (A. 286). He asked the Defendant about the presence of blood on the van's front fender. (See id). The Defendant replied that he couldn't tell Dep. Reeves. (A. 287). 8 While the Defendant was walking outside, Dep. Reeves noticed that the Defendant was leaving "two very obvious blood soaking spots in the snow." (A. 286 - 87). Dep. Reeves noticed again that the Defendant's sneakers were very worn with holes in the bottoms. (A. 287). After placing the Defendant back in the patrol vehicle, Dep. Reeves told the Defendant, "I'm hoping it's just a deer in a ditch or a side field. Just show me where it is and we're all going home. It' s freezing cold. You know, I'm going to have to call an investigator. I mean there is obviously some thing, a person - you know, if this is somebody's blood on you, then, you know, I'm going to have to call out an investigator, you know, potentially tow your vehicle ... and secure it so we can find out whose - you know, what kind of blood it is." (A. 287 - 88). The Defendant stated to Dep. Reeves, "Do what you got to do." (A. 288). Dep. Reeves next called Investigator Kristopher Kautz (hereinafter "Inv. Kautz") and requested that he report to the scene at the repair shop. (A. 290 - 91). Dep. Reeves had been at the scene for approximately ten minutes when he called Inv. Kautz. (A. 304). Inv. Kautz agreed to go to the scene and was briefed by the deputies about the developments. (A. 291,312). When Inv. Kautz arrived at the repair shop, he was advised by the deputies of the developments thus far, the Defendant's inconsistent answers to the deputies' questions and also that the Defendant had requested an attorney. (A. 312,336 and 318). Inv. Kautz began his review of the scene, which included examining the van, footprints in the snow, and a pair of gloves near the van. (A. 313). He also photographed the scene documenting the distribution of blood throughout the scene. (See id.). Inv. Kautz also examined the 9 Defendant at the scene and observed blood on the Defendant's camouflage suit, sneakers, and various areas of his face. (See id and 316). U sing his flashlight, the Investigator could see inside the van and noted red stains on the steering wheel, driver's arm rest, floor board area and in the rear hatch area. (A. 319). Inv. Kautz also noticed that the storage compartment which had contained the jack was opened and had been removed without the storage door being returned to its original location. (See id). At approximately 11 :48 p.m., Inv. Kautz requested that the van be towed from the scene to the GCSO garage as, in his opinion, it was evidence of a possibly different or yet unrealized matter and also because of the various locations of blood on it. Inv. Kautz was also concerned that the van and other items of evidence could possibly be destroyed or in the case of the van, be removed form the scene by the owner, the Defendant's mother (A. 340). Moreover, the property owner did not want the vehicle to remain on his premises. (A. 316 - 17, 323 and 338). The tow truck arrived at approximately 11 :540 p.m. and followed the Investigator to the GCSO garage. (A. 323). Inv. Kautz testified that the footprints appeared in such an orientation to the van to conclude that the person leaving them was exiting the van's front driver side door. (A. 314). According to Inv. Kautz, the footprints contained a substance consistent with blood. (A. 314 - 15). The bloody gloves were also secured into evidence by Inv. Kautz. (A. 320). Inv. Kautz and the Deputies searched the area of the repair shop to ascertain whether there was any further evidence of what may have produced the blood or if there was any forced entry to the building. (See id). The search provided no further evidence. (See id). 10 Inv. Kautz spoke with the Defendant at the scene and noticed what appeared to be blood on this face. (A. 317). Inv. Kautz asked the Defendant "if there was a person nearby somewhere that was either injured or in need of some sort of medical attention possibly." (A. 318). The Investigator also advised the Defendant it would behoove him to advise him if someone needed assistance and that it would greatly benefit him in the end no matter what the outcome to do so. (See id.). Inv. Kautz stated that, based on what he saw at the scene and knew, he was concerned that "someone was injured and that [the Defendant] was either involved in some sort of personal injury accident possibly or an assault and that somebody may be in need." (A. 318 - 19). As opposed to his responses to Dep. Reeves, the Defendant now stated that he did not know of anybody anywhere and he couldn't tell the Investigator anything further. (A. 320). The Investigator limited his questions to asking about a possible suffering victim, but did not question him further. (A. 336). Inv. Kautz had the Defendant step from the vehicle at some point and performed a search of his person. (A. 322). The Defendant had a wallet containing identification, a cigarette lighter, a Pontiac key and a receipt from Doll's Super Duper. (A. 322). Inv. Kautz and Dep. Reeves testified that they each participated in performing welfare checks on some ofthe Defendant's family members and friends. (A. 292 and 320 - 21). Deputies Reeves and Diehl also performed a search of North Lake Road. (A. 294). Dep. Reeves later contacted the repair shop owner regarding the Defendant's permission to park on the property. (A. 293). The Defendant was transported to the GCSO for the purpose of collecting his clothing and photographing him. (A. 315). While in the process of photographing the 11 Defendant, but prior to the collection of the Defendant's clothes, the Investigator and Defendant learned via a live radio transmission that a body had been discovered at approximately 1 :30 a.m. (A. 322, 332). The Investigator did not observe any reaction from the Defendant. (A. 333). Inv. Kautz also collected three separate swabs taken from blood that was on the Defendant's face as he was concerned that the evidence could be purposefully or inadvertently destroyed by the Defendant. (A. 316 and 343). At approximately 3:35 a.m. on February 17, 2009, Inv. Kautz was informed that two females were at the GCSO and wanted to speak with the Defendant. (A. 323). One was the Defendant's girlfriend and the other was a retired correctional officer and the Defendant's close, personal friend, Teresa Zelaszkiewicz. (A. 324 - 25). The latter, Ms. Zelaszkiewicz was insistent about seeing the Defendant. (A. 325). The Investigator talked to the two females about the situation, but did not reveal that a dead body had been discovered. (A. 324 - 25). Inv. Kautz decided to permit Ms. Zelaszkiewicz to speak with the Defendant; however, she was reminded that the request was completely her idea and that he would be present and taking notes during her entire conversation with the Defendant. (A. 325 - 26). Defendant was located in an eight foot wide by twelve foot long room. (A. 326). The Defendant, Ms. Zelaszkiewicz and the Investigator were present in the room and in close proximity to each other -- within five to six feet (A. 326 - 27). Inv. Kautz took notes of Ms. Zelaszkiewicz's and the Defendant's conversation in their presence. (A. 327). Inv. Kautz testified as to the following colloquy between the Defendant (referred 12 to below as "Def' and Ms. Zelaszkiewicz (referred to below as "TZ"): TZ: What happened? Def: You know, I was there (sic) but I didn't do anything. TZ: [Did] something [go] wrong in your head? Def: No. TZ: Did this involve an animal? Def: No. TZ: Tell me there is no dead body. Def: I can't do that. TZ: [I] received a text from Stacy and Stacy was scared. (A. 329) Inv. Kautz next testified about spontaneous statements that were made by the Defendant to Ms. Zelaszkiewicz and they included the following: "Let the chips fall where they may." "Oh, I'm going to be in jail somewhere I'm sure." "It doesn't matter what attorney I get." "It's going to tum out the same." "It's an open and shut case." "I will get what I deserve I guess." (A. 330 - 31). The Defendant was arrested in the early morning hours of February 17, 2009 after Inv. Kautz had collected the Defendant's clothes. (A. 339). Factual Background Established at the Trial: Report of a Suspicious Person On February 16,2009 between approximately 8:30 p.m. to 8:45 p.m., Jamie Waff, 13 a second assistant chief of the Pembroke Volunteer Fire Department and maintenance worker for the Genesee County Nursing Home and Village of Corfu, was driving home when he observed movement in a business parking lot located near the intersection of Route 5 and North Lake Road in Pembroke, New York. (A. 463 - 465). When Mr. Waff looked into the parking lot, he saw an individual wearing camouflage and a white Nomex hood [FN3]. (A.464, 468). The individual turned around with his back to the road after making eye contact with Mr. Waff. (A. 464 - 65). Mr. Waff continued to drive north on North Lake Road watching in his rearview mirror as the individual walked north on the same road. (A. 467). Mr. Waff decided to turn around and proceed back to Route 5 "to see what this person was up to." (A. 469 - 70). Mr. Waff saw the individual again walking northbound on North Lake Road near the Back Street intersection. (A. 470). Mr. Waff testified that the individual appeared to be carrying something by his side. (See id). Mr. Waff also observed that the individual's knees appeared to be "wet like he had been kneeling." (Id). As a result of his observations, Mr. Waff called an emergency dispatcher to make a report of a "suspicious person." (Id). Mr. Waff turned around and proceeded north on North Lake Road keeping "visual contact on the subject walking down the road until the deputy arrived." (A. 471). Mr. Waff testified that approximately seven to ten minutes elapsed from making the call to dispatch until the deputy arrived. (See id.). Mr. Waff testified that the individual was stopped by the Deputy in front of the last house on West Lake Road. (See id). During this time, Mr. Benaquist was lying in his driveway a little less than 600 feet from where the Defendant was stopped by law 3 A Nomex hood is a hood used by fire department personnel for protection from bums and heat. CA. 468). It covers the entire head with an opening for the eyes only. CA. 468). 14 enforcement on West Lake Road. (A. 2092 - 93, P's Ex. 2). Despite his proximity to Mr. Benaquist, in his differing statements to the responding Deputies, the Defendant never told them about Mr. Benaquist's injuries or where Mr. Benaquist was located. The Stop of the Defendant by Deputy Diehl On the evening of February 16, 2009, Genesee County Sheriff's Office (hereinafter, "GCSO") Deputy James Diehl (hereinafter, "Dep. Diehl") received a dispatch to proceed to North Lake Road in response to Mr. Waff's report of a suspicious individual walking on North Lake Road. (A. 481). Dep. Diehl was in uniform and in a marked patrol vehicle at the time. (See id). Dep. Diehl located the individual described in the dispatch walking northbound on the east shoulder of North Lake Road just south of the intersection of Knapp and Gabbey Roads. (A. 482, 484 - 85, and see also, People's Exhibit 2). Dep. Diehl testified that the individual was wearing a one-piece camouflage coverall suit, a white "hood sock . .. like firemen or snowmobilers might wear ... ", and had bulges on either side of his person where pockets would be located. (A. 485). Dep. Diehl marked on a photograph (Peo. 