Opinion
03-21-2024
The PEOPLE of the State of New York, Respondent, v. Naika GIZZO, Appellant.
Richard L. Herzfeld, New York, for appellant. Westchester County District Attorney (Raffaelina Gianfrancesco of counsel), for respondent.
Richard L. Herzfeld, New York, for appellant.
Westchester County District Attorney (Raffaelina Gianfrancesco of counsel), for respondent.
PRESENT: TIMOTHY S. DRISCOLL, J.P., JAMES P. McCORMACK, GRETCHEN WALSH, JJ.
Appeal from a judgment of the Justice Court of the Town of North Castle, Westchester County (Douglas J. Martino, J.), rendered September 14, 2021. The judgment convicted defendant, after a nonjury trial, of petit larceny and criminal possession of stolen property in the fifth degree, and imposed sentence. The appeal from the judgment brings up for review oral orders of that court denying defendant’s motions to, respectively, dismiss the accusatory instrument on the ground of facial insufficiency and suppress certain statements and physical evidence.
ORDERED that the judgment of conviction is modified, on the law, by vacating the sentence imposed and remitting the matter to the Justice Court for a restitution hearing and thereafter for resentencing.
Defendant was charged in a misdemeanor information with petit larceny (Penal Law § 155.25) and criminal possession of stolen property in the fifth degree (Penal Law § 165.40). A combined Huntley hearing (see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 [1965]) and nonjury trial was conducted by the Justice Court. After suppressing the majority of the statements made by defendant to the police at her employer’s home before she was read her Miranda rights (see Miranda, v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 [1966]), but not the statements she made to the police at the police station after she was read her Miranda, rights, or the physical evidence, the Justice Court found defendant guilty of both charges. Subsequently, the Justice Court sentenced defendant to a one-year conditional discharge, a condition of which was the payment of $2,629.42 in restitution (see Penal Law § 65.10 [2] [g]).
On appeal, defendant contends that the accusatory instrument was facially insufficient; that her jury trial waiver was invalid; that her statements made at the police station and the physical evidence should have been suppressed, as there was insufficient attenuation between those statements and the earlier ones made by her to the police at her employer’s home; and that the People failed to meet their burden of proving the victim’s loss with evidence that was sufficient to sustain an award of restitution.
[1–3] "A valid and sufficient accusatory instilment is a nonwaivable jurisdictional prerequisite to a criminal prosecution" (People v. Case, 42 N.Y.2d 98, 99, 396 N.Y.S.2d 841, 365 N.E.2d 872 [1977]; see People v. Dumay, 23 N.Y.3d 518, 522, 992 N.Y.S.2d 672, 16 N.E.3d 1150 [2014]; People v. Dreyden, 15 N.Y.3d 100, 103, 905 N.Y.S.2d 542, 931 N.E.2d 526 [2010]). However, "not every deficiency [in an accusatory instrument] implicates the jurisdiction of the court" (People v. Konieczny, 2 N.Y.3d 569, 575, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004]; see People v. Casey, 95 N.Y.2d 354, 362, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000]). For example, "a purported hearsay defect in an accusatory instrument is nonjurisdictional" (People v. Jackson, 18 N.Y.3d 738, 741, 944 N.Y.S.2d 715, 967 N.E.2d 1160 [2012]; see Casey, 95 N.Y.2d at 362, 364, 717 N.Y.S.2d 88, 740 N.E.2d 233), and such a defect is waived by a failure to timely raise the issue in a pretrial motion (see People v. Keizer, 100 N.Y.2d 114, 121, 760 N.Y.S.2d 720, 790 N.E.2d 1149 [2003]; Casey, 95 N.Y.2d at 363, 717 N.Y.S.2d 88, 740 N.E.2d 233; People v. Cortland, 66 Misc.3d 141[A], 2020 N.Y. Slip Op. 50150[U], 2020 WL 629609 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2020]; People v. James, 49 Misc.3d 154[A], 2015 N.Y. Slip Op. 51791[U], 2015 WL 8485828 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2015]). Here, as defendant moved to dismiss the accusatory instrument during the trial, she waived her contention that the misdemeanor information was facially insufficient because it contained hearsay (see Casey, 95 N.Y.2d at 363, 717 N.Y.S.2d 88, 740 N.E.2d 233; Cortland, 2020 N.Y. Slip Op. 50150[U]).
