The People, Respondent,v.Clifford Graham, Appellant.BriefN.Y.March 25, 2015ORIGINAL To Be Argued By: PIOTR BANASIAK Time Requested: 10 Minutes APL-2014-00129 QCourt of ~ppeals SS>tate of .1!ew ~ork THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs-- CLIFFORD GRAHAM, Appellant . . BRIEF FOR APPELLANT Brief Completed: July 18, 2014 PIOTR BANASIAK, ESQ. Hiscock Legal Aid Society Attorneys for Appellant 3 51 South Warren Street Syracuse, New York 13202 (315) 422-8191(ext.0137) Fax No. (315) 422-5296 Table of Contents Table of Auth.orities ................................................................................................... ii Question Presented .................................................................................................... 1 Jurisdictional Statement ............................................................................................ 2 Statement of Facts ..................................................................................................... 4 .Argument . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 POINT I: Mr. Graham's September 11th statements should have been suppressed because the police failed to warn him of his right to remain silent and that anything he said could and would be used against him, in violation of his privilege against self-incrimination under the United States and New York constitutions .................................................................... 13 A. Introduction ............................................. ............................ 13 B. Miranda created a bright-line rule that does not include a "presence of counsel" exception .... ........ ...... ....................... 14 C. Requiring police to advise a suspect of his right to remain silent under these circumstances creates an easily applied rule that better comports with the high degree of respect this State accords to the right against self- incrimination, and better assures a knowing and intelligent waiver of th.is fundamental right ........................ 24 D. There was no proof in this case that, before he was questioned, either the police or counsel advised Mr. Graham of his right to remain silent and the consequences of forgoing that right .................................... 32 Conclusion .............................................................................................................. 3 7 l CASES State New York Table of Authorities People v Anonymous, 299 AD2d 296 [1st Dept 2002] ........................................... 27 People v Arthur, 22 NY2d 325 [1968] .................................................................... 31 People v Beam, 57 NY2d 241 [1983) ....................................................... ... 25, 26, 27 People v Bethea, 67 NY2d 364 [1986] ................................................................... 31 People v Claudio, 59 NY2d 556 [1983) .................................................................. 27 People v Crimmins, 36 NY2d 230 [1975) ................................................................ 35 People v Davis, 75 NY2d 517 [1990] ..................................................................... 27 People v Donovan, 13 NY2d 148 [1963] ................................................................ 31 People v Evans, 58 NY2d 14 [1982] ................................................................. 28, 34 People v Farrell, 42 AD3d 954 [4th Dept 2007] ................... ................................. 25 People v Graham, 107 AD3d 1421 [4th Dept 2013] .............................................. 35 People v lsidron, 209 AD2d 718 [2d Dept 1994] ............................................ ....... 36 People v Parker, 57 NY2d 136 [1982] ................................................................... 29 People v Paulman, 5 NY3d 122 [2005] .................................................................. 15 People v Peque, 22 NY3d 168 [2013) ......................................................... 14, 27, 31 People v Prado, 4 NY3d 725 [2004) ......................................................................... 3 People v Rogers, 48 NY2d 167 [1979] ......................... .................................... 14, 31 People v Sandoval, 34 NY2d 371 [1974) .......................................... ...................... 36 People v Smith, 22 NY3d 462 (2013) ..................................................................... 2-3 People v Smith, 59 NY2d 156 [1983) ................................................................ 28, 34 People v Smith, 63 NY2d 41 [1984). ................................................................. 27, 28 Other Baxter v State, 254 Ga 538 [1985] ..................... ..................................................... 20 11 Collins v State, 420 A2d 170 [Del 1980] ................................................................ 20 Commonwealth v Simon, 456 Mass 280 (201 O] ...................................................... 20 People v Mounts, 784 P2d 792 [Colo 1990] ..................................................... 20, 21 Smith v State, 832 So2d 92 [Ala Ct Crim App 2001] ............................................. 20 State v Bethel, 110 Ohio St 3d 416 [2006] ........................................................ 20, 21 State v De Weese, 213 W Va 339 [2003] ........................................................... 17, 18 State v Joseph, 109 Haw 482 [2006] ........................................................... 17, 18, 19 State v Vos, 164 P3d 1258 [UT Ct App 2007] ........................................................ 20 Federal Boykin v Alabama, 395 US 238 [1969] ................................................................... 30 Colorado v Spring, 479 US 564 [1987] .................................................................. 33 Dickerson v United States, 530 US 428 [2000] .......................................... 15, 16, 24 Escobedo v Illinois, 378 US 478 [1964] ................................................................. 21 Michigan v Mosley, 423 US 96 (1975] ............................................................. 23, 29 Miranda v Arizona, 384 US 436 [1966) ........................................................... passim Moran v Burbine, 475 US 412 [1986) ................................... .................................. 15 New Yorkv Quarles, 467 US 649 [1984) .................................................... 16, 27, 29 Sweeney v Carter, 361F3d327 [7th Cir 2004) ................................................. 17, 19 United States v Guariglia, 757 F Supp 259 [SDNY 1991) ..................................... 20 United States v Thevis, 469 F Supp 490 [D Conn 1979] ........................................ 20 Watts v Indiana, 338 US 49 [1949] ......................................................................... 34 Withrow v Williams, 501US680 [1993] .......................................................... 30, 32 STATUTES Civil Practice Law and Rules 5501 (b) ..................................................................... 2 Civil Practice Law and Rules 4503 ................................................................... 30, 31 111 Criminal Procedure Law 60.45 (2) (b) (ii) .............................................................. 33 Criminal Procedure Law 190.45 (1) ......................................... ................................ 