Opinion
No. 1565–2015.
11-20-2017
The PEOPLE of the State of New York, Plaintiff, v. Antonio MACIAS, Defendant.
Anne Dean, Esq. and Daniel Kay, Esq., for Defendant. Assistant District Attorney Richard Fasano and Assistant District Attorney Dyana Boxley, for Plaintiff.
Anne Dean, Esq. and Daniel Kay, Esq., for Defendant.
Assistant District Attorney Richard Fasano and Assistant District Attorney Dyana Boxley, for Plaintiff.
MIRIAM R. BEST, J.
For the reasons that follow, defendant's motion to suppress his videotaped statement is denied.
Background
In Indictment No. 1565–2015, defendant was charged with Assault in the First Degree (PL § 120.10[1] ) and related crimes after allegedly throwing hot liquid from a frying pan on L.H., causing serious physical injury. These events allegedly took place on April 20, 2015. Following defendant's arraignment, a full order of protection was issued. On May 2, 2016, while the 2015 case was pending, defendant allegedly pushed his way into her apartment, stole her cell phone and damaged property, all in violation of the order of protection issued in the pending case. He was indicted for Burglary in the Second Degree (PL § 140.25[2] ) and related crimes in Indictment No. 1571–2016. The two indictments were later consolidated.
This Court held a hearing on October 30 and 31, 2017, at which Police Officer Armando Guerrero testified for the People. The People also introduced a videotape of defendant's May 2016 custodial statement. Defendant did not testify but called Marlene Marte, a Spanish language interpreter employed by the Bronx Defenders, who prepared a transcript of his videotaped statement. I found the witnesses credible. Based on the evidence received at the hearing, I make the following findings of fact and conclusions of law.
A Gethers hearing (People v. Gethers, 86 N.Y.2d 159 [1995] ) was ordered as to the 2015 case. A Huntley hearing was ordered as to the 2016 case, but defendant's application for a Dunaway/Mapp hearing on that case was denied.
The People called Detective Robert Regnier for the Gethers hearing. Because the People never intended to seek to introduce evidence of what defendant now concedes was an "obviously confirmatory" identification (H 22–23, 172), and because defendant also now apparently concedes that there is no basis on which to suppress an in-court identification by the complainant (H 23–24, 25–26, 172), I will not summarize that testimony. "It is well-settled that ‘information provided by an identified citizen accusing another individual of a specific crime is legally sufficient to provide police with probable cause to arrest’ [citations omitted]. A witness' photographic or corporeal identification of a defendant provides police with probable cause to effectuate his arrest [citations omitted]." People v. Allick, 26 Misc.3d 1237(A), *4 (Sup Ct, Bronx County 2010) (Gross, J.). The People met their burden of proving that defendant's 2015 arrest was based on probable cause (H 38, 39–42, 43, 55, 57, 62–63, 65, 67, 68, 88, 89, 90–91). (Parenthetical references preceded by an "H" refer to the hearing minutes.)
Findings of Fact
The People's Case
Police Officer Armando Guerrero arrested defendant on May 2, 2016 (H 93–94). When Guerrero and his partner arrived at the scene in response to a radio run, defendant was running from a plain clothes officer and a uniformed officer who had a foot post on East 233rd Street and Carpenter Avenue (H 102–04, 105, 131–32). Neither of those two officers had his gun out (H 103, 104–05, 107). The uniformed officer tackled defendant to the ground and Guerrero was ultimately able to handcuff him (H 105–06, 106–07, 108). While defendant was on the ground, none of the four officers had his gun or baton out and none used mace (H 107–08). Guerrero and his partner took defendant to the 47th Precinct (H 93, 108). Defendant was arrested at approximately 9:46 am (H 114).
The Court takes judicial notice that this location is in the Bronx. See People v. Wood, 86 Sickels 617 (1892) ; People v. Suarez, 51 Misc.3d 620, 624 (Crim Ct, New York County 2016) (court may take judicial notice of location of streets).
At the precinct, Guerrero brought defendant to the front desk, filled out paperwork with defendant's pedigree information, searched him and lodged him in a cell (H 123–24). Guerrero then worked at a computer for some period of time (H 124). A Police Officer Gonzalez questioned defendant at the precinct at approximately 11:50 am, but Guerrero did not know what was said during that questioning and did not know whether Gonzalez read defendant his Miranda rights (H 125, 127–28). Officers (not including Guerrero) transported defendant to Central Booking at about noon (H 128–29, 135–36).
Guerrero filled out an arrest report, which included a charge of Criminal Contempt as well as the case number for defendant's open case. Guerrero spoke with L.H., the complainant on the 2016 matter, who told him that she had an order of protection against defendant as a result of a criminal case (H 117–18, 120, 136). Guerrero also spoke with an ADA at Central Booking and relayed the information that L.H. had told Guerrero about the order of protection (H 121).
Guerrero did not know whether the case on which L.H. obtained the order of protection was pending (H 120, 136).
Guerrero was present in an interview room at 215 E 161 Street on May 2, 2016, at about 6:20 pm when ADA Bilal Haider interviewed defendant with the assistance of a Spanish-language interpreter (H 94–95, 125). Guerrero was not armed while defendant made his statement. ADA Haider gave defendant Miranda warnings and did not promise him anything in exchange for making a statement (H 94–95). Defendant stated that he understood each of the rights. When he was then asked whether he was willing to make a statement, defendant gave an answer that the interpreter asked to clarify. After speaking with defendant again, the interpreter stated, "I am willing to answer questions, it depends on the questions that you are asking me and before he said I haven't seen my lawyer or the judge yet." Haider asked again whether defendant understood the rights as he had read them to defendant, and defendant responded, "Yes, yes, I know them, yes." Haider then asked whether defendant was willing to hear Haider's questions and answer them. As reported by the interpreter, defendant's response was, "I will answer the questions that you will ask me."
The videotape of the interview was received in evidence as People's Exhibit ("PX") 5 and played for the court (H 96–100). Haider identifies himself in the video. See also Defense Exhibit ("DX") C (attached to this decision and order as Exhibit 1). PX 5 shows that the interview began at 6:14 pm and ended at 6:28 pm.
As shown on PX 5, Haider advised defendant that he had the right to remain silent and refuse to answer questions; that anything he did or said could be used against him in a court of law; that he had the right to consult with an attorney before speaking with the police or ADA Haider and to have an attorney present during any questioning then or in the future; that if he could not afford an attorney one would be appointed for him without charge; and that if he did not have an attorney, he had the right to remain silent until he had the opportunity to consult with one.
Defendant then stated, among other things, that nothing happened that day at about 9:20 am in the vicinity of 677 East 233rd Street; that he had lived in the apartment, which was his, for two years; that L.H. once lived there and was living there now; that he appeared in court on April 27th in a case involving L.H., saw a judge and was read something regarding an order of protection; that he understood the order of protection to mean that he could not get close to L.H. and was supposed to stay away from her; and that he signed the order of protection on April 27th. Asked specifically about the events of May 2nd, defendant said that he told L.H. he was not going to pay the rent and she said she was going to call the police. Defendant admitted kicking over a table by the bed but denied hitting L.H.. Defendant said he did not see when L.H. called 911, but he did see her come out of a deli and speak to a man in plain clothes. Defendant said that this man, who defendant knew was a police officer because of his badge, took out a gun and pointed it at him. Defendant told the officer not to point his gun at him because defendant had not killed anyone, then the officer grabbed him and defendant got away because the officer was pressuring him (see PX 5). Notably, defendant began answering several of Haider's questions before the interpreter had translated them from English to Spanish. Indeed, at one point Haider asked her to remind defendant that the interpreter had to interpret the questions for him before he answered.
The Defense Case
The Spanish-language interpreter employed by the Bronx Defenders, Marlene Marte, prepared a transcript of Haider's interview with defendant (H 147–48). Marte's first language is Spanish. She studied Spanish language in high school, passed the Regents' exam in Spanish, and scored a four out of five on the AP Spanish test when she was a senior in high school. She took Spanish language classes throughout her college career, earning 18 credits (H 141–43). She worked as a translator at the Northern Manhattan Coalition for Immigrant Rights and at the Morris Heights Health Center before beginning work at the Bronx Defenders (H 144–45). She is currently the only translator in the Bronx Defenders office, where her work includes translating legal documents and translating for lawyers speaking with Spanish-speaking clients (H 146). She has also submitted translated documents submitted to various courts (H 147).
Marte had spoken with defendant in person before she prepared the transcript (H 148–49). She was aware that he was from Cuba and that "Spanish, as spoken in Cuba, has ... some differences in terms of grammar and pronunciation than European Spanish" (H 149). When translating defendant's videotaped statement, she applied "those different grammatical and dialectical rules in coming to [her] conclusion about the translation of the statements" (H 150). Defendant, however, predominantly speaks Castillian, or "proper," Spanish, while using some recognizably Cuban slang terms (H 164). In preparing the transcript, Marte transcribed the video first and then translated it, and then listened again to check for accuracy (H 151). Before certifying her translation, she had listened to the videotape through headphones "[a]t least five times or more" (H 155).
Marte found places during defendant's questioning when the People's interpreter summarized what he had said in Spanish rather than translating it verbatim (H 151–52). Marte also disagreed with some of the words the People's interpreter used when speaking with defendant (H 152). After being shown in the courtroom that portion of PX 5 during which defendant was asked whether he was willing to answer questions, Marte testified:
Mr. Macias was responding to the question that was asked, if he was willing to answer questions after being Miranda-ed, Mr. Macias said he had not seen a judge and had not seen his attorney to discuss any questions, but that he was willing to answer questions.
(H 153). This was not a verbatim translation (id. ). Her verbatim transcription and translation, as set down in DX C, was:
Yes I can answer questions but what are the motives for, am I not going to see, I have not seen the judge and my attorney to explain to them the situation. I also have to see what she say.
(H 153–54.) The People's interpreter then asked to clarify with defendant, and then "asked if he is available to answer questions" (H 154). Marte explained:
In the way that the A.D.A. is asking the question off the Miranda transcript, he's saying if Mr. Macias is willing to answer questions, but the interpreter's terminology refers to if Mr. Macias is available to answer questions. So there's a discrepancy in the word she [the People's Spanish-language interpreter] uses.
(H 154.)
The translation of defendant's response about his willingness to answer questions that Marte made in the courtroom directly from the videotape was concededly different from her prepared transcript; she explained that listening through headphones can clarify the audio (H 156–58). She also conceded that translating from a foreign language in real time could be a problem for anyone, especially if the speaker was not speaking clearly and if the translator had never spoken to that person before (H 158–59). Marte testified that the Spanish word "disponible" means "available," not "willing" (H 159). She also conceded that defendant did not literally say "am I not" when speaking to Haider; Marte changed the order of defendant's words "for accuracy as to the message he was trying to convey" "based on [her] interpretation of what [defendant] meant to say" (H 160), because she "inferred that ... he was attempting to ask a question that he did not complete" rather than making a statement (H 161, 162).
Defendant did not testify at the hearing.
The Parties' Contentions
Defendant argues that his videotaped statement must be suppressed for several reasons. Primarily, he claims he "invoked his right to counsel on the video" (H 167). According to defendant, he:
made it clear that he wished to speak to an attorney. He referenced "my attorney," the specific attorney that he already had on his open case.
And he said he wanted to—wished to speak to that person, which is a clear invocation of his rights. And verbatim he said, he wants to explain the situation to his attorney and see what she says when he was asked if he was available, from his understanding, to answer questions. So, he did invoke his right to an attorney.
(H 167; see also H 171, 181.) And because he was in custody when he invoked his right to counsel, he could not waive counsel except in the presence of counsel. Defendant claims the People failed to honor his desire to have counsel present (H 167, 171), and exacerbated their error by questioning him because both Guerrero and Haider knew that he had counsel on his open case with the same complainant (H 173, 174).
Defendant also claims he was asked questions in 2016 that specifically called for incriminating responses on the pending 2015 case (H 174). This is so not merely because the second case involves a contempt charge, but also because the People believe the cases to be related, as demonstrated by the arguments they made on their consolidation motion and by their stated intention to call a domestic violence expert (H 175–76, 179; see also Deft's Letter Brief dated November 7, 2017 pp. 2–3). Thus, the two cases are related transactionally even if not in space and time (H 177). Whether or not Haider intended to ask questions about the 2015 case, "incriminating responses [about that case were] inevitable" (H 181).
Finally, defendant claims his videotaped statement must be suppressed because he was questioned at the precinct earlier in the day, but
the prosecution submitted no evidence about if Mr. Macias had Miranda warnings during that interrogation, if Mr. Macias did not have Miranda warnings but made a custodial statement any way, what Officer Gonzalez may or may not have promised during that questioning of Mr. Macias, if Mr. Macias invoked his right to counsel also during that questioning on the same day.
(H 182). Therefore, the prosecution has not met its burden to show that any waiver of the right to counsel six hours later was voluntary (id. ). If the second statement was the product of any unlawful actions by Gonzalez, then it should be suppressed for that reason (H 183). If defendant invoked his right to counsel when questioned by Gonzalez, "there is no way that the second interrogation could be proper," especially since there was "no break in custody" (H 198).
The People argue that defendant did not unequivocally invoke his right to counsel (H 185–86) and that his statement, "I also have to see what she say," could have been a reference to the complaining witness rather than defense counsel (H 188). Moreover, the 2015 and 2016 cases are not so thoroughly interrelated that it was impossible to ask questions about one without implicating the other (H 191). Indeed, none of Haider's questions "implicated the 2015 case beyond the fact that there existed an order of protection ... because [defendant] was accused in the 2016 matter of violating that order of protection" (H 192). Finally, even if the court assumed that Gonzalez's questioning were improper, despite the fact that the record contains no evidence about that questioning, the later statement was attenuated by the passage of time and the fact that defendant was questioned by an assistant district attorney, not by a police officer (H 193, 195).
Conclusions of Law
The People have the burden of proving beyond a reasonable doubt that defendant's statements were voluntary. People v. Huntley, 15 N.Y.2d 72, 78 (1965). "The voluntariness of an inculpatory statement must be evaluated by examination of the totality of the circumstances under which it was made. People v. Anderson, 69 N.Y.2d 651 (1986)." People v. Thomas, 20 Misc.3d 1108(A), *5 (Sup Ct, Bronx County 2008) (Sonberg, J.). Moreover, where, as here, the defendant was interrogated while in custody, the People must also establish, beyond a reasonable doubt, that defendant knowingly and voluntarily waived his Miranda rights. People v. Hawkins, 254 A.D.2d 96 (1st Dept), lv denied, 92 N.Y.2d 982 (1998). "An individual may validly waive Miranda rights so long as the immediate import of those warnings is comprehended." People v. Singh, 285 A.D.2d 563, 564 (2d Dept), lv den, 97 N.Y.2d 688 (2001). The People must show "that the individual grasped that he or she did not have to speak to the interrogator; that any statement might be used to the subject's disadvantage; and that an attorney's assistance would be provided upon request, at any time, and before questioning is continued." People v. Williams, 62 N.Y.2d 285, 289 (1984). However, if the defendant's indelible right to counsel has attached before the questioning occurs, then the defendant cannot validly waive the right to counsel except in the presence of counsel. People v. Lopez, 16 NY3d 375, 380 (2011).
Defendant's Indelible Right To Counsel from the 2015 Case Did Not Extend to the 2016 Case
First, I reject defendant's claim that his 2016 case was so transactionally related to the 2015 case that he could not waive counsel on the 2016 case except in the presence of counsel.
"[P]olice interrogation of a suspect on the subject of one crime after the right to counsel has indelibly attached by the actual appearance of an attorney representing that suspect in another crime falls into two relevant categories," People v. Cohen, 90 N.Y.2d 632, 638 (1997). First, if "the two criminal matters are so closely related transactionally, or in space or time, that questioning on the unrepresented matter would all but inevitably elicit incriminating responses regarding the matter in which there had been an entry of counsel," then police may not question the suspect on the unrepresented crime even if they do not directly ask about the represented crime. Id. Where the two crimes are "less intimately connected," a custodial statement will be suppressed "where the police were aware that the defendant was actually represented by an attorney in one of the matters .... [and] the interrogation actually entailed an infringement of the suspect's State constitutional right to counsel by impermissible questioning on the represented crime." Id. at 639. See also People v. Henry, 144 AD3d 940, 944 (2d Dept 2016) (regarding second category, statement may be subject to suppression where impermissible questioning on represented charge was, when viewed as integrated whole, not fairly separable from otherwise permissible questioning on unrepresented matter and purposely exploited to aid in securing inculpatory admissions on latter), lv granted, 29 NY3d 998 (2017).