[4–6] Defendant correctly argues that the contents of her written confession cannot be considered when determining the facial sufficiency of the accusatory instilment as those statements were not contained within the four corners of the accusatory instrument and the written confession was annexed to the People’s CPL 710.30 notice rather than to the accusatory instrument (see CPL 100.15 [3]; 100.40 [1] [c]; People v. Slade, 37 N.Y.3d 127, 136-137, 148 N.Y.S.3d 413, 170 N.E.3d 1189 [2021]; People v. Hardy, 35 N.Y.3d 466, 475, 132 N.Y.S.3d 394, 157 N.E.3d 117 [2020]; People v. Thomas, 4 N.Y.3d 143, 146, 791 N.Y.S.2d 68, 824 N.E.2d 499 [2005]). However, even without the written confession, the accusatory instrument, together with the supporting depositions, sufficiently alleged all of the elements of the crimes of petit larceny and criminal possession of stolen property in the fifth degree, and defendant’s commission thereof, since, collectively, they established that defendant wrongfully took and possessed property, without the owner’s consent, with the intent of depriving the owner of that property and impeding the recovery thereof (see Penal Law §§ 155.05 [1]; 155.25, 165.40, 165.55 [1]; People v. Olivo, 52 N.Y.2d 309, 318-319, 438 N.Y.S.2d 242, 420 N.E.2d 40 [1981]; People v. Kirkpatrick, 32 N.Y.2d 17, 23, 343 N.Y.S.2d 70, 295 N.E.2d 753 [1973]; People v. Reisman, 29 N.Y.2d 278, 285-286, 327 N.Y.S.2d 342, 277 N.E.2d 396 [1971]; People v. Santana, 66 Misc.3d 126[A], 2019 N.Y. Slip Op. 52024[U], 2019 WL 6973062 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2019]). In addition, we note that, in general, the source or validity of a deponent’s knowledge need not be specified in the accusatory instrument, but is a matter to be raised at trial (see Casey, 95 N.Y.2d at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233; People v. White, 31 Misc.3d 130[A], 2011 N.Y. Slip Op. 50579[U], 2011 WL 1440361 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2011]; People v. Fischer, 6 Misc.3d 135[A], 2005 N.Y. Slip Op. 50213[U], 2005 WL 433308 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2005]; People v. Caravousanos, 2 Misc.3d 7, 770 N.Y.S.2d 820 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2003]; cf. People v. Jackson, 18 N.Y.3d 738, 746, 944 N.Y.S.2d 715, 967 N.E.2d 1160 [2012] ["when an allegation involves a conclusion drawn by a police officer that involves the exercise of professional skill or experience, some explanation concerning the basis for that conclusion must be evident from the accusatory instrument"]).
