People v. Albert

Full title: THE PEOPLE OF THE STATE OF NEW YORK v. MICHAEL A. ALBERT , Defendant.

Court: STATE OF NEW YORK COUNTY COURT COUNTY OF MONROE

Date published: Mar 26, 2014

2014 N.Y. Slip Op. 34016 (N.Y. Cnty. Ct. 2014)

Opinion

Indict. No. 2013/0539

03-26-2014

THE PEOPLE OF THE STATE OF NEW YORK v. MICHAEL A. ALBERT , Defendant.

APPEARANCES: For the People: SANDRA DOORLEY, ESQ. Monroe County District Attorney PATRICK FARRELL Esq., of Counsel 47 S. Fitzhugh Street, Suite 832 Rochester, New York 14614 For the Defendant: MARK D. FUNK, ESQ. 144 Exchange Boulevard Rochester, New York 14614

VINCENT M. DINOLFO, J.

SUPERCEDING DECISION AND ORDER / DECISION AND ORDER

APPEARANCES:

For the People:

SANDRA DOORLEY, ESQ.
Monroe County District Attorney
PATRICK FARRELL Esq., of Counsel
47 S. Fitzhugh Street, Suite 832
Rochester, New York 14614

For the Defendant:

MARK D. FUNK, ESQ.
144 Exchange Boulevard
Rochester, New York 14614 DECISION AND ORDER VINCENT M. DINOLFO, J.

Defendant is charged with Murder in the Second Degree in violation of PL § 125.25(1), Criminal Possession of a Weapon in the Second Degree in violation of PL §265.03(2), and Criminal Possession of a Weapon in the Third Degree in violation of PL§265.02(4). This Decision and Order supercedes those portions of the prior Decision and Order issued from the bench in December 2013 to the extent it is delineated herein. This ruling also addresses the original issue as to whether a Singer Hearing is needed as so moved by Defendant.

In addressing the Singer issue first, Defendant asserts that the delay between the date of this crime and the date which the charges were brought violates his due process rights under the US Constitution (Amendments VI and XIV) and the New York Constitution (At.1 §6). He contends that the seven year delay in bringing these charges is violative of his rights to be afforded due process, citing and quoting, People v. Bryant, 65 AD2d 333(2nd Dept. 1978), and the reference to the necessity of conducting a Singer Hearing to determine the issue. His primary argument is that since corroboration is not needed to obtain an indictment, any argument which the People raise on that subject in order to justify this delay is unpersuasive. Defendant also argues that a seven year delay is "substantial" in and of itself. He further submits that his case has been prejudiced because the passage of time has seriously eroded his ability to defend himself, citing the difficulty of an alibi defense after so long a time, and that he has been prejudiced because as a sentenced prisoner, he has now lost the right to negotiate a sentence agreement which would include concurrent incarceration.

The factors which the Court should consider in making a due process determination are: 1) the length of the delay, 2) the reason for the delay, 3) the degree of actual prejudice to the defendant, 4) the seriousness of the underlying offense, and 5) the extent of pretrial incarceration (People v. Singer, 44 NY2d 241 [1978]; see also ,People v. Vernace, 96 NY2d 886 [2001]).

Here, there was a seven year delay in the timely prosecution of this homicide. The underlying charge is murder, inarguably a serious if not the most serious offense, that can be charged in the criminal justice system. Fifteen year preindicmtent, (People v. Decker, 13 NY 3d 12 [2009]), fourteen year preindictment, (People v. Vernace, supra), and nineteen year preindictment delays (People v. Rogers, 103 AD3d 1150 [4^th Dept. 2013)], have not been held to be per se violations of due process in homicide cases. Here, the period of delay is significantly less. Also, in the present case, the issue of extensive pretrial incarceration is not applicable because Defendant was sentenced and incarcerated on a totally separate crime/event.

Further, the People did not pursue this sooner because of a perceived lack of corroborative evidence. In that vein, "a determination made in good faith to defer commencement of the prosecution for further investigation*** will not deprive the defendant of due process of law even through the delay may cause some prejudice to the defense" (People v. Singer, supra, at 254, 405 N.Y.S.2d, 17", (People v. Denis, 276 AD2d 237, 248, [3^rd Dept. 2000]). The People have stated their reasons for delay in their papers and the Court finds those reasons have merit and are not the manifestation of bad faith. Here, this was not the abuse of the significant amount of discretion that the People must of necessity have, and there is no indication that the decision was made in anything but good faith (People v. Rogers, supra at 1151, citing and quoting, People v. Decker, supra at 15).

