court of appeals state of new...
TRANSCRIPT
To Be Argued By: JAMES P. MAX\VELL, ESQ. (TI1"!E REQUESTED: 151UINUTES)
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COURT OF APPEALS STATE OF NEW YORK
THE PEOPLE OF THE STATE OF NEW YORK,
Respondent,
VS.
CLIFFORD GRAHAM,
Defendant-Appellant.
==============================================================
RESPONDENT'S BRIEF
JAil-IE'; P. JfA)(Jl"ELL, ESQ Chief Assistant District Attomer
" ,
Of Counsel
WILLIAM}, FITZP4TRJCK, £'SQ. Onondaga County Di5trict AttorJu}' Attorney for Re!Jpondent Criminal Courthouse, lh Floor 505 South State Street Syracuse. NY 13202 Tel: (315) 435-2470 Fax: (315) 435-3969
DATE COMPLETED: September 22,2014
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES ........................................................ .
QUESTIONS PRESENTED ............................. ,........................... 1
PRELIMINARY STATEMENT ............................................... , .... 2
STATEMENT OF FACTS .................................................. "....... 3
Pretrial Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 3 The Huntley/\Vade Testimony and Ruling ....................... H. 5
'[rial Proof. ................................................... '............... 10 The People's Case ... , ............ , ............................ , ......... ,... 10
The~v1icrotel HotellncidenL .. .. .. .................. , ........... ,... 10 The Sunoco Station Incident. ................................ ,. .... H 11 The First Interview of Defendant at CID........................... 13 The Second Interview of Defendant at CID ................... ,.... 14 Secret Service Testimony that the :Money v,Ias Counterfeit .. ". 15 Defendant's Grand Jury Testimony ........................... ,..... 15
Defendant's Case .. , ....... , ....................................... , ..... ,. '" 15 Deliberations and Verdi ct. ........................ ,.......................... 19
POINT I
THE COlIRT SHOULD NOT GRANT DEFENDANT A NE\V TRIAL BASED ON DEFENDANT'S CLAIM THAT THE POLICE FAILED TO WARN HIJVI THAT HE HAD THE RlGHT TO REJVIAIN SILENT............... ............ 19
A. Defendant faiied to preserve his claim for this Court's review ... " 20
B. The Record shows that the police advised defendant of his right to remain silent................................ ..................... 25
C. This Court should adopt a rule that police are not required to obtain a second l\!liranda \vaiver \vhen re-interviewing a defendant at the request ot: and in the presence of, counseL........ 28
D. Any error in admitting defendant's September 11,2008 statements was harmless................................................. 38
POINT II
DEFENDANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL............................................. 40
CONCLUSION.................................................................... ... 44
TABLE OF AUTHORITIES
PAGE
CASES
Dickerson v United States, 530 US 428 (2000) ..... ,.............................. 35
Garner v United States, 424 US 648(1976)................................. ....... 33
Herring v United States, 555 US J 35 (2009) ................................ H •• 33, 34
~,1iranda v Arizona, 384 US 436 (1966)................................ ... 28, 33, 36
E.eople v Baldi, 54 NY2d 137 (1981)....................... ............. ............. 4]
People v Beam, 57 NY2d 241 (1982) ........................................... 30,37
People v Benn, 68 NY2d 941 (1986)............................... ................ 42
People v Bennett, 29 NY2d 462 (1972)............................................. 42
People v Borrell, 12 NY3d 365 (2009) ....................... ,...................... 41
People v Bynum, 70 NY2d 858 (1987) .. , .................... , ..................... .
People v Canlcross, 14 NY3d 319 (2010)...................... . ........ ......... 4J
Il' rC.l "d' t.:;9·N"T;d'1-6(198"\ 3~1 ~ple L._ . ..J.!:1.l~Q, ~ , 1 - _ j. ,.' j)o. ................................ ". q ... " •
I)" I 7C' . "6Nnr'ld'l3{'('197F ' 4 ("J eop e \ .nmmms,,' ., 1"':' L. ,j •. ' ,) .............. " ................ " H .. ' ..
P" 1 . r) . '9 N""'ld 4-"" '19~" eop e v 1 1'oz, j, i 1.:.. ') I (. 10) ...................... , ..................... , " 42
Pe,opl:. \,' F'an'''l] 4; ;\03d' 9-')4 ('4" th [)e.pt '1007) '11 . It: . ( e , _ /. _ . . ~ '. ........................... """ 1, , 29
People v Flores, 84 NY2d 184 (1994) ........................................... 42,43
People v Graham, 107 AD3d 1421 (4t!1 Dept 2013) ... ,. ..................... 2. 3, 21
People v Grant, 7NY3d421 (2006) .... , .. ,,, ...................... ,,, ..... , ......... 40
People v Gray, 86 NY2d 10 (1995) ............................. H .... H............. 24
People v Henry, 95 NY2d 563 (2000) ........... " ............................. , H.. 43
People v Holland, 18 Nl'3d 840 (2011) ..... , ........... " ...... , ............... HH 26
People v Kitchen, 60 NY2d 772 (1983) ................................ 00 ........... 41
People v Paulman, 5 NY2 122 (2005) ... H.......................................... 34
People vProchilo, 41 NY2d 759 (1~n7) ................. '.H ..................... ,. 26
People v Rivera, 71 NY2d 705 (1988) ....................... " ..................... 42
People v Rogers, 48 NY 167 (1979) ................................................. 29
People v Satterfield, 66 NY2d 796 (1985)" H.""" H.......................... 42, 43
People v Scott, 86 NY2d 864 (1995) .................. " ....... " ....... "......... 26
People v Session, 34 NY2d 254 (1974)............................................. 42
People v Simmons, 167 AD2d 924 (4th Dept 1990), lv 5ienied 77 Nr2d 843 (1991)...... .... ............................ ............ ..... 41
People v Sirno, 76 NY2d 967 (1990)................................................. 27
People \! Turner, 5 NY3d 476 (2005)........................ ................... ..... 41
'R b . U···d S 1i4~ T TS '::;':;'1 '1980' . ..,,, . 0 erts v nIty ,. tates, 4 ) u, ~,../';" (. .0) .. '.................................... . .U
~Jnited States v Calandr£1, 414 US 338 (1974) ...................................... 34
11
STATUTES
CPL 470.05 (2)....................................................................... ... 24
111
COURT OF APPEALS STATE OF NEW YORK
THE PEOPLE OF THE STATE OF NEW YORK,
Respondent,
vs.
CLIFFORD GRAHAM,
Defendant-Appellant.
Indictment No. 2009-0615-1
Index No. 08-1575
APL 2014-00129
RESPONDENT'S BRIEF
QUESTIONS PRESENTED
1. Were the police required to advise defendant of his right to remain silent and obtain an explicit waiver of that right from defendant before their second interview of defendant where (1) in the first interview of defendant concerning the same case, the police advised defendant of the right to remain silent and defendant waived that right and spoke to the police, (2) the second interview was conducted at the request of defendant's attorney, (3) defendant and his attorney assured the police that defendant was agreeing to speak to the police of his own free will and on the advice of counsel, and (4) defendant's attorney was present with defendant when defendant started to speak to the police during this second interview?
1
The hearing court denied suppression of defendant's statements to police, but did not review the specific question that defendant now asks this Court to decide. The Appellate Division, Fourth Department, in affirming defendant's conviction, also did not review the specific question defendant now raises, but did find that it was permissible to infer under the circumstances of this case that defendant's \vaiver of his Miranda rights was on the advice of counseL
Did defendant receive effective assistance of counsel?
The trial court and the Appellate Division, Fourth Department, did not decide this question.