[7–10] With respect to defendant’s suppression issue, the determination of whether there has been attenuation, by which the taint of an initial illegality may be "purge[d]" (Taylor v. Alabama, 457 U.S. 687, 690, 102 S.Ct. 2664, 73 L.Ed.2d 314 [1982]; People v. Conyers, 68 N.Y.2d 982, 983, 510 N.Y.S.2d 552, 503 N.E.2d 108 [1986]) or "dissipate[d]" (Oregon v. Elstad, 470 U.S. 298, 300, 303, 310-311, 105 S.Ct. 1285, 84 L.Ed.2d 222 [1985]; People v. Jones, 21 N.Y.3d 449, 452, 971 N.Y.S.2d 740, 994 N.E.2d 831 [2013]) by intervening events, requires consideration of the temporal proximity of the initial illegality, the presence or absence of "intervening circumstances," and "the purpose and flagrancy of the police misconduct" (People v. Harris, 77 N.Y.2d 434, 441, 568 N.Y.S.2d 702, 570 N.E.2d 1051 [1991]; see People v. Bradford, 15 N.Y.3d 329, 333, 910 N.Y.S.2d 771, 937 N.E.2d 528 [2010]; Conyers, 68 N.Y.2d at 983, 510 N.Y.S.2d 552, 503 N.E.2d 108; People v. Panetta, 66 Misc.3d 145[A], 2020 N.Y. Slip Op. 50200[U], 2020 WL 742324 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2020]). There must be a definite and pronounced break in the interrogation such that a defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning (see People v. White, 10 N.Y.3d 286, 291, 856 N.Y.S.2d 534, 886 N.E.2d 156 [2008]; People v. Paulman, 5 N.Y.3d 122, 130-131, 800 N.Y.S.2d 96, 833 N.E.2d 239 [2005]; People v. Chapple, 38 N.Y.2d 112, 115, 378 N.Y.S.2d 682, 341 N.E.2d 243 [1975]). Some of the factors that New York courts have considered include the time differential between the Miranda violation and the subsequent admission; whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; and whether, prior to the Miranda violation, the defendant had indicated a willingness to speak to the police (see White, 10 N.Y.3d at 291, 856 N.Y.S.2d 534, 886 N.E.2d 156; Paulman, 5 N.Y.3d at 130-131, 800 N.Y.S.2d 96, 833 N.E.2d 239). No one factor is determinative, as each case must be viewed on its unique facts (see White, 10 N.Y.3d at 291, 856 N.Y.S.2d 534, 886 N.E.2d 156; Paulman, 5 N.Y.3d at 130-131, 800 N.Y.S.2d 96, 833 N.E.2d 239). If it is determined that there was attenuation, the Mirandized statement is admissible at trial despite the prior, unwarned statement (see White, 10 N.Y.3d at 291, 856 N.Y.S.2d 534, 886 N.E.2d 156; Paulman, 5 N.Y.3d at 130-131, 800 N.Y.S.2d 96, 833 N.E.2d 239).
[11] Here, the record demonstrates that, prior to the Miranda violation, defendant had indicated a willingness to speak to the police; that the improper questioning at defendant’s employer’s house was not extensive and, once defendant incriminated herself, that questioning stopped; that time passed between the Miranda violation and the subsequent admissions made by defendant at the police station; and that there was a change in the location and nature of the interrogation, as the police placed defendant under arrest and transported her to the police station where she was read her Miranda rights before any further questions were asked about the crimes. These factors warrant the admission of the Mirandized statements (see White, 10 N.Y.3d at 292, 856 N.Y.S.2d 534, 886 N.E.2d 156; People v. Samuels, 11 A.D.3d 372, 784 N.Y.S.2d 36 [2004]).
[12] Defendant’s challenge to the validity of her waiver of the right to a jury trial is unpreserved for appellate review (see CPL 470.05 [2]; People v. Magnano, 77 N.Y.2d 941, 570 N.Y.S.2d 484, 573 N.E.2d 572 [1991]; People v. Driver, 73 Misc.3d 144[A], 2021 N.Y. Slip Op. 51242[U], 2021 WL 6119980 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2021]; People v. Perrone-Maple, 66 Misc.3d 142[A], 2020 N.Y. Slip Op. 50164[U], 2020 WL 629604 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2020]; People v. Irizarry, 66 Misc.3d 133[A], 2019 N.Y. Slip Op. 52112[U], 2019 WL 7413367 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2019]). In any event, the record demonstrates that defendant executed a written jury trial waiver, which was approved by the trial judge in open court, and that the court’s colloquy confirmed that the waiver was knowing, intelligent and voluntary. Therefore, defendant’s waiver was valid (see People v. Smith, 6 N.Y.3d 827, 828, 817 N.Y.S.2d 575, 850 N.E.2d 622 [2006]; Driver, 2021 N.Y. Slip Op. 51242[U]; Perrone-Maple, 2020 N.Y. Slip Op. 50164[U] [finding that, even assuming that the waiver itself was not signed in open court, the entire colloquy concerning the waiver took place in open court, thus rendering the waiver valid]; Irizarry, 2019 N.Y. Slip Op. 52112[U]).