's Ex. 2) approximately where he had located the Defendant on North Lake Road and gave an overall description of the area and location of the roads to the jury. (A. 1963 - 1964). Upon locating the individual, Dep. Diehl pulled his patrol vehicle within twenty feet of him, stopped, and exited his patrol vehicle. (A. 486). After Dep. Diehl exited, the individual turned to his right towards the Deputy. (See id). As the individual turned, Dep. Diehl observed an object fall from the individual's left pocket to the ground. (See id). The individual looked at the object, but did not attempt to pick it up. (A. 487). The 15 individual walked towards Dep. Diehl. (See id). The individual removed a black cylinder object (later identified as a tire lug wrench) from his right pocket and showed it to Dep. Diehl. (See id). The individual next removed his hood (later received into evidence as People's Exhibit 6). (See id and 491). Dep. Diehl asked him what he was doing. (See id). The individual informed Dep. Diehl that he "was just walking." (Id ). This would be the first of many different explanations given to law enforcement that evenmg. Dep. Diehl inquired why he was walking. The individual replied that he "had a doctor's appointment tomorrow and [he] wanted to lower [his] heart rate and [his] cholesterol." (Id). Dep. Diehl requested identification at this point. (See id). The individual produced two forms of ID: a New York State Driver's License and a New York State Correctional ID Card. (See id). Both forms identified the individual as Scott F. Doll with a date of birth of May 16, 1962. (A. 487, 489). While reviewing the IDs, Dep. Diehl observed wet blood marks on the knees and thigh areas of the Defendant's coveralls. (A. 488). Dep. Diehl also saw a "quarter sized" dried blood mark on the knuckle of the Defendant's ring finger. (Jd). The Defendant still had the tire lug wrench and a screwdriver in his right pocket. (See id) . Dep. Diehl asked the Defendant again why he was walking in the area. (See id). The Defendant provided a different explanation this time: The Defendant claimed that he had just dropped off a vehicle at the ADESA car auction on Route 5 and had parked his car at the garage at the corner downtown (referring to the intersection of Route 5 and North Lake Road). (See id, 1470). This was, in fact, a lie. (A. 1470). The Defendant 16 confirmed that car auctions took place on Tuesdays at ADESA. (A. 489, 1434). Dep. Diehl inquired again about where the vehicle was parked and this time the Defendant informed Dep. Diehl that the vehicle was his mother's van. (A. 488). Dep. Diehl next inquired about the blood on the Defendant's clothing and person by asking "What's the deal with the blood?" (Id.). Defendant replied that "I butcher deer." (Id.) . Dep. Diehl again asked the Defendant about where his van was located and why he was walking. (See id.). This time the Defendant asked Dep. Diehl for a ride to his vehicle. (See id.). Dep. Diehl agreed and, as they were walking to the back of the patrol vehicle, the Defendant picked up the object he had dropped on the road, which then turned out to be a car jack. (A. 488 - 89). As the Defendant was seated in the back of the patrol vehicle, Dep. Diehl told the Defendant that he would take possession of the car jack (People's Exhibit 3), lug wrench (People's Exhibit 4), and screwdriver (People's Exhibit 5) so that the seats would not get cut. (A. 489 - 90, 491). Dep. Diehl took the items and placed them in the front seat of his patrol vehicle. (A. 490). Once the Defendant was inside the patrol vehicle, Dep. Diehl further observed what appeared to be blood on the Defendant's white sneakers. (A. 492). The Defendant told Dep. Diehl that he had the car jack, lug wrench and screwdriver because he was bringing them to a friend's house. (A. 493). As he was telling Dep. Diehl this, the Defendant motioned toward the intersection of Knapp and Gabbey Roads. (See id.). Dep. Diehl asked for the identity and location of the friend. (See id.). The Defendant answered that he didn't remember the name of the road, but if one traveled to the intersection ahead (Knapp and Gabbey Roads) and took a right and 17 then another right one would be at this friend's house. (See id). The Defendant in actuality was leading Dep. Diehl away from Mr. Benaquist's home, which was to the left at the intersection of Knapp and Gabbey Roads. The Defendant did not initially identify the road that his friend lived on, but later misinformed Dep. Diehl that his "friend" lived on Gabbey Road after Dep. Diehl identified the road. (See id). Under cross-examination, the Defendant acknowledged that the above directions were not the way to the victim's home. (A. 1471). Thereafter, Jamie Waff drove to Dep. Diehl's location, identified himself and told him what he had observed. (A. 473 - 74 and 494). After Dep. Diehl's conversation with Mr. Waff, Dep. Diehl asked the Defendant to step out of his patrol vehicle. (See id). The Defendant complied. (See id). Dep. Diehl told the Defendant to place his hands behind his back and Dep. Diehl patted him down for any weapons. (See id). Dep. Diehl handcuffed the Defendant and re-placed him in the back seat of his patrol vehicle. (See id ). At this time, the Defendant asked "what is going on?" (A. 495). Dep. Diehl explained that he was patted down for weapons. (See id). The Defendant asked Dep. Diehl again "what is going on?" (Jd). Dep. Diehl responded "I don't know. You tell me." (Id). Dep. Diehl further explained "the story you are telling me doesn't make any sense. You've got blood on your clothes, you've got blood on your shoes and hands." (Id). Dep. Diehl informed the Defendant that "you are not under arrest, but I am detaining you until I can figure out what's going on." (Id). At this point, Dep. Diehl transported the Defendant to the intersection of Route 5 and North Lake Road. (See id). Dep. Diehl again asked "what's the deal was with the 18 blood?" (Id.). Defendant again responded with "1 butcher deer." (Id.). Dep. Diehl testified that the Defendant further said "he (the Defendant) was sitting in his garage, it was a cold night, so he just threw it on." (ld.). While driving to the intersection, Dep. Diehl asked the Defendant to describe his vehicle. (A. 496). The Defendant stated he was driving a red Ford Windstar van (hereinafter, the "Windstar"). (See id.). Dep. Diehl pulled into the business, Pembroke Enterprises, where the Defendant had previously parked the Windstar. (A. 500, 551). Dep. Diehl observed three vehicles in the parking lot. (A. 501). He exited his patrol vehicle and walked towards the back of the van. (See id.). He observed a very saturated, bloody pair of winter work gloves on top of another vehicle parked beside the van. (See id. and 509). There were also bloody footprints outside the van. (A. 510). Dep. Diehl also observed what appeared to be a blood mark on the front driver's side headlight and blood spatter along the driver's side of the van. (A. 501 - 02). Dep. Diehl looked inside the van and saw what appeared to be blood on the driver's door, the driver's arm rest, and the steering wheel. (A. 502). Deputy Reeves' Arrival at Pembroke Enterprises On February 16,2009, GCSO Deputy Patrick Reeves (hereinafter, "Dep. Reeves" or "the Deputy"), a 13-year veteran, also was on duty, in uniform and in a marked patrol vehicle. (A. 515). Dep. Reeves was the officer in charge of the shift that evening. (A. 517). Dep. Reeves responded to the dispatch and proceeded to the intersection of Route 5 and North Lake Road where he encountered Dep. Diehl. (A. 516). After receiving an update from Dep. Diehl, Dep. Reeves informed Dep. Diehl that he knew the Defendant personally and would talk to him. (A. 517). 19 Dep. Reeves had known the Defendant and the Defendant's family prior to becoming a deputy . (A. 515 - 16). Dep. Reeves had worked at the Do Us' store in the Village of Corfu. (A. 516). Dep. Reeves opened the passenger door of Dep. Diehl's patrol vehicle and observed the Defendant in an unzipped pair of camouflage coveralls. (A. 518). Dep. Reeves expressed his concerns to the Defendant regarding what Dep. Diehl had described to him. (See id.). Dep. Reeves asked the Defendant, "what's going on?" and "where are you headed?" (Id.). The Defendant told Dep. Reeves he was walking up North Lake Road to a friend's house up off of North Lake Road, but that he didn't know on which road his friend lived (but later confirmed with Dep. Diehl that his friend lived on Gabbey Road). (See id.). Dep. Reeves asked the Defendant to describe the road since he knew the area. (See id.). The Defendant stated he was not sure (although he was previously able to describe the road to Dep. Diehl). (See id.). He also stated that he was out for a cardio workout. (See id.). After hearing this explanation, Dep. Reeves looked at the Defendant's shoes to see what type of footwear he was wearing. (See id.). Dep. Reeves testified that the Defendant's shoes "were definitely not for a cardio workout of any nature .... " as they were in "very poor condition." (Id.). Dep. Reeves described the sneakers as being "tore up," "torn out," and untied. (A. 518 - 519). He also thought that as cold as it was that night the Defendant would not be wearing this type of shoes for a cardio workout. (A. 519). Dep. Reeves told the Defendant "in that condition, you don't look like you are doing it for a cardio." (Id.). Basically, the rubber soles and undersoles of the Defendant's shoes were completely worn away to the point where the Defendant's socks 20 were visible through the bottom of the shoes. (A. 566). Next, Dep. Reeves made inquiries about the Windstar parked at the closed business. (See id). Dep. Reeves noticed the plate number and asked whose vehicle it was. (See id). The Defendant stated that the van belonged to his mother, Audry Doll. (See id). The Defendant stated that he had his mother's permission to have the van that evening. (See id). While talking with the Defendant, Dep. Reeves had his flashlight on and noticed what appeared to be fresh blood on the tops of the Defendant's coveralls. (A. 520). Dep. Reeves also observed specks of blood on the Defendant's skin, cheek, and around his nasal area. (See id). Dep. Reeves also inquired about the blood and asked from where it came. (See id). Contrary to the Defendant's assertions in his Statement of Facts, the Defendant stated that the coveralls were old and that it was old blood on his coveralls. (See id). Dep. Reeves had some familiarity with the Defendant's processing of deer meat. (See id). Dep. Reeves told the Defendant that the blood did not appear to be old and asked him if he had cut up a deer. (See id). Dep. Reeves explained to the jury that he knew about hunting seasons and that on this date deer hunting season was over. (A. 520 - 521). Initially, Dep. Reeves thought that the Defendant might have processed a freshly killed deer. (A. 521). As such, Dep. Reeves asked the Defendant if the blood on him was deer blood. (See id). The Defendant stated that it was not deer blood. (See id). At this point, Dep. Reeves was getting scared. (See id). He then asked the Defendant if it was human blood. (See id). The Defendant stated "I can't tell you that." (Id). Dep. Reeves then stated "if it's not 21 deer blood and it's not human blood, you know, is there somebody out there I can ... get an ambulance for." (Jd). The Defendant replied, "Pat, you know me better than that." Dep. Reeves closed the passenger door to the patrol vehicle. (See id). Dep. Reeves testified that things were not adding up in his mind. (A. 522). Dep. Reeves next observed a bloody, white pair of work gloves next to the van. (See id). He also observed a single set of footprints exiting the driver's side of the van. (See id). Dep. Reeves saw red specks and what appeared to him to be blood around the front fender and driver's side of the van. (A. 522). Dep. Reeves next examined the van to determine if there was damage consistent with striking a deer, but only observed dings and "some different damage." (ld). At this point, Dep. Reeves noticed that the single set of tracks possibly contained blood. (See id). Dep. Reeves contacted Inv. Kristopher Kautz and requested that he proceed to the scene. (See id). Dep. Reeves asked the Defendant about the blood again and stated to him "if you gutted a deer, just tell me you gutted a deer. It's freezing cold out here. Worst case scenario, you show me who has it, we'll go to their house ... I don't really even care. It's so cold. It's a stupid deer out of season. Who cares?" (A. 523). Dep. Reeves explained to him that if he did not get an answer the process would get longer, an investigator would be called, the scene would be processed, and the van would possibly be towed. (A. 531). Dep. Reeves told the Defendant that he did not need to do that if it was just a deer taken out of season. (See id). The Defendant responded, "Do what you have got to do." (Id). Dep. Reeves also described the best case scenario to the Defendant. (A. 523). Specifically, that he would have to document that a deer was taken out of season and the 22 Defendant could possibly lose his hunting license. (See id.). Dep. Reeves asked the Defendant to confirm that it was deer blood. (See id.). The Defendant replied, "Listen, I have got three months to retire, Pat. You know, I don't want to talk anymore about the blood." (ld.). At this point, Dep. Reeves was confident that there was more than what was being described by the Defendant. (See id.). Dep. Reeves told the Defendant that he wanted to get help for somebody. (A. 526). Dep. Reeves asked if the Defendant wanted to speak to anyone. (See id.). The Defendant stated, "well, I guess an attorney." (A. 549) Dep. Reeves asked for the name of the attorney, but the Defendant stated he was not sure. (See id.). Then the Defendant just stated "my divorce attorney", but never provided a name. (See id.). Dep. Reeves next removed the Defendant from the vehicle and showed the Defendant the blood on the van. (A. 524). Dep. Reeves told him "that's fresh blood" and asked him "Can you tell me why that is there?" (See id.). The Defendant just shrugged his shoulders and stated "I can't tell you