Opinion
No. 2801/2003.
2010-07-22
The PEOPLE of the State of New York v. Julio FLORES, Defendant.
Aaron Kaplan, Emily Prager, Bronx County Assistant District Attorneys, for The People. David W. Leung, Esq., for The defendant.
Aaron Kaplan, Emily Prager, Bronx County Assistant District Attorneys, for The People. David W. Leung, Esq., for The defendant.
JUDITH S. LIEB, J.
The defendant, Julio Flores, who stands charged with Murder in the Second Degree (P.L. § 125.25[1] ), has moved to suppress certain alleged post-arrest statements.
The defendant's motion is denied except with regard to a videotaped statement made to two New Jersey detectives following his invocation of his right to counsel.
On July 13, 2010, the defendant entered a plea of guilty to the charge of Murder in the Second Degree.
On various dates in February and March 2010, this Court held a Huntley hearing to resolve the evidentiary issues arising from the defendant's motion.
Although the Court will briefly address all of the statements made by the defendant, the primary issue for this Court to decide is whether to suppress a videotaped statement that was made to New Jersey detectives after the defendant invoked his right to counsel, but thereafter stated without counsel being present that he wished to speak to the detectives; this decision turns on whether the Court applies New York or New Jersey law. This Court issued an oral ruling and stated that it would issue a written decision setting forth its findings of fact and conclusions of law. This is the Court's written decision holding that because New York's interests are paramount in this case, the videotaped statement made by the defendant to New Jersey detectives may not be introduced in the People's direct case, but may be used for impeachment purposes. Before turning to its analysis, the Court wishes to thank all counsel for the fine legal arguments made both orally and in writing in this matter.
At the hearing, the People agreed not to seek to introduce a statement made on September 14, 2008, after 11:00 p.m. in their case-in-chief at trial, and the defendant conceded that certain statements made by the defendant to Teaneck, New Jersey police officers are not properly suppressed.
THE FACTS
The detailed facts in this case illuminate that New York has the paramount interest in determining whether a defendant who has invoked his or her right to counsel may thereafter waive it outside the presence of counsel. Most important, as discussed more fully in the Conclusions of Law section below, New York has recognized a right to counsel under New York law that is more protective than that recognized federally or in other states, including New Jersey, and our Court of Appeals has held that New York courts have a duty to be “vigilant” in protecting this right to counsel. See People v. Harris, 77 N.Y.2d 434, 439, 568 N.Y.S.2d 702, 570 N.E.2d 1051 (1991). A. The People's Evidence
On September 14, 2008, at about 3:57 p.m., Sergeant Tanya Balser,
of the Teaneck, New Jersey Police Department received a dispatch to respond to a one-family house located at 1636 Ardsley Court, Teaneck, New Jersey. (T. 8, 47, 89).
Sergeant Balser, a patrol supervisor, had worked for the Teaneck Police Department for approximately sixteen years, during which time she had made several hundred arrests. She had been a sergeant for the past six years and had assisted in investigating burglaries, as well as several homicides during the course of her career. (T. 6–7).
She arrived at 4:01 p.m. (T. 8.) A man and a woman were standing together with the defendant opposite the one-family house. (T. 9, 25).
References to “T” refer to the transcript of the hearing.
The couple informed the Sergeant while the defendant was present as follows: they owned the house at 1636 Ardsley Court, which was vacant. They had driven by the house that afternoon and saw a man and a van in the driveway. (T. 10). When the homeowners asked the man what he was doing at the vacant house, he responded that he had been hired by the owner to do some work on the house. The couple further informed the Sergeant that when they told him that they owned the vacant house and that they had not hired him, and again asked what he was doing there, he told them that he had killed somebody. (T. 10–11). The defendant did not have permission to be in their house. (T. 27).
During the Sergeant's conversation with the couple, the defendant stood quietly with them listening. When the Sergeant asked the couple if the man to whom they had been referring was the defendant, the defendant himself stated that it was. (T. 11).
At that point, the Sergeant asked the defendant to remove his hands from his pockets, but did not place him under arrest pending further investigation. The Sergeant had not yet made a credibility determination and did not know if she had misheard or if the defendant was “messing” with them. (T. 11–12). The Sergeant testified that she wondered if the defendant was mentally unstable. (T. 44). The Sergeant next asked the defendant for identification. The defendant stated it was in his van across the street. The Sergeant told the couple to wait where they were, and she escorted the defendant to his van, telling him she needed to see the identification. (T. 12–13, 48). In accompanying the defendant across the street, the Sergeant did not have physical contact with the defendant, handcuff him, nor remove her firearm. (T. 12–13).
As they walked to the van, the defendant turned to the Sergeant, and said, “I killed somebody yesterday.” (T. 13). The Sergeant told the defendant to continue getting his identification. (T. 13). Just before or as he got into his van to comply, he said that he had killed his wife the day before. (T. 13–14, 24, 49). The Sergeant responded, in substance, “You what?” and he stated that he had killed his wife the day before in the Bronx. (T. 49). The defendant handed his identification to the Sergeant, and they continued their conversation standing next to the driver's door of the van. (T. 49). Without being questioned, the defendant further said that he and another man had been involved. (T. 14, 37). When the Sergeant asked who had been killed, the defendant then said his ex-girlfriend. Sergeant Balser followed up by asking whether it was his wife or his ex-girlfriend, and the defendant replied that it was ex-girlfriend, but that he considered her to be his wife. (T. 15).
Sergeant Balser still did not place the defendant under arrest. She did not draw her firearm, or handcuff the defendant. She testified that she did not believe him, as she had never had an experience where someone came out and admitted to committing a homicide. In addition, the defendant was “flatly calm.” (T. 15).
Sergeant Balser continued her investigation. She asked the defendant his ex-girlfriend's name, and he replied, “Jaritza Calderon.” (T. 16). The defendant then pointed to the house and stated, “She's inside.” ( Id., 37, 568 N.Y.S.2d 702, 570 N.E.2d 1051). The Sergeant asked about the other man, and the defendant became vague and said that the other man was gone, there was no one else. ( Id.). When asked who this other man was, he said it didn't matter. (T. 37). In response to the Sergeant's question, the defendant gave an address in the Bronx where he said that the homicide had occurred—236 Bronx Boulevard, Apartment 3–B. (T. 17–18, 38). Although the Sergeant was beginning to find the defendant more credible, she still did not place him under arrest. (T. 17).
At this point, Officer Gabriel Santiago
of the Teaneck Police Department also responded to 1636 Ardsley Court in Teaneck, New Jersey. (T. 18, 60–61). When he arrived, he noticed his supervisor, Sergeant Balser, standing in the driveway of 1636 Ardsley Court talking with the defendant, and he noticed a couple standing across the street from 1636 Ardsley Court. (T. 61). Officer Santiago first approached the couple and asked them why the police had been called. (T. 62). They responded that they had seen a man on their property who told them that he had “fucked up,” and that there was “a body in there.” (T. 63, 73). They informed the officer that they did not know the man and that he did not have permission to be at their house. (T. 73). Officer Santiago then crossed the street to join the Sergeant. He saw the defendant reach into his van; the defendant handed Officer Santiago two forms of identification. ( Id.) Sergeant Balser then walked to the rear of the van. (T. 63).