PRELIMINARY STATEMENT
This brief is filed by the People in response to the appeal brought to this
Court by Clifford Graham (defendant) from a judgment of conviction of the crimes
of criminal possession of a forged instrument in the first degree (two counts) and
petit larceny (two counts) following a jury trial in Supreme Court, Onondaga
County (Brunetti, Acting Justice) held from August 31, 2009 to September 4,
2009. On October 2,2009, the Honorable John J. Brunetti sentenced defendant as
a second felony offender to concurrent sentences of 3 to 6 years of incarceration
for the two forged instrument counts and one year incarceration for the two counts ~ .
of petit larceny (Appendix [A] at 9),
Defendant brought a direct appeal to the Appellate Division, Fourth
Department. That Court unanimously affirmed defendant's judgment of
conviction on June 7,2013 (People v Graham, 107 AD3d 1421 [4th Dept 2013]; A
4-6) The Honorable Jonathan Lippman, Chief Judge of this Court~ granted
defendant's application for pennission to appeal to this Court on May 28, 2014
(People v Graham, 23 NY3d 963 [2014]; A 3).
The People received three copies of defendant's brief and the Appendix on
July 24,2014. Defendant was released on parole on August 29,2014.
STATEMENT OF FACTS
On June 17,2009, an Onondaga County Grand Jury returned Indictment No.
2009-0615-1 charging defendant with criminal possession of a forged instrument
in the first degree (three counts), theft of services, and petit larceny (two counts)
(A 12-13). This indictment superseded Indictment No. 2009-0032-1, which had
been filed on January 15,2008 (A 15-17). The charges arose from incidents that
occurred on August 20, 2008, and August 22, 2008, when defendant possessed and
used counterfeit $20 bills.
Pretrial Proceedings
After defendant's arrest in August 2008, Attorney Richard Hanlon was
assigned to represent defendant. On February 24,2009, at defendant's request, the
trial-level court relieved Attorney Hanlon of the assignment to represent defendant
and assigned Attorney Patricia Campbell to represent defendant (A 86-89). On
June 19,2009, when the court arraigned defendant on the superseding indictment,
defendant asked the court to allow defendant to represent himself (A 93). The
3
court thoroughly questioned defendant on his abilities to represent himself (1\ 94-
106). The court recognized that defendant had familiarity with the criminal justice
system, having previously been prosecuted for a gun case, attempted murder, and
four other cases 96-97). The court found defendant articulate, and found that
defendant made a voluntary, knowing, and intelligent decision to \vaive his right to
be represented by counsel (A 106). At this arraignment, the People served upon
the defense a copy of the indictment, a copy of the People's CPL 710.30 notice
providing notice of intent to use identification evidence and notice of intent to use
d . . f~" h . h " A 9') All ( a mlSSlon or coneSSlOn, WItH attacHments (Ii .:.., t\ 1 J).
On July 14,2009, defendant moved to suppress his statements to the police
(A 70). In his affidavit in support of that motion, defendant alleged that
"substantial questions arise as to whether the statements w'ere the product of the custodial interrogation and whether any statements made by the defendant at that time were in violation of Defendant [sic] rights under the Fith [sic] and Fourteenth Amendments of the constitution of the United States, under the provisions of the Constitution of the State of New York~ and under the statutory provisions of section 60.45 of the Criminal Procedure Law" (A 74).
This language was similar to the language of the motion made by Attorney
Campbell regarding the first indictment (see 52). Defendant requested a hearing
on this issue (A 74), and the People consented to that request (A 80). The court
held that hearing on August 3 and 5,2009.
4
The Huntley/Wade Hearing Testimony and Ruling
Officer Glen Wintermute of the Dewitt Police spoke to defendant at the
Microtel Hotel in the Town of Dewitt on August 20, 2008, after the manager of the
hotel indicated that defendant had used five counterfeit $20 bills to pay for a room
(A 135-136). Defendant made statements to Wintermute about the money,
claiming that a friend had given him the money he had used to pay for the hotel
room (A 137, 141).
On August 22, 2008, Syracuse Police Officer Steven Marte spoke to
defendant as part of the investigation of a report that counterfeit money had been
used at a Sunoco gas station. (A 183-186). Syracuse Police Officer Mark Koczan
brought two witnesses from the Sunoco station to view defendant where he stood
with Officer Marte (A 176-180, 187). On August 27,2008, Jason Meltzer, who
was working at the Microtel Hotel on August 20,2008, selected defendant's
photograph from a photo array (A 204-207).
On August 22, 2008, Detectives Louis Falvo and Anthony Colavita
interviewed defendant at the Criminal Investigation Division (CID) of the Syracuse
Police Department (A 145). Defendant waived his Miranda rights, agreeing to
speak to them (A 146-150). As part of his waiver, defendant signed the
Constitutional Rights Form (hearing Exhibit 2, reproduced at A 81). Defendant
declined to provide a written statement on that day (A 152).
5
During the suppression hearing, defendant questioned how long his
August 22, 2008 waiver of his constitutional rights remained valid (A 155). The
court responded that the waiver was good for that day, August 22,2008 (A 155-
156). The court indicated that the People "may want to advance some very
sophisticated argument later, but they're not suggesting that for now" and the
prosecutor agreed with that statement (A 155). The court had defendant review
Detective Falvo's report concerning the August 22, 2008 interview (A 163). That
report (reproduced at A 261) indicated that defendant denied knowing that the $20
bills he spent at the Sunoco station that day were counterfeit. The court
specifically asked defendant whether defendant wished to seek suppression of
these statements of August 22, 2008, despite the possibility that they could be
viewed as not incriminating (A 163). Defendant indicated that he did seek
suppression of the August 22, 2008 statements (HI. 50).
After the August 22, 2008 interview, Attorney Hanlon contacted Detectives
Falvo and Colavita, indicating to them that defendant wanted to speak with them
again (A 152). The detectives met with defendant and Attorney Hanlon on
September 11,2008, at CID (A 152). Defendant, before speaking to the detective
that day, had the opportunity to discuss this meeting with Attorney Hanlon at
length in private (A 153, 169). Defendant never said that he did not wish to speak
with the detectives (A 153). On that day, a written statement was prepared
6
(hearing Exhibit 1, reproduced at A 82). While defendant decided not to sign that
statement, Detective Falvo testified that the statement accurately reflected what
defendant said that day (A 153-154). The statement indicated that defendant spoke
to Detective Falvo of his own free will and on the advice of defendant's attorney,
Richard Hanlon (A 82).
Attorney Hanlon did not stay at CID for the entire interview (A 153). After
about 20 minutes, Attorney Hanlon left. Defendant did not indicate that he wanted
his attorney to return and did not indicate that he no longer wished to speak to the
detectives (A 154). When defendant said that he had information about a homicide
from six to eight years earlier, Detective Falvo called Attorney Hanlon. That call
was not made at defendant's request (A 159 170). Defendant did not wish to sign
the written statement prepared by Falvo (A 153). The refusal to sign the completed
written statement was the first and only indication that defendant no longer wished
to cooperate with the detectives (A 154).
Attorney Richard Hanlon testified at the hearing that he represented
defendant and was with him at CID on September 11,2008 (A 125). Defendant
was there of his own free will for a debriefing (A 125, 132-133). Defendant and
Hanlon had discussed this case before the meeting on that day (A 125). Defendant
and Hanlon spoke about defendant cooperating with police in order to try and get a
better deal than the 2 to 4 years in prison that the prosecutor was offering, and after
7
that discussion, defendant agreed speak with the detectives (A 130). Defendant
did not advise Hanlon at any time that he did not wish to speak to or continuing
speaking to Detective Falvo (A 126). Hanlon participated in the debriefing for 20
minutes, before leaving to attend another meeting (A 130). After Hanlon left the
meeting, he received a telephone call from Detective Fa]vo (A 132). In this
telephone call, Falvo told Hanlon that defendant claimed to have infonnation about
a homicide from 2003, despite having been interview at the time of that crime and
claiming to know nothing about it (A 131).