that." (ld.). While Defendant was walking around, Dep. Reeves noticed that the Defendant was leaving bloody footprints in the snow. (See id.). The Deputy placed the Defendant back into the patrol vehicle. (A. 524 - 25). Upon questioning by the District Attorney, Dep. Reeves testified that based on his training, experience, and education as a police officer, after a person requests an attorney he would follow with Miranda warnings and would stop questioning that person. (A. 527). However, in this situation, Dep. Reeves', in his heart and mind, thought there was somebody out there that needed help, was injured or dying. (See id.). As such, the Deputy continued his questioning about the fresh blood in the face of what he believed to 23 be an emergency situation. (A. 527 - 28). The District Attorney asked him how much blood he had observed. (A. 527). Dep. Reeves testified that the Defendant "was covered in it." (Id.). Specifically, the front of the Defendant's coveralls was covered in blood. (A. 528). The knee area of the coveralls was soaked in blood. (See id.). It appeared to the Deputy as if the Defendant had been kneeling in blood. (See id.). Blood was present on the tops of the Defendant's sneakers. (See id.). Based upon what the Deputy saw and his belief that someone was possibly in need of help, he believed that under the law he had a right to continue his questioning. (See id.). Thereafter, Dep. Reeves participated in a welfare check on the members of the Defendant's family and assisted with a search of North Lake Road and the surrounding area. (A. 532). Investigator Kautz's Arrival at Pembroke Enterprises At Dep. Reeves' request, GCSO Investigator Kristopher Kautz (hereinafter, "Inv. Kautz" or "the Investigator") proceeded to Pembroke Enterprises at the intersection of Route 5 and North Lake Road in Pembroke. Upon arrival, Inv. Kautz spoke with Deputies Diehl, Reeves and Timothy Wescott. (A. 551). Inv. Kautz began to review the scene. (See id.). The Investigator observed blood spatter on the exterior of the Windstar. (A. 551 - 52). He saw bloody gloves and bloody footprints at the scene as well. (A. 557). Inv. Kautz took photos of the scene at Pembroke Enterprises (including the Windstar) and took the bloody winter gloves into evidence. (A. 552, see also, P. ' s Exs. 8 - 13). While at the scene, Inv. Kautz removed, among other things, a single black vehicle key with a Pontiac insignia (not on a key ring) from the Defendant's right front 24 pocket of the pants he was wearing underneath his coveralls. (A. 559 - 593). Inv. Kautz arranged to have the Windstar towed from the scene on a flatbed truck. (A. 560). Inv. Kautz followed the tow truck to the Genesee County Sheriffs Office on Park Road in Batavia where the Windstar was stored. (See id). After arriving at the GCSO, Inv. Kautz saw a cell phone in the center console area of the Windstar. (A. 561). Inv. Kautz received a telephone call from the Defendant's son, Josh Doll, who asked what was happening. (A. 576). As a result of this conversation, Inv. Kautz asked GCSO Sergeant Steven Mullen to check the residence of Joseph Benaquist, an acquaintance of the Defendant, who lived at Knapp Road near the intersection of N. Lake, Gabbey, and Knapp Roads. (See id, P. Ex. 2). At approximately, 1:15 am on February 17, 2099, Inv. Kautz next began the process of documenting the Defendant's appearance by taking numerous photographs of the Defendant in different poses and at different levels of undress. (A. 561 - 573,578, see also, P.'s Exs. 16 - 26,28 - 34). The photographs show that the Defendant was covered in blood spatter from his face down to his shoes with a heavy concentration at the knee area. The saturation was so great in this location that the blood had soaked through the Defendant's coveralls, through his pants and blood staining was present on each of the Defendant's bare knees. (A. 568 - 69) No injuries were observed on the Defendant by Inv. Kautz. (A. 575, 593). At approximately 1 :33 a.m., Inv. Kautz was informed that a body had been discovered at Knapp Road in Pembroke, New York, Mr. Benaquist's residence. (A. 578). The Pontiac G6 (hereinafter, the "G6") was in the driveway with a flat tire. 25 Defendant's statements to his friend, Teresa Zelaszkiewicz, at the GCSO At approximately 3:35 a.m., two female acquaintances of the Defendant arrived at the GCSO on Park Road and wanted to speak with an officer about the case. (A. 580 - 81). Approximately fifteen minutes later, Inv. Kautz met the two individuals: Stacy Allen, the Defendant's girlfriend, and Teresa Zelaszkiewicz, the Defendant's retired Department of Corrections co-worker and close, personal friend. (A. 581, 1326 - 27). Ms. Zelaszkiewicz repeatedly requested to speak with the Defendant. (A. 581 - 582). Initially, Inv. Kautz refused the request. (See id). Eventually, Ms. Zelaszkiewicz was permitted to speak with the Defendant, but under certain terms. (See id). Inv. Kautz informed Ms. Zelaszkiewicz that if she wanted to speak with the Defendant she would be escorted in and out of the room by the Investigator; anything that was said between Ms. Zelaszkiewicz and the Defendant would be recorded by the Investigator in written form on a pad; and that Ms. Zelaszkiewicz was speaking with the Defendant at her own request and not at the request or instruction of the Investigator. (A. 582). Ms. Zelaszkiewicz was taken to the interview room by the Investigator. (See id). The Defendant, Ms. Zelaszkiewicz and the Investigator were present in the interview room while Ms. Zelaszkiewicz spoke with the Defendant. (A. 583). Upon entering the interview room, Ms. Zelaszkiewicz asked the Defendant what had happened. (See id). The Defendant stated, "I was there, but I didn' t do anything." (Id). Zelaszkiewicz continued to speak with the Defendant and asked "did something happen in your head?" (A. 584). Defendant replied in the negative. (See id). She next asked whether it had involved an animal. (See id). The Defendant said, "no." (Id). She asked the Defendant to "please tell [her] there's no dead body." (Id). "I can't tell you 26 that" said the Defendant. (Id). Ms. Zelaszkiewicz also asked "what's going on, Scott?" (Id). The Defendant next replied, "It's an open and shut case." (Id)(emphasis supplied). Ms. Zelaszkiewicz also asked the Defendant what was going to happen. (Id.). The Defendant stated, "I will be injail, I'm sure." (Id). Inv. Kautz also heard the Defendant say to Ms. Zelaszkiewicz "let the chips fall where they may"; "it doesn't matter what attorney I get; it's going to end the same" and also "oh, I believe I will be in jail, I'm sure." (A. 585). Defendant also told her, "I'll get what I deserve, I guess." (Id)(emphasis supplied). The conversation between Ms. Zelaszkiewicz and the Defendant lasted approximately three minutes. (A. 608). During this time, Inv. Kautz took notes of the conversation between the Defendant and Ms. Zelaszkiewicz and did not, to the best of his ability, leave out anything. (A. 606). The Defendant's and Victim's Relationship Mr. Benaquist and the Defendant were both correctional officers. Mr. Benaquist had recently retired. The Defendant was three months away from retirement. (A. 1452). During his tenure as a correctional officer, the Defendant had received training regarding emergency response procedures, first aid, use of force, unarmed defensive tactics, and baton training. (A. 1450 - 51). The Defendant and victim first met in the 1990s when the victim was transferred to Wyoming Correctional. (A. 1418). The two saw each other daily at work. (A. 1418 - 19). The Defendant and Mr. Benaquist also socialized outside of work. (A. 1419). The Defendant even invited Mr. Benaquist to family parties. (See id). 27 The Defendant was also involved in the used car business under the name of SF Enterprises. (A. 1418). The Defendant admitted that the victim was also involved in his business and that Joe Benaquist would go to the ADESA auctions to buy and sell cars under the name of SF Enterprises. (See id.). ADESA and AFC ADESA is a dealer-only wholesale automobile auction facility located on Route 5 in the Town of Newstead, New York, which auctions cars, trucks, boats, motorcycles, snowmobiles and ATV s. (A. 1006). American Finance Corporation (hereinafter, "AFC") is a floor plan company that is a sister corporation to ADESA. (A. 1007). A floor plan is similar to a line of credit that is extended to dealers for short-term loans for automobiles bought at auction. (A. 1057, 1087). The Defendant transacted business with ADESA and AFC through his business entity, SF Enterprises. (A. 1012, 1088). The Defendant's Financial Troubles In early 2009, the Defendant's access to ADESA had been restricted due to the expiration of the Defendant's dealer license. (A. 1024). Thereafter, the Defendant's access to ADESA was inactivated three times due to the Defendant presenting checks with non- sufficient funds on January 30, February 12, and February 16,2009. (See id.). During these times of restriction or inactivation, the Defendant could not buy or sell vehicles at ADESA. (A. 1025). On January 12, 2009, AFC restricted SF Enterprises' ability to finance vehicles due to an annual credit search, which revealed four delinquent accounts totaling $16,000.00 past due with the Bank of America, Chase, Discover, and Lowe's. (A. 1094). 28 The Defendant was personally notified of the restriction by Christopher Crangle, AFC's assistant branch manager at the ADESA location on Route 5. (A. 1086, 1094). At this point, the Defendant (SF Enterprises) could not finance any future purchases of vehicles through AFC. (A. 1107). During this timeframe, the Defendant was using the services of National Debt Resolution and had a total debt of$27,677.83. (A. 1465). On January 13, 2009, the Defendant brought a 2007 Dodge Grand Caravan (hereinafter, "Grand Caravan") previously purchased by Mark Kobel to AFC for a visual verification due to the vehicle being missing from the Defendant's lot during a lot check. (A. 1111). A lot check is a random inspection to verify that the cars currently on AFC's floor plan still exist. (A. 1112). A visual verification is performed by AFC to insure that the car still exists or in other words to insure that if vehicles are sold that AFC's loan is being paid on a timely basis (within 48 hours of being sold). (A. 1112, 1096). The Dispute over the G6 and the Malibu On September 9, 2008, the victim selected a vehicle at the ADESA auctions that he wanted to buy, a Pontiac G6 (hereinafter, "G6"). The victim used SF Enterprises' floor plan through AFC to purchase the vehicle in the amount of $13,565.00. (A. 1087). On that same date, the victim wrote a check to the Defendant in the amount of $10,000.00. Records from AFC revealed that the ten thousand dollars was never applied to the floor plan on the G6, but rather was deposited into the Defendant's SF Enterprises checking account at M&T Bank. (A. 960, 1476). Testimony at the trial established that Joe Benaquist had insured the G6, placed his license plates on it, and had a temporary registration sticker from the Defendant's MV-50 book. (A. 999, 617 - 18, 633 - 34). The MV-50 book had an entirely different 29 vehicle transaction with a different individual recorded for that specific registration sticker. (A. 631). The victim could not register the vehicle in his own name, because he did not have the title to the vehicle. The G6 title was being held by AFC, because the Defendant had not paid off the floor plan. (A. 1088). At the time of the murder, AFC's records showed that $6,895.72 was still due and owing on the G6. (A. 1089). Joe Benaquist also owned a Chevrolet Malibu ("Malibu") at the time of the murder, which was titled in his name. (A. 1016). He had tried to sell the Malibu at the ADESA auctions without success. (A. 1428). He also tried to sell the Malibu through newspapers ads, which were also unsuccessful. (See id.). In the end, he let the Defendant take the Malibu to place on his lot in an effort to sell the vehicle. (See id.). On January 8, 2009, the Defendant took the Malibu to AFC with a title purportedly signed by the victim. (A. 1092). The victim's son, Michael Benaquist, testified at trial that the signature on the Malibu title was not, in fact, his father's signature. (A. 1259). The Defendant also supplied AFC with an invoice showing that the Malibu had been traded in on a Grand Caravan, which was allegedly sold to Joe Benaquist. (A. 1118). In fact, the Grand Caravan had not been sold to Joe Benaquist, but rather to Mark Kobel on December 31, 2008. (A. 967). Furthermore, the Malibu was not traded in on the Grand Caravan. (A. 970 - 71). With the forged title and sham invoice, the Defendant received $4,650 from AFC. (A. 971). Thereafter, the Defendant placed the $4,650 into his checking account. (A. 1454). Now, the Malibu had a lien on it from AFC and the Defendant's son was driving it. (A. 1453 - 54). 