[13] The People contend that defendant’s challenge to the restitution component of the sentence, to wit, that the People failed to meet their burden of proving the victim’s loss with evidence that was sufficient to sustain an award of restitution, was waived due to her failure to object to the imposition of restitution at the time of sentencing or to request a hearing and, thus, the issue should be considered unpreserved for appellate review. However, the record demonstrates that defendant contested the restitution in a written submission to the Justice Court and, on appeal, she repeats the same arguments. Furthermore, even though both parties consented to rely upon their respective written submissions in lieu of a hearing, when there is insufficient evidence to support a finding of the victim’s actual out-of-pocket loss, the court, pursuant to Penal Law § 60.27 (2), must conduct a hearing in accordance with the procedure set forth in CPL 400.30 to determine the amount of that loss (see People v. Tzitzikalakis, 8 N.Y.3d 217, 221, 832 N.Y.S.2d 120, 864 N.E.2d 44 [2007]; People v. Consalvo, 89 N.Y.2d 140, 144, 651 N.Y.S.2d 963, 674 N.E.2d 672 [1996]).
[14, 15] In our opinion, the Justice Court should have conducted a restitution hearing. The People’s only evidence in support of the victim’s restitution claim were worksheets from her insurer. The worksheets were not verified and, more importantly, included items claimed by the victim to have been stolen but which defendant was never charged with stealing. This was insufficient evidence to support the court’s finding of the victim’s actual out-of-pocket loss, which is required "to prevent the victim from enjoying an unjust enrichment, and the defendant from suffering under an unduly harsh and unreasonable restitution order" (Mem of Attorney General, Bill Jacket, L 1992, ch 618, at 25; see Tzitzikalakis, 8 N.Y.3d at 222, 832 N.Y.S.2d 120, 864 N.E.2d 44). Consequently, the matter must be remitted to the Justice Court for a hearing to determine whether the victim is entitled to restitution and, if so, in what amount (see Consalvo, 89 N.Y.2d at 143, 651 N.Y.8.2d 963, 674 N.E.2d 672).
[16] When a defendant is convicted on more than one count of a multi-count accusatory instrument, the criminal court has a statutory obligation to pronounce sentence on each count upon which the defendant was convicted (see CPL 380.20; People v. Sturgis, 69 N.Y.2d 816, 513 N.Y.S.2d 961, 506 N.E.2d 532 [1987]; People v. Bailey, 132 A.D.3d 690, 17 N.Y.S.3d 306 [2015]). Here, the record demonstrates that the Justice Court failed to pronounce sentence upon defendant’s conviction of criminal possession of stolen property in the fifth degree. Consequently, the sentence imposed must be vacated and the matter remitted for resentencing on both convictions following the conclusion of the restitution hearing (see People v. Henry, 80 A.D.3d 625, 914 N.Y.S.2d 288 [2011]; People v. Goddard, 112 A.D.2d 379, 491 N.Y.S.2d 834 [1985]; People v. Burden, 73. Misc.3d 130[A], 2021 N.Y. Slip Op. 50950[U], 2021 WL 4736574 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2021]; People v. M. M. Telcom Corp., 69 Misc.3d 132[A], 2020 N.Y. Slip Op. 51218[U], 2020 WL 6165146 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2020]).
Accordingly, the judgment of conviction is modified by vacating the sentence imposed and remitting the matter to the Justice Court for a restitution hearing and thereafter for resentencing on each count upon which defendant was convicted.
DRISCOLL, J.P., McCORMACK and WALSH, JJ., concur.