At the conclusion of the hearing, defendant argued that the police lacked
reasonable cause or probable cause to arrest him on August 22, 200S (A 215-216).
Defendant did not anrue that he was unaware of his right to remain . '-' ~
vvhen he
spoke to the police on September 11. 2008. or that the police were required to re-
Mirandize him despite the presence of his lavvyer when they spoke to him that day.
The court suppressed any statements defendant might have made to Officer
Wintermute on August 20, 2008, after Officer Wintennute told defendant's
companion that she could leave the hotel room. The implication the court drew
from Officer Wintermute telling defendant's companion that she could leave was
that defendant could not leave; thus, the court found that defendant "\\Ias in custody
and was not advised of his I\1iranda rights (A 21S). The court did not suppress
defendant's statements to Officer Marte on August 22,2008 (A 21S-219) The
8
court denied the motion to suppress identification evidence, finding that the
showups conducted on August 22, 2008 were not unduly suggestive and that the
photo array conducted on August 27,2008, was proper (A 219-222).
The court found that on August 22, 2008 the detectives adequately advised
defendant of his constitutional rights and defendant made a voluntary, knowing,
and intelligent waiver of his rights (A 221).
The court found that defendant's assigned attorney, Richard Hanlon,
arranged defendant's meeting with Detective Falvo on September 11,2008.
Defendant, Attorney Hanlon, and Detective Falvo "all agreed to this" (A 223).
Although Hanlon left after the first 20 minutes of the interview, defendant did not
at any time ask to end the interview. Falvo called Hanlon on the telephone when
the interview turned to the topic of a murder. Falvo prepared a written statement
based on his interview of defendant, but defendant decided not to sign the written
statement (A 223). The court, citing People v Farrell (42 AD3d 954 [4th Dept
2007]), determined that on September 11, 2008, defendant was "in custody on the
matter, represented by counsel on the matter and therefore he could not waive
counsel on the matter unless counsel was present, which did occur" (A 223). The
court ruled that the fact that Hanlon left while the interview was taking place was
not grounds for suppression (A 223 ["Once a counsel waiver occurred in counsel's
presence and the client agreed to submit to the interview on the topic at hand, to
9
wit: counterfeit bills, counsel's presence thereafter is not required"]). The court
rejected defendant's arguments dealing with probaole cause because the hearing
did not involve a probable cause issue (A 224).
TRIAL PROOF
The People's Case
The Microtel Hotel Incident
On August 20, 2008, at approximately 11 :00 p.m., defendant and a female
friend went to the Microtel Hotel in the Town of Dewitt and rented a room from
the front desk attendant, Jason lvIeltzer (A 25-259). Defendant paid Meltzer with
five $20 bills (A 259). Meltzer gave defendant a room key (A 259). As defendant
went to his room, Meltzer realized the bills given to him by defendant "felt funny,"
"stuck together more than other bills," and the "colors were a little off' (A 259).
Meltzer put defendant's money aside, making sure not to mix with the
money in the cash drawer, and called his manager (A 260). Meltzer and his
manager completed the "pen test" on the money given to them by defendant -
swiping the money with a pen to test the authenticity of the bills - to confirm that
the money was definitely counterfeit (A 260-261).
Meltzer called the Dewitt Police. Officer Glen Wintermute responded to the
Microtel Hotel within 15 minutes (A 261,272). Metzler told Wintermute that one
of the Microtel patrons had paid for a room with what they believed to be
10
counterfeit money (A 274). Wintermute examined the money that defendant had
used to pay for the room. He determined that the money was counterfeit. The bills
lacked watermarks and security strips, and all five bills had the same serial number
(A 275). Wintermute went to the room defendant had rented and knocked on the
door (A 275). Wintermute asked defendant who had paid for the room (a female
was in the room with defendant), and defendant said that he had paid (A 276).
Defendant told Wintermute he had just been released from prison and a
friend had given him the counterfeit money (A 282-283). The manager of the hotel
had told Wintermute he did not wish to press charges against defendant, but that he
did want defendant to either pay for the room or leave (A 276-277). Wintermute
did not arrest defendant that night, but he did secure the five counterfeit $20 bills
as evidence and wrote a report about this incident (A 277). Wintermute also told
his supervisor, Sergeant Mossotti, of the incident and sent his written report to the
Secret Service and another law enforcement agency (A 277-278). Sergeant
Mossotti conducted a follow-up to Officer Wintermute's August 20, 2008
investigation of the Dewitt incident. Mossotti arrested defendant on the Town of
Dewitt case on August 26,2008 (A 370-371).
The Sunoco Station Incident
On August 22,2008, at approximately 8:00 a.m., defendant went to a
Sunoco gas station and convenience store located in the city of Syracuse (A 288).
11
Defendant, v;,rho was with his brother, brought milk, bread, and sausage up to the
Sunoco cashier, Kristina Coumbes, and paid for the items, which cost $14.75, with
a $20 dollar bill he pulled from his pocket (A 289-291). Coumbes put the money
in her cashier's drawer and gave defendant his change (A 291) Defendant then
said that he needed a fev'" other items. He brought more items to the counter.
Defendant took another $20 dollar bill from his pocket and used it to pay for those
items (A 291). Coumbes gave defendant his change, but then noticed the color of
the bill defendant had given her was "off" and the serial number matched the
previous bill he had given her a few minutes eariier (A 292). \Vhen Coumbes told
defendant that the bills were "fake," defendant said "no" and \valked out of the
store with his brother fA 292) Coumbes immediatelv buzzed the store owneL ~ . "
Steven Goly, who took the two counterfeit $20 bills and confronted defendant and
his brother outside (A 292-293, 321).
Goly asked defendant about the counterfeit money, and demanded that he
pay for the items taken from the store (A 324). Defendant and his brother left.
Goly followed them to an address on Burdick Avenue and then notified the police
of the address vlhere they had either gone inside or were hanging around in front of
the house (A 325).
Officer Steven Marte spoke to Goly about receiving two counterfeit bills and
the location of the suspect (A 345) .. Marte located defendant, who matched the
description given to him by Goly, on Burdick Avenue (A 345). Marte approached
defendant about the incident at the Sunoco station and asked him where he
received the counterfeit money from (A 355). Defendant said he had gotten the
money from his father to buy groceries (A 355). Both Coumbes and Goly met
defendant and Marte on Burdick Avenue to complete a showup identification (A
356). Marte handcuffed defendant, and took him down to the Criminal
Investigations Division (CID) (A 362).
After this incident, defendant's father approached Goly at the Sunoco station
and attempted to pay for the items (A 328). Defendant's father asked Goly to drop
the charges and to "do the right thing" (A 328).
The First Interview of Defendant at CID
On August 22, 2008, Detectives Anthony Colavita and Louis Falvo advised
defendant of his Miranda rights before speaking to him (A 422). Colavita asked
defendant to initial beside each Miranda right that he agreed to waive (A 423,440;
A 797). During the interview, defendant admitted that he had been at the Sunoco
station where he had passed the two $20 bills (A 425, 451). Defendant claimed
that he had recently been released from prison and had received money from
family members and from individuals on the street (A 427-429,452-453).
Defendant could not specify the exact names of the individuals who gave him the
money, but provided aliases (A 429,453). Colavita and Falvo decided to conclude
13
the intervievv with defendant because he was providing too many inconsistencies
(/\ 431). While defendant denied ever passing these counterfeits bills at another
location, Colavita and Falvo were later told by the Secret Service that defendant
had been spoken to about passing counterfeit bills on August 20, 2008 (A 433).