30 Defendant's Testimony regarding February 16,2009 The Defendant claimed at trial that he had planned to meet Mr. Benaquist at ADESA sometime 7:30 between 8:00 pm on February 16, 2009 so that Mr. Benaquist could bring the G6 to auction that following Tuesday (auction day at ADESA). (R 2915). Mr. Benaquist did not arrive at the appointed time. (A. 1437). The Defendant waited for approximately 30 minutes. (See id.). While Defendant acknowledged having a cell phone with him, the Defendant testified that he had decided to drive to Mr. Benaquist's home to "see what [was] going on." (A. 1438, 1493 - 94). When the Defendant arrived at Mr. Benaquist's residence, the Defendant claimed that he noticed a "dim light that looked like it was emitting from the bottom of one of the cars." (A. 1438). The Defendant positioned his Windstar "half on the road ... , half on [Mr. Benaquist's] driveway." (ld.). The Defendant stated that he saw the victim "struggling, you know, laying down, trying to get up." (A. 1439). The Defendant claims that he exited his vehicle and "got down next to him." (Id.). Defendant testified that his first instinct was to get the victim to lie down. (See id.). Defendant stated "there was blood all over [Mr. Benaquist]." (Id.). Rather than call for help, Defendant repeatedly asked the victim, "what's going on, what happened?" (ld). Defendant stated that the victim was "trying to talk, or I don't know if it was talk or mumble." (Id.). Again, the Defendant repeatedly asked the victim, "what's going on?" (Id.). The victim allegedly stated "I can't see, I can't see." (Id.). According to the Defendant, the victim continued to mumble, but the only words the Defendant could discern were "the boy, the boy." (ld.). Defendant testified that the victim stopped breathing. (See id.). Defendant claims to have called to the victim, but 31 received no response. (See id.). On cross-examination, the Defendant admitted to holding the victim, but could not recall how he held the victim. (A. 1479). Defendant testified that he got up and started to walk towards Mr. Benaquist's home when he noticed that the door was "opened ... or cracked." (A. 1440). Defendant said he did not recall whether he walked or ran to his van, but he drove his van to Pembroke Enterprises, backed the vehicle in between two parked vehicles, and began to walk back to the murder scene with a screwdriver, car jack, and lug wrench in his pockets. (A. 1440, 1481, 1482 - 83). Defendant also claimed that he left his cell phone in the van. (A. 1493 - 94). On the walk back to the murder scene, the Defendant claimed that he began to wonder ifhis son had been involved. (A. 1493). Defendant's Cell Phone History One week before the murder, Joe Benaquist called the Defendant repeatedly as demonstrated by phone records in evidence. Specifically, the victim called the Defendant on February 9, 10, 13, and 14, 2009 (A. 1143 - 45). These calls went unanswered and unreturned by the Defendant until February 15, 2009. (A. 1145). The Defendant contacted the victim via cell phone on February 16,2009 at 3:07 p.m. (A. 1146). Although Defendant's cell phone was in near constant use either by texting or calls after his shift ended at Wende Correctional, the Defendant's cell phone was curiously inactive from 5:18 pm to 8:47 pm on the night of the murder. (A. 990 - 91). The Autopsy On February 17, 2009, Dr. Scott LaPointe, a pathologist and deputy medical examiner with the Monroe County Medical Examiner's Office, performed an autopsy on the victim, Joseph Benaquist. (A. 792). The victim died as a result of a large amount of 32 blunt force trauma to his head. (A. 814). Dr. LaPointe opined that the victim had sustained between seven to eight blows to his head and that anyone of the strikes could have resulted in death. (A. 810). Dr. LaPointe was able to determine that Mr. Benaquist died within one to four hours after receiving his mortal wounds based on the amount of swelling of the victim's brain. (A. 812). The doctor also noted the presence of defensive wounds to the victim' s hands, which were consistent with the victim attempting to protect his head from being struck. (A. 811). As part of his examination, Dr. LaPointe inspected the victim's airways from his mouth down to his lungs, including the nasal passages. (A. 811). Due to the lack of the presence of any blood in his airway, nose or mouth, Dr. LaPointe testified that it was unlikely that the victim would have expirated any significant amount of blood. (A. 813). Furthermore, the doctor opined that after sustaining "pretty significant head injuries" the victim would have most likely had difficulty moving, understanding, and speaking. (Id.). With the type of injuries sustained, the neurologic impairment would have occurred "right away" and would have progressed as time continued to the point where the Defendant would have lost all consciousness and fallen into a pattern of agonal (shallow) breathing before death. (A. 829). DNA Analysis Ellyn Colquhoun, a forensic biologist, from the Monroe County Laboratory performed DNA testing on a variety of items in this case. (A. 870). At trial, she testified regarding her methods of testing and her conclusions. (A. 873 - 921). After being qualified as an expert in the field of forensic biology and DNA testing (A. 873), she opined that the profile from the following items matched the DNA profile of Joseph 33 Benaquist: Lab Item Description of Match with DNA profile Record Number Item Tested of Joseph Benaquist Citations 1.1.1 Swab used to collect blood stain Yes (A. 879) from leather glove (A. 885) 3.3 Blood stain taken from the left Yes (A. 880) hip area of camouflage coveralls (A. 885) 3.6 Blood stain taken from the right Yes (A. 880) knee area of camouflage (A. 885) coveralls 4.3 .1 Swab used to collect blood stain Yes (A. 881) from the left side of the left (A. 885) sneaker 17 Swab used to collect blood stain Yes (A. 886) from the gas pedal of the (A. 888 - 89) Windstar 23 Swab used to collect blood stain Yes CA. 887) from the driver exterior light (A. 888 - 89) area of the Windstar 3.10 Set of blood stains/droplets on Yes CA .. 889) the left shoulder area of the (A. 893) camouflage coveralls 3.11 Set of blood stains/droplets on Yes (A. 891) the right sleeve area of the (A. 893) camouflage coveralls 3.1 2 Set of blood stains/droplets on Yes. (A. 891) the lower right leg area (near the (A. 893) hem) of the camouflage coveralls 9 Swab used to collect a Yes. (A. 894) bloodstain from the Defendant's (Mixed with (A. 896 - 97) face Defendant's DNA) 21 Swab used to collect a Yes. (A. 898) bloodstain from the driver rear (A. 900) exterior area of the Windstar 34 Literally, the Defendant was covered from head-to-toe in the victim's blood. (See above table - internal citations omitted). The interior and exterior of the Windstar operated by the Defendant that evening contained and/or was spattered with the victim's blood as well. (See above table - internal citations omitted). Blood Spatter Evidence At trial, the prosecution called Paul Erwin Kish (hereinafter, "Mr. Kish"), a preeminent expert in the field of bloodstain pattern analysis. Mr. Kish was recognized by the Court as an expert in the area of bloodstain pattern analysis. (A. 1162). It is noteworthy to mention that Mr. Kish worked with the defense counsel's expert, Herbert MacDonald for ten years from 1990 - 2000. (A. 1155). After an exhaustive analysis of the investigative reports, Defendant's coveralls and sneakers, Windstar, autopsy report, crime scene and autopsy photographs and crime scene video, Mr. Kish determined that the bloodstain pattern at the crime scene around the victim and on the Defendant's coveralls and the Windstar was impact spatter. (A. 1172, 1177 - 76, 1180 - 1191). The presence of impact spatter on the Defendant and the Windstar in this case was significant for three reasons. One, it demonstrated that the Defendant was present when Joe Benaquist was being beaten. (A. 1191 - 1192). Two, impact blood spatter on the Windstar indicates that the van was present during the beating. (See id.). Three, and most importantly, the impact blood spatter proved that the Defendant was in "the immediate proximity" to the victim and the Windstar when the victim was beaten. (Id.). The defense called its own blood spatter witness, Mr. Herbert MacDonell. (A. 1280). Mr. MacDonell opined that the blood spatter in this case was expirated blood spatter, not impact spatter. Mr. MacDonnell further opined that the 35 Defendant was not the attacker due to the absence of "back" spatter on the Defendant. (A. 1290). In reaching his conclusions, Mr. MacDonnell made an unsupported assumption that this was a "controlled" beating, where one person holds someone down while beating him. (A. 1292, 1322). Mr. MacDonnell conceded that he did not know whether the spatter on the Defendant' s shoes was expirated or impact spatter. (A. 1292). Mr. MacDonnell further stated that it was difficult for him to determine how far the Windstar was located away from the victim during the beating. (See id.). Most importantly, Mr. MacDonnell admitted that he had not examined the Defendant's camouflage coveralls until the morning of his testimony. (A. 1300). Mr. MacDonnell also stated that he did not physically examine the Defendant's sneakers or gloves at all, but relied on photographs instead. (A. 1302). He also did not review the victim's autopsy report in any great detail. (See id.). Mr. MacDonnell did not write a report nor take any notes in this case, unlike Mr. Kish, who took notes, wrote a report and sUbjected the report to peer review. (A. 1318, 1303 - 04). Procedural Posture On February 17,2009, the Defendant was arrested and charged with one count of Murder in the Second Degree. On February 19, 2009, the matter was presented to the Grand Jury and an Indictment was returned against the Defendant for one count of second degree murder. (A. 4). On February 29, 2009, an Application for Warrants was presented to the Hon. Eric R. Adams (hereinafter, "Judge Adams"), which resulted in the issuance of seven search warrants for the Windstar, Defendant's cell phone, a Nissan Altima, the Malibu, 36 and the G6 located at the victim's residence, Defendant's residence and records from ADESA and AFC. (A. 17 - 40). On March 3, 2009 a second Application for Warrant was presented and granted by Judge Adams for records from M&T Banle (A. 41 - 44). On March 16, 2009 a final Application for Warrants was made and granted by the Hon. Robert C. Noonan (hereinafter, "Judge Noonan") for the Malibu, G6 and their respective title certificates/documentation. (A. 50 - 53). On June 16, 2009, a suppression hearing was held before Judge Noonan regarding the Defendant's statements set forth in the People's Notice pursuant to Criminal Procedure Law Section 710.30 and other evidence obtained from the Defendant. (see generally, A. 208 - 345). After briefing by both sides, the Court issued its Decision and Order dated October 7,2009, which denied the Defendant's requests for relief, except for suppressing the results of testing of certain buccal swabs taken from the Defendant on February 17, 2009. (A. 388 - 400). Buccal swabs of the Defendant were later obtained upon consent of the Defendant after the issuance of an Order to Show Cause. A 13-day jury trial was held in the County Court for Genesee County before Judge Noonan from May 3 - 19, 2009. On May 20, 2009, the jury returned a unanimous guilty verdict against the Defendant. (A. 1673). On July 2, 2010, the Defendant was sentenced to an indeterminate term of imprisonment of 15 years to life. (A. 1737 - 38). On that same date, the Defendant filed his Notice of Appeal. (A. 2). 37 ARGUMENT POINT I THE STATEMENTS MADE BY THE DEFENDANT WERE PROPERLY ADMITTED AT TRIAL A. Introduction The emergency doctrine holds that an individual's Fifth and Sixth Amendment Rights must yield to legitimate concerns for public safety. Because the Deputies who questioned the Defendant possessed a reasonable belief that a person or persons had been seriously injured and that the Defendant possessed information about those individual(s), they were justified in continuing their questioning of the Defendant despite his request for counsel and the absence of Miranda warnings. B. The Issues Raised By The Defendant Are Largely Outside The Scope of Review of This Court The Defendant contends that the statements he made to the law enforcement officers, and thereafter to his friend, Teresa Zelaszkiewicz, were improperly admitted against him at trial, citing a violation of his Miranda rights and his right to counsel. The only issue raised by the Defendant which arguably presents a question of law to this Court is whether the emergency doctrine can be applied to circumstances where the identity of a victim or victims is unknown. All other issues raised by the Defendant are clearly mixed questions of law and fact and, therefore, are beyond this Court's revIew. One such issue is the Appellate Division's finding that the circumstances which confronted the Deputies gave rise to a reasonable belief that an emergency was at hand, 38 which justified their continued questioning of the Defendant in the absence of Miranda warnings and after the Defendant had asked to speak to an attorney. These conclusions are certainly supported in the record. This Court has consistently held that such determinations are mixed questions of law and fact which are beyond its jurisdiction (People v Dallas, 8 NY3d 890; People v Molnar, 98 NY2d 328 [" ... we note that the lower courts determined that exigent circumstances existed . . . Inasmuch as this determination involved a mixed question of law and fact, any further review is beyond this Court's jurisdiction."] This Court should note that the statements admitted at trial pursuant to the emergency doctrine ("I can't tell you that", "Pat, I have 3 months until I retire. I don't want to say any more about the blood.", "Do what you have to do", "I don't know of anybody anywhere" and "There's nothing I can tell you") are deminimis, as well as being exculpatory and duplicative of the Defendant's pre-custody statements. The lower court's determination that the Defendant's pre-custodial statements were admissible at trial is likewise beyond the scope of the Court's review. The point at which custody occurs is another mixed question of law and fact (People v Tankleff, 84 NY2d 992, People v Bongarzone-Searcy, 6 NY3d 787). Miranda warnings are not required for such non-custodial statements and no emergency doctrine justification is necessary for them to be admitted a trial. Accordingly, no question of law exists with respect to the statements made by the Defendant before he was in custody. The Defendant also presents no question of law with respect to the statements he made to his friend, Teresa Zelaszkiewicz, after his arrest. Both the trial court and a unanimous Fourth Department held that Ms. Zelaszkiewicz was not an agent of the police and that the Defendant's statements to her were not the product of police interrogation or 39 its functional equivalent. Such factual findings are beyond the review of this Court when they are supported in the record (People v Harrison, 82 NY2d 693; People v Cardona, 41 NY2d 333). Accordingly, the issue of the admissibility of such statements is beyond the review of this Court. C. The Defendant's Custodial Statements Were Properly Admitted At Trial Pursuant to the Emergency Doctrine and the Lower Court Properly Determined That the Defendant's Friend Was Not An Agent ofthe Police If this Court should reach the merits of the Defendant's claim of error in the admission at trial of his statements, the People submit that such claim must be rejected. 1. Statements to the Deputies With respect to his statement to the Deputies, the Defendant's argument is based upon a single and fundamentally flawed premise: that the circumstances which confronted the Sheriff s Office personnel upon their encounter with him on the night of the murder did not give rise to a reasonable belief that an emergency was at hand. As the People argued before the trial Court and the Fourth Department, for the Deputies under these circumstances to have concluded that no emergency existed would have been not just unreasonable, but inexcusable. The basis for the well-founded conclusion that an emergency existed was immediately apparent to the Deputy who first came into contact with the Defendant and accelerated quickly thereafter. Most notable of these circumstances was the alarming quantity of apparent blood on the Defendant's clothes and body and on the exterior and interior of his vehicle, on the gloves found next to his vehicle and on the snow covered ground in places where he had been standing. As found by the Fourth Department, the distribution and sheer amount of blood observed gave rise to the reasonable belief that 40 "one or more persons had been grievously injured and that Defendant had been in close contact with that person or persons" (A. 8). Numerous decisions in New York State and elsewhere have concluded that the presence of blood supports an inference that an emergency involving a threat to life or safety existed. (People v Hodge, 44 NY2d 553; People v Brewer, 28 AD3d 265, Iv denied, 7 NY3d 753; People v Desmarat, 38 AD3d 913, Iv denied 10 NY3d 933; People v Rodriguez, 77 AD3d 280, Iv denied 15 NY3d 955 ; People v Herring, 179 AD2d 549, Iv denied 79 NY2d 948; US v Chipps, 410 F3d 438 (8th Cir 2005); People v Hill, 12 Cal 3d 731 (1974)). The Deputies had been alerted by two civilian witnesses to the Defendant's suspicious behavior while he was at the repair shop at the corner of Main Street and North Lake Road. In addition to the copious amount of blood observed by the Deputies, the Defendant's obvious attempt to avoid being seen, his presence at night at a closed business, together with the implements he was found to be carrying when approached by Dep. Diehl, provided support for the existence of reasonable grounds to believe that the Defendant was involved in criminal behavior and for the conclusion that there existed an emergency situation which required immediate police intervention (People v Chestnut, 51 NY2d 14; People v Walker, 55 AD3d 343; Iv denied 11 NY3d 931 [officer's observation of suspicious behavior of the Defendant supported his detention and later arrest]; People v McCloud, 262 AD2d 661 (2d Dept 1999) [Defendant's attempt to avoid detection by walking through residential back yards supported reasonable cause to detain him D. The Defendant's statements to Dep. Diehl and later to Dep. Reeves provided a further powerful indication that they were being confronted by circumstances where lives were at stake. False, contradictory or illogical statements made by suspects to law 41 enforcement officers have often been held to support a finding of reasonable cause to detain and of probable cause to arrest (People v Wannamaker, 93 AD3d 426 (1 st Dept March, 2012); People v Williams, 16 AD3d 151, Iv denied, 5 NY3d 771; People v Isidro , 6 AD3d 1234, Iv denied 3 NY3d 659; People v Ambrose, 264 AD2d 629, Iv denied 94 NY2d 876). Even more pertinent to this case are the decisions which have held that such statements support a reasonable conclusion that an emergency exists (People v Rossi, 99 AD3d 947 (2d Dept 2012) [Defendant's incoherent and evasive answers about the location of a gun and the presence of children on the premises established an ongoing emergency and danger to life which justified a warrantless search] ; People v Rodriguez, 77 AD3d 280, Iv denied 15 NY3d 955 [Defendant lied to officers when he stated that he had been assaulted on the fifth floor of an apartment building and that he did not reside in the building; a trail of blood led the officers to his third floor apartment. Officers reasonably believed that an emergency existed which justified the warrantless entry into the Defendant's apartment]; People v Carby, 198 AD2d 366, Iv denied 82 NY3d 922 [Defendant denied that he heard gunshots at his residence which had been reported to the police, this denial heightened the officer's suspicions and supported reasonable ground to believe that an emergency existed]). The Fourth Department found that the Defendant's statements to the Deputies provided "evidence that [he] was withholding essential information and knowledge concerning the victim or victims' whereabouts" (A. 9). These circumstances must be assessed in their totality to determine the reasonableness of the Deputies' conclusion that an emergency was at hand (People v Jassan J, 84 AD3d 760, Iv denied 18 NY3d 925; People v Salazar, 290 AD2d 256, Iv 42 denied 97 NY2d 760, citing People v Mitchell, 39 NY2d 173).[FN4] Further, as this Court noted in People v Hicks, (68 NY2d 234), "a Court making this assessment should take care to consider whether the police are acting in a swiftly developing situation and in such cases, the Court should not indulge in unreasonable second guessing". Applying this analytical framework to the circumstances of this case, it must be concluded that there is ample support in the record for the Appellate Division's determination that the Deputies' belief that an emergency existed was reasonable. The dissent's conclusion that the Defendant's "explanation" for the presence of blood on his clothes was reasonable mischaracterizes the record and defies common sense. When the Defendant was first asked about the blood on his clothes, he replied, "I butcher deer", a subtle non-sequitur no doubt intended to deflect suspicion and end inquiry into the topic. When pressed further on the origin of the blood, the Defendant offered that the coveralls had been in his garage and he just put them on when he left his house (A. 249) and that it was "old blood" (A. 283) Dep. Reeves then confronted the Defendant with the obvious: that the blood was fresh, not old. At that point, the Defendant had to change tactics. When asked specifically if the blood on him was from a deer, the Defendant replied, "no" (A. 521). Dep. Reeves then made the natural follow up inquiry. "Is it human blood?" to which the Defendant replied "I can't tell you that". This is tantamount, for purposes of emergency doctrine analysis. to an admission that the 4 The dissenters in the Fourth Department wrote of the majority's "unwarranted expansion" of the emergency doctrine based upon the "mere fact" that the Defendant had blood on his clothes. In so stating, the dissent ignored the additional factors noted supra, including the sheer volume of the blood on the Defendant's clothes, the blood on his body, the interior and exterior of his vehicle and the gloves next to his vehicle, the Defendant's suspicious behavior at the repair shop, his curious explanation for his presence there and his false and increasingly ominous statements about the blood. As will be argued infra, the majority's decision did not expand the emergency doctrine at all. In fact, the Defendant's position would unreasonably restrict the ability of law enforcement officers to address exigent situations pursuant to the emergency doctrine. 43 blood came from a human source. To suggest, based upon these facts, that the Deputies should have accepted the Defendant's "explanation" that the blood on him came from a deer is preposterous. We can't expect, nor would we want, law enforcement officers to approach their duties with the blind naivete that would be required to accept such a claim. [FNS] The dissent's corollary finding that the emergency doctrine does not apply because there was no known victim is also unfounded. The Appellate Division's majority found that: The amount of blood located on defendant's clothing, sneakers, face, hands, and the inside and outside of his van, along with the blood on the snow and the gloves, established the existence of an victim or victims who had been seriously injured. In addition, the deputies knew from the blood on defendant that he had been very close to the victim or victims. Furthermore, his refusal to answer questions and his patently false statements were evidence that defendant was withholding essential information and knowledge concerning the victim's or victims' whereabouts. Thus, contrary to the conclusion of the dissent, the deputies knew that there was a victim, to wit, at least one person who had been seriously injured and needed assistance. The flaw in the Defendant's argument is that he equates the concept of an unidentified victim with that of a non-existent victim. While the victim in this case was unnamed when the Deputies were questioning the Defendant, based upon these circumstances, he/she/they were certainly known to exist. As even the dissent concedes, 5 The irony of the dissent's finding that the Defendant's explanation was reasonable is that, had the Deputies accepted the Defendant's claim that the blood came from a deer he had butchered, they would have had probable cause to immediately arrest him for a crime, that is, Taking a Deer Out of Season (Environmental Conservation Law Sections 11-0901(4)(b)(10), 11-0907(2)(t) and 71-0921(1» and, as such, the Defendant's continued detention would have been justified on that basis. Of course, as submitted herein, such a conclusion by the Deputies would have been decidedly unreasonable under these circumstances. 