Officer Santiago had worked for the Teaneck Police Department for approximately five year and had made about 180 arrests during his career. (T. 59–60).
Officer Santiago asked the defendant where he was from, and he replied that he was from the Bronx. (T. 64). The officer asked the defendant what he was doing in the house, and he stated that his friend had told him that “this would be a good place to put a body, around Tryon,” which is a main avenue close to Ardsley Court. (T. 64). The conversation took place in English. (T. 84–85). During this conversation, there was no physical contact with the defendant, the defendant was not handcuffed, and the officer's firearm was holstered. (T. 66). Moreover, the officer did not verbally force the defendant to answer his questions, nor did he offer any enticements, inducements or promises to encourage him to speak to law enforcement. (T. 65, 67). The officer never struck the defendant. The officer was in the defendant's presence about five minutes. (T. 65).
Meanwhile, the Sergeant retrieved the license plate number of the van and communicated it to her headquarters. ( Id., 28–29, 568 N.Y.S.2d 702, 570 N.E.2d 1051). The license plate was from New York State. (T. 46). The Sergeant then returned to the defendant and Officer Santiago. She asked him why he had picked this house and from where he had obtained the keys to the house. (T. 19). The defendant did not answer those questions. Although he said (in Spanish) that he was having problems with English, the Sergeant testified that she believed he did not wish to answer the questions. (T. 20, 21–22, 29). The defendant did tell the Sergeant that keys she had found on the bumper of the van were the keys he used to enter the house. (T. 20).
Officer John Abraham
arrived at the scene at about 4:00 p.m ., after Officer Santiago arrived. (T. 89). The defendant was not yet handcuffed when Officer Abraham arrived. (T. 92–93). Officer Abraham was ordered by Sergeant Balser to conduct an interior check of the residence. (T. 91). Officer Abraham remained inside the residence for a few minutes. (T. 93). Officer Abraham did not have any conversation with the couple or with the defendant at the scene. (T. 90, 94). Officer Abraham did not see any officer strike the defendant, nor did he hear him request an attorney or state that he did not wish to talk to law enforcement. (T. 96–97).
Officer Abraham had worked for the Teaneck Police Department for approximately fifteen and a half years; he had made about 1300 arrests during his career. (T. 87–88).
Officer Abraham entered the house through the front door, which led to a great room. The officer continued to the rear of the house, where he saw two bedrooms. He checked those rooms and found them empty of people and furniture. He then checked the second floor, which was likewise empty of people and furniture. The house appeared to have been recently renovated. The officer then went to the basement, which was also empty of people. The officer observed an electric saw plugged into the wall, as well as shelves with other construction tools. The officer also saw a small door that led to a small crawl space area. Just past there was a small pile of debris, mostly wood. (T. 126–27).
Sergeant Balser requested that Officer Stephen Ramirez
also come to the scene. She requested the presence of Officer Ramirez in case he was needed to translate for the defendant. The defendant had conversed with the officers in English until Sergeant Balser asked why he had chosen that house. (T. 21). While the conversation was in English, the defendant responded in an appropriate manner. For example, when Sergeant Balser told him to remove his hands from his pockets, he complied; when she asked him where his identification was, he said that it was in his van. (T. 30). Moreover, when Sergeant Balser asked the defendant whether he killed his wife or his ex-girlfriend, he responded appropriately in English. (T. 43). Sergeant Balser concluded that the defendant had “understood completely” what she had said to him in English. (T. 21–22).
Officer Ramirez had been a Special Police Officer in Fairview, New Jersey, for two years before joining the Teaneck Police Department where he had worked as a patrol officer for the last three years; during his time in Teaneck he had made approximately seventy-nine arrests. (T. 134–35).
Sergeant Balser did not recall the defendant requesting an attorney while he was at the scene, nor did she recall him saying that he did not wish to speak with anyone first without speaking to an attorney. (T. 33). The only topic he stated he did not wish to discuss further related to the other man who allegedly participated in the killing; he did not otherwise state that he did not wish to speak to the officers. (T. 44, 55–56.) Similarly, Officer Santiago never heard the defendant request an attorney or state that he did not wish to speak with law enforcement. (T. 69).While at the scene, the Sergeant noticed that the back doors to the van were open. She also noticed that several doors to the house, including the garage door, were open. (T. 27). Further, Officer Santiago noticed the van doors open and some of the house doors open. (T. 74). Sergeant Balser remained at the scene in the presence of the defendant for a total of ten to 15 minutes. (T. 52).
The dispatcher advised Sergeant Balser that the license plate from the van came back to a “felony vehicle wanted for kidnapping,” also known as an “NCIC” hit. (T. 36). At that point, Sergeant Balser made the decision to place the defendant under arrest. ( Id., 67, 568 N.Y.S.2d 702, 570 N.E.2d 1051). Officer Santiago placed the defendant in handcuffs. (T. 67).When Officer Abraham exited the residence, he saw that the defendant had been placed under arrest. (T. 93).
Prior to the defendant's arrest, no officer struck the defendant. (T. 53). Other than to place handcuffs on the defendant and place him in a patrol car, no officer had physical contact with the defendant. ( Id.). In Sergeant Balser's presence, no officer offered the defendant an incentive to speak, and no officer spoke to the defendant once he was placed under arrest. ( Id.). Indeed, once the defendant was placed under arrest, Sergeant Balser gave an express order to her officers not to speak to the defendant, but to take notes of anything he said. ( Id.).
Officer Ramirez transported the defendant back to the precinct. (T. 32). He was followed by Officer Abraham. ( Id.). Officer Ramirez's car was not equipped with an in-dash camera. ( Id., 79, 568 N.Y.S.2d 702, 570 N.E.2d 1051).
Officer Abraham followed Officer Ramirez and the defendant in Officer Abraham's car back to the precinct. The drive took a few minutes. (T. 98–99). Officer Ramirez's car was equipped with a partition. (T. 99). Officer Abraham followed Officer Ramirez to a sally port and confirmed that Officer' Ramirez's car entered the port and that the door was closed. (T. 101). Officer Abraham then entered the precinct, where he spoke to Lieutenant Andrew McGurk, the tour commander. (T. 101). Lieutenant McGurk directed the officer to bring the defendant into the main processing area, to give the defendant a seat and not to remove the defendant's handcuffs. The Lieutenant further instructed the officer not to search the defendant's clothing or property except to check for weapons. (T. 102). Lieutenant McGurk also instructed the officer not to speak to the defendant and not to discuss the incident or have idle conversation in front of the defendant. (T. 103).
After his conversation with Lieutenant McGurk, Officer Abraham secured his weapon, entered the sally port and met Officer Ramirez. The defendant was still seated in the rear of Officer Ramirez's car. (T. 104). After securing Officer Ramirez's weapon, the officers removed the defendant from the car. No one struck the defendant and he did not appear bruised. (T. 104–05).