The Second Interview of Defendant at CID
Colavita and Falvo met with defendant again on September 11, 2008~ after
defendant had told his attorney that he had additional infonnation for the detectives
regarding the source of the counterfeit money (A 435, 44] -442). During the course
of the interview the detectives and defendant exchanged information, and Falvo
put the conversation into writing (A 441). The written statement (trial Exhibit 4,
reproduced at A 799), accurately rel1ected the conversation they had that day,
although defendant declined to sign the statement (A 442). Defendant admitted
that he had spoken to a man who his name as " who had shown hiln a
bag of fake money and offered to sell him $1000 of this money for $100 (A 444-
445). Defendant claimed, however, that he did not get any fake money directly
from this person (A 445). Defendant did not glve the detectives the name of the
person who provided him with the counterfeit money (A 446).
14
Secret Service Testimony that the Money was Counterfeit
Secret Service Agent Peter Jackson examined the money collected from the
August 20 and 22,2008 incidents and determined the money to be counterfeit (A
487-490). All seven of the $20 bills had the same serial number (A 488-489).
Defendant's Grand Jury Testimony
The People presented defendant's Grand Jury testimony to the trial jury (A
461-480; trial Exhibit 5-A, reproduced at A 801-819). In that testimony, defendant
claimed that he had no idea that the money he used at the Microtel Hotel was
counterfeit before he spoke to the police officer (A 468-469, 806-807). He claimed
that he was "dumbfounded" when, after he left the Sunoco station, the store owner
told him that the money he used there was also counterfeit (A 469, 808).
Defendant admitted that he used two $20 bills at the Sunoco station (A 471,478,
809-810,817-818).
Defendant's Case
Defendant's father, Clifford Ryan, testified that on August 22, 2008, he and
another man picked up defendant from the correctional facility and took him to a
bank to cash a check he received from the correctional facility (A 502). Ryan,
contrary to his Grand Jury testimony, claimed that he gave defendant $100 when
he picked him up from the facility (A 503, 525). Ryan stated defendant only
cashed the check from the correctional facility and did not exchange any other
15
at the bank 504~ this contradicted defendant's testirnony that defendant
received five $20 bills from the bank in exchange for a $100 bill that his father had
given to him [see 614]). Ryan claimed that defendant approached him about the
counterfeit money, and he advised defendant that he was not aware that he had
given him any counterfeit money (A 511, 542).
Ryan claimed that he and defendant went to the home of Ryan's sister, Sonja
Ryan (Sonja), where he gave defendant another $140 or $160 in $20 bills (A 506).
Ryan claimed that on August 22, 2008, after he saw defendant with the police, the
police came to Sonja's house, where they began accusing them of conspiring with
defendant, and checked the entire residence and Sonja's computer Vv'ithout her
permission (A 513-514).
Sonja claimed in her testimony that the police of fleers forcefully entered her
house on August 22, 2008 (A 548). Sonja claimed that the police then searched the
house, took her computer outside, and then brought it back inside a few minutes
later (A 550).
Defendant, testifying in his O\vn behalf, said that when his father picked him
up after he was reJeased from prison on August 20, 2008, his father took hin1 to a
bank (A 531). He cashed a $40 check that he received as he left prison and
exchanged a $100 bin that his father had given to him, receiving $20 bills (A 613-
614). Defendant claimed that after arri ving in Syracuse. he met with numerous ~ '-'.... -'
16
people, some of them old friends and others who heard he had just been released
from prison, who wanted to give him money and gifts, and buy him things (A 614-
615).
Defendant called a female friend, and they went to the Microtel Hotel (A
615). At the Microtel Hotel, according to defendant, Officer Wintermute
examined the remainder of the money in defendant's pocket and said it did not
look counterfeit (A 652-653). Defendant testified that he told Wintermute twice
that he could not pinpoint who had given him the money (A 615-616). The
following day, defendant spoke to his parole officer, who informed him to "watch
himself' because counterfeit money has "been going on a lot lately" (A 618).
Defendant claimed he did several errands the following day, and met up with
several other people who gave him more money (A 619). Defendant claimed that
he went to Carousel Mall and purchased clothes and books with the money he
received from people after he was released from prison (A 620).
On August 22, 2008, according to defendant, he woke up and realized he
needed to pick up a few grocery items (A 623). He walked to the Sunoco station
with his brother, purchased a few items, and left (A 623). As he was leaving,
defendant was approached by the owner, who told him that the money he used was
counterfeit (A 623). The owner asked him to give the groceries back (A 622).
Defendant told the owner he would go home and get him his money (A 622).
17
Defendant testified that the owner agreed to have him come back and pay "'twenty
something dollars" (A 623). Defendant went home with the groceries and told his
father that he needed to go back to the grocery store because someone had given
him counterfeit money (A 623). Defendant told his father this was the second time
this had happened CA. 623). Defendant claimed that he put a $20 bill and a few $5
bills in his pocket and began walking back to the store (A 624). Defendant
testified an officer approached him, handcuffed him, and put him in the back of the
police car (A 625). Defendant testified that his father approached him while
defendant was in the police car and asked, "Why didn't you tell them you got the
money from me?" (A 627).
Officers brought defendant to elD where they began asking him questions.
Contrary to the officers' testimony. defendant testified that he advised Oflker
Falvo that this was not the first incident \vhere he had been caught with counterfeit
money, and that he had been questioned a few days earlier (A 632)
Defendant testified that on September 11, 2008, Hanlon advised him he
should speak to the police. At first, defendant did not want to speak to them (A
643). But after Hanlon advised him of possible negotiations, defendant agreed he
would speak with the detectives (A 643). Defendant testified that the detectives
asked him to take part in a fictitious story against another individual they had
suspected of creating counterfeit money. Defendant c1aimed that he initially
18
agreed to sign a false statement, but later refused to sign the statement because he
knew it was wrong (A 643-645).
Deliberations and Verdict
During deliberations, the jury asked whether Officer Wintermute had
testified that he had checked defendant's "other money" at the Microtel Hotel (A
753). After checking with the court reporter to make sure that Officer Wintermute
did not testify that he had looked at defendant's other money, the court told the
jury that the answer to that question was no (A 753, 755). The jury found
defendant not guilty of the counts related to the Microtel Hotel and found him
guilty of the charges related to the Sunoco station (A 774-775).
POINT I
THIS COURT SHOULD NOT GRANT DEFENDANT A NEW TRIAL BASED ON DEFENDANT'S CLAIM
THAT THE POLICE FAILED TO WARN HIM THAT HE HAD THE RIGHT TO REMAIN SILENT
Defendant argues in Point I of his brief (at 28-31) that his September 11,
2008 statements to the police should have been suppressed because the police did
not advise him of his right to remain silent and that what he said could be used
against him. Defendant asks this Court to reverse his conviction and grant him a
new trial. This Court should affirm defendant's conviction.
19
As a threshold matter, this Court caf'~ot review defendant's claim because it
is unpreserved. Additionany~ defendant's claim has no merit. The record shows
that the tLmdamental assertion that forms the basis for defendant's argument --- that
the police never told defendant that he had the right to remain silent - is simply
untrue. Also, even jfthis Court reviews the issue that defendant asks it to decide,
this Court should not agree with defendant's position that the detectives were
required to again advise defendant of his right to remain silent when they met with
defendant at the request of, and in the presence of defendant's attorney. And even
if this Court found a preserved error, it should find the error harmless.