30 Criminal Procedure Law 450.90 (1) .......................................................................... 2 Criminal Procedure Law 470.05 (2) .......................................................................... 2 Penal Law§ 155.25 ................................................................................................... 2 Penal Law § 170.30 ................................................................................................... 2 CO~STITUTIONAL PROVISIONS New York Constitution, article I, § 6 ...................................................................... 36 United States Constitution, Amendment 5 .............................................................. 36 United States Constitution, Amendment 14 ............................................................ 36 OTHER Nat'l Legal Aid & Defender Assoc., Performance Guidelines for Criminal Defense Representation, Guideline 6.2 ............................................................... 34 Rules of Professional Conduct (22 ~TYCRR 1200.0) rule 1.6 ................................ 30 Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.9 (c) (2) ..................... 30 IV Question Presented 1. Are police excused from advising a suspect of his right to remain silent, and the consequences of forgoing that right during custodial questioning, if an attorney is present during part of the questioning? The courts below held that Mr. Graham's waiver of his Miranda rights could be inferred from the presence of counsel. 1 Jurisdictional Statement This appeal is from a final decision of the Appellate Division, Fourth Department, and is undertaken by permission of a Judge of the Court of Appeals pursuant to Criminal Procedure Law (CPL) section 460.20 (2) (a) (ii). This Court has jurisdiction to review the issues raised herein pursuant to Civil Practice Law and Rules section 5501 (b ), as they involve questions of law, and CPL 450.90 (1 ), because they arise from an adverse order of an intermediate appellate court. Specifically, this Court has jurisdiction to review the order of the Appellate Division, Fourth Department that affirmed a judgment of the Onondaga County Supreme Court (John J. Brunetti, A.J.) rendered October 2, 2009, and all other intermediate orders. The final judgment convicted appellant, upon a jury verdict, of two counts of criminal possession of a forged instrument (Penal Law § 170.30) and two counts ofpetit larceny(§ 155.25) (Appendix [hereinafter "A"] at 7). The arguments raised by Mr. Graham were preserved for review (CPL 470.05 [2]). Mr. Graham moved to suppress the statements he made on September 11, 2008, on the ground that they were obtained in violation of his rights under the Fifth and Fourteenth Amendments to the U.S. Constitution, the provisions of the New York State Constitution, and CPL 60.45 (A 74; see also A 22). The Onondaga County Supreme Court granted a suppression hearing and denied the motion, and it specifically addressed the issue raised in Point I herein (A 22, 222-223; see People 2 v Smith, 22 NY3d 462, 465 [2013] ["the trial court ... 'expressly decided the question raised on appeal,' thus preserving the issue for review"]; People v Prado, 4 NY3d 725, 726 [2004]). 3 Statement of Facts Mr. Graham was confined in a penal institution for three years before he was released on August 20, 2008 (A 613). He was 25 years old (A 94). That day, his father and another relative came to pick him up and drive him home to Syracuse (A 502, 613). Before heading home they stopped by a bank in Moravia so that Mr. Graham could cash a $40 check he received from the Department of Corrections, and exchange a $100 bill his father gave him for smaller bills (A 613-614). The bank gave Mr. Graham seven $20 bills (A 614). Once they got back to Syracuse, Mr. Graham was greete-d by several family members at his aunt's house (A 614). Mr. Graham's father testified that at that time, he gave his son another $140 to $160 (A 506). After spending some time with family, Mr. Graham called a female friend, and the two spent a few hours driving around town, visiting other friends and people he grew up with (A 614). Mr. Graham testified that a number of friends, upon learning that he had just been released from prison, gave him money as a welcome home gift (A 614-615). The Microtel Hotel Incident Later that night, Mr. Graham and his female friend went to the Microtel Hotel in DeWitt (A 614). He paid for a room with five $20 bills (A 259, 615-616). Jason Meltzer, the front desk clerk, testified that the money felt funny, and the color appeared off (A 259). 4 Mr. Graham and his friend were in the room for about one hour when they heard a knock at the door (A 615). They answered to find Officer Glen Wintermute of the De Witt Police Department, who began questioning them about the money used to pay for the room (A 615-616). Mr. Graham told Wintermute that he had paid, at which point the officer asked the female friend to leave (A 616). Wintermute accused Mr. Graham of paying for the room with counterfeit money (A 616). Mr. Graham explained that he did not know the money was fake, and recounted how he had just come home from prison, and several friends and family had given him money (A 616). Officer Wintermute questioned Mr. Graham for several minutes, and then went to speak with Meltzer and the Microtel's manager (A 617). The two had called the police after the ''pen test" confirmed that the money was not real (A 260- 261, 274). The manager told Wintermute he wanted Mr. Graham and his friend to either pay for the room or leave the hotel (A 277). Wintermute allowed Mr. Graham to leave the hotel without further incident (A 617). Mr. Graham testified that the next day, August 21st, he went to check in with his parole officer, Tressa Eisenhower (A 618). He mentioned the incident at the Microtel to her, but explained that he had no idea the money was not real, and that he was not arrested (A 618). Eisenhower told him to be careful "because that's been going on a lot lately" (A 618). 5 Mr. Graham was acquitted of the charges stemming from the Microtel Hotel incident (A 774). The Sunoco Convenience Store Incident Later in the day on August 21st, Mr. Graham visited with friends and family, and also went to the Carousel Mall to buy some clothes and books (A 620). He then went to his mother's home, where he met up with his brother Terrell (A 621). He and his brother eventually decided to spend the night at his aunt's house, where Mr. Graham's father also resided (A 621). The next morning, Mr. Graham saw that there was not much to eat in the house, so he and his brother went to a nearby Sunoco gas station convenience store to buy some groceries for breakfast (A 621 ). He picked out several items, including milk, bread, and sausage, and proceeded to the cash register (A 621-622). When he got to the counter, he realized he also needed a toothbrush and toothpaste, so he went to retrieve those items (A 657-569). He testified that he paid for all the groceries at once with two $20 bills (A 660). Kristina Coumbes, the Sunoco cashier, testified that Mr. Graham first paid for several food items with one $20 bill, and then retrieved the other items, and paid for them separately with another $20 bill (A 291). According to Coumbes, the first batch of items cost about $14.75, and the second cost about $7.00 {A 291). 6 After Mr. Graham paid for the items, Coumbes noticed that the money did not look right (A 292). At the grand jury, she claimed that after she noticed this, she yelled at Mr. Graham as he was leaving, and that he turned around and told her she was wrong (A 302-303). At trial, Mr. Graham, who represented himself, played the surveillance tape from the Sunoco, which does not show Mr. Graham turning around, and it is also not apparent from the tape whether Coumbes yelled at him (Exhibit 14A). Coumbes conceded at trial that Mr. Graham may not have turned around, and that she may not have yelled at him, but still insisted that she said something to him {A 302, 310-311 ). Coumbes admitted that her memory of the incident was not so good, and she was mixing up things she had actually seen and heard with things she had been told by others {A 303-304, 314-315). Coumbes then called her manager, who confronted Mr. Graham outside of the store (A 292-293, 622). Mr. Graham at first did not think it was possible that the money was fake, but then said he would get money to pay for the groceries (A 303, 622). He told the manager that he did not have enough money on his person, so he would go get some from his father, who lived just up the block (A 622). Mr. Graham returned to his aunt's house and told his father that something was not right, because this was the second time he was told he had used fake money {A 623). His father told him he could give him some money, but he would have to get it from Mr. Graham's aunt, who was still sleeping (A 624). Mr. 7 Graham rummaged through some of his clothes and found a $20 bill and some change (A 624). He then proceeded back toward the Sunoco (A 624). Before Mr. Graham could return to the Sunoco, he was stopped by Officer Steven Marte of the Syracuse Police Department (the clerk and manager had called the police in the meantime) (A 345, 624). Marte questioned him about whether he had just been at the Sunoco (A 346). Mr. Graham stated he had, and that he was on his way back there (A 625). Marte also asked Mr. Graham about the other person who was with him at the Sunoco (A 347). Mr. Graham told him that was his brother, and that he was just up the block at his aunt's house (A 347). Marte went to the house and spoke with Mr. Graham's family members, and then took him to the Criminal Investigation Division (CID) for questioning (A 347-348). At CID, Mr. Graham was read his Miranda rights and questioned by Detectives Falvo and Colavita, who wanted to know the source of the fake bills (A 348). The detectives told him they were conducting an investigation involving counterfeit currency, but that Mr. Graham was not the focus of this larger investigation (A 426-427). Mr. Graham explained that he was just released from prison a few days ago and was not involved in manufacturing fake money (A 427). He further explained that he received money from several people over the previous few days, and he did not know who could have given him the bills (A 429). Mr. Graham mentioned having received money from a number of individuals on the 8 street, one of whom, the detectives later realized, was a counterfeiter they had been investigating (A 429). Falvo and Cola vita did not take a statement from Mr. Graham at that point (A 431). They told him that he would be arraigned, and if he wanted to speak to police about that incident he should go through his attorney (A 431 ). Mr. Graham was then arrested in connection with the incident at the Sunoco convenience store, and lodged at the local jail {A 431 ). Several days later, he was also charged and arraigned in connection with the incident at the Microtel Hotel (A 371). Police Question Mr. Graham on September 11, 2008 Mr. Graham was again questioned by Detectives Falvo and Colavita on September 11, 2008 (A 441). Falvo testified that the questioning session was arranged when Mr. Graham's attorney reached out to him and said that Mr. Graham was willing to cooperate (A 152). By that time, Mr. Graham had been in custody since August 22nd, and Richard Hanlon, Esq. had been assigned to represent him (A 222-223). Hanlon testified on behalf of the prosecution at the suppression hearing (A 125). Hanlon stated that the purpose of speaking with the detectives was to cooperate with their investigation and perhaps obtain a better deal (A 130). He testified that before he went to CID with Mr. Graham, he discussed the matter with him (A 125). The prosecutor asked Hanlon whether he advised Mr. Graham ''that 9 this was a voluntary [session] and that he in no way had to attend this session" (A 126). Haruon first testified "I don't recall.", but when asked the question a second time he said "That's correct, yes." {A 126). When they arrived at CID, Hanlon advised Detective Falvo that Mr. Graham was willing to speak to police {A 152). Mr. Graham spoke to Falvo, with counsel present, for approximately 20 minutes (A 153, 166, 223). Hanlon then said he had to leave, and informed Mr. Graham and Falvo that they could call him on the telephone if needed (A 169). Falvo continued speaking with Mr. Graham after his attorney left, and telephoned Hanlon when the topic ventured away from the counterfeit bills to a murder (A 169). Falvo memorialized the conversation in a written statement, but Mr. Graham refused to sign it (A 153-154). There is no indication in the record that Falvo administered Miranda warnings either before speaking to Mr. Graham, or following counsel's departure. The September 11th questioning centered around an individual Mr. Graham knew as "Taz", who he mentioned on August 22nd, and who police believed was involved in counterfeiting (A 444-445). Taz's real name is Comealis Johnson (A 445). Falvo testified that Mr. Graham told him that he ran into Johnson at a jewelry store, and Johnson showed him several bundles of counterfeit currency {A 444- 445). Mr. Graham said, however, that he did not buy any bills from Johnson (A 445). At trial, Mr. Graham testified that he and the detectives made up what was in 10 the written statement, in order to help the detectives with their investigation of the unrelated counterfeiting case and to eliminate the charges against him (A 644-645). He testified that he did not sign the statement because he did not want to sign something that was not true (A 645). The Lower Court's Suppression Decision Mr. Graham moved to suppress the statements he made on September 11th, among other things (A 74). The lower court granted a hearing "on defendant's motion to suppress [his] statement(s) based upon Miranda v Arizona, 384 US 436 (1966) and traditional involuntariness grounds" (A 22). The court orally denied suppression at the end of the hearing (A 222-223). It found that Mr. Graham was in custody on the matter and was represented by counsel (A 223). The lower court then concluded that "[o]nce a counsel waiver occurred in counsel's presence and the client agreed to submit to the interview on the topic at hand, to wit: counterfeit bills, counsel's presence thereafter is not required" (A 223). The court cited People v Fa"ell (42 AD3d 954 [4th Dept 2007]) in support of its conclusion (A 223). The Appellate Division Decision On appeal, the Appellate Division affirmed the conviction (People v Graham, 107 AD3d 1421 [4th Dept 2013]). It found that Supreme Court properly denied suppression (id. at 1422-1423). The Appellate Division also relied on Farrell, and held that "Inasmuch as defendant's counsel was present during the 11 first 20 minutes of the interview and informed the detectives that defendant was willing to cooperate, it was permissible for the officers to infer from defendant's conduct and his attorney's assurances that defendant's waiver of his 1\1iranda rights was made on the advice of counsel" (id., citing Farrell, 42 AD3d at 955). * * * Mr. Graham timely sought, and Chief Judge Jonathan Lippman granted, leave to appeal by order dated May 28, 2014 (A 3). His appeal now follows. 12 Argument POINT I Mr. Graham's September 11th statements should have been suppressed because the police failed to warn him of his right to remain silent and that anything he said could and would be used against him, in violation of his privilege against self- incrimination under the United States and New York constitutions A. Introduction The lower courts erred in holding that a valid waiver of Miranda rights could be assumed or inferred merely from counsel's presence--in other words, that the presence of counsel obviated the need for police to advise Mr. Graham of his rights. Mr. Graham asks this Court to hold that police are required to advise a suspect of the right to remain silent, and the consequences of forgoing that right, whenever they subject a suspect to custodial questioning, regardless of whether counsel is present. The Supreme Court in Miranda v Arizona (384 US 436 [1966]) created a bright-line rule and characterized the protective warnings as an "absolute prerequisite to interrogation" (id. at 471). The recitation of these rights ensures that an individual has affirmatively waived his right to silence before police begin their questioning. Creating a rule that assumes an individual's awareness and waiver of this right based on the presence of counsel is a mistake. As this Court recently pointed out, '"assuming defense counsel "will" do something simply because it is 13 required of effective counsel' is 'an assumption experience does not always bear out"' (People v Peque, 22 NY3d 168, 193 [2013], quoting Moncrieffe v Holder, 569 US _, _, 133 S Ct 1678, 1692 [2013]). Unlike explicit warnings, the mere presence of counsel is not a fully effective means of ensuring that a defendant is aware of his right to remain silent, and the consequences of forgoing that right. New York courts have ''jealously guarded" the privilege against self- incrimination, and have demanded that this fundamental right "be accorded the highest degree of respect by those representing the State" (People v Rogers, 48 NY2d 167, 170 [1979]). A rule that allows police to infer or assume a suspect's awareness and waiver of this fundamental right comports with neither the New York nor United States Constitution. B. Miranda created a bright-line rule that does not include a "presence of counsel" exception Almost 50 years ago, the U.S. Supreme Court ruled in Miranda v Arizona that the privilege against self-incrimination is fully applicable in the context of pre- trial custodial questioning of an individual by law enforcement officers (Miranda, 384 US at 467). The Court recognized that custodial police questioning is inherently coercive, and held that in order to protect an individual's right against self-incrimination, police must make him aware of the right to remain silent and 14 the consequences of forgoing that right (id. at 468-469).1 "It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege." (Id. at 469). The Miranda Court placed the burden on the government to demonstrate both that a defendant (1) was made aware of his Miranda, rights and (2) that he waived them before speaking with police (id. at 444). Any such waiver must be made voluntarily, knowingly, and intelligently (id.). A waiver is voluntary if"it was the product of a free and deliberate choice rather than intimidation, coercion, or deception" (Moran v Burbine, 475 US 412, 421 [1986]). It is knowing and intelligent if it was made ''with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it" (id.). Relatively recently, in Dickerson v United States (530 US 428 [2000]), the Court affirmed that Miranda. was a constitutional decision that could not be overruled by legislation (id at 432). In so holding, the Court struck down a federal statute, 18 U.S.C. § 3501, which supplanted the Miranda rule with a totality-of- the-circumstances analysis (id.). The statute allowed courts to look to a number of factors to determine whether a statement should be admissible at trial, including "whether or not such defendant was without the assistance of counsel when 1 "Although the Miranda rule was developed by the United States Supreme Court under the Fifth Amendment, New York courts have embraced the rule as consistent with article I, § 6 of the New York Constitution, which ensures that ' [ n ]o person shall ... be compelled in any criminal case to be a witness against himself or herself."' (People v Paulman, 5 NY3d 122, 130 [2005]). 15 questioned and when giving such confession" (id. at 435-436, quoting 18 U.S.C. § 3501). The Court rejected this sort of a broad inquiry and held that "Miranda and its progeny ... govern the admissibility of statements made during custodial interrogation in both state and federal courts." (Id. at 432). By rejecting an analysis for admissibility that took into account the presence of counsel as insufficient under Miranda to "assure the suspect that the exercise of [the right to remain silent] will be honored", the Supreme Court effectively rejected a presence of counsel exception (id. at 442). The Court reiterated that "Miranda requires procedures that will warn a suspect in custody of his right to remain silent ... ", and found section 3501 unconstitutional because it "explicitly eschew[ ed] a requirement of preinterrogation warnings" (id.). Aside from its decision in Dickerson, the Supreme Court has not directly addressed the question of whether the Miranda warnings are obviated by the presence of counsel during questioning. The only true exception to the Miranda rule that the Supreme Court has carved out applies in situations where there is a threat to public safety (New York v Quarles, 467 US 649, 657 [1984] ["We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment privilege against self-incrimination."]). 16 Courts around the country have split on the issue. Most courts have inferred a "presence of counsel" exception to the Miranda rule. These courts have generally relied on two bases in finding such an exception: (1) the prophylactic purposes underlying Miranda; and (2) language in Miranda suggesting that the presence of counsel during interrogation ''would be [an] adequate protective device." (Miranda, 384 US at 466). Other courts have expressly rejected such an exception, in light of Miranda's characterization of protective warnings as an "absolute prerequisite to interrogation." (Id. at 471). Courts talcing this view have also focused on the conceptual separation between the Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination. Both the Supreme Court of Appeals of West Virginia and the Hawai'i Supreme Court have held that there is no "presence of counsel" exception to Miranda (State v Joseph, 109 Haw 482, 496 [2006]; State v DeWeese, 213 W Va 339, 348 [2003]). While the West Virginia Court relied on the Fifth Amendment for its holding, the Hawai'i Court based its determination on article I, section 10 of the Hawai'i Constitution (Joseph, 109 Haw 482, 493). The U.S. Court of Appeals for the Seventh Circuit has also reached the same conclusion (Sweeney v Carter 361 F3d 327, 331 [7th Cir 2004]). In the De Weese case, the defendant was subjected to two polygraph examinations without being warned of his Miranda rights (De Weese, 213 W Va at 17 348). He sought to suppress his statements, but the state argued that warnings were not necessary, because the defendant's counsel was present at the time of the interrogation (id.). The West Virginia Supreme Court held that "[u]nder Miranda, the mere presence of defense counsel at an interrogation does not negate the necessity for providing the warnings against self-incrimination." (Id.). Central to the court's holding was the fact that Miranda characterized protective, pre-interrogation warnings as an "absolute prerequisite to interrogation" (id.). The court also concluded that a "presence of counsel" exception would force a suspect to surrender one constitutional right-the right to receive warnings protective of the Fifth Amendment right against self-incrimination-anytime the suspected asserted another constitutional right-the Sixth Amendment right to counsel (id. at 348- 349). The Joseph Court likewise held that "a defendant must be advised of his or her right to remain silent even if there is an attorney present" (Joseph, 109 Haw at 496). It explained that in order to protect the "freedom of choice" as to whether to confess or not, "every accused must be informed of the fact that he has certain rights under the Hawai'i Constitution" (id. at 494, quoting State v Santiago, 53 Haw 254, 265-266 [1971]). "We believe the most efficacious way to inform a 18 person of his right to remain silent would be to provide him or her with the Miranda warning." (Id.). The Joseph Court also emphasized that the right to remain silent is a personal right, and "cannot be deemed waived simply because an attorney is present during interrogation" (id. at 497-498). As such, "[t]he presence of an attorney does not constitute an implied waiver of the right to remain silent. Defense counsel's presence thus [is] not germane to the personal waiver envisioned under article I, section 10 of the Hawai'i Constitution." (Id. at 498). In Sweeney v Carter (361F3d327), the Seventh Circuit addressed the presence of counsel question while resolving a criminal defendant's habeas corpus claim. Although the Miranda issue was not dispositive in the case, the court nonetheless stated that it was unaware of any authority holding that "a suspect's discussions with defense counsel can double for the usual warnings given by law enforcement officers." (Id. at 331). Instead, the court reasoned that ''the contrary position-that whatever warnings are otherwise required by Miranda must be administered by the public authorities-is quite well-established." (Id.). The court wrote that the language in Miranda permitting "effective equivalent" Fifth Amendment protection measures had no bearing on this point, since that language applies only in "limited .. . situations in which police officers have botched or otherwise truncated the usual warnings." (Id.). 19 In contrast to the above cases, several state high courts and federal district courts have held that there is a "presence of counsel" exception to Miranda. In the most recent case, Commonwealth v Simon (456 Mass 280 [2010]), the Massachusetts Supreme Judicial Court split four to three and held that the presence of colUlsel substitutes adequately for the reading of Miranda warnings, where the suspect had an opportunity to speak with counsel before questioning (id. at 281). Simon involved a defendant who was suspected of murder, and was questioned by police with his attorney present (id. at 283-284 ). Police did not read him his Miranda rights before asking questions (id). The majority in Simon, much like the other courts that have recognized a presence of counsel exception2, relied on language in Miranda that said that the specific warnings delineated in that case are not the only permissible way to protect a suspect's right against self-incrimination (id. at 289-290). According to the majority, no warnings are "necessary when 'other fully effective means .. . to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it' are present" (id., quoting Miranda at 444 ). The Simon Court principally pointed to the statement in the Miranda opinion that "[t]he presence of counsel, in all the cases before us today, would be the 2 See State v Bethel, 110 Ohio St 3d 416, 426 (2006); People v A!ounts, 784 P2d 792, 795-796 (Colo 1990); Baxter v State, 254 Ga 538, 543 (1985); Collins v State, 420 A2d 170, 176 (Del 1980); United States v Guariglia, 757 F Supp 259, 264 (SDNY 1991); United States v Thevis, 469 F Supp 490, 508 (D Conn 1979); see also State v Vos, 164 P3d 1258, 1261-1263 (UT Ct App 2007); Smith v State, 832 So2d 92 (Ala Ct Crim App 2001 ). 20 adequate protective device necessary to make the process of police interrogation confonn to the dictates of the privilege [against self-incrimination]" (Miranda at 466). Other state high courts have come to the same conclusion in reliance on the same passage from Miranda (see e.g. State v Bethel, 110 Ohio St 3d 416, 426; People v Mounts, 784 P2d 792, 795-796). Simon and the other cases that rely on the "presence of counsel" language in Miranda read that sentence out of the specific context in which it was written. First, the sentence was written in section II of the opinion, in which the Court discussed the reasons why the privilege against self-incrimination applies in the custodial interrogation context-it was not written in the part of the opinion that discussed the safeguards necessary to protect the privilege (Miranda, 384 US at 466). Second, the Court was discussing its earlier decision in Escobedo v Illinois (378 US 478 [1964]), in which it held that a suspect was denied his Sixth Amendment right to counsel when police denied his request for a lawyer during custodial interrogation (id at 490-491). The Miranda Court explained that in Escobedo, it had stressed two factors that undennined the defendant's ability to exercise his privilege against self- incrimination during police questioning: (1) the police had not advised the defendant of his constitutional privilege to remain silent, and (2) police denied the defendant's request for a lawyer (Miranda at 465-466). 21 The lack of such advice, the court said, was "an essential ingredient" in its decision (id.). "The abdication of the constitutional privilege-the choice on his part to speak to police-was not made knowingly and competently because of the failure to apprise him of his rights; the compelling atmosphere of the in-custody interrogation, and not an independent decision on his part, caused the defendant to speak." (Id.). The Court wrote that, like the failure of police to advise the defendant of his rights, the "denial of defendant's request for his attorney thus undermined his ability to exercise the privilege-to remain silent ifhe chose or to speak without any intimidation, blatant or subtle" (id . . at 466). The Court then stated that the presence of counsel, in the four consolidated cases before it in Miranda, "would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege." (Id.). The next paragraph in the Miranda opinion strongly suggests that the presence of counsel, by itself, is not sufficient to establish a knowing, voluntary, and intelligent waiver of one's right against self-incrimination. The Court explained that "[t]he presence of an attorney, and the warnings delivered to the individual, enable the defendant under otherwise compelling circumstances to tell his story without fear, effectively, and in a way that eliminates the evils in the interrogation process" (id. [emphasis added]). In the very next sentence, the Court 22 wrote that "[w]ithout the protections flowing from adequate warnings arul the rights of counsel, 'all the careful safeguards erected around the giving of testimony, whether by an accused or any other witness, would become empty fonnalities ... "' (id. [quotation omitted]). Read in context, then, the Court appeared to say that an attorney can have a significant equalizing effect if present during custodial interrogation, but did not say that counsel alone, without warnings, is sufficient to establish a knowing, voluntary, and intelligent waiver of one's privilege against self-incrimination. While the presence of counsel may mitigate the coercive effect of custodial interrogation and help a suspect make a voluntary choice, it is the explicit warning of the right to remain silent that allows a suspect to make a knowing and intelligent decision to waive this fundamental right (Miranda, 384 US at 467-468 [knowledge of the right to remain silent is "the threshold requirement for an intelligent decision as to its exercise"]; Michigan v Mosley, 423 US 96, 108 [1975] [White, J., concurring] [noting that "there is at least some support in the law both before and after Miranda for the proposition that some rights will never be deemed waived unless the defendant is first expressly advised of their existence."]). The argument that the Miranda rule does not contain a "presence of counsel" exception is further supported by the Supreme Court's emphasis on the need for procedures "that are at least as effective in apprising accused persons of 23 their right of silence" (Miranda at 467 [emphasis added]; see also id. at 478-479 ["Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required." (emphasis added)]). This point was also emphasized by the Supreme Court in Dickerson: "Miranda requires procedures that will warn a suspect in custody of his right to remain silent and which will assure the suspect that the exercise of that right willbe honored" (Dickerson, 530 US at 442 [emphasis added]). l~iranda thus did not create an exception to advising a suspect of his constitutional right to remain silent, and the consequences of waiving that right, just because a lawyer may be present during questioning. To the extent the Miranda decision is ambiguous as to whether such warnings are required when an attorney is present, this Court should hold they are required as a matter of New York law. C. Requiring police to advise a suspect of his right to remain silent under these circumstances creates an easily applied rule that better comports with the high degree of respect this State accords to the right against self- incrimination, and better assures a knowing and intelligent waiver of this fundamental right As a preliminary matter, this Court has not yet addressed the question of whether a suspect's waiver of his rights can be inferred solely from the presence of 24 counsel and an opportunity to speak with counsel. In this case, the Appellate Division relied on its own decision in People v Farrell ( 42 AD3d 954) for that proposition. In Farrell, the defendant spoke to police, in the absence of counsel, after several face-to-face consultations with his attorney (id at 955). There is no indication in the decision whether police read defendant his Miranda rights. Relying on this Court's decision in People v Beam (51NY2d241 [1982]), the Appellate Division found that police properly questioned defendant in the absence of his attorney (Farrell at 955). "Under the circumstances, 'it was permissible for the [investigating officer] to infer from the defendant's conduct that he agreed with his attorney's advice' and to conclude from the attorney's assurance that the attorney had 'confirmed defendant's waiver of his rights to remain silent and that the waiver was made on the advice of counsel'" (id., quoting Beam, 57 NY2d at 254). In Beam, the defendant learned that police wanted to speak to him and presented himself to police after consulting with counsel (Beam at 247). Police read him his Miranda rights, and began questioning him (id.). At that point, defendant's attorney called the police station and told the interrogating officer that the defendant could sign the Miranda waiver and speak to police, but that he should not sign any statement until the attorney had seen it (id.). The defendant 25 later moved to suppress the statements he made, arguing that his right to counsel was violated (id. at 253). This Court upheld the denial of defendant's motion, finding that defendant, after he had consulted with counsel, agreed to be questioned without counsel present (id.). The police did not have an obligation to determine whether "the decision of the suspect and his attorney to waive the suspect's right to remain silent and to have his attorney present is good advice" (id.). Thus, in Beam, the defendant was actually advised of his Miranda rights. The question in this case is whether Mr. Graham could have waived his right to remain silent in a knowing and intelligent manner, even though there is no proof that he was advised of this right. Requiring the prosecution to prove that a defendant has been warned of his right to remain silent, regardless of the presence of counsel, is an easily'."applied rule that better comports with the higher degree of protection afforded to New York residents under this State's constitution. First, requiring police to advise suspects subjected to custodial questioning of their right to remain silent provides an easily verifiable way in which to ensure that a suspect was aware of this right before he answered police questions. As the Miranda Court stated, "a warning is a clearcut fact" (Miranda at 469). The warnings, and their administration, are straightforward and clear, and this clarity 26 offers essential protection of a suspect's right against self-incrimination (id.; New York v Quarles, 467 US 649, 663-664 [O'Connor, J., concurring]).3 Assuming or inferring that a lawyer advised a suspect of his rights provides no such clarity or assurance (Miranda at 468 [the privilege "is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning ... so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given."]). As noted above, this Court has recognized that lawyers do not always do what they should (Peque, 22 NY3d 168, 193).4 And when it comes to fundamental constitutional rights, ''the courts must indulge every reasonable presumption against waiver" (People v Davis, 75 NY2d 517, 523 [1990], citing Brewer v Williams, 430 US 387, 404 [1977]). Given the distinct possibility that a lawyer may fail to advise a suspect of his rights in any given case, it is unreasonable to presume that just because an individual spoke with a lawyer, he has been advised of his rights and the consequences of waiving them. 3 Notably, New York case law indicates that some police departments already read Miranda warnings to suspects when counsel is present (see People v Smith, 63 NY2d 41, 60-61 [1984]; see also People v Anonymous, 299 AD2d 296 [1st Dept 2002] [defendant initiated contact with f?lice, consulted with counsel, and was read Miranda rights before questioning]}. Indeed, this Court has on more than one occasion pointed out the less-than-adequate assistance provided by lawyers in the custodial interrogation context (see e.g. People v Claudio, 59 NY2d 556, 560 [1983] [in case where counsel advised defendant to speak to police, noting ''that all members of this court are in agreement that the performance of defendant's lawyer was woefully inadequate"]; see also Beam, 57 NY2d at 255 ["In retrospect, one may argue that the attorney's advice was poor ... "]). 27 That is especially true in a case such as this one, where the attorney acted in an objectively unreasonable manner when he departed 20 minutes into the interview, and inexplicably left Mr. Graham alone with police in the interrogation room. Moreover, the lawyer allowed Mr. Graham to provide information to police while failing to take any safeguards to protect him. Since Mr. Graham was going to provide information in order to get a better deal, counsel could have requested a stipulation that any information provided by Mr. Graham could not be used at trial (see e.g. People v Evans, 58 NY2d 14, 24 [1982] [noting that "it would have been a simple task to include such a limiting condition as part of that plea"]; People v Smith, 59 NY2d 156 [ 1983 ]). If counsel in this case failed to take such basic steps to safeguard his client-which Mr. Graham asserts rendered counsel constitutionally ineffective-how can we be at all confident that he advised him of his constitutional rights?5 Cases may also arise where the lawyer is one who has never practiced criminal law, or who does not even know what Miranda rights are. In yet other cases, the time the attorney has to speak with the client may be brief. 5 In addition, even if a defendant were to call a former attorney at a suppression hearing to testify about his failure to advise him of his constitutional rights, that attorney' s testimony may very well be affected by personal concern about the possibility of malpractice claims (see People v Smith, 63 NY2d 41, 61 ["the trial court was justified in concluding that (the attorney's) testimony may have been affected by personal concern about possible claims of inadequate representation"]). '28 Given this reality, it cannot be confidently said that the presence of counsel, and the opportunity to consult with him or her, constitutes a "fully effective equivalent" to the express advisement of one's rights. Moreover, the presence of counsel or the exercise of the right to counsel should not and cannot allow law enforcement to evade appropriately informing suspects of their right to remain silent, and the consequences of forfeiture, as required by Miranda. Such a rule could easily foster gamesmanship. Police could choose, for example, to first advise a suspect of his right to counsel, and if the suspect asks to speak to a lawyer, police could avoid informing him of his right to silence, and take the chance that the lawyer will also fail to provide such information. 6 Second, some rights are simply too important and fundamental to allow a waiver without assurance that an individual is aware of them. This has been true both before and after the Miranda decision (Michigan v Mosley, 423 US 96, 108 [White, J., concurring], citing Carnley v Cochran, 369 US 506 [1962]; Boykin v Alabama, 395 US 238 [1969]; see also People v Parker, 57 NY2d 136, 141 [1982]). 6 By creating a presence-of-counsel exception, this Court thus risks muddying the Miranda doctrine and undermining, albeit piecemeal, the foundational principles of Fifth Amendment and article I, section 6 jurisprudence post-Miranda. The consequence could be that which Justice O'Connor warned of in her concurrence in Quarles: "The end result will be a finespun new doctrine . . . , complete with the hair-splitting distinctions that currently plague ... Fourth Amendmentjurisprudence." (New Yorkv Quarles, 467 US 649, 663-664 [O'Connor, J., concurring]). 29 In New York, a defendant must be advised of his right to remain silent both before he testifies at the Grand Jury (CPL 190.45 [l]), and before he pleads guilty to an offense (Boykin, 395 US 238, 243).7 But what good are those warnings at those stages of the criminal proceedings ifthe defendant has already, for all intents and purposes, sealed his fate by speaking to police without warnings? (Cf Withrow v Williams, 501 US 680, 691 [1993] ["'Prophylactic' though it may be, in protecting a defendant's Fifth Amendment privilege against self-incrimination, Miranda safeguards a 'fundamental trial right'"]). A warning during custodial interrogation would make those later warnings more meaningful, and less of an after-the-fact formality. The centrality of custodial questioning in our present system of criminal justice, and its effective role as a threshold stage of the criminal process, demands that a criminal suspect be afforded unwavering constitutional protections. Third, requiring police to give warnings also avoids blurring a bright-line rule, and avoids the unseemly (and unethical8) situation of a lawyer-in an adversarial system-testifying at a hearing or trial against his very own client (see generally footnote 5, supra). In this case, this may only have happened because Mr. Graham, who was representing himself, did not object when the prosecutor 7 Such advisements are required despite the presence of counsel, and a waiver cannot be fresumed on a silent record (see Boykin at 243). See Rules of Professional Conduct (22 NYCRR 1200.0) rules 1.6, 1.9 (c) (2); see also CPLR 4503. 30 called Attorney Hanlon as a witness (see CPLR 4503). Further, a presence-of- counsel exception shifts, from the police to the attorney, the burden of informing a suspect of his or her rights and reverses the default rule of Miranda that it is the authorities' burden to ensure that suspects are knowingly informed of their rights (Miranda at 475; cf Peque, 22 NY3d 168, 193).9 Finally, requiring police to advise a suspect of his rights would be consistent with the broader protection this Court has afforded to the right against self- incrimination, and more generally, to the rights afforded to suspects subjected to custodial interrogation (see People v Bethea, 67 NY2d 364, 368 [1986] [affording broader protection to suspects subjected to successive interrogations]; People v Arthur, 22 NY2d 325 [1968]; People v Donovan, 13 NY2d 148, 151 [1963] [affording broader right to counsel protection when an attorney contacts police while they are questioning a suspect]). This Court has "jealously guarded" the privilege against self-incrimination (People v Rogers, 48 NY2d 167, 170), and should continue to do so by adopting a standard that provides concrete assurance that a defendant was aware of the privilege and the consequences of waiving it, before providing statements to the government. Such protection would fully realize the privilege against self- 9 Placing the burden on the attorney in such situations also may create an adversarial relationship between lawyer and client because a defendant might have to call bis lawyer to testify at a suppression hearing about his failure to advise him of his rights (see also footnote 5, supra). 31 incrimination, which embodies "principles of humanity and civil liberty'' and reflects "our sense of fair play ... , our distrust of self-deprecatory statements[,] and our realization that the privilege, while sometimes 'a shelter to the guilty', is often 'a protection to the innocent."' (Withrow v Williams, 507 US 680, 691-692, quoting Murphy v Waterfront Comm 'n of New York Harbor, 378 US 52, 55 [1964]). Therefore, this Court should hold that the New York Constitution requires police to advise an individual subjected to custodial questioning of his right to remain silent, and the consequences of forgoing it, regardless of whether an attorney may be present during part of the questioning. D. There was no proof in this case that, before he was questioned, either the police or counsel advised Mr. Graham of his right to remain silent and the consequences of forgoing that right Here, police did not advise Mr. Graham of his constitutional rights, even though they questioned him in custody (A 223). For all the reasons discussed above, the duty of police to advise Mr. Graham of his right to remain silent and the consequences of waiving that right, before they questioned him in custody was not obviated by the presence of defense counsel. Nor does the record demonstrate that defense counsel advised Mr. Graham of his constitutional rights. Instead, the prosecutor merely asked counsel at the suppression hearing whether he told Mr. Graham that he was not required to speak 32 to police, and that the questioning session was voluntary (A 126). Telling a client that he does not have to do something is fundamentally different from telling him he has the constitutional right not to do something, and that ifhe waives that right, anything he tells government agents could later be used against him in a court of law. Thus, even assuming that it is sufficient if counsel (rather than police) advises a defendant of his rights, there was no proof that was done here. Because Mr. Graham was not advised of his rights, he could not waive them in a knowing and intelligent manner (Colorado v Spring, 479 US 564, 573 (1987]). As discussed above, in order for a waiver to be proper, a defendant must be aware ofhis right and the consequences of waiving it (id.). Here, such proof was lacking. Moreover, Mr. Graham's counsel was present for only the first 20 minutes of the interrogation. After counsel departed, Mr. Graham was left alone with police, and was thus subjected to the coercion inherent in custodial interrogation (Miranda at 458). At least at that point, warnings were required (id.). Even if the warnings were required only after counsel departed, the prosecution did not establish which specific parts of Mr. Graham's September 11th statements were made while counsel was present. Thus, the prosecution failed to prove which statements, if any, were voluntary, and suppression of the entire statement is required (CPL 60.45 [l], [2] [b] [ii]). 33 Further, counsel's departure after 20 minutes, and his failure to take any steps to safeguard Mr. Graham (such as stipulating that his statements could not be used at trial if a plea bargain was not ultimately reached), rendered his performance constitutionally deficient (see Point I [C]). No reasonable attorney would leave his client alone in an inherently coercive environment to be questioned by police (see generally Watts v Indiana, 338 US 49, 59 [1949] [Jackson, J., concurring in part and dissenting in part]). Here, moreover, the attorney was involved in setting up the questioning session, and thus could have chosen a different time. And no reasonable attorney would fail to stipulate to the conditions under which his client will cooperate with the government once he has been charged with a crime (see generally People v Evans, 58 NY2d 14, 24; People v Smith, 59 NY2d 156). Allowing a client to speak to police under such circumstances, "come what may", is a gross dereliction of one's professional duty.10 Counsel's ineffectiveness undermines the conclusion that Mr. Graham may have waived his constitutional rights knowingly, intelligently, and voluntarily. Finally, the constitutional error in admitting the September 11th statement was not harmless beyond a reasonable doubt. There is at least a reasonable 10 See generally Nat'l Legal Aid & Defender Assoc., Performance Guidelines for Criminal Defense Representation, Guideline 6.2, available at http://www.nlada.org/Defender/Defender _ Standards/Perfonnance _ Guidelines#sixtwo. 34 possibility that the statement contributed to the outcome (People v Crimmins, 36 NY2d 230, 237, 241 [1975]). It was in that statement that Mr. Graham told police about how he ran into Comealis Johnson, who was selling counterfeit money (A 444-445). Even though Mr. Graham denied that he purchased counterfeit bills from Johnson, the jury could have easily discounted that denial, particularly because the detectives testified at trial that the serial numbers on the bills Mr. Graham had were the same as the serial numbers on one of the batches of counterfeit money the police seized during their investigation of Johnson (A 436). The statement thus is what connected Mr. Graham to the source of the counterfeit money. Had that statement been precluded, Mr. Graham's defense-that he received money from friends and family, and that he must have received fake bills from one or more of those people-would have been substantially stronger. The prejudice flowing from the erroneously admitted statements must also be considered in conjunction with the prejudice that resulted from the trial court's erroneous Sandoval ruling. The Appellate Division concluded that the trial court failed to exercise discretion in permitting the prosecutor to question Mr. Graham regarding a prior conviction for criminal possession of a weapon in the second degree, and the underlying facts of that conviction, which involved an attempted murder where the victim was seriously injured (Graham, 107 AD3d 1421, 1422 [trial court "abdicated its responsibility to balance the Sandoval factors"]). The 35 Appellate Division nonetheless found the error harmless. Viewed in conjunction with the incorrect admission of his statements, however, the error deprived Mr. Graham of a fair trial. Proof of a violent crime of this nature rarely has any logical bearing on a defendant's credibility, and "may be highly prejudicial" (People v Sandoval, 34 NY2d 371, 377 [1974]; see also People v lsidron, 209 AD2d 718 [2d Dept 1994 ]). The nature of the underlying facts of this prior conviction was inflammatory in the context of this trial, and could have only painted Mr. Graham as a dangerous individual. Therefore, Mr. Graham was denied his rights under Fifth and Fourteenth Amendments to the U.S. Constitution, and article I, section 6 of the New York Constitution (US Const, Amends 5, 14; NY Const, art I,§ 6). His September 11th statements should be suppressed, the conviction should be reversed, and a new trial granted. 36 Conclusion Wherefore, for the reasons set forth in Point I, Mr. Graham respectfully asks this Court to reverse his conviction, suppress his September 11, 2008 statements, and remand the matter for a new trial. Dated: July 18, 2014 37 Respectfully submitted, Piotr Banasiak Hiscock Legal Aid Society Attorneys for Appellant 351 South Warren Street Syracuse, New York 13202 (315) 422-8191