Additionally, there is no indication that the defense has been seriously impaired by the delay (People v. Hayes, 39 AD3d 1173 [ 4^th Dept. 2007]). With a seven year delay, "it is likely that some degree of prejudice will result-given that memories will fade, potentially making it difficult for a defendant to establish an alibi or other defenses" (People v. Decker, supra at 15-16). But a delay may likewise work against the prosecution as the passage of time can make it more difficult for the prosecution to meet their burden of proof (see, People v. Vernace, supra at 288). Accordingly, Defendant's motion to dismiss the Indictment on the ground that he was denied due process or because of the preindictment delay is denied for the reasons stated above and the Court need not conduct a Rogers Hearing in order to reach that conclusion (see, People v. Decker, 13 NY3d 12 [2009]; People v. Rogers, 103 AD3d 1150 [4^th Dept. 2013]; People v. Hayes, 39 AD3d 1173 [4^th Dept. 2007]).

The Court has reconsidered Defendant's motion and arguments with respect to that portion which seeks dismissal of the second and third counts of the Indictment as being beyond the statute of limitations. There is a clear distinction between speedy trial provisions and statute of limitations provisions within CPL §30, et al. In reviewing the issue the Court concludes that controlling authority can be found in both People v. Wildrick, 83 AD3d 1455 (4^th Dept. 2011), and People v. Heil, 70AD3d 1490 (4^th Dept. 2010). In both cases, where the statute of limitations did not require dismissal of the major crime alleged in the respective Indictments, the presence of those charges did not toll the statute of limitations to separate counts. The argument that the separate charges were transactional, and thus afforded the statute of limitations for the major charge, was not supported in these cases. Therefore, the Court now grants Defendant's motion to dismiss counts two and three of this Indictment as time-barred by application of the appropriate statute of limitations for those counts.

With respect to Defendant's motion to reconsider the Court's ruling with respect to the necessity of the service of a CPL §710.30 Notice, the Court declines to grant the motion based upon the content of the original Decision and Order (see also; People v. Boone, 98 AD3d 629 [2d Dept. 2012[; People v. Rockefeller, 89 AD2d 1151[3rd Dept. 2011; People v. Carter, 31 AD. 3d 1056 [3^rd Dept. 2006]).

Wade/Huntley Hearing

A combined Wade/Huntley Hearing was conducted in this matter on November 26, 2013. The only witness who testified during the Hearing was Rochester Police Department ("RPD") Investigator Randy Benjamin ("Benjamin"). The Court makes the following findings of fact based upon the testimony which the Court has determined to be credible:

Benjamin was working in September 2006 and was investigating a homicide which had occurred near Lexington Avenue in the City of Rochester, Monroe County, New York, during that month. On September 13, 2006 at approximately 2:30, he conducted a photo array with a person who has been delineated as Witness 1. The procedure took place in the Public Safety Building and was conducted by Benjamin and his partner, Inv. Neal O'Brien. The array consisted of photographs of six African-American males. The photos were in color and showed the men's faces. The array was computer generated by "putting in" to a databank, similar characteristics such as height, age, color, weight, and race. The intention was to create an array with persons who would appear similar in appearance to Defendant. The witness was advised that he was going to be shown a photo array and asked if he recognized anyone shown in the display. The witness pointed out picture number 3 and stated "that's him right there." The person in photo number 3 was Defendant.

Benjamin performed a similar photo array procedure on April 26, 2013 at approximately 1:55 p.m., with a second person known as Witness 2. The array had been generated in a manner similar to the first array and contained photographs of six persons, including Defendant. Prior to the array being shown to Witness 2, the witness was given instructions by use of a RPD Photo Array Form, and was subsequently received into evidence. The instructions were read verbatim to Witness2, who indicted that he or she understood the instructions. The witness was then shown the array. The witness pointed out photo number 2 and stated "that's Gotti right there." Ex.# 3 was placed into evidence. Neither Witness 1 nor Witness 2 were shown any other photos of Defendant prior to the subject photo arrays.

Benjamin also testified with respect to a conversation which he had with Defendant on May 9, 2013. The conversation took place at Greene Correctional Facility ("Facility"). Defendant was incarcerated at the Facility on an unrelated matter. Benjamin had traveled to the Facility with another investigator, Nick Mazzola, who was present during the entire conversation, but took no active part.

Benjamin stated that Defendant was brought into a room which had described as an office with three chairs, "probably the size of the men's room" on the 2^nd Floor of the Hall of Justice. Defendant was escorted into the room by Corrections personnel, but was neither handcuffed nor shackled. The Corrections personnel person did not remain in the room and was not positioned at the door. Defendant had freedom of movement within the room. He was not read his Miranda warnings. The contents of the conversation that ensued is contained in the record of the Hearing and for the sake of brevity, will not be repeated herein. Defendant never asked that the questioning cease nor did he ask for the services of an attorney. The " interview process" lasted for approximately two hours.

Conclusions of Law -Wade/Huntley

With respect to the photo array identification procedure conducted with the identifying witnesses, the People have the burden of going forward to establish both the reasonableness of the police conduct and the lack of suggestiveness in the identification procedure used. (People v. Ortiz, 90 NY2d 533 [1997]). The Defendant has the ultimate burden of proving that the identification procedure was unduly suggestive. ([People v. Ortiz, at 537; People v. Chipp, 75 NY2d 327 [1990]; People v. Berrios, 28 NY2d 541 [1971]).