A. Defendant faBed to preserve his claim for th.is Court's review.
Defendant is now asking this Court to rule that the police must obtain a
\~iaiver of the right to remain silent hom defendant even though defendant had
previously waived that right in an earlier interview, defendant had counsel present
with him for the start of the second interview, and the second interview was done
at the request of defendant and defense counseL Defendant did not make this
argument before the hearing court, rendering his claim unpreserved and beyond
this Court's jurisdiction to decide.
Defendant contends that the hearing court and the Appellate Division held
that a valid waiver of Miranda rights "could be assumed or inferred merely from
counsel's presence" (defendant's brief at 13). But the hearing court did not make
20
that ruling because defendant did not ask for a ruling on that issue. Instead, the
hearing court considered and rejected the issue of whether defendant's statements
were inadmissible because counsel did not stay with defendant for the entire
interview (see A 223 [where the hearing court found that defendant could not
waive his right to counsel without counsel present, but that once a waiver of
counsel took place in counsel's presence, counsel's presence thereafter was not
required]). Thus, the hearing court viewed the issue as whether counsel had to
remain during the interview in order for the interview to be admissible, and did not
decide the question of whether the detectives were required to obtain an explicit
Miranda waiver despite the presence of counsel.
The Appellate Division similarly did not hold that a valid waiver of the right
to remain silent could be assumed or inferred from the mere presence of counsel.
Rather, that Court wrote:
"inasmuch as defendant's counsel was present during the 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 Miranda rights was made on the advice of counsel (see People v Farrell, 42 AD3d 954,955 [4th Dept 2007])" (People v Graham, 107 AD3d at 1422-1423; A 5).
Thus, the Appellate Division did not rely solely on counsel's presence, but instead,
looked at the conduct of both defendant and his counsel to find a waiver of
Miranda rights.
21
In his pretrial suppression motion, defendant asked the court to hold a
hearing to decide the admissibility of his pretrial statements to the police (A 74).
That motion, however, was general, not specific; it did not allege that the police
were required to obtain a waiver of the right to remain silent on September 11,
2008, when they met with defendant at the request of his counsel and in the
presence of counsel. 1
The court held the requested suppression hearing. After listening to the
hearing testimony, the court concluded as a matter of law that, since defendant was
in custody and represented by counsel on September 11, 2008, defendant "could
not waive counsel on the matter unless counsel was present" (A 223). But since
counsel was present, the court found that a "counsel waiver" occurred and that
defendant agreed to submit to an interview. Citing People v Farrell (42 AD3d 954
[4th Dept 2007]), the court found that counsel's presence was not required after
defendant agreed to speak to the police (A 223).
Defendant's only argument at the hearing was that the police lacked
probable cause to arrest him on August 22,2008 (A215-216). And while
defendant insisted during the hearing that he was challenging his August 22, 2008
1 Instead, the motion alleged that "substantial questions arise as to whether the statements elicited were the product of the custodial interrogation and whether any statements made by the defendant at that time were in violation of Defendant [sic] rights under the Fith [sic] and Fourteenth Amendments of the constitution of the United States, under the provisions of the Constitution of the State of New York, and under the statutory provisions of section 60.45 of the Criminal Procedure Law" (A 74).
22
statements, he did not say he was challenging his September 11, 2008 statements
and did not make any specific argument supporting suppression of the
September 11,2008 statements (see A 163-164). Defendant elicited from
Detective Falvo that the police did not promise defendant anything on
September 11,2008 in return for providing a statement (A 166). Defendant asked
Falvo if he recalled defendant asking Falvo to inform Attorney Hanlon that
defendant wanted Hanlon to stay for the entire interview, but Falvo did not recall
defendant asking for that (A 166). Falvo testified that Falvo called Attorney
Hanlon after Hanlon had left, but that he did not make that telephone call at
defendant's request (A 170). The court pointed out to defendant that in his cross
examination of Falvo, defendant was "not going into the circumstances
surrounding your Miranda rights" (A 168). The court, therefore, had reason to
conclude that defendant's challenge to the September 11, 2008 statement, if any,
was based on Attorney Hanlon not being present for the entire interview.
The closest that defendant arguably came to raising a question about his
right to remain silent regarding his September 11, 2008 statements, was when the
People offered the Constitutional Rights Form that defendant signed on August 22,
2008, into evidence at the hearing. Defendant questioned how long his waiver
remained valid. The court told him that the People were claiming it was valid that
day (that is, August 22,2008). The court also stated, and the prosecutor agreed,
23
that the People "may want to advance some very sophisticated argument later, but
they're not suggesting that for now" (A 155). But defendant never made the claim
during the hearing that he makes now in this appeal - that he had never been
advised of his right to remain silent and was unaware of this right. So the People
never had a need to assert an argument that defendant was aware of his right to
remain silent on September 11, 2008 because the police had advised him of this
right on August 22,2008.
Thus, the court, at the conclusion of the hearing, did not address whether
defendant's agreement to speak to the police on September 11, 2008, was invalid
because the police did not obtain an explicit waiver on that day of the right to
remain silent. Instead, the court decided whether defendant had properly waived
his right to counsel. After the court made its ruling, defendant did not press the
court for a further ruling on the right to silence issue, or argue that the court had
failed to address a claim that he was raising. Instead, defendant merely asked the
court to spell the name of the case that the court had cited (A 223-224).
A defendant is required to make claims in a timely manner before the trial
court in order to preserve those claims for appellate review as a matter of law (see
CPL 470.05[2]; People v Gray, 86 NY2d 10, 19 [1995]). Accordingly, a non
specific claim does not preserve an issue for review (see People v Gray, 86 NY2d
at 20 [objections must be specific in order to adequately bring the lower court's
24
attention to the alleged error]; People v Bynum, 70 NY2d 858,859 [1987] [general
motion to dismiss at the close of the People's evidence is insufficient to preserve a
claim that the People failed to prove a particular element of a crime charged]).
This Court does not have the authority to review any claims that it finds were not
preserved for appellate review as a matter of law by defendant.
Thus, this Court lacks the authority to review defendant's claim that the
police should have obtained an explicit waiver of the right to remain silent before
speaking to defendant on September 11, 2008.
B. The Record shows that the police advised defendant of his right to remain silent.
Defendant asserts that the police should have obtained a waiver of the right
to remain silent from him on September 11,2008, before speaking to him that day.
He claims that the police never advised him that he had the right to remain silent
and that anything he said could be used against him. Inexplicably, defendant
ignores the fact that when he met with the same detectives on August 22, 2008,
about the same topic of his use of counterfeit money, the police advised defendant
of his right to remain silent and warned him that anything he said could be used
against him (see A 81 [the Constitutional Rights Form signed by defendant on
August 22,2008 and received at the hearing as Exhibit 2]; A 147-148 [Detective
Falvo's testimony concerning defendant's waiver of his Miranda rights]; A 220-
221 [the hearing court's finding at the suppression hearing that defendant was
25
adequately advised his rights and made a knowing, voluntary and intelligent
waiver as reflected in Detective Falvo's testimony and hearing Exhibit 2]).
Defendant does not argue that his waiver of the right to remain silent on
August 22, 2008 was somehow defective, or that he had forgotten about his
August 22, 2008 waiver of the right to remain silent when the detectives
interviewed him on September 11, 2008. Rather, defendant claims that "there is no
proof that he was advised of this right" to remain silent (defendant's brief at 26;
§ee also defendant's brief at 13 [in Point Heading] ["the police failed to warn him
of his right to remain silent and that anything he said could and wouid be used
against him"]). This is simply not true. The hearing court found that on
August 22,2008, the police did advise defendant of his right to remain silent and
that anything he said could be used against him, and that defendant properly
waived his right to remain silent. That finding is entitled to great weight on appeal
(§~e People v Prochilo, 41 l\TY2d 759, 761 [1977]). And while defendant does not
mention that finding, much less challenge it in this appeal, had he challenged it, he
would have presented this Court with a mixed question of fact and law, beyond this
Court's authority to review (see (People v Scott, 86 NY2d 864, 865 [1995]
[holding that the question of whether a confession was voluntary is a mixed
question of fact and law]; see £lso People v Holland, 18 NY3d 840 [2011] [holding
that the question of attenuation was a mixed question of fact and law]).
26
Defendant's August 2008 'Naiver of the right to remain silent
demonstrates defendant's knowledge of that right on September 11,2008. Despite
his knowledge of his right to remain silent, defendant chose to speak to the
detectives a second time. It was defense counsel, not the detectives, who initiated
this second interview (A 152). Defense counsel and defendant confen'ed at length
before this interview (A 153, 169). After that consultation, defendant decided to
speak with the police (A 82,153-154). Defendant implicitly waived his right to
remain silent on September 11, 2008.
This Court has held that a defendant's waiver ofw1iranda rights need not be
explicit (PeopJe v Sirno, 76 NY2d 967, 968 [1990] [holding that the defendant
implicitly waived his rights by cooperating with the interrogation after writing
"yes" after each of the rights on the ;M.iranda card, but not explicitly state that he
was willing to answer questions]).
The hearing minutes show, and the hearing court found, that the police
advised defendant on August 22, 2008, of his right to remain silent and warned
him that anything he said could be used against him, and that he fully understood
that right. On September II, 2008, based on defendant's own assurances and the
assurances of his counsel that he wanted to speak to the detectives, the detectives
properly concluded that he \-vas waiving his right to remain silent on September 11,
2008. This Court should reject defendant's claim that the police obtain
defendant's September 11, 2008 statements in violation of defendant's right to
remain silent.
C. This Court should adopt a rule that police are not required to obtain a second Miranda waiver when re-interviewing a defendant at the request of, and in the presence of, counsel.
Should this Court review the question that defendant now poses in his brief,
this Court should find that the police are not required to re-advise a suspect of the
right to remain silent and that anything said can be used against the suspect where
a second interview takes place at the request of, and in the presence of, counsel.
This Court should find that the presence of counsel, who was assigned to represent
defendant, consulted with defendant, and was present with defendant during the
start of the September 11, 2008 interview, provided a proper assurance that
defendant's statements were made without violating his right to remain silent.
This rule would conform with the United States Supreme Court's Miranda
decision, where that Court wrote:
"The presence of counsel, in all the cases before us today, would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege. [Counsel's] presence would insure that statements made in the governmentestablished atmosphere are not the product of compulsion" (Miranda v Arizona, 384 US 436 [1966]).
The United States Supreme Court also wrote in Miranda that "[t]he presence
of an attorney, and the warnings delivered to the individual, enable the defendant
28
under otherwise compelling circumstances to tell his story without fear,
effectively, and in a way that eliminates the evils in the interrogation process" (id.).
The United States Supreme Court in its Miranda decision found that the
presence of counsel would have adequately protected the suspects in the five cases
decided in that decision from overbearing questioning by the police and assured
that questioning conformed with the protection of the right of a suspect not to be
compelled to provide self-incriminatory statements (id.).
This Court's seminal right to counsel case, People v Rogers (48 NY 167
[1979]), also recognized the key role of the presence of counsel during a police
interview:
"The presence of counsel confers no undue advantage to the accused. Rather, the attorney's presence serves to equalize the positions of the accused and the sovereign, mitigating the coercive influence of the State and rendering it less overwhelming" (id. at 173).
These decisions by the United States Supreme Court and this Court supports the
conclusion that the presence of counsel removes this case from the realm of any
valid claim that the police obtained statements from defendant on September 11,
2008, in violation of his right to remain silent.
Both the hearing court and the Appellate Division cited People v Farrell (42
AD3d at 955), where defendant came to the police station with his attorney. After
conferring with his attorney, Farrell and the attorney assured the police that Farrell
wanted to give the police a statement. The police then took Farrell's statement
29
without the attorney present The suppression court found that Farrell was in
custody and suppressed~ concluding that the statement was obtained in violation of
Farrell's l\1iranda rights. The Appellate Division reversed, relying on this Court's
decision in People v Beam (57 NY2d 241, 253-254 [1982]), fInding that Farren's
waiver of the right to have his attorney present during questioning could be
inferred from defendant's decision, after consulting with his lawyer, to follow his
attorney's advice and give a statement to the police (ld.).
In People v Beam (57 NY2d at 253-254), this Court held that the police did
everything required to honor Beam's right to counsel and that Beam properly
agreed to speak to the police on the advice of counsel. In that case, the attOlney
was not present at the police station with Beanl, but had consulted with him before
he went to the police station and spoke with the police by telephone while
defendant was at the police station. It was pennissible for the police infer that
from Beam's conduct that he was giving a statement because he agreed with
counsel's advice, and that the attorney confirnled that Beam waived the right to
counsel and the right to remain silent and that the waiver was made on the advice
of counsel (j~). Beam was given l\1iranda warnings and had refhsed to sign the
~Miranda card when the atton1ey told the police over the telephone to tell Beam that
he should sign the card but not sign any statement (id. at 247). This Court,
however, did not rely on the J\r1iranQ.'1 warnings or the card in finding the statement
30
admissible. Instead, this Court relied upon Beam's opportunity to consult with
counsel. "When a person has had the benefit of counsel and then chooses to waive
one of his rights, the police are not required to question the validity of that decision
as long as they are assured that the decision was made in consultation with the
suspect's attorney" (id. at 254 [citations omitted]). And while it is true, as
defendant points out in his brief (at 26), Beam was actually advised of his rights.
This Court's decision does not indicate, however, whether Beam actually signed
the Miranda card, and found the waiver based on the opportunity to consult with
counsel who was not even present. Here, in contrast, counsel was present, and
defendant had earlier - on August 22, 2008 - done a conventional, explicit
Miranda waiver.
Here, there is no question that defendant had the opportunity to consult with
counsel before deciding to speak to the police on September 11,2008. This Court
should hold that it was proper for the police to rely on the assurances of defendant
and counsel that defendant was choosing to speak to them that day.
Nor does the record support defendant's claim that he was unaware of his
right to remain silent when he met with the detectives on September 11, 2008. At
that time, defendant had already been involved with the criminal justice system on
numerous occasions, and had only recently been released from prison right before
the incident at the Microtel Hotel on August 20,2008. On August 22, 2008~ 20
31
days bef()re the September 11, 2008, interview, the same detectives spoke to
defendant about the same subject matter, and at the outset of that interview
defendant properly waived his right to remain silent Defendant ignores that fact
This Court should not. The detectives were approached by counsel and asked to
meet with defendant. The police allowed defendant and counsel to confer at length
before interviewing defendant on September 11,2008 (A 153, 169). Defendant
himself acknowledged that while at first he did not want to speak to the detectives
that day, after consulting with counsel, he agreed to do so, admitting in his tnal
testimony that he voluntarily agreed to speak with the detectives (A 668). In short,
. this is not a situation in which the police tried to get an unfair advantage by
speaking with a represented defendant.
This is not a situation where defendant was approached by the police and
pressured into incriminating himself at the start of an investigation. The
States Supreme Court in rv1iranda \vas focused on the need to protect suspects from
the coerc influence of the police when suspects are first placed in custody and
have not yet consulted with counsel.
"The principles announced today deal with the protection \vhich must be given to the privilege against self·incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way. It is at this poim that our adversary system of criminal proceedings commences. . .. Under the system of warnings we delineate today ... the safeguards to be erected about the privilege
must come into play at this point" (Miranda v Arizona, 384 US at 477 [emphasis supplied]).
Those protections come into play because the suspect does not have counsel. "The
warnings protect persons who, exposed to such interrogation without the
assistance of counsel, otherwise might be unable to make a free and informed
choice to remain silent" (Roberts v United States, 445 US 552,560-561 [1980]
[citing Miranda v Arizona, 384 US at 475-476, and Gamer v United States, 424 US
648,657 (1976)] [emphasis supplied]).
Thus, at the initial, uncounselled custodial meeting between defendant and
the police on August 20, 2008, the detectives properly administered Miranda
warnings. But at the meeting arranged at the behest of defense counsel 20 days
after defendant's initial meeting with these detectives, the detectives did not repeat
the previously waived right to remain silent. This Court should find that the
detectives were not required to obtain an explicit waiver of the right to remain
silent from defendant in counsel's presence on September 11,2008. The
detectives had no reason to doubt that defendant spoke to them of his own free will
and upon the advice of counsel, with the knowledge that he was not required to
speak with the detectives (A 82).
This Court should not apply the exclusionary rule to defendant's
September 11,2008 statements (cf. Herring v United States, 555 US 135, 140-146
[2009] [declining to apply the exclusionary rule to a Fourth Amendment violation
33
where a recordkeeping error by the police, who relied on a wan-ant that had been
withdravvl1, did not require exclusion of the evidence]).
The detectives did nothing wrong \vhen they agreed to speak with defendant
on September 11,2008. And if this Court adopts a rule that results in the police
being unable to reiy on a court upholding the admissibility of statements obtained
after a defendant and an attorney asked to speak with the police further, police
would have little incentive to even agree to meet with a defendant and counsel in '-'
those circumstances. This would not be beneficial to defendants who may seek to
obtain a lesser sentence while assisting in an investigation. Exclusion of this
evidence would not deter police misconduct, which is the goal of the exclusionary
rule (~~~ Herri]lg v United States, 555 US at 140-141, citing United States v
Calandra, 414 US 338, 348 [1974]). Instead, it could deter good police work.
In the situation where police obtain an initial statement without giving
required I\1iranda warnings, and then obtain a second statement after a suspect has
waived the Miranda rights, this Court has held that a court must consider a number
of factors in deciding whether the second statement is admissible, and that no one
factor is detenninative (see people v Paulman, 5 NY2d 122, 130-131 [2005]). But
here, the police did not conduct their first interview of defendant in violation of his
rights. Defendant's August 22,2008 statements were obtained after defendant's
valid waiver of his Miranda rights, including the right to remain silent. That earlier
34
waiver shows that defendant was not ignorant of his right to remain silent 20 days
later and provides a logical basis for finding the September 11, 2008 statement
admissible. Under all the circumstances of this case, this Court should reject
defendant's claim that the police violated defendant's right to remain silent on
September 11,2008.
In his brief (at 15-16), defendant cites Dickerson v United States (530 US
428 [2000]), where, according to defendant, the United States Supreme Court
effectively rejected a presence of counsel exception to the need to give Miranda
warnings. The United States Supreme Court in that case reviewed 18 USC Section
3501, a statue that created a totality of the circumstances test for determining the
voluntariness of a defendant's statement, and listing whether a suspect had the
assistance of counsel as one of several factors to be considered (id. at 436). The
Court rejected this statutory attempt to overrule Miranda because the Miranda
warnings have become "embedded in routine police practice to the point where the
warnings have become part of our national culture" (id. at 443 [citation omitted]).
That is not the case in the situation found here, where the detectives had previously
obtained a Miranda waiver from defendant, and during the second interview, 20
days later, the detectives were assured by both counsel and defendant that
defendant wanted to give a statement.
35
The fact, '"vhleh defendant ackno\vledges in his brief (at 17- J9), that oniy
two states and one United States Circuit Court of Appeals require police to give
l\1iranda.wamings \vhen counsel is pre sene , bears out that giving l\1iranda
\varnings with counsel present is not embedded in our culture.
Defendant also acknowledges in his brief (at 20) that State COUIts in
~1assachusetts, Ohio, Colorado, Delaware, Utah and Alabama, and Federal courts
in New York and Connecticut, have recognized a "presence of counsel" exception
to l\;1irand£.3 Defendant argues in his brief (at 20-24) that the Miranda decision
itself did not create a presence of counsel exception. But the presence of counsel
would have been sufficient to protect the rights of all of the cases decided in the
Miranda decision (se~ Mir9:nd~LAtizon9:, 384 US at 466).
So too, here, the presence of counsel under the facts presented in thjs case,
was sufficient to protect defendant's right to remain silent. The fact remains that in
this case, the detectives told defendant, 20 days bef()re the September 11, 2008
interview, that he had the right to remain silent and that vvhat he said could be used
against him (A. 81). Also, the detectives conducted this second interview at
2 Defendant cites cases from Havvaii (~@~...Y..J5~;;;~J2b.. 109 Haw 482, 496 [2006]), West Virginia CSlgje \.' DeWQ~1?~, 213 W Va 339, 348 [2003] and the United States Court of Appeals for the Seventh Circuit (~Y!~~ne.Lv C'!rter, 361 F3d 331 Cir 2(04).
j Defendant cites the follO\ving cases for this presence of counsel exception: .::c:.c"'=='-'-""".".'._.~ . .:c~~c'.".'." 456 Mass 280 (2010): Stat~v Bethel, 110 Ohio St 3d 416, 426 (2006); r.eople..Ylv.1ouDl~, 784 P2d 792, 795-796 (Colo 1990); Ba?i.t~T.y_S.1El~\ 254 Cia 538, 543 (i 985); 420 Ad 170, 176 (Del J (80); Onite<;LStates ':'...Guill:iWI!. 757 F Supp 259, 264 (SDNY 199 0; 1Inite<LS:tate~y.Ih~vjs, 469 F Supp 490, 508 (D Conn 1979); Statc_y Vos, 164 P3d ] 1261-1263 (UT Ct App 2007): and =-'."-'-, .... ,--' ••. =,:;c, 832 So2d 92 (Ala Ct Crim App 2(01).
36
defense counsel's request, and only spoke with defendant after defendant conferred
with his lawyer at length and in private (A 152-153, 169).
Defendant points to cases where attorneys have provided advice to
defendants that, after the fact, appeared to be bad advice (defendant's brief at 27,
citing People v Claudio, 59 NY2d 556,560 [1983] and People v Beam, 57 NY2d
at 255). This Court should not, however, require the police to give Miranda
warnings in the presence of counsel as a way to protect defendants from poor
advice from their attorneys. The purpose of Miranda warnings is to protect
suspects from coercive police tactics. A defendant who believes that counsel has
not provided meaningful assistance has appropriate avenues to raise that claim,
such as a direct appeal or a CPL 440.10 motion. The police are not in a position to
discern whether counsel is providing a suspect with sound advice.
This Court should adopt a rule that allows police and courts to infer a
knowing and voluntary Miranda waiver when counsel is present when a defendant
agrees to speak to the police. This Court should not adopt the "belt-and
suspenders" rule that defendant now seeks (although the facts of this case meet that
standard because defendant had previously made an explicit rights waiver).
37
D. Any error in admitting defendant's September 11,2008 statements was harmless.
The error that defendant alleges took place in this case resulted in the jury
learning that defendant admitted during the September 11, 2008 interview with the
police that he had met a person who was selling counterfeit money, although
defendant denied having purchased any of the counterfeit money (A 444-445).
Had the jury concluded that defendant had knowingly obtained his counterfeit
money from the person he met who was selling counterfeit money, the jury would
have convicted defendant of passing counterfeit money not only at the Sunoco
station on August 22, 2008, but at the Microtel Hotel two days earlier. But the jury
gave defendant the benefit of the doubt and acquitted him of the charges related to
the use of five counterfeit $20 bills at the Microtel Hotel.
The jury heard defendant's claim, made in his trial testimony, his August 22,
2008 statements to the police, and his Grand Jury testimony, which was read to the
trial jury, that he was not aware that he was using counterfeit money. Defendant
claimed he received a $100 bill from his father upon leaving prison, that he
exchanged that $100 bill at a bank for five $20 bills, that he cashed a $40 check at
the bank and received two more $20 bills, and that other people had given him
money (A 613-615). Defendant claimed that he was unaware that he was spending
counterfeit money (A 616). The jury must have concluded that even ifhe had been
unaware that his money was counterfeit when he paid for the hotel room,
38
defendant had to have known that his money was counterfeit when he spent two
more $20 bills at the Sunoco station. Officer Wintermute warned defendant that
the money he had used to pay for the hotel room was fake. The jury sent a note to
the court during deliberations asking if Officer Wintermute had testified that he
had checked the money that defendant had in his pockets at the hotel (A 868). The
court accurately told the jury that the answer to this question was no (A 755).
Thus, the jury must have decided not to credit defendant's testimony claiming that
Officer Wintermute had checked defendant's remaining money and had told
defendant that this money was okay (A 652).
Defendant demonstrated his knowledge that he was spending fake $20 bills
at the Sunoco station by first spending one $20 bill on several items, getting
change (presumably in real money) from the clerk, and then, when the clerk did
not notice that the first $20 bill he had used was fake, picking out additional items,
using another fake $20 bill to pay for the additional items and getting additional
real money back in change (A 291-292). Defendant cannot persuasively claim that
the testimony about defendant encountering a person willing to sell him counterfeit
money - which defendant insisted he did not purchase - had any impact on the
jury's verdict. Had the jury concluded from that testimony that defendant had
knowingly purchased counterfeit money, the jury would not have acquitted him of
the first count of the indictment. This information had no impact on the jury's
39
guilty verdict. The error that defendant now alleges was harmless (see generally
People v Grant, 7 NY3d 421,424 [2006]; People v Crimmins, 36 NY2d 230,237-
242 [1975]).
This Court should not grant defendant a new trial based on his unpreserved
and meritless claim regarding an error that, even if it was error, was harmless.
POINT II
DEFENDANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL
Defendant also asserts in Point I of his brief that the attorney who
represented him at the time of the September 11, 2008 interview failed to provide
defendant with effective assistance. This Court should reject that claim. This
appeal is not the appropriate form to review defendant's ineffective assistance of
counsel claim, and that claim lacks merit.
Defendant's ineffective assistance claim should not be reviewed by this
Court. Defendant could have made a record in the trial court of why he thought
counsel had failed to provide effective assistance, but failed to do so. Thus,
defendant's claim that he did not receive effective assistance of counsel is
unpreserved. It is true that defendants may not always have the ability to preserve
claims of ineffective assistance, since defendant may not be aware of counsel's
ineffectiveness while the counsel's representation is ongoing. Here, however, the
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attorney who represented defendant at the time of the September 11, 2008
interview no longer represented defendant at the time of the pretrial hearing. At
the time of the hearing, defendant could have raised the same complaints that he
now makes about that attorney. Thus, preservation should be required.
Additionally, even apart from the preservation requirement, a defendant has a duty
to create a sufficient record to support a claim raised on appeal (see People v
Kitchen, 60 NY2d 772 [1983]). Defendant did not create a basis for review of his
ineffective assistance of counsel claim in this case. This Court should not review
defendant's ineffective assistance of counsel claim.
In any event, counsel correctly realized that the best strategy in this case was
for defendant to cooperate with the police in the hope that he could obtain a
favorable disposition of this matter (see People v Carncross, 14 NY3d 319, 330-
332 [2010]). The fact that defendant ultimately rejected that strategy and instead
pursued an unwise strategy does not mean that counsel was ineffective.
Effective assistance of counsel is provided to a defendant where the defense
attorney provides "meaningful representation" (People v Stultz, 2 NY3d 277, 279
[2004]; People v Baldi, 54 NY2d 137 [1981]; People v Simmons, 167 AD2d 924
[4th Dept 1990], Iv denied 77 NY2d 843 [1991]). The meaningful representation
standard is "undemanding" (People v Borrell, 12 NY3d 365, 368 [2009], quoting
People v Turner, 5 NY3d 476,482 [2005]). The standard of meaningful
41
representation, however, is not precise. Rather, it is to be decided on a case-by
case basis (People v Rivera, 71 NY2d 705, 709 [1988]; People v Droz, 39 NY2d
457,462 [1976]; People v Bennett, 29 NY2d 462,466 [1972]). "Where the
evidence, the law and the circumstances of a particular case, viewed together and
as of the time of representation, reveal that meaningful representation was
provided," a defendant's constitutional right to effective assistance of counsel is
satisfied (People v Satterfield, 66 NY2d 796, 798-799 [1985]). In looking at each
case, judicial scrutiny must be deferential, and every effort must be made to
eliminate the distorting effects of hindsight (Strickland v Washington, 466 US 668,
687 [1984]). A reviewing court should be skeptical of a claim of ineffective
assistance of counsel where a defendant cannot demonstrate prejudice (People v
Stultz, 2 NY3d at 284).
A defendant alleging ineffective assistance of counsel "has the burden of
coming forward" with allegations sufficient to create an issue of fact (People v
Harris, 131 AD2d 142, 144 [3 rd Dept 1987], citing People v Session, 34 NY2d 254,
255-256 [1974]). Ineffective assistance cannot be found where a defendant, after
the fact, simply disagrees with the strategy and trial tactics that defense counsel
chose to use (People v Benn, 68 NY2d 941, 942 [1986]). A defendant's
disagreement with counsel's strategy or tactics after the trial does not amount to
ineffective assistance of counsel (People v Flores, 84 NY2d 184 [1994]).
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This Court has held that it will not "second-guess whether defense counsel's
trial strategy was the best trial strategy, or even a good one, so long as the
defendant was afforded meaningful representation" (People v Satterfield, 66 NY2d
796, 799-800 (1985)]). Defendant's apparent disagreement with counsel's trial
strategy or tactics after the trial does not amount to ineffective assistance of
counsel (People v Flores, 84 NY2d 184 [1994]).
Even where counsel's tactics were unsuccessful does not render counsel
ineffective (People v Henry, 95 NY2d 563, 566-567 [2000]). Of course, here,
defendant abandoned defense counsel's strategy and cannot credibly claim that it
was unsuccessful. And as already shown in Point I of this brief (~), the
additional information that defendant revealed during the September 11, 2008
interview arranged by Attorney Hanlon did not contribute to the jury's verdict
finding defendant guilty of passing two fake $20 bills at the Sunoco station.
Defendant received meaningful assistance from Attorney Hanlon. This
Court should affirm defendant's conviction.
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CONCLl;SION
The People respectfully ask this Court to affirm defendant's conviction.
JAMES P. MAX'W'ELL, ESQ. Chief Assistant District Attorney
Of Counsel
DATED: September 22, 2014
Respectfully submitted,
\VILLIAM J. FITZPATRICK, ESQ. Onond»ga County District Attorney B / : f' 10/1 ." .'" /l;1 _ -y: C/7;trrr:.V/?,' f· \ 1 l?r~"1l:1:/'IXp
Jimes P. Maxwell Chief Assistant District Attorney Attorney for Appellant Criminal Courthouse, 4th Floor 505 South State Street Syracuse, NY 13202 Tel: (315) 435-2470
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