44 the police do not need the identity of the victim in order for the emergency doctrine to be applied. People v Boyd, 3 AD3d 535, Iv denied 2 NY3d 737. While the police were aware of a particular kidnapping victim in People v Krom, (61 NY2d 187), and of a person missing under suspicious circumstances in People v Kimes, (37 AD3d 1; Iv denied 8 NY3d 881), nothing in the holding or dicta of those decisions would begin to support a contention that this Court meant to limit the application of the emergency doctrine only to situations where a victim has already been identified (see People v Boyd, 3 AD3d 585, Iv denied 2 NY3d 737). To require such an element in order to conclude that an emergency exists ignores the fact that true life threatening situations can present in infinite ways. Law enforcement officers must be afforded the flexibility necessary to appropriately address these myriad possibilities. As Justice Rosenblatt so succinctly put it in People v Molnar, "Not all emergencies are the same. . . . Reasonableness requires police to tailor responses (and their levels of intrusiveness) to the nature of the emergency." (98 NY2d, at p. 333; see also NY v Quarles, 467 US 649; People v Oquendo, 252 AD2d 312, Iv denied 93 NY2d 901). In defining what constitutes an emergency in the context of the Sixth Amendment's Confrontation Clause, this Court held that whether an emergency exists is a fact-based question that must be decided on a case by case basis (People v Andino- Nieves, 9 NY3d 12 [officer's belief that an emergency existed at the scene of a stabbing was reasonable, despite the fact that the perpetrator had fled; this justified the admission of the victim's statements to the officers]). Based upon these well-established principals, this Court should not accept the strained and overly restrictive interpretation of Krom and Kimes suggested by the Defendant and the Appellate Division dissenters. 45 Further, the notion that the emergency doctrine reqUIres an identified victim and/or the report of a crime is contrary to many decisions which have held that the emergency doctrine justifies a warrantless entry into a residence, an event which otherwise would offend the Fourth Amendment. In People v Rodriguez, (77 AD3d 280, lv denied 15 NY3d 955), the police were summoned to an apartment building to investigate the report of a stabbing. The victim was located and, based upon information he provided, an arrest was made, thus resolving the reported crime. However, based upon discrepancies in the information provided by the stabbing victim, the detectives continued their investigation. A trail of blood from the location where the victim had been found led them to an apartment which had not been implicated in the stabbing or any other crime. Their warrantless entry into that apartment, which they later determined belonged to the victim of the stabbing, yielded a substantial quantity of narcotics in plain view. The Rodriquez Court held that, despite the fact that there was no report of a missing or injured person (other than the Defendant himself) and no report of a crime associated with the Defendant's apartment, the entry into the apartment was justified under the emergency doctrine. The presence of blood leading to and upon the apartment door, together with the Defendant' s false and evasive statements to the investigating officers, created a reasonable belief that there might be an as yet unknown victim within. In People v Jassan J, (84 AD3d 620, Iv denied 18 NY3d 925), officers responded to an apartment from which a 911 call had originated. The caller did not speak during the duration of the 20 second call. After getting no response to their initial knocking at the apartment door, one officer observed through a window an individual inside who moved quickly away from the window. After again knocking at the door, the officers were 46 admitted by the frail, approximately 60-year-old tenant and his wheelchair-bound sister. Both occupants stated that "everything is fine" and that neither of them had made the 911 call. Nonetheless, the subsequent search of the apartment, which yielded a quantity of cocaine in the bedroom occupied by the Defendant, the tenant's nephew, was found to be justified under the emergency doctrine. [FN6] Finally, this Court's decision in People v Molnar, (98 NY2d 328) squarely refutes the Defendant's assertion that the emergency doctrine has never been applied to circumstances in which there is no known victim and no report of a crime. In Molnar, Buffalo Police Officers were called to an apartment building to investigate a foul odor emanating from one of its units. As noted by the Molnar Court, "[a]1though the smell certainly suggested it, the police could not have said with certainty that it was being caused by a rotting (human) body". Despite the absence of a known victim, a missing person, or a crime report, the warrantless entry into the apartment, which resulted in the discovery of the decomposing body of the Defendant/tenant's girlfriend, was deemed justified under the emergency doctrine (see also, People v Dillon, 44 AD3d 1068 (2d Dept 2007)). There is no logical reason why the concept of "emergency" should be defined differently in its application to the Fifth and Sixth Amendments than it is in the Fourth Amendment realm. [FN7] Indeed, the right of citizens to be secure in their homes has been recognized as the most sacred contained in the Bill of Rights [People v Levan, 62 NY2d 139, citing Payton v New York, 445 US 573 ["physical entry into a home is the chief evil against which the wording of the Fourth Amendment is directed]; Kyllo v US, 6 The Jassan J. Court also found that the search was justified on a consent theory. 7 This is also true of the application of the emergency doctrine to street encounters under the Fourth Amendment, as will be discussed under Point II. 47 533 US 27 ["At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governrnental intrusion"], Oliver v US, 466 US 170 [a heightened expectation of privacy is possessed by those in their home, based upon the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic"]) Despite the sacrosanct nature of a person's right to be secure in his own home, the mere possibility of the existence of an unknown victim in Rodriguez and Jassan J, and a mere foul odor in Molnar justified the warrantless searches of the respective defendants ' homes pursuant to the emergency doctrine. If the absence of a known victim and the lack of a reported crime present no barrier to the application of the emergency doctrine to the Fourth Amendment Warrant clause, then there is no reasonable argument which would hold that such circumstances should preclude as a matter of law the application of the emergency doctrine to the Fifth and Sixth Amendment issues raised by the Defendant in this case, where the Deputies possessed even greater indicia that a life or lives were at stake. 2. Statements to Teresa Zelaszkiewicz The Defendant's claim that his statements to his friend subsequent to his arrest were improperly admitted at trial is likewise without merit. The Defendant urges this Court to find that his conversation with his friend at the Genesee County Sheriff s Office, overheard by Inv. Kautz, was the functional equivalent of interrogation. On the contrary, the Appellate Division's finding that the Defendant's friend was not acting as an agent of the Deputies, and that his statements were otherwise not induced by governrnental entities (People v Carvalho, 60 AD3d 1394, Iv denied 13 NY3d 742) is well supported in 48 this record. As such, the Defendant's argument must be rejected. The Appellate Division unanimously held that the Defendant's friend, Teresa Zelaszkiewicz, was not acting as an agent of the police when she spoke with the Defendant while he was in custody at the Genesee County Sheriff's Office. After noting that statements induced by non-governmental entities, acting privately, do not fall within the ambit of the exclusionary rule, (People v Velazquez, 68 NY2d 533), the majority analyzed the record in light of the factors set forth in People v Ray (65 NY2d 282). These factors include: 1) whether the circumstances establish a clear connection between the police and the private investigation; 2) completion of the private act at the instigation of the police; 3) close supervision of the private conduct by the police; and 4) whether there was a private act undertaken on behalf of the police to further a police objective. Applying these factors [FN8] to the facts of this case brings the true nature of the interaction between Inv. Kautz, Teresa Zelaszkiewicz and the Defendant into clear focus. Ms. Zelaszkiewicz appeared at the Genesee County Sheriff's Office of her own volition and repeatedly insisted that she be allowed to speak with the Defendant. As such, her conversation with the Defendant did not occur at the instigation of the police (People v Ray factor #2, see also People v Jean, 13 AD3d 466, Iv denied 5 NY3d 764). Inv. Kautz did not participate in any way in the conversation between the two and did not suggest to Ms. Zelaszkiewicz any questions she should ask or otherwise advise her how to conduct her conversation. Therefore, there was no close supervision of Ms. Zelaszkiewicz's behavior by Inv. Kautz (People v Ray factor #3, see also People v Trovato, 68 AD3d 1023, Iv denied 14 NY3d 806). Finally, the record is clear that Ms. Zelaszkiewicz's 8 Ray factor #1 would appear to be inapplicable to these facts, as there was no "private investigation" involved. 49 motivation in going to the Genesee County Sheriffs Office that morning and insisting on an audience with the Defendant was out of concern for his well-being at that time and into the future. As such, her acts were not undertaken on behalf of the police to further a police objective (People v Ray factor #4). Contrary to the unsupported claim of the Defendant, these facts bear no resemblance to cases where this Court and others have considered the question of whether certain police tactics have amounted to the functional equivalent of interrogation (People v Ferro, 63 NY2d 316 [where the display of the victim's stolen furs to the Defendant was found to be the functional equivalent of interrogation]; Rhode Island v Innis, 446 US 291 [where a conversation between officers in the presence of the Defendant about the danger presented by a discarded firearm was not held to be the functional equivalent of interrogation]; Brewer v Williams, 430 US 387; [where the Detective's "Christian burial speech" was found to be the functional equivalent of interrogation] . In addition to the factors cited supra, the other circumstances surrounding the Defendant's conversation with Ms. Zelaszkiewicz militate against a conclusion that she was an agent of the police. Inv. Kautz did not attempt to deceive either the Defendant or his friend in any way. Ms. Zelaszkiewicz acted without promise or inducement from the police (People v Trovato, 68 AD3d 1023, Iv denied 14 NY3d 806). Inv. Kautz did not engage in any surreptitious or improper maneuvering and Defendant was aware of his presence in the room when the conversation took place (People v Cascio, 79 AD3d 1809, Iv denied 16 NY3d 689). Based upon these facts, the Defendant's argument that there is no support in the 50 record for the Appellate Division's determination that Ms. Zelaszkiewicz was not an agent of the police must be rejected. As set forth supra in section B of this Point, the affirmed factual findings of the Suppression Court that the Defendant's statements to her were not the product of police interrogation or its functional equivalent is beyond the review of this Court (People v Rivers, 56 NY2d 476). D. Harmless Error If this Court should find that any of the Defendant's statements were improperly admitted against him, the People submit that any such error is harmless (People v Crimmins, 36 NY2d 230). As argued below, the People presented overwhelming evidence of the Defendant's guilt, including the Defendant's presence near and walking toward the scene of the crime, covered in the victim's blood (which was also determined to be upon and inside of the Defendant's vehicle); his false and evasive statements to the Deputies; the testimony of the blood spatter expert, who opined based upon his thorough analysis of the evidence that both the Defendant and his vehicle were in close proximity to the victim at the time of the homicide; the strong evidence of the Defendant's motive to kill the victim; and the Defendant' s testimony at trial, which was not credible and was irreconcilable with the testimony of the People's blood spatter expert. Based upon the totality of the evidence, there is no reasonable possibility that the error, if any, affected the jury's verdict (People v Douglas, 4 NY3d 777; People v Kello, 96 NY2d 740). This is partiCUlarly true where, as here, the Defendant's statements admitted at trial were essentially exculpatory ("1 was there, but 1 didn't do it.", "1 can't tell you that.") (People v Watkins, 59 AD3d 1128, Iv denied 12 NY3d 922; People v Hernandez, 43 AD3d 1412, Iv denied 9 NY3d 1043) and consistent with the Defendant's defense at trial 51 that he came upon the decedent's body after the assault and was concerned that his son might have been involved (People v Green, 74 AD3d 1899, Iv denied 15 NY3d 852; People v Reyes, 62 AD3d 570, Iv denied 13 NY3d 748 [any error in admitting Defendant's statement was harmless, despite the fact that the Prosecutor argued in summation that it represented consciousness of guilt]; compare, People v Catalano, 80 AD2d 587). [FN9] CONCLUSION Given the legitimate concern of the Deputies for the safety and well being of the person or persons whose blood they observed upon the Defendant and his vehicle, the Defendant's Fifth and Sixth Amendment rights must yield to the demands of public safety. For the Deputies to have taken any other course of action would have been tantamount to a dereliction of duty (People v Jassan J, 84 AD3d 620, Iv denied 18 NY2d 925 at p. 623; see also 3 LaFave, Search and Seizure Section 6.6[a], 4th Edition). The core purpose of the emergency doctrine, the protection of life and property, would not be served by imposing upon it the limits suggested by the Defendant. The Order of the Trial Court and the Appellate Division, Fourth Department, must be affirmed. POINT II THE APPROACH AND DETENTION OF THE DEFENDANT WERE PROPER A. Introduction The detention of the Defendant was based upon reasonable suspicion and was further justified by the Deputies well-founded belief that a seriously injured victim or victims were in immediate need of assistance. The most fundamental duty of a police officer is to provide such potentially life saving help, and the Fourth Amendment' s 9 As argued supra, the Defendant's pre-custody statements are not at issue here. 52 guarantee against unreasonable seizures was not violated by the Defendant's detention for the purpose of gaining information about the victim(s) location. The Defendant's statements to the Deputies and the items of physical evidence seized from him (his clothes and vehicle) were not the product of an illegal detention. B. The Issues Presented By the Defendant Are Largely Beyond The Scope of Court of Appeals Review The Defendant claims that his detention represents a de facto arrest without probable cause and that the evidence seized by the Genesee County Sheriff's Office was illegally derived as a result thereof. Both the Trial Court and the Appellate Division found that the Defendant's detention was justified under the circumstances of this case. The reasonableness of a seizure, the existence of reasonable suspicion and the classification of a detention as an arrest are all mixed questions of law and fact which are beyond the review of this Court unless there is no record support for the determination of the lower court. Even if a different conclusion would not have been unreasonable, there being substantial support in the record for the Appellate Division's finding that the Defendant's detention and the seizure of items of evidence from him was justified (People v Williams, 17 NY3d 834; People v Greenidge, 91 NY2d 967), these issued are beyond the scope of this Court's review. C. The Defendant's Claim That His Detention Violated His Right to Be Free From Unreasonable Seizure Is Without Merit, and the Trial Court Properly Admitted His Statements and the Items of Physical Evidence Seized From Him At Trial If this Court should reach the merits of this issue, the People submit that the decision of the Appellate Division, which found that the detention of the Defendant by members of the Genesee County Sheriff s Office was lawful and the seizure of his 53 clothes were proper, must be affirmed. [FN10] 1. The Defendant's Detention The cases cited by the Defendant in support of his claim that he was illegally subjected to a de facto arrest (Dunaway v New York, 442 US 200; People v Hicks, 68 NY2d 234; People v Robinson 282 AD2d 75; People v Ryan, 12 NY3d 28, etc.) are missing a crucial factor - none of them contain the element of emergency that was present here. Therein lies the fatal flaw in the Defendant's argument, because cases without an emergency component can provide little analytical assistance to this Court in deciding this case. "What would otherwise be illegal absent an emergency becomes justified by the need to protect or preserve lives or avoid serious injury" (People v Hodge, 44 NY3d 553). As has been held by this Court many times over, the touchstone of the Fourth Amendment, including its application to police - citizen encounters, is reasonableness, not bright line rules (People v McLaurin, 70 NY2d 779; People v Gomez, 5 NY3d 416). As asserted under Point I, and equally applicable to the detention which is the subject of this point, "law enforcement officers should be afforded flexibility to respond to the true emergency circumstances, whether the danger is momentary or ongoing, and that purpose would not be served by setting limits as to the time or locations of questions that are objectively necessary to public safety" (People v Oquendo, 252 AD2d 312, Iv denied 93 NY2d 901; see also, People v Molnar, 98 NY2d 238, 333 [ "reasonableness requires police to tailor responses (and their level of intrusiveness) to the nature of the emergency"]. Also true in this context is that the circumstances confronting the police 10 The Defendant's brief contains no argument that Deputy Diehl's approach and initial questioning of him were improper. Based thereon, the findings of the Appellate Division with respect to those issues should also be affirmed (A. 12). 54 officers must be considered in their totality, not as discrete, unconnected elements (People v Chestnut, 51 NY2d 14 ["Courts simply must not, in this difficult area of street encounters between private citizens and law enforcement officers, attempt to dissect each individual act by the policeman; rather the event must be viewed and considered as a whole, remembering that reasonableness is the key principle when undertaking the task of balancing the competing interest presented"]; People v Jassan J, 84 AD3d 620, Iv denied 18 NY3d 925). Utilizing this analytical framework, the Appellate Division found that the Defendant's detention was justified at the outset as a level III intrusion under People v DeBour (40 NY2d 210), which requires reasonable suspicion. Reasonable suspicion is "that quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe that criminal activity is at hand."(DeBour, ibid). The Appellate Division went on to decide that the Defendant's continuing detention at the location where he had parked his vehicle and later at the Genesee County Sheriffs Office was justified by the continuing emergency then confronting the Deputies (A. 12 - 13). The three prong test enunciated in People v Mitchell, (39 NY2d 173) relates to the application of the emergency doctrine to the warrantless entry into a residence. Reasoning that the Defendant relies on a similar Fourth Amendment right here, the Appellate Division analyzed the facts of this case and found that they satisfied the Mitchell test. The first requirement is that the police have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property. As argued under Point I, this requirement is certainly 55 supported by these facts. The second Mitchell factor, to the extent that it is still viable under New York Law, [FN11] requires that the police be not primarily motivated by an intent to arrest and seize evidence. This record clearly establishes that the primary motivation of the Deputies in detaining and questioning the Defendant was to locate the individual or individuals who were the source of the blood they observed. Even if the possibility of some criminal agency was present in the minds of the Deputies, this contingency was not the primary motivation for their detention and questioning of the Defendant (Mitchell, ibid at p. 179). Contrary to the Defendant's further assertion, the Defendant's transport to the Genesee County Sheriff's Office was not for the purpose of obtaining additional or as yet undiscovered evidence; rather, it was to collect evidence that had already been discovered and was already susceptible to lawful seizure. The third Mitchell factor which requires a reasonable basis, approximating probable cause, to associate the emergency with the place to be searched, presents an interesting analytical issue when applied to these facts. Obviously, the Mitchell decision relates to the application of the emergency doctrine to the Fourth Amendment warrant clause, and the factors set forth therein are tailored accordingly. Because there is no "place to be searched" presented by the facts of this case, the third Mitchell factor might be dismissed as inapplicable. However, if the phrase "person to be detained" is substituted for "place to be searched", the third factor in Mitchell becomes analytically useful for this case. So modified, there was certainly reasonable grounds to associate the emergency with the person to be detained, the Defendant herein. The People submit that there exists so clear a connection between the emergency and the Defendant that his 11 See Brigham City v Stuart, 547 US 398; People v Dallas, 8 NY3d 890; People v Rodriguez, 77 AD3d 280, Iv denied 15 NY3d 955, at pp. 283 - 284 56 detention, even if it would otherwise violate the Fourth Amendment, was objectively reasonable. The Defendant attempts to support his argument that the detention was illegal by pointing out that the Deputies could not be sure that the substance they observed on him was human blood. What the Defendant fails to apprehend in making this claim is that a determination of reasonable grounds to believe that an emergency exists is founded upon probabilities, not certainties (People v Chestnut, 51 NY2d 14 [Reasonable suspicion, not absolute certainty, is the applicable standard, and it is clear that the officer's concerns were predicated upon specific and articulable facts"]; People v Rodriguez, 77 AD3d 280, Iv denied 15 NY3d 955). Despite the fact that the Appellate Division correctly concluded that the Deputies had "ironclad proof that a serious life-threatening injury" had occurred (A. 9), such definitive indicia are not required for the application of the emergency doctrine (Michigan v Fisher, 558 US 45). To be sure, it would be quite unreasonable to require certainty with respect to this or any other circumstances confronting a police officer as a pre-requisite to a conclusion that an emergency exists, and no decision of this Court has ever imposed such a requirement. All that is necessary are reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property (People v Mitchell, 39 NY2d 173; People v Dallas, 8 NY3d 890). Simply because the Defendant can spin a fanciful alternative theory setting forth an innocent explanation for his behavior and presentation does not render unreasonable the Deputies belief that an emergency existed. [FNI2] 12 Although Defendant steadfastly refused to assist the Deputies during their desperate attempts to locate the victim, he testified at trial that he came upon his already mortally injured friend in his driveway and feared (for reasons he did not adequately articulate) that his son had been involved. As neat as Defendant's theory might appear at first, it did not account for the blood spatter on his clothes or his vehicle. 57 Likewise, the inability of the Deputies (or the Appellate Division) to ascribe a particular crime for which reasonable cause attached is of no consequence. An ordinarily prudent and cautious person would conclude that whoever was the source of the blood on the Defendant, his clothes, his gloves and his vehicle had suffered serious physical injury. As serious physical injury is an element of many (mostly felony) crimes [FN13], it is unnecessary either for the purposes of reasonable cause analysis under DeBour or emergency doctrine analysis for a responding law enforcement officer to make such a nuanced determination when presented with circumstances such as these. The Defendant raises the spectre of the "slippery slope" in relation to the length of the Defendant's detention (Appellant's Brief p. 68). As noted supra, the nature of the emergency doctrine is such that bright line limitations on the actions of law enforcement officers cannot be pre-imposed in cases where exigent circumstances are present. As was noted in People v Oquendo, "whether the efforts [of the officers] took but a few minutes, as they did in Quarles, ... or many hours, as occurred here, so long as the emergency condition continued unabated, the overriding concern for the safety of the public ... is paramount to the Defendant's right against self-incrimination" (id at p. 316; see also, People v lvJolnar, 98 NY2d 238). [FN14] The emergency herein was not abated until the victim's body was discovered at approximately 1:30 a.m., at which time Investigator Kautz had already transported the Defendant to the Genesee County Sheriff s Office for the purpose of photographing and collecting the bloody clothes he was wearing. As will 13 For example: Assault in the First Degree (Penal Law Section 120.10(1 », Assault in the Second Degree (Penal Law Section 120.05(1», Manslaughter in the First Degree (Penal Law Section 125.20(1», Murder in the Second Degree (Penal Law Section 125.25(1», Leaving of a Serious Physical Injury Accident (Vehicle and Traffic Law Section 600-2(c)(i». 14 As argued supra, there is no line of reasoning which would logically conclude that true emergency circumstances can overcome substantial Fifth and Sixth Amendment rights but not a Defendant's Fourth Amendment right to be free from unreasonable seizures. 58 be argued further below, the Defendant's clothing and vehicle contained evidence of a crime in plain view and, as such, were susceptible to seizure. The Defendant's detention was certainly justified pursuant to the emergency doctrine up to the point when his clothes were seized, and it is not necessary to speculate as to what might have happened if the discovery of the victim's body had not intervened and thereby provided probable cause to arrest. Tellingly absent from the Defendant's argument that his detention was illegal is any indication of what he believes the Deputies should have done under these circumstances. At what point in this process should they have allowed the blood drenched Defendant to drive away in his blood spattered van, despite their sincere concern that a critically injured victim was still undiscovered, and despite the fact that with the Defendant would go obvious and fragile evidence of a crime? The answer is clear: the Deputies should not have let him go without doing everything within their power to address this emergency and without collecting the Defendant's clothing and vehicle, which is exactly what they did. The absence of any reasonable alternative course of action leads inevitably to the conclusion that their conduct was justified. 2. Fruit of the Poisonous Tree The Defendant seeks to exclude evidence of his bloody clothes as the fruits of what he claims was his illegal detention. Even if this Court were to determine that the Defendant's detention at some point became illegal, it does not follow that the items seized should be suppressed, because the Defendant has failed to demonstrate a connection between the evidence and the claimed constitutional violation (People v Jones, 2 NY3d 235). "The exclusionary rule enjoins the government from benefiting 59 from evidence it has unlawfully obtained; it does not reach backward to taint [evidence] that was in official hands prior to any illegality" (People v Tolentino, 14 NY3d 382; see also People v Holmes, 63 AD3d 1649, Iv denied 12 NY3d 926; People v Padilla, 28 AD3d 236, Iv denied 7 NY3d 760; People v Jackson, 17 AD3d 148, Iv denied 5 NY3d 790). The blood on the Defendant's clothes and its evidentiary character was immediately apparent to all who encountered him (People v Grant, 94 AD3d 1149 (2nd Dept, April 2012); People v Loomis, 17 AD3d 1049, Iv denied 5 NY3d 830; People v Stein, 306 AD2d 943, Iv denied 100 NY2d 599). As such, its seizure was authorized even if at some later point the originally legal detention became illegal (People v Richardson, 9 AD3d 783, Iv denied 3 NY3d 680). The evidence itself, the blood, is fragile in nature and susceptible to destruction or loss. As such, exigent circumstances existed which warranted the immediate seizure of the Defendant's clothes (People v Loomis, ibid; People v Thomas, 188 AD2d 569, Iv denied 81 NY2d 1021). Securing of Defendant's clothes could not reasonably have been accomplished in the harsh environment of the repair shop parking lot where the Defendant was originally detained. As such, the Defendant's transport to the Genesee County Sheriff s Office for that purpose was justified (People v Stein, ibid). CONCLUSION As argued herein, the Fourth Amendment protects individuals from unreasonable searches and seizures. However, no person - let alone a murderer - can, in the name of constitutional privacy, expect to present in public the way this Defendant did without generating official cognizance and action (People v Molnar, 98 NY2d 328 at p. 335). 60 The action taken by the Deputies in detaining the Defendant in order to address the emergency with which they were confronted was in every way reasonable. Therefore, the order of the Appellate Division, Fourth Department, must be affirmed. POINT III THE SEIZURE AND SUBSEQUENT SEARCH OF DEFENDANT'S VEHICLE WAS PROPER AND THE EVIDENCE SEIZED PURSUANT TO THE SEARCH WARRANTS ISSUED BY THE GENESEE COUNTY COURT WAS PROPERLY ADMITTED AT TRIAL The Defendant claims that the pre-warrant seizure and subsequent post-warrant search of the vehicle he used on the night of the crime was improper. Based upon this record, the Defendant's argument fails and the evidence recovered from the search of the vehicle was properly admitted at trial. Similar to the blood observed on the Defendant's person and clothes, the blood on the inside and the outside of the Defendant's vehicle was in plain view when Deputy Diehl and Deputy Reeves first observed it. As argued under Point II regarding the seizure of the Defendant's clothes, and as determined by the Appellate Division, there was reasonable cause for the Deputies to believe that the vehicle was the instrumentality of a crime and, as a result, it was subject to seizure, provided exigent circumstances existed (People v White, 70 AD3d 1316, Iv denied 14 NY3d 835; People v Sweezey, 215 AD2d 910, Iv denied 85 NY2d 980). The transport of the vehicle from the repair shop parking lot to the Genesee County Sheriffs Office was thus justified, due to the fragile nature of the blood evidence on the vehicle's exterior. Exposure to the elements, even for a brief period, would risk the obliteration or degradation of the blood. This exigency warranted the transport of the 61 vehicle to the relatively stable environment of the Genesee County Sheriffs Office garage. It should be noted that no immediate search was conducted at the time of the seizure and transport of the Defendant's vehicle. After securing the vehicle and thereby preserving the evidence it contained and, after the discovery of the victim's body, Investigators from the Sheriff s Office set about to develop information to establish probable cause to search the interior of the vehicle and to seize other crime scene evidence as well as other items of the Defendant's property. As a result of their investigation, application was made to the Genesee County Court for a warrant to search the Defendant's vehicle as well as the cell phone located therein. The detailed ten page search warrant application amply established probable cause to search the Windstar for Defendant's cell phone and biologic evidence. The bulk of the information in the sworn application was based upon police observations and all the information in the application was traced back to first hand knowledge of identified police offers or citizens. The basis of knowledge prong was thus established, as was the reliability of the identified police officers and citizens. (People v Johnson, 66 NY2d 398; People v Hetrick, 80 NY2d 344; People v Bahr, 35 AD3d 909, Iv denied, 8 NY3d 919). As the County Court found: On the face of the February 20 warrant application, it appears that the information contained therein was based largely upon the personal knowledge of the affiant and fellow police officers to the effect that in the early morning hours of February 17, 2009, the bloodied body of the deceased Joseph E. Benaquist was found between two blood spattered automobiles - a Pontiac 06 with a flat tire and a Nissan Altima with an automobile jack at its side. The Pontiac G6 was tagged with a license plate from a Chevrolet Malibu purchased by decedent with defendant 62 but registered to and used by the decedent. A preliminary autopsy report indicated that the decedent died of multiple blunt force injuries to the head. Less than five hours prior to the discovery of the body, defendant was stopped by the police while walking in close proximity to the crime scene, carrying a lug wrench (typically used in changing tires). Defendant displayed what was determined to be human blood on his clothes and additional blood was detected on both the exterior and interior of the Ford minivan which defendant had driven and parked not far from the crime scene. It was also discovered that defendant had on his person a key to the Pontiac G6 automobile next to which the decedent's body was found. Defendant had a financing agreement for both the Pontiac G6 and the Chevrolet Malibu. An identified citizen who represented herself as the victim's girlfriend relayed from personal knowledge that the defendant was the decedent's business partner in the sale of motor vehicles, that there had been a troubled transaction between the two involving the Pontiac G6 and the Chevrolet Malibu, and that the victim indicated to her that he was to meet with the defendant the evening of his death. A review of cell phone records indicates that defendant had called the decedent earlier that afternoon .... (A. 204 - 205) Based upon this record, there exists a substantial basis for the Magistrate's conclusion that probable cause existed (People v Castillo, 80 NY2d 578). The warrants authorizing those searches were based upon probable cause and validly issued. In this regard, a warrant issued by a magistrate is cloaked with a presumption of validity (People v Castillo, 80 NY2d 578; People v Welch, 2 AD3d 1354, Iv denied 2 NY3d 747). The conclusory claims to the contrary contained in the Defendant's brief on appeal do not overcome this presumption. In any event, given the extent of blood spatter on the Defendant's skin and clothing together with all the other evidence offered by the People, if any error occurred 63 in admitting blood samples from the Windstar into evidence at trial, the error was harmless (People v Etoll, 51 NY 2d 840; People v Benefield, 203 AD2d 925, Iv denied, 84 NY2d 822). Further, subpoenaed call history records from Verizon Wireless (A. . 983) along with the call history recovered from the victim's phone (A. 1142) were put into evidence at Defendant's trial. This evidence first demonstrated that the Defendant and the victim communicated by telephone on the afternoon of the crime, which the Defendant confirmed in his trial testimony. It further showed that the Defendant did not use his cell phone during the crucial time period between 5:18 p.m. and 8:47 p.m., the time of his initial encounter with Dep. Diehl. It was during this time that the homicide must have been committed. The lack of communication via his telephone during the time frame of the murder contrasted with the Defendant's almost constant use of it in the hours prior to 5:18 p.m. None of the evidence admitted at trial relating to the Defendant's use of his cell phone was derived as a result of a search of the Defendant's property. In fact, no witness was called by the prosecution to testify to an examination of Defendant's cell phone based upon the search warrant. Accordingly, even if there was error relating to the seizure of Defendant's cell phone, such error was harmless. The seizure of the Defendant's vehicle was reasonable under the circumstances of this case and the warrants issued by the Genesee County Court for the search thereof and the cell phone therein were based upon probable cause. The Order of the Genesee County Court denying Defendant's suppression motion and the judgment of the Appellate Division, Fourth Department, should be affirmed. 64 CONCLUSION The United States Supreme Court in Michigan v Fisher (130 US 546) stated, "It does not meet the needs of law enforcement nor the demands of public safety to require officers to walk away from a situation like the one they encountered here". This observation is equally applicable to this case. The members of the Genesee County Sheriff's Office involved in this case acted reasonably at every stage of their encounter with the Defendant based upon their legitimate concern for individual and public safety. The judgment of the Appellate Division, Fourth Department, must be affirmed. Dated: Batavia, New York January 25, 2013 Respectfully submitted, LAWRENCE FRIEDMAN, ESQ. G:NE:EE_ CO::D~U ATTORNEY L{~ -~~V'-V By: WILLIAM G. ZICKL, ESQ. ASSISTANT DISTRICT ATTORNEY Genesee County Courts Facility One West Main Street Batavia, New York 14020 (585) 344-2550 ext. 2250 65 CERTIFICATION The PDF brief contained on the DVD/CD filed with this Court is identical to the filed original printed materials, except that it does not contain an original signature. ~ . lift td~/?{ elissa Lightcap Cianfrini ASSISTANT DISTRICT ATTORNEY GENESEE COUNTY