In the present case, the subjects depicted in the photo array were sufficiently similar in appearance so that the viewers' attention was not drawn to any one photo in such a way as to indicate that the police were urging a particular selection. (People v. Dean, 28 AD3d 1118 [4^th Dept 2006]). Additionally, there was nothing in the instructions given by the law enforcement officer, or in the manner in which either array was conducted, which was suggestive in nature. Accordingly, the photo arrays and the procedures implemented in their presentations to the witnesses were not unduly suggestive and Defendant's motion to suppress the in-court identification by the witnesses is denied. (People v. Gonzalez, 89 AD3d 1443 [4^th Dept. 2011]; People v. Weston, 83 AD3d 1511 [4^th Dept. 2011]; People v. Dean, 28 AD3d 1118 [4^th Dept. 2006]).

In addressing the statements purportedly made by Defendant, generally, a confession or admission is admissible at trial only where its voluntariness is established by the People beyond a reasonable doubt (People v Huntley, 15 N.Y.2d 72 [1965]). Statements resulting from custodial interrogation are admissible only upon a showing that the procedural safeguards provided in Miranda v. Arizona, 384 US 436 (1966) were complied with. Miranda warnings are required whenever a defendant is taken into custody or otherwise deprived of his or her freedom of action in any significant way and is subjected to interrogation. Id at 444.

Generally speaking, the questioning of an inmate in a correctional facility is not, in and of itself, a custodial interrogation under the Miranda rule (People v. Alls, 83 NY2d 94 [1993]). Essentially, for the purposes of determining whether an inmate is being held in a "custodial" circumstance during a conversation with law enforcement personnel, there must be an added constraint upon the inmate which would lead that prison inmate to reasonably believe that there has been a restriction on his or her freedom over and above that of the ordinary confinement in the facility (People v. Machicote, 23 AD3d 264 [1^st Dept. 2005], leave to appeal denied 6 NY3d 777[2006]). If there is not added constraints as detailed above, the inmate is not in custody for Miranda purposes and the Miranda warnings are not necessary (People v. Ayala, 27 AD3d 1087 [4^th Dept. 2006], leave to appeal denied 6 NY3d 892 [2006]. Moreover, in a circumstance where an inmate is not handcuffed or further restrained, placed in an office, had not been frisked or placed under direct guard and was, in a short period of time, informed why the investigators were there, there is no need for Miranda warnings to be given (see generally, People v. Alls, supra; People v. Busanet, 79 AD3d 600 [1^st Dept. 2010]; People v. Passino, 53 AD3d 204 [3^rd Dept. 2008]).

Further, the test for determining whether a person is in custody for Miranda purposes is not what the Defendant thought, but rather what a reasonable person, innocent of any crimes, would have thought had he been in Defendant's position (People v. Brown, 111 AD3d 1385 [4^th Dept. 2013]; People v. Jones, 110 AD3d 1484 [4^th Dept. 2013]). In determining whether a defendant was in custody for Miranda purposes the court should consider: 1) the amount of time the defendant spent with police, 2) whether his freedom of action was restricted in any significant manner, 3) the location and atmosphere in which the defendant was questioned, 4) the degree of cooperation exhibited by the defendant, 5), whether he was apprised of his constitutional rights, and 6) whether the questioning was investigatory or accusatory in nature (People v. Kelly, 91 AD3d 1318,1318 [4^th Dept. 2012], citing and quoting, People v. Lunderman, 19 AD3d 1067, 1067-1069, lv denied, 5 NY 3d 830 [2005]).

The testimony reveals that no force, coercion, or threats thereof, or evidence of other improper conduct or undue pressure was exercised upon Defendant in order to induce him to speak. No promises were made to Defendant which created a risk that he might falsely incriminate himself. He was never denied anything which he requested. His answers to inquires were reasonable and responsive and there were no indicia that he was ill or suffering from a medical condition which would render his cooperation involuntary. The conversation lasted only two hours. Defendant was not harangued when he denied culpability. He was cooperative. He was not restricted in any out of the ordinary manner. The conversation took place in an office with a window rather than a more confining space. No prison officials participated in the conversation or acted menacingly towards Defendant during the process. Under the circumstances and the nature of the contents of the conversation, the interaction was congenial.

Defendant did not appear to be suffering from the effects of either drugs or alcohol. Defendant never asked for the services of an attorney, nor did he ask for the questioning to cease. He was cooperative with the police and seemed insistent on speaking with them.

When the facts are viewed in their totality, it is clear beyond a reasonable doubt that Defendant's statements were both voluntary and not the result of custodial interrogation. Accordingly, Defendant's motion to suppress his statements is denied and the People may use them in either their direct examination or in cross examination should Defendant choose to testify in his own behalf.

The above constitutes the Decision and Order of this Court.

Dated this 26^th day March, 2014 at Rochester, New York.

/s/ _________

HONORABLE VINCENT M. DINOLFO

MONROE COUNTY COURT JUDGE Enter: