Opinion
No. CR-008355-22BX
05-31-2023
The People of the State of New York, v. Ramon Cedeno-Ortiz, Defendant.
For the People: Timothy Hammel, Assistant District Attorney Michael Ainis, Assistant District Attorney Bronx County District Attorney's Office For the Defendant: Angelo Petrigh, Of Counsel Samantha Tucker, Of Counsel The Bronx Defenders
Unpublished Opinion
For the People:
Timothy Hammel, Assistant District Attorney
Michael Ainis, Assistant District Attorney
Bronx County District Attorney's Office
For the Defendant:
Angelo Petrigh, Of Counsel
Samantha Tucker, Of Counsel
The Bronx Defenders
Vidya Pappachan, J.
On May 15, 2022, the Defendant was arraigned on a misdemeanor information charging him with violating a misdemeanor under New York City Administrative Code ([Administrative Code] § 19-190 [b]), Right of Way and an infraction of Vehicle and Traffic Law ([VTL] § 1146 [c][1]), Drivers to Exercise Due Care. On June 27, 2022, a superseding information was filed charging the same offenses. On May 9, 2023, this Court conducted a combined Huntley/Dunaway hearing. The People called one witness: Detective Enmanuel Rosario. The parties stipulated to the admission into evidence of two of the People's Exhibits. People's Exhibit #1 is an audio recording of Detective Rosario's questioning of the Defendant. People's Exhibit # 2 is a transcript and translation of the same questioning. The Court finds Detective Rosario's testimony credible. Based on a review of the court file and the evidence adduced at the hearing, the Court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
Detective Enmanuel Rosario has been with the New York City Police Department for approximately fifteen years. He is currently a detective for the Collision Investigation Squad (CIS). Prior to being assigned to the CIS, he worked with the Collision Technician Group (CTG). Prior to working with the CTG, he was assigned to highway patrol. The Collision Investigation Squad is a unit within the highway patrol that investigates vehicular collisions resulting in critical or fatal injuries. The Collision Technician Group assists the Collision Investigation Squad with these investigations.
On May 14, 2022, the date of the incident, Detective Rosario was assigned to work from 2:00 pm to 10:33 pm. However, he arrived to his command located at 2 Bronx River Road Parkway at 10:00 am to follow up on some of his cases. While there he received a radio transmission indicating that a Police Service Area (PSA) 8 Lieutenant was requesting CIS to respond to a collision at the intersection of Olmstead and Seward Avenues. After receiving the radio transmission, Detective Rosario read a transmission indicating that the patrol supervisor from Highway 1 had responded to Jacobi Hospital where the victim in the collision had been taken and determined that CIS should investigate. Upon his arrival to the scene, at approximately 12:27 pm, he observed a gray van parked on Seward Ave facing eastbound on the south side of the street, a few car lanes east of the intersection. He also observed the Defendant seated inside of that vehicle speaking with a police officer from CTG. Detective Rosario testified that it looked as though that officer was conducting sobriety tests on the Defendant. Additionally, Detective Rosario saw responding officers from PSA 8 and CTG. He spoke with Police Officers Valdez and Sandolo from CTG and saw police officers speaking with the Defendant but was unable to testify as to the content of the Defendant's conversations with any of them. At this point, the Defendant was not handcuffed, and the officers' guns were holstered.
Detective Rosario testified that he then inquired from an officer on the scene whether there were any eyewitnesses to the incident to interview. After that, he went to 2101 Seward Avenue, the property to the right of the intersection where the collision occurred and asked for permission from the property owner to review footage from the owners two security cameras. While viewing the surveillance footage Detective Rosario observed a gray van traveling southbound on Olmstead Avenue driving through a stop sign and make a left turn striking a pedestrian who was standing in the crosswalk. He determined from his review of the footage that the operator of the gray van had violated Section 19-190 (b) of the New York City Administrative Code and VTL 1146 (c). Detective Rosario also reviewed the Intergraph Communication Description (ICAD) generated in this matter, which indicated that the first 911 call made in connection with this incident was from the Defendant's phone number.
After viewing the surveillance footage, Detective Rosario waited for the Defendant to complete his sobriety tests administered by CTG. The Defendant was administered a PBT, Breathalyzer, an oral test for a controlled substance. He tested negative for the presence of alcohol or illegal drugs in his blood. At approximately 1:30 pm, Detective Rosario asked the Defendant into his department vehicle, an unmarked black SUV, parked at the Northwest corner of Olmstead and Seward Avenues. Detective Rosario was seated in the drivers' seat of the vehicle and the Defendant was seated in the passenger seat. The Defendant was not handcuffed, no threats or promises were made to him, no physical force was used against him and Detective Rosario's gun was holstered. Detective Rosario testified that he was not aware of any of the police officers that the defendant spoke with promising him anything or asking him any investigatory questions. He testified that he would not have permitted the defendant to leave at this point because he intended to place him under arrest. Detective Rosario read the defendant his Miranda rights in Spanish, a language in which both he and the Defendant are fluent. The detective then began to question the defendant.
At the time of questioning, according to the Detective, the Defendant was alert, appeared to understand the questions that were posed to him, and responded to those questions appropriately. The Defendant maintained eye contact with Detective Rosario, however, he spoke quickly and moved around during the recorded questioning. Detective Rosario testified that the Defendant told him that he was traveling southbound on Olmstead Avenue to pick up food for his son, with special needs and that he didn't see the pedestrian. The Defendant also stated during questioning that the pedestrian was coming from between vehicles and walked in front of his vehicle. Detective Rosario also obtained consent from the Defendant to look at his phone call and text message logs to ascertain evidence of the Defendant's use of the phone during the time the incident occurred.
CONCLUSIONS OF LAW
Preclusion of Statements
The People served CPL § 710.30(1)(a) notice of one statement. The statement was made to Detective Enmanuel Rosario on May 14, 2022, at approximately 2:37 pm, on the Southeast Corner of Seward Ave & Olmstead Ave. The sum and substance of that statement is: "I WAS ON MY WAY TO DROP SOMETHING OFF FOR MY KID. I STOPPED COMPLETELY AND MADE A LEFT TURN. I DIDN'T SEE THE PEDESTRIAN [sic] SHE CAME IN BETWEEN CARS."
At the hearing, the People sought to introduce a 21-page transcription of a statement and translation of a statement made by the Defendant during the course of questioning conducted by Detective Rosario. Defense counsel seeks to preclude portions, specifically lines 227-248, of the 21-page transcription and translation of the Defendant's statement as extending beyond the scope of sum and substance of the noticed statement and therefore warrants preclusion. While, the People concede preclusion of lines 249-363 as ancillary to a description of the incident, the People assert that the specific portions defense counsel alludes to are admissible because it remains part of the narrative and is in sum and substance of the People's noticed statement, pursuant to CPL § 710.30(1)(a).
The People need only give notice of the sum and substance of the statement (see People v. Laporte, 184 A.D.2d 803; People v. Holmes, 170 A.D.2d 534 [2d Dept. 1991], appeal denied 77 N.Y.2d 961 [1991]; People v. Murphy, 163 A.D.2d 425 [2d Dept. 1990]) such that the defendant is made aware of the statement and has an adequate opportunity to challenge its admissibility (see People v. Morales, 75 Misc.3d 232 [Crim Ct, Richmond County 2022]). The statements "must be described sufficiently so that the defendant can intelligently identify them" (People v. Lopez, 84 N.Y.2d 425, 428 [1994]). In accord with these precedents, the court denies the defendant's application to preclude lines 227 through 248 contained in the 21-page long transcription of the defendant's statement to Detective Rosario in its entirety. As the People assert, lines 227 through 248 describe what is purported to have occurred during the incident and therefore in accord with the sum and substance of the statement provided in the People § 710.30 (1)(a) notice. Lines 249 through 363 are precluded on consent of the People.
Huntley Hearing
The Defendant moves to suppress the noticed statement on the ground that the People did not meet their burden to prove that the Defendant's statement was voluntary and that he validly waived his Miranda rights. Defense counsel, citing People v. Chapple, 38 N.Y.2d 112 (1975), contends that the statement the Defendant gave to Detective Rosario subsequent to the administration of Miranda warnings was tainted by earlier statements the Defendant made to officers at the scene and are the result of a continuous interrogation.
The People have the burden of proving beyond a reasonable doubt, that the Defendant's statements were voluntary (see People v Anderson, 42 N.Y.2d 35, 38 [1977]; People v Huntley, 15 N.Y.2d 72 [1965]; People v. Johnson, 139 A.D.3d 967 [2d Dept 2016]) and that the defendant, if subjected to custodial interrogation, knowingly, intelligently, and voluntarily waived his Miranda rights (see Miranda v Arizona, 384 U.S. 436, 444 [1966]) prior to making the statement (see People v Williams, 62 N.Y.2d 285, 288-289 [1984]). Determining whether a statement is voluntary is a factual issue governed by the totality of the circumstances" (People v. Lin, 26 N.Y.3d 701 (2016); People v Guilford, 21 N.Y.3d 205, 208 [2013]). Statements that are the "product of coercion, either physical or psychological" (Berkemer v. McCarty, 468 U.S. 420 [1984]; People v. Thomas, 22 N.Y.3d 629, 641 [2014]; CPL § 60.45 [2]) are not voluntary.
Detective Rosario testified that the Defendant was not free to leave when he took him inside of his vehicle to question him and that the Defendant was in custody. He testified that he administered Miranda warnings to the Defendant in Castellano, a Spanish dialect, in which they are both fluent. Evidence adduced at the hearing shows that Miranda warnings were clearly and fully recited to the Defendant and that the Defendant understood those rights and so acknowledged. Pursuant to his testimony, Detective Rosario did not coerce or intimidate the Defendant. He also did not make any promise to the defendant in exchange for his statement. Therefore, the Defendant voluntarily waived his Miranda rights.
Continuous Interrogation
The Court also finds that the Defendant was not subject to a continuous interrogation warranting suppression of this statement. It is well settled that "[ Miranda ] warnings, to be effective... must precede the subjection of a defendant to questioning. Later is too late, unless there is such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning" (People v. Chapple, 38 N.Y.2d 112, 115; People v. Bethea, 67 N.Y.2d 364, 366 [1986]). The Court Appeals admonishes that, "where an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a 'single continuous chain of events,' there is inadequate assurance that the Miranda warnings were effective in protecting a defendant's rights, and the warned statement must also be suppressed" (People v. Paulman, 5 N.Y.3d 122, 130 [2005], quoting People v. Chapple, 38 N.Y.2d 112, 114 [1975]; see People v. Ghee, 148 A.D.3d 721, 722 [2d Dept 2017]). To determine whether there is a sufficiently definite, pronounced break in the interrogation to remove the taint from a purported Miranda violation and make a subsequent Mirandized statement admissible at trial despite the prior unwarned statement, courts consider the following factors:
(1) the time differential between the Miranda violation and the subsequent admission; (2) whether the same police personnel were present and involved in eliciting each statement; (3) the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; (4) whether, prior to the Miranda violation, defendant indicated a willingness to speak to police; and (5) whether a change in location or the nature of questioning occurred.People v. Paulman, 5 N.Y.3d 122, 130-131 (2005). However, the mere fact that a defendant has made an unwarned statement does not require suppression unless there is some indication law enforcement has used "[c]oercive forces, either physical or psychological, or a combination of both, which induced a statement and which carried over and dominated the latter statements" (People v. JB, 23 N.Y.2d 611, 615 [1969]; People v. Davis, 130 Misc.2d 681, 684-685 [Suffolk County Court, 1985]).
Here, the Defendant's statement to Detective Rosario was not a result of a continuous interrogation and is therefore admissible. Detective Rosario arrives on the scene well after the incident occurred and other responding officers had already arrived on scene. The testimony elicited at the hearing fails to establish that the Defendant was coerced into making statements to officers or was interrogated by the police officers. The record is silent as to any substantive statements made by the Defendant and whether any inculpatory statements were made to law enforcement prior to be being administered his Miranda rights (People v Kinnar, 62 N.Y.2d 91 [1984] ["the absence of any incriminating response to... police questioning" can be one of several factors supporting a conclusion that post-Miranda confessions are not tainted"] see People v. Salem, 167 A.D.2d 840 [4th Dept 1990, appeal denied, 7 N.Y.2d 911 [1991]). In the absence of any information regarding the initial statements made by the Defendant at the scene, the testimony adduced at the hearing does not provide any indication to the Court in assessing the Defendant's (1) willingness to speak to police officers, (2) the content or nature of any purported police questioning of the defendant or of any responses from the Defendant, and (3) evidence of whether the initial responding police officers used any coercion, deception, trickery, or any other improper tactics to obtain any statements from the Defendant (see People v. Paulman, 5 N.Y.3d 122 [2005]; People v. Tanner, 30 N.Y.2d 102 [1972]; People v. Davis, 130 Misc.2d 681, 687).