As the People correctly argue, defendant's two cases are separated by a time period of over a year and involve wholly unrelated crimes. The only common elements linking them are the complainant, the location where the crimes allegedly occurred, and the existence of an order of protection. But these are routine features of most domestic violence cases, and defendant has not cited any case for the proposition that defendants with pending domestic violence cases cannot lawfully be questioned on new contempt cases in the absence of counsel. Significantly, Haider asked no questions about the alleged 2015 assault, nor did defendant say anything about it. Therefore, People v. Henry, supra, on which defendant relies, is distinguishable and does not mandate suppression here.
The Second Department reversed Henry's conviction on both grounds enumerated in Cohen, supra, that is, because the robbery and murder were interrelated and because the police deliberately questioned him about the robbery, as to which his right to counsel was found to have attached at the time of the questioning, in order to induce admissions on the uncharged murder. 144 AD3d at 944–45.
Defendant argues, however, that Haider's questions were designed to elicit incriminating responses on the 2015 case because he "ask[ed] for details of the relationship, probing into areas of control, isolation, and jealousy, paralleling much of the proposed testimony of [the People's expert on domestic violence]" (Letter Brief p 3). According to defendant, Haider "elicit[ed] facts about [his] relationship with L.H. that dovetail with [the expert's] proffered testimony ... the very testimony the prosecution seeks to use to explain L.H.'s actions in the 2015 case" (id. pp 4–5, emphasis in original). This argument is both speculative and contradicted by the facts. I have reviewed the Domestic Incident Reports provided in advance of the People's application to introduce Molineux evidence. Included in these Molineux materials is the DIR from the 2016 incident, which includes Hernadez's "Statement of Allegations/Supporting Deposition":
The court may take judicial notice of its own records in the case before it. Casson v. Casson, 107 A.D.2d 342, 344 (1st Dept), app dismd, 65 N.Y.2d 637 (1985) ; People v. Burnside, 13 Misc.3d 649, 651 fn. 1 (Sup Ct New York County 2006), aff'd, 58 AD3d 551 (1st Dept), lv denied, 12 NY3d 923 (2009).
On this day I was about to go outside and walk my dog at about 9:15 in the morning and my man was outside the door maybe waiting cause he knows I walk my dog everyday in the morning. He grabbed me up and draped [sic ] me up and grabbed my arms really hard and threw me across the bed and started breaking the things in my house. He [sic ] excuse is that they told him I was with another Cuban man from the park w[h]ere we use to hang out everyday and he warned me that if I would be with someone else he would kill me. And he already tried because he threw hot oil on me and I was in the Jacobi Hospital 4 months with 3 [sic ] degree burns. Please help me. Thank you.
The DIR is attached to this decision and order as Exhibit 2.
Clearly, Haider's questions about whether defendant and L.H. had a dog (DX C p 6), whether defendant knew that she was seeing any other man (id. pp 9–10), and whether defendant made any threats to her about that (id. p 10), were based on L.H.'s description of what defendant did to her that very day. When defendant answered the question about whether he suspected the complainant was seeing someone else, Haider asked obvious follow-up questions based on defendant's own answer (id ). But Haider did not ask questions directly or indirectly calling for defendant to discuss his relationship with L.H. in 2015.
Moreover, even if I were to find that Haider's question about when L.H. stopped living in the apartment at 677 East 233rd Street might have elicited a response relevant to the 2015 case, it did not do so: all defendant said was that she had not stopped living there and was trying to take away his apartment (see DX C p 5). Therefore, this question did not violate defendant's right to counsel on the 2015 case and does not require suppression of the 2016 statement. Contrast Jackson v. Ercole, 2011 WL