At about 4:23 or 4:24 p.m., the defendant was placed in a secure room in the cell block area. One side of the room is a glass window that faces into the corridor that is the main corridor of the police station. Through that window, one can also see into the tour commander's office and other offices. The room is under video surveillance, with the monitors at the watch commander's desk, which is adjacent to the tour commander's office. (T. 107, 110). The surveillance equipment had audio and video capabilities, but was not able to record the material. (T. 129–30). The defendant was kept in the secure room, not the normal holding cells, because the officers believed he might have physical evidence on him that needed to be maintained until investigating detectives responded and Crime Scene detectives recovered such evidence. (T. 132). Officer Abraham stayed with the defendant continuously for approximately two and a half to three hours. (T. 110).
The defendant walked under his own power from the patrol car to the secure room. (T. 107). No one struck the defendant, nor was he offered enticements or made promises. (T. 107–08). The room was equipped with a straight back chair, and Officer Abraham retrieved two additional chairs. Officer Abraham asked the defendant to sit in one of the chairs, which Officer Abraham had positioned so that the defendant was in the view of both the window to the tour commander's office and the surveillance equipment. (T. 108). The request was made in English, and the defendant complied immediately. (T. 109). The defendant was kept handcuffed most of the time. (T. 116). Officers Abraham and Ramirez sat in chairs about five feet on either side of the defendant, although Officer Ramirez occasionally left the room and was replaced by Officer Justice Rodriguez. (T. 108–09, 149).
While the defendant was held in the secure room, he was treated well. He did not ask to use the restroom, nor ask for water, nor ask to do anything. At about 6:00 p.m., in accordance with Teaneck Police Department policy, the defendant was provided a meal. (T. 116).
Officer Abraham heard the defendant say approximately twelve things while they were together in the room.
(T. 111, 120, People's Exhibit 1A and 1B). Before the defendant spoke, Officers Abraham and Ramirez did not ask the defendant any questions. (T. 131, 151). Officer Abraham and Officer Ramirez spoke with the watch commander about the logistics of what they were doing, but not about the case, and did not engage in idle conversation nor talk directly to the defendant. (T. 116, 121–22, 128, 150, 151). Neither officer informed the defendant why they were waiting in the secure room. (T. 155). Neither officer struck the defendant, nor made any promises to him to get him to speak. (T. 123, 151).
Eleven of the statements were made in English; one was made in Spanish. (T. 120, 150). The defendant made the following statements: (1) “My mind is confused and when you are confused you do bad things.” (2) “I'm sorry it's hot—it was hot in the basement. You know she's in the cement.” (3) “I'm sorry, I shouldn't have done it.” (4) “My mind is all messed up.” (5) “It's hot. She said it was hot when she was crying.” (6) “I remember some joke about the police. Sweetie, I know you were with some police guy. With the police guy you have food. The police guy pay rents (sic). You don't go anywhere. You will never be with him .” ' (7) The defendant repeated the “joke” in Spanish. (8) “Is this the first time you had a case where someone killed a woman?” (9) “I know I'm looking at like thirty years.” (10) “Do you (sic) what time I can call?” (11) “Five years in this country; it's real tough.” (12) “This will probably be my last meal, because the food inside is bad.” People's Exhibit 1A and B.
As the defendant spoke, Officer Abraham wrote down some statements he felt were relevant to the case on a yellow legal pad. (T. 111, 115, 150). The officer noted the time of each statement using the clock on his cell phone. (T. 111). The officers did not verbally or physically respond in any way to any of the defendant's statements. (T. 132–33, 156–57).
At about 6:52 p.m., Officers Abraham and Ramirez brought the defendant to the second floor, where the detective bureau is located, and transferred custody of the defendant to Teaneck Police Department Detectives Michael Richter and Thomas Melvin. (T. 117–18, 121, 149). The defendant walked under his own power. No one struck the defendant, told him he needed to cooperate with the detectives, nor make any promises, offers, incentives or enticements to him to get him to cooperate with the detectives. (T. 118–19, 123, 151). Officer Abraham never heard the defendant request an attorney nor state that he did not wish to discuss the case, and Officer Ramirez did not recall the defendant requesting an opportunity to call an attorney. (T. 124, 156).
On September 14, 2008, Detective James Brazofsky,
of the Bergen County, New Jersey Prosecutor's Office, was assigned to the homicide squad. (T. 161–62). On that day, which was the detective's day off, he was called by his supervisor to respond to an incident that had occurred in Teaneck, New Jersey. His supervisor advised him over the telephone that a man, later identified as the defendant, had been found inside a house without permission and that he had made some admissions to killing his ex-girlfriend. (T. 163, 164).
Detective Brazofsky had been assigned to the Homicide Squad of the Major Crimes Unit of the Bergen County Prosecutor's Office for the past three years and had been involved in approximately twenty-five homicide investigations. Prior to that, he had spent five years as a detective in the Sex Crimes and Child Abuse Squad of the Bergen County Prosecutor's Office; from 1996 to 2001, he was a patrol officer in the Westwood, New Jersey Police Department. (T161–62).
At about 6:40 p.m., Detective Brazofsky responded to the Teaneck Police Department. He met there with Detective Thomas Melvin, the Teaneck case detective, and Detective Peter Tarsnane of the Bronx Homicide Squad. At the police department, Detective Brazofsky was told that the Teaneck Police Department had received a 911 call from the owner of a house at 1636 Ardsley Court, who saw the defendant coming in and out of his house. The detective was further informed that when the owner questioned the defendant, he first stated he was working on the house, but later admitted that he had killed his girlfriend and that her body was in the basement of the house. (T. 165). As of 6:40 p.m., no one had been able to confirm the whereabouts of the girlfriend nor whether or not her body was in fact inside the Ardsley Court house. (T. 166). Detective Brazofsky learned from Detective Tarsnane that the vehicle that was parked in the driveway had an NCIC hit, saying it was wanted in connection with an abduction in New York City, although there were no pending charges in New York State at that time. (T. 166). Detective Brazofsky was also informed that the defendant had made certain spontaneous admissions both to patrol officers at the scene and to officers who had been assigned to watch the defendant at the precinct. (T. 166). He learned generally of the admissions, including, for example, that her body was in cement in a container in the basement, but he did not interview the patrol officers personally. (T. 167).
Before he began his interview of the defendant, Detective Brazofsky discussed with members of the New York City Police Department who would take the lead role in the investigation. (T. 173). According to Detective Brazofsky, based on the evidence obtained in New Jersey, including the defendant's admissions, there was possibly a body in the Teaneck residence, although one had not yet been discovered. At a minimum, the defendant could be charged in New Jersey with burglary and criminal trespass. There was physical evidence of a burglary in New Jersey-specifically, blood on a rear window and entry into a house verified by two witnesses. (T. 174). Because “the majority of the evidence” that they had then was in New Jersey, the decision was made for Detectives Brazofsky and Melvin to conduct the initial interview. (T. 173–74).
According to Detective Brazofsky, other than the defendant's admissions to Sergeant Balser, there was no evidence of a crime having been committed in New York State. Although the Detective was aware of an NCIC hit from the Bronx for the defendant's van, Detective Brazofsky was not privy to the witness's statements from New York that had caused officers to place the NCIC alarm. (T. 174).