The record is further devoid of any testimony laying out a definitive period of time wherein the Defendant spoke with or was questioned by the police officers on the scene before being administered Miranda rights (People v. Chapple, 38 N.Y.2d 112; People v. Davis, 130 Misc.2d 681, 687). In this regard, the testimony elicited at trial only establishes that Detective Rosario arrived approximately one hour after the responding officer arrived at the scene and began questioning the Defendant at approximately 1:30 pm. Any alleged pre- Miranda questioning of the defendant was conducted by a different member(s) of law enforcement (People v. Bolus, 185 A.D.2d 1007, 1008 [3rd Dept 1992, lv denied 81 N.Y.2d 785 [1983]), as Detective Rosario did not question the Defendant until after he read the Defendant his Miranda rights.
What occurred in the instant matter bears sharp contrast to the circumstances presented in People v. Chapple, 38 N.Y.2d 112, which Defendant relies upon in support of his argument. Unlike in Chapple, the Defendant's statements to Detective Rosario are the product of a lawful arrest. In Chapple, 38 N.Y.2d 112, the arresting police officer stopped the defendant who was walking on a public roadway, ordered him into a police car, questioned him about several burglaries in the area, drove him to the sight of the most recent one. The officer administered Miranda warnings after the defendant admitted that burglary and continued to interrogate the defendant until he signed four typewritten confessions to the remaining burglaries. The Court of Appeals found the close sequence between the Defendant's pre and post Miranda statements of events subjected Defendant Chapple to a continuous interrogation, which rendered the Miranda warning administered at the site of burglary insufficient to protect the Defendant's rights.
Here, the testimony adduced at the hearing does not establish that the Defendant was even questioned before Detective Rosario administered his Miranda rights. Had the Defendant testified as to the nature of any conversations or questioning he was subjected to prior to his statements to Detective Rosario, there may be a basis to reach a different conclusion. Here, however, the record remains void of any such testimony to allow for this Court to reach the conclusion that the Defendant's statement to Detective Rosario was tainted by any earlier statements he may or may not have made. Accordingly, the court finds that the Defendant was not subject to a continuous interrogation. The Defendant's statement to Detective Rosario is therefore voluntary and admissible.
Dunaway hearing
At a Dunaway hearing, the People have the initial burden of showing that there was probable cause to arrest the defendant. The burden then shifts to the defendant to prove by a preponderance of the evidence that police acted illegally (People v. Dodt, 61 N.Y.2d 408, 415 [1984]; People v. Berrios, 28 N.Y.2d 361 [1971]). The existence of probable cause to arrest requires information which "would lead a reasonable person who possesses the same expertise as the arresting officer to conclude, under the circumstances, that a crime is being or was committed" by the defendant (People v. McRay, 51 N.Y.2d 594, 602 [1980]; People v. Cooper, 38 A.D.3d 678, 679 [2d Dept. 2007]).
In the instant matter, Detective Rosario testified that he viewed surveillance footage wherein he observed the defendant driving a gray van drive through a stop sign, proceed to make a left turn and strike down a pedestrian standing in the crosswalk. The pedestrian suffered fatal injury stemming form this collision. He testified that based on these observations he determined that the Defendant had violated Administrative Code § 19-190(b) and Vehicle and Traffic Law § 1146 (c) (1). Based on the foregoing, Detective Rosario's observations from the video surveillance provided reasonable grounds to believe that defendant committed these offenses. These observations provide probable cause for the defendant's arrest. Further, defense counsel concedes that probable cause existed due to Detective Rosario observations from the surveillance footage of the incident (hearing transcript at 51).
Administrative Code § 19-190 reads in pertinent part as follows: "[b] Except as provided in subdivision c of this section, any driver of a motor vehicle who violates subdivision a of this section and whose motor vehicle causes contact with a pedestrian of person riding a bicycle and thereby causes physical injury, shall be guilty of a misdemeanor." Vehicle and Traffic Law 1146 (c) (1) provides: "A driver of a motor vehicle who causes serious physical injury as defined in article ten of the penal law to a pedestrian or bicyclist while failing to exercise due care in violation of subdivision (a) of this section, shall be guilty of a traffic infraction..."
Based on the foregoing, the Defendant's motion to suppress is denied in its entirety.
This constitutes the Decision and Order of the Court.