Detective Brazofsky also discussed with NYPD Detective Tarsnane whether NYPD Detectives would sit in on the interview. According to Detective Brazofsky, the detectives needed to determine where the scene of the murder was. It could have been in the van-items had been seen in the van that could be linked to a homicide-or the van could have been a secondary scene. Some of the incidents appeared to have taken place in the New Jersey crime scene. The decision was for New Jersey to take the lead until it was determined that “it” [presumably, the homicide] took place outside of New Jersey. (T. 176–77).
Around 7:00 p.m., Detective Brazofsky saw the defendant led to an interview room on the second floor of the precinct. (T. 168). No one exerted physical force on the defendant. The defendant was handcuffed. (T. 168, 170). The Detective did not hear anyone threaten the defendant. Nor did the detective hear the defendant request an attorney or state that he did not wish to speak about the incident. (T. 169). The interview room was equipped with audio and video recording equipment, which recorded everything that took place in the room from shortly after 7:00 p.m. until 7:20 p.m., when the equipment was shut off, and then from 7:26 when it is restarted until later in the evening. (T. 168; People's Exhibit 3).
People's Exhibit 3 is a copy of that recording. The Court admitted that portion of the recording that displayed the events before 11:04 p.m., when Detective Brazofsky stopped observing the defendant. (T. 191).
Shortly after 7:00 p.m., Detective Brazofsky introduced himself to the defendant and told him that he would like to talk to him about what had occurred. The detective further stated that they needed to wait for his partner, and that they would like to speak to him if he would like to speak to them. The detective asked if he wanted something to drink, and the defendant requested a bottle of water. Because the detective did not have water, he offered the defendant a can of Pepsi. (T. 171). The detective also asked him if he needed to use the restroom. (T. 172). This conversation took place in English; the defendant responded in a way that made it appear that he had understood the detective's questions. (T. 172).
At some point shortly after 7:00 p.m., Detective Melvin arrived and introduced himself to the defendant. (T. 177). The detectives advised the defendant that they would like to speak to him about the incidents about which he had told the patrol officers and about what the officers had found at the house. (T. 177). Part of the conversation was in English, part was in Spanish. (T. 177–78). Although the defendant appeared to understand English, occasionally there were words or phrases in English he did not understand. Further, Detective Brazofsky wished to confirm that when the defendant used English words, he meant what he said. Detective Brazofsky informed the defendant that if at any point he had difficulty saying what he wanted in English, he should say what he wanted in Spanish, and if the Detectives said something in English that he did not understand, it would be repeated in Spanish. (T. 178).
Detective Brazofsky spoke rudimentary Spanish. (T. 171–72).
Before the detectives posed any questions, they advised the defendant of his Miranda rights. The detectives presented him with two standard Miranda forms of the Teaneck Police Department, one in English and one in Spanish. (T. 178–79). Detective Brazofsky read the form in Spanish to the defendant and had him read along on the Spanish form. (T. 179–80, 195–96; People's Exhibit 2). The form in Spanish contains the same rights as those contained on the form in English. (T. 196). After Detective Brazofsky read each right individually, he asked the defendant if he understood, and the defendant responded affirmatively.
(T. 197–99). The detective then asked the defendant to re-read the rights and place his earlier verbal response, “yes” or “si,” and his initials next to each right. (T. 199).
Specifically, the detective advised the defendant as follows:
“1. You have the right to remain silent. Do you understand?
2. Anything you say can and will be used against you in a court of law. Do you understand?
3. You have the right to talk to an attorney at any time and have him present with you while you are being questioned. Do you understand?
4. If you cannot afford to hire an attorney, one will be appointed to represent you before any questioning or interrogation. Do you understand that right?
5. You have the continuing right to exercise these rights and not answer any questions or make any statements at any time during this questioning. Do you understand that right?” (T. 197–99).
After the first right, the defendant wrote the word, “no.” After the second response, the defendant wrote the word, “yes.” (T. 200; People's Exhibit 2). When the detective told him that all he asked with respect to the first right was whether the defendant understood, the defendant stated that he did not want to talk with them if his attorney was not there. (T. 200; People's Exhibit 3). The detective then informed the defendant, “Do you understand, when you asked for an attorney, we are not able to speak with you any further at that point. If you want an attorney, we can't talk to you any more, so that, you know, you are not going to have the opportunity to give us your side of the story.” (T. 200). The defendant then said that he did not have a lawyer and he did not want to talk without his lawyer. (T. 200–01). The detectives left the interview room, at approximately 7:08 p.m. (T. 202; People's Exhibit 3). The recording shows the defendant sitting by himself in the room until approximately 7:20 p.m. (T. 203; People's Exhibit 3).
When the detectives left the room, they advised the Teaneck supervisors and the NYPD detectives that the defendant had invoked his right to counsel and that he did not want to speak to them. (T. 204). The detective called his supervisors to tell them that he had terminated the interview. He called another supervisor to determine how the defendant would be processed. (T. 204). Then, because the interview was terminated, the recording equipment was shut off, at 7:20 p.m. (T. 205).
Detectives Brazofsky and Melvin removed the defendant from the room. As they reached the hallway, the defendant asked the detectives what was going to happen to him and how many years was he going to get. Detective Brazofsky told the defendant in substance that he could not answer those questions. (T. 205). At that point, the defendant stated that he wanted to speak to the detectives. (T. 206).
At that point, the detectives returned with the defendant to the interview room. (T. 203, 206) They immediately reactivated the recording equipment; it was about 7:26 p.m. ( Id.; People's Exhibit 3). The detective confirmed on the recording that the defendant had told the detectives in the hallway that he had changed his mind. The detective then readvised the defendant of his Miranda rights, using a standard form. This time, Detective Brazofsky spoke to the defendant in English, but provided him with the Spanish language version to read at the same time. (T. 207; People's Exhibits 4A and 4B). The defendant stated that he understood his rights and that he wished to make a statement without an attorney being presented, and initialed and signed the form to so indicate. (T. 211–19; People's Exhibits 4A and 4B).
The interview was conducted in a combination of Spanish and English, and lasted about an hour, until 8:26 p.m. (T. 219, 222, 250; People's Exhibit 3). Detective Brazofsky first asked the defendant for pedigree information. (T. 219; People's Exhibit 3). The defendant provided an address in the Bronx. (T. 220; People's Exhibit 3). The detective then asked about the defendant's ex-girlfriend. (People's Exhibit 3). After talking about their relationship, the defendant informed the detective as follows: After dating for a period of time, they ended the relationship, because Ms. Calderon was treating him coldly, which hurt him. (People's Exhibit 3). After the relationship ended, one of the defendant's co-workers told the defendant that he had become involved with Ms. Calderon. The defendant became upset that they were involved and questioned his co-worker about the relationship. (People's Exhibit 3). On September 13, 2008, the defendant's birthday, Ms. Calderon came to visit the defendant in his apartment. She admitted to him that she was having a sexual relationship with his co-worker and told him that she was sorry. (220; People's Exhibit 3). After the defendant discussed different feelings that he had about Ms. Calderon and her relationship with his co-worker, Detective Brazofsky asked whether he was angry about their relationship. The defendant said that he was, because it was not right that Ms. Calderon was involved with his co-worker and he had told her that at his apartment. (T. 220; People's Exhibit 3). The detective asked the defendant what he had done to Ms. Calderon and whether he had hit her. The defendant replied that he had not hit her. (People's Exhibit 3). Detective Brazofsky then asked whether the defendant had used a knife. The defendant replied that he had put Ms. Calderon's body in buckets. The detective asked him to explain how he killed Ms. Calderon and where. (People's Exhibit 3). The defendant explained that he strangled Ms. Calderon, grabbing her around the neck until she stopped breathing and died. (T. 220; People's Exhibit 3). The defendant stated that he realized he needed to make the body disappear, so, in the bedroom of his apartment, he used a serrated kitchen knife to sever her arms, legs and head. (T. 221; People's Exhibit 3). He placed the body parts into garbage bags and brought the items to his van. He drove to Teaneck, looking for a house that appeared to be vacant. The defendant entered the house by breaking a rear window. He found cement in the garage. He used the cement, buckets and plastic bags to entomb the body parts. He then brought them into the basement and constructed a false wall under the stairs in an attempt to secrete her remains. He was almost done when the homeowners interrupted him. (T. 221–222; People's Exhibit 3).
The New York detectives did not provide Detective Brazofsky with any specific questions or general lines of questions that they wanted answered. (T. 223). According to Detective Brazofsky, he first learned that the murder had occurred in New York State when the defendant told him. (T. 224). This was about 15 to 20 minutes into the interview. According to Detective Brazofsky, the detective continued to question the defendant in order to investigate the additional offenses of burglary, criminal trespass, desecration of human remains, and hiding human remains. (T. 226).
Toward the end of the interview, Detective Brazofsky stepped outside the interview room to ask other detectives if there were further questions he needed to ask. (T. 246–47). When he returned, Detective Brazofsky asked the defendant how he had entered the vacant house on Ardsley Court and what he used in the house. He also asked whether anyone else helped him conceal the victim's body. (T. 247, 261). The detective asked what was used to dismember the victim's body to assist investigators in learning what to look for if they executed a search warrant at Ardsley Court. (T. 314–15). At about that point, a supervisor from the NYPD asked Detective Brazofsky to discontinue the interview and to await the arrival of additional personnel from New York and the Bronx District Attorney's Office. (T. 260).
About twenty minutes after the interview ended, New Jersey officials obtained a search warrant for the defendant's van and for the Ardsley Court house. (T. 167). The defendant was subsequently indicted in Bergen County for burglary, criminal trespass and desecration of human remains. (T. 263).
On October 1, 2008, Detective David Flores,
of the 52nd Detective Squad in the Bronx, was assigned to drive the defendant from the Bergen County Jail to the 52nd precinct in the Bronx. They arrived at the 52nd precinct at about 1:15 p.m. (T. 356–59). Later that afternoon, as Detective Flores brought the defendant outside to drive him to Central Booking, members of the news media were present. A reporter spoke to the defendant in Spanish and asked him why he did it. Detective Flores, who speaks and understands Spanish, heard the defendant reply in Spanish, “That's love. God is love.” (T. 363–67). When Detective Flores exited the station house with the defendant, he did not know that reporters were waiting outside. He had not told the defendant to speak with any members of the media nor had he offered the defendant any inducement to speak with them. (T. 367–68). After the defendant answered the reporter, Detective Flores put him in a police car and drove him to Central Booking. (T. 368). B. The Defendant's Evidence
Detective Flores had been a New York City police officer for approximately twenty years. He had been a detective in the 52nd Detective Squad since 2004; prior to that he was an undercover officer and investigator assigned to Bronx Narcotics. (T. 346).
On September 14, 2008, New York Police Department Detective Joseph Heron,
of the 46th Detective Squad, became involved in a missing person's investigation. He spoke to a woman at about noon that day, who reported to the New York Police Department that her sister had been missing since the day before. (T. 397, 399). She stated that she had been contacted by her sister's ex-boyfriend and that he had told her that she would never see her sister alive again. (T. 397). The Detective obtained the name of the ex-boyfriend, Julio Flores, and obtained the license plate for the van that he drove. At about 12:30 p.m., the detective put out a “BOLO” (beon-the-lookout) alert for the van. (T. 397–98, 399). Detective Heron also had officers go to the ex-boyfriend's building to see if the missing woman was there, but no one was home. (T. 398). At about 1 p.m., a decision was made to seek a search warrant to search the defendant's residence in connection with the missing person investigation. (T. 429, 435). The warrant was not obtained until after Detective Heron left for Teaneck. (T. 435). The warrant was signed in the Bronx at 7:57 p.m. on September 14, 2008. (T. 583).
Detective Heron had been a New York City police officer at the 46th precinct for approximately twenty-four years; for the last 14 years he had been a detective at that precinct. (T. 395–96).
At some time after 3:15 p.m., Detective Heron received a call from Lieutenant McGurk of the Teaneck Police Department stating that Teaneck Police officers were holding the van for which Detective Heron had put out the alarm, that they had the defendant in custody, “and that they really needed us to come out there.” (T. 398, 400, 438). Lieutenant McGurk informed Detective Heron that the defendant had made statements about his girlfriend's dead body. (T. 401). Detective Heron advised his partners to notify the homicide task force that they were headed to Teaneck, and possibly also advised a supervisor. (T. 405). At the time, “it didn't look good” for the victim of the missing person's report, but Detective Heron did not have confirmation that the victim of his missing person's case was the same person whose body appeared to have been secreted in the Teaneck residence. (T. 436).
At some time between 5:00 p.m. and 7:00 p.m., Detective Heron and a partner, Detective Jimick, responded to the Teaneck Police Department station house. (T. 402, 403, 404–05). They were the first NYPD officers to arrive in Teaneck in connection with this matter. (T. 404). At the station house, they met with Lieutenant McGurk, who reiterated what he had said over the telephone. (T. 406–07). Subsequently, Detectives Heron and Jimick went to 1636 Ardsley Court accompanied by members of the Teaneck Police Department. There, they spoke to Sergeant Balser, who informed them that a home owner had called the police to the house after seeing a man who was not authorized to be in the house, and that the man had said that his girlfriend was in boxes in the house. Sergeant Balser further informed Detective Heron that they discovered storage containers filled with cement and plastic bags in the house, possibly filled with body parts. (T. 410–11). Detective Heron did not enter the house because he did not know how New Jersey authorities handled a crime scene. (T. 410). While Detective Heron was at Ardsley Court, two detectives from the Bronx Homicide Task Force arrived. (T. 415). Detective Heron stayed at Ardsley Court for about 45 minutes, and then returned to the Teaneck precinct, leaving his partner at Ardsley Court. (T. 410).
When Detective Heron arrived at the Teaneck precinct, he saw the defendant being led to the second floor interview room. (T. 413, 415). He watched the interview on a monitor and through glass, but could not hear what was said. (T. 415–16). Detective Heron did not remember hearing that the defendant had requested to speak to an attorney. (T. 416). Detective Heron only learned that the defendant had stated that the homicide occurred in the Bronx after the defendant's interview with Detective Brazofsky began. (T. 413). Detective Heron did not provide any questions for the defendant to be asked nor did he direct the investigation in any way. (T. 451). At some point, Detective Heron's supervisors, Lieutenant John Gogarty, and Sergeant Duke, also arrived at the Teaneck Police Department. (T. 418). These NYPD officers were present in the Teaneck station house during the time of the interview of the defendant by Detectives Brazowsky and Melvin. (T. 425, 443, 444).
On September 14, 2008, Lieutenant Gogarty was the commanding officer of the 46th Detective Squad.
(T. 462). On that day, Lieutenant Gogarty was home on his regular day off, when he received a telephone call from a member of his detective squad informing him that the subject of a missing person's report and possible abduction might have been found in Teaneck, New Jersey. (T. 463, 500). He responded to the Teaneck police station. (T. 463). Lieutenant Gogarty spoke to NYPD Sergeant Duke upon his arrival, and learned that Teaneck police had found a van for which the 46th Detective Squad had put out an NCIC alarm; they also believed the victim was in Teaneck with the defendant. (T. 465). Members of New Jersey law enforcement told the Lieutenant that the defendant had been found doing unauthorized construction work inside a residence and that plastic containers filled with concrete had been found. (T. 467). No one told the Lieutenant that the defendant had admitted killing his wife or girl friend (T. 473), although he had “assumptions” based on what the defendant had been doing that the victim had been killed. (T. 471, 501). The Lieutenant did not remember speaking to a detective from the Bergen County Prosecutor's Office prior to the interview with the defendant, as he did not want to interfere with the New Jersey investigation. (T. 475, 480–81, 502). The Lieutenant did not remember there being a break in the interview at about 7:19 p.m., and did not remember learning that the defendant had requested an attorney. (T. 478–79). When the Lieutenant was asked if he recalled a discussion about whether New York or New Jersey officials would question the defendant, he testified that he would not let his detectives talk to the defendant in New Jersey; if they were going to interview him, they would have brought him back to New York to do so. (T. 481). The Lieutenant had confirmation that the murder occurred in the Bronx at the completion of the interview of the defendant. At that time, he learned that the defendant stated that he had committed the homicide in his apartment, which was in the confines of the 52nd precinct. Lieutenant Gogarty then notified the 52nd precinct that they had a murder in their jurisdiction. (T. 495–96).
Lieutenant Gogarty had been a New York City police officer for twenty-four years; he had been assigned to the 46th precinct for the last twelve and a half years. (T. 462).
According to NYPD Detective Peter Tarsnane,
on September 14, 2008, at some point, detectives from the 46th precinct requested the assistance of detectives from the Bronx Homicide Task Force. (T. 509). At the time, the NYPD detectives did not know if a homicide had been committed. (T. 543). At some point when it was still light out, Detective Peter Tarsnane and three members of the Bronx Homicide Task Force responded to Teaneck, New Jersey. (T. 510–11). When Detective Tarsnane arrived, Detective Heron was already present. (T. 520). Detective Tarsnane first spoke with Detective Melvin, of the Teaneck Police Department (T. 511), who stated that there had been an incident at 1636 Ardsley Court, Teaneck, and that they had found a container filled with concrete. (T. 512). Detective Tarsnane did not know at the time what was inside the container. (T. 515). Before the defendant was interviewed, Detective Tarsnane had a discussion with Detective Brazofsky in which they “were trying to figure out ... what was, in fact, there and if, in fact, there was a jurisdictional issue, would it be Teaneck or would it be the Bronx.” (T. 517). Without discussion with Detective Tarsnane, Detective Brazofsky proceeded to take charge of the interview of the defendant, as the detectives did not know if a murder had occurred in the Bronx, and “[e]verything was out in Teaneck.” (T. 519). It was “his [Detective Brazofsky's] shop, he was going to do the interview.” (T. 519). Detective Tarsnane spoke with other detectives for possibly about an hour before the interview of the defendant began. (T. 521). Detective Tarsnane did not learn in that time period that the defendant had already made some statements to the Teaneck Police Department. (T. 521, 523, 524–25).
Detective Tarsnane had been a New York City police officer for twenty-four years; he had been assigned to the Bronx Homicide Task Force for the past eleven years. Prior to that he had been assigned to the 41st precinct detective squad in the South Bronx and the Transit Police Department for nine years. (T. 508).
At the hearing, Detective Tarsnane recalled that at some point after the interview with the defendant started, Detective Brazofsky came out and informed Detective Tarsnane and others that the defendant had invoked his right to counsel. (T. 527, 528, 529). After the defendant stated that he wanted to speak again to detectives, there was a conversation among the detectives and the detectives agreed to go back and speak to the defendant. (T. 535). During one of those conversations, Detective Tarsnane learned that there was a difference between New Jersey and New York law, although he could not recall at the hearing who said that. (T. 536).
CONCLUSIONS OF LAW
A. The Statements to the Homeowners
Before police officers arrived at the scene, the defendant made statements to the homeowners at Ardsley Court. Because these statements were not made to a law enforcement officer, this portion of the defendant's motion to suppress is denied. B. The Statements to Police Officers at Ardsley Court
There is no basis to suppress the defendant's statements to Sergeant Balser and Officer Santiago at Ardsley Court. Miranda warnings are required only if officers interrogate a suspect who is in custody. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); People v. Huffman, 41 N.Y.2d 29, 390 N.Y.S.2d 843, 359 N.E.2d 353 (1976). The defendant was not in custody when he made statements to officers at Ardsley Court.
With regard to the defendant's statements at Ardsley Court and at the secure room at the Teaneck station house, there is no conflict between New York and New Jersey law. Accordingly, this Court applies New York law.
The test for whether someone is in custody is what a reasonable person, innocent of any crime, would have thought under the circumstances. See People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172 (1969). A reasonable person in the defendant's position would not have thought he or she was in custody. During Sergeant Balser's conversation with the defendant, she did not touch the defendant, did not draw her weapon, did not handcuff the defendant nor did she advise him that he was under arrest. Indeed, she testified that she initially was not sure whether to credit the defendant's statements and therefore took steps to investigate further. Similarly, Officer Santiago, during the five minutes that he was with the defendant, did not have any physical contact with the defendant, the defendant was not handcuffed, and the officer's firearm was holstered.
Further, the defendant's statements were voluntary. In addition to the facts noted above, neither officer offered the defendant any enticements, inducements or promises to encourage him to speak. Accordingly the portion of the defendant's motion that seeks to suppress his statements at Ardsley Court is denied. C. The Statements in the Secure Room at the Teaneck Station House
The twelve statements that the defendant made to officers while he was held in a secure room at the Teaneck station house are not suppressed.
Although the defendant was in custody, none of the officers asked the defendant any questions. Nor did the officers discuss the case in front of the defendant, engage in idle conversation or talk directly to the defendant other than to request that he sit down. Moreover, although the defendant made a number of statements, none of the officers responded. Because the officers were not interrogating the defendant, Miranda warnings were not required. See People v. Cole, 59 A.D.3d 302, 873 N.Y.S.2d 603 (1st Dept.2009).
The defendant concedes that his statements at the secure room were not made in response to interrogation and are admissible under both New Jersey and New York law. (Defendant's Memoranda of Law at 3–4).
Further, the defendant's statements were voluntary as he was treated well, provided a meal and no promises or inducements were made to him to encourage him to speak. Thus, the defendant's statements in the secure room are not subject to suppression. D. The Statement to a Reporter
As Detective Flores brought the defendant out of the 52nd precinct on October 1, 2008, the defendant made a statement to a news reporter. Because this statement was not made to a law enforcement officer, it is not subject to suppression.
E. The Defendant's Videotaped Statement to the Police After Invocation of His Right to Counsel
1. Use in the People's Direct Case is Prohibited
The only statement whose admissibility is at issue is the defendant's videotaped statement made to New Jersey detectives inside the Teaneck, New Jersey station house starting at about 7:00 p.m. The parties disagree about which forum's law applies to this statement. The defendant argues that New York law applies, while the People argue that New Jersey law applies.
Before the Court addresses a choice-of-law question, it must determine whether there is an actual conflict between the laws of the two states. Matter of Allstate Ins. Co. (Stolarz), 81 N.Y.2d 219, 223, 597 N.Y.S.2d 904, 613 N.E.2d 936 (1993). Under New Jersey law, an individual who has invoked his or her right to counsel may thereafter waive that right outside the presence of counsel if he or she initiates further conversation with the police and if the initiation of that conversation constitutes a knowing, intelligent, and voluntary waiver of his or her right. New Jersey v. Chew, 150 N.J. 30, 61, 695 A.2d 1301 (N.J.Sup.Ct.1997). Under New York law, by contrast, once a suspect in custody invokes his or her right to counsel, he or she may not be questioned further in the absence of counsel. People v. Cunningham, 49 N.Y.2d 203, 205, 424 N.Y.S.2d 421, 400 N.E.2d 360 (1980). Because the application of New York and New Jersey law result in different conclusions, this Court must decide which law applies.
Historically, courts in criminal cases looked to whether the right at issue was “procedural” or “substantive.” If the right was “procedural,” the forum's law applied. See People v. Benson, 88 A.D.2d 229, 231, 454 N.Y.S.2d 155 (3d Dept.1981) (discussing traditional method of making choice-of-law determination); see generally Restatement of the Law, Second, Conflict of Laws, §§ 122, 138. If the right was “substantive,” the situs' law applied. See People v. Graham, 90 Misc.2d 1019, 1030, 396 N.Y.S.2d 966 (Sullivan Cty. Ct.1977), modified, 76 A.D.2d 228, 431 N.Y.S.2d 209 (3d Dept.1980), aff'd, 90 A.D.2d 198, 457 N.Y.S.2d 962 (3d Dept.1982). Our courts have held that rights related to a defendant's statements are “procedural.” People v. Ostas, 179 A.D.2d 893, 894, 578 N.Y.S.2d 934 (3d Dept.1992); People v. Benson, 88 A.D.2d at 231, 454 N.Y.S.2d 155.
Under this framework, given that the defendant seeks to suppress his statements, New York law would apply.
See also Maryland v. Shatzer, 559 U.S. 98, 130 S.Ct. 1213, 1220, 175 L.Ed.2d 1045 (2010) (the rule announced in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), that an accused who invokes his right to counsel is not subject to further interrogation until counsel has been made available to him or until the accused initiates further communication, is not a constitutional mandate, but judicially prescribed prophylaxis).
Nonetheless, choice-of-law analysis based on whether a right is deemed “procedural” or “substantive” has been criticized on the ground that the distinction is often unclear. As a result, courts more recently have employed an “interest” analysis, an analysis borrowed from the context of civil litigation. See People v. Edwards, 2001 N.Y. Slip Op. 40617U, 2001 N.Y. Misc. LEXIS 962––––11, 2001 WL 1744170 (Bronx Sup.Ct. December 21, 2001); People v. Crawford, 152 Misc.2d 763, 774, 578 N.Y.S.2d 814 (New York Sup.Ct.1991), aff'd on other grounds, 231 A.D.2d 431, 647 N.Y.S.2d 729 (1st Dept.1996); People v. Graham, 90 Misc.2d at 1030–31, 396 N.Y.S.2d 966;see also People v. Benson, 88 A.D.2d at 231, 454 N.Y.S.2d 155 (applying both traditional and more modern analysis with the same result). The parties agree that the “interest” analysis should be applied. Under this test, the Court must determine which jurisdiction has a greater interest in the matter. A. New Jersey's Interests
New Jersey's interests in the matter are as follows: New Jersey officers had custody of the defendant, having arrested him for crimes in their state. Those crimes included burglary, a third-degree crime, carrying a sentence range of three to five years, and trespass, a fourth degree crime; the defendant now stands charged in New Jersey with those crimes and desecration of human remains. Further, New Jersey officers had established a crime scene at the vacant house at Ardsley Court in Teaneck, New Jersey, where they were continuing to investigate the possible secreting of human body parts, and ultimately found such body parts. New Jersey detectives conducted the interview of the defendant without input from New York detectives in a New Jersey station house. B. New York's Interests
New York's interests are as follows: First, it is the forum jurisdiction for this prosecution. Granted, if the forum jurisdiction always applied its own laws, there would be no need to engage in an “interests” analysis. Nonetheless, a forum jurisdiction does have a strong interest in seeing that its laws are applied. As a result, courts in criminal cases that have been confronted with a choice-of-law question frequently determine that their own law applies. See, e.g., People v. Ostas, infra, 179 A.D.2d at 894, 578 N.Y.S.2d 934 (“Although defendant's oral statement [in homicide case] was taken in Indiana by Indiana police officers, it was to be used in a New York criminal proceeding generated by a violent crime committed in New York; hence, New York has a paramount interest in applying its laws.”); see also People v. Edwards, infra, 2001 N.Y. Slip Op. 40617U, at *8; People v. Crawford, infra, 152 Misc.2d at 774, 578 N.Y.S.2d 814;People v. Douglas, 123 Misc.2d 75, 472 N.Y.S.2d 815 (Kings Cty. Supreme 1984); People v. Graham, infra, 90 Misc.2d at 1032, 396 N.Y.S.2d 966.
The alleged murder, a Class A violent felony, with a sentence range of from fifteen years to life to twenty-five years to life, occurred in New York. Both the defendant and the victim resided in New York. New York has a particularly strong interest in applying its own laws in a case charging a defendant with committing a serious crime in New York that involves New York residents. See People v. Graham, infra, 90 Misc.2d at 1032, 396 N.Y.S.2d 966 (concluding that the interests of other states “are minor when compared to the overwhelming New York interests in prosecution of such heinous crimes as here committed amongst its own residents on its own soil.”). Indeed, New York has the sole interest in the prosecution of this alleged murder; New Jersey has no interest in such prosecution.
The People argue, however, that at the time Detective Brazowsky interviewed the defendant, New Jersey detectives were investigating New Jersey crimes, so New Jersey's interests are paramount. The record demonstrates to the contrary that the primary focus of the New Jersey detectives' interview was the alleged homicide, a New York crime, and their secondary focus was the alleged burglary and desecration of human remains, New Jersey crimes. Detective Brazowsky asked, for example, about the defendant's relationship with his ex-girlfriend, how the defendant killed his ex-girlfriend, what weapon he used, and where the defendant was when he killed his ex-girlfriend and dismembered her body. New Jersey's secondary investigation into crimes other than the homicide cannot be a basis for applying New Jersey law in this New York homicide case.
The People further argue that New Jersey's interests are paramount because the New Jersey detectives believed at the time of the interview that the murder could have happened in New Jersey. According to the People, New York did not have an interest in the matter until law enforcement “confirmed” through Detective Brazofsky's interview that the alleged homicide occurred in New York. The Court disagrees. New York's interests did not materialize only when there was confirmation that the alleged murder occurred in New York State; its interests are present even if the officers had been wholly unaware of the situs of the incident before Detective Brazofsky began his interview of the defendant.
But even looking at the matter at the time of the inception of Detective Brazofsky's interview, the Court cannot conclude that New Jersey's interests are paramount as the People maintain. New Jersey law enforcement officers knew that there was a reasonable possibility that the alleged homicide had occurred in New York, as the defendant himself had told Sergeant Balser that he had committed the homicide in the Bronx. That this might not have been communicated to the New York detectives is of no moment-certainly, New Jersey law enforcement officers investigating the matter knew contemporaneously that there was likely a homicide and it likely had occurred in New York. Moreover, although the officers did not consider that there was “confirmation” that the murder had occurred in New York until the defendant so stated to Detective Brazofsky (as opposed to his so stating to Sergeant Balser), there certainly was a strong contemporaneous suspicion that the alleged murder had taken place in New York. There is simply no other explanation for the presence of no fewer than seven officers-detectives and their superiors, including the commanding officer of the 46th Detective Squad—from the New York Police Department (some of whom interrupted time off to respond) at the station house at Teaneck, New Jersey during the interview of the defendant by Detective Brazofsky.
Although New Jersey detectives conducted the interview of the defendant without input from the New York detectives, they did so in the presence (in another room) of the New York officers, who were kept apprised of developments. Indeed, according to NYPD Detective Tarsnane, after the defendant invoked his right to counsel, there was a discussion between New Jersey and New York detectives about the difference between New Jersey and New York law with respect to a defendant's invocation of his right to counsel.
Moreover, as of noon on September 14, 2008, before Detectives Brazowsky and Melvin interviewed the defendant, NYPD Detective Heron of the 46th Detective Squad had opened a missing person's investigation after receiving information from the victim's sister that the victim's ex-boyfriend had made threats with respect to the victim and the victim had been missing since the previous day. This information led to Detective Heron's placing a BOLO (“be-on-the-lookout”) alert for the defendant's van, which was registered in New York State, sending officers to check the defendant's Bronx residence, and preparing to present a search warrant application for the defendant's residence before a Bronx Court.
The fore-knowledge by the New York Police Department of the possibility that the victim may have been harmed, New Jersey's investigation of a New York crime, and the NYPD officers' involvement in the New Jersey investigation, is what distinguishes this case from some cited by the People. The defendant's admissions about a homicide were not “an unexpected byproduct” of the interrogation by New Jersey detectives, People v. Taylor, 11 Misc.3d 1053(A) (Bronx Sup.Ct.2006)—to elicit such statements was the point of the interrogation.
What most distinguishes this case from some cited by the People, however, is the enhanced importance of the right to counsel as recognized in New York jurisprudence.
New York has a compelling interest in insuring that the right to counsel is vigorously protected. As stated by our Court of Appeals:
By contrast, in People v. Vega, 225 A.D.2d 890, 892, 639 N.Y.S.2d 511 (3d Dept.1996), a case relied on by the People, a New York court applied Michigan law in denying the defendant's motion to suppress the fruits of a search warrant that complied with Michigan law, but that violated “certain technical requirements of the New York Criminal Procedure Law.” New York's interest in applying its laws with respect to the right to counsel is greater than its interest in applying “certain technical requirements” of its procedural law.
The safeguards guaranteed by this State's Right to Counsel Clause are unique. By constitutional and statutory interpretation, we have established a protective body of law in this area resting on concerns of due process, self-incrimination and the right to counsel provisions of the State Constitution which is substantially greater than that recognized by other State jurisdictions and “far more expansive than the Federal counterpart.” The Court has described the New York rule as a “cherished principle,” rooted in this States's prerevolutionary constitutional law and developed “independent of its Federal counterpart.” The “highest degree of [judicial] vigilance” is required to “safeguard” it. Manifestly, protection of the right to counsel has become a matter of singular concern in New York....”
People v. Harris, 77 N.Y.2d 434, 439, 568 N.Y.S.2d 702, 570 N.E.2d 1051 (1991) (citations omitted).
In this case, the defendant invoked his right to counsel upon being advised of his rights by Detective Brazofsky. New York State has a paramount interest in ensuring that any statement that is elicited after such invocation (even if such invocation is consistent with another jurisdiction's laws) is suppressed. Cf. People v. Couch, 74 A.D.2d 582, 424 N.Y.S.2d 304 (2d Dept.1980) (defendant's statements made to federal officers suppressed, as right to counsel had attached under New York law); People v. Goodrich, 108 Misc.2d 326, 437 N.Y.S.2d 599 (St. Lawrence Cty. Ct.1981) (defendant's statements made in Florida to Florida law enforcement suppressed, as right to counsel had attached under New York law).
Accordingly, the Court concludes that New York's interests are paramount, and that New York law therefore applies. Because New York law prohibits the introduction of statements in the People's direct case after the defendant has invoked his right to counsel, the defendant's motion to suppress his videotaped statement is granted.
Of course, this decision does not govern the use of the defendant's statements in any New Jersey proceeding.
2. Use for Impeachment Purposes is Permitted
The People have proven that the defendant's videotaped statement to Detectives Brazofsky and Melvin was voluntary, and therefore would not be prohibited, if the defendant chose to testify, from cross-examining the defendant based on what he said in his statements. Before any questioning commenced, Detective Brazofsky offered the defendant a beverage and the opportunity to use the restroom. The detectives told the defendant that they wanted to talk about the incident if the defendant wished to do so. The defendant was advised of his Miranda rights and indicated that he understood them. The defendant was allowed to speak without interruption except when questions were asked to clarify a point that the defendant had raised. No one exerted physical force on the defendant or threatened him, either before and during the interview.
In sum, upon consideration of the totality of the circumstances, the Court concludes that the defendant's statement to the detectives on videotape was made voluntarily. Accordingly, the videotaped statement would be admissible for impeachment purposes. See Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); see also People v. Washington, 51 N.Y.2d 214, 433 N.Y.S.2d 745, 413 N.E.2d 1159 (1980).
The foregoing constitutes the Decision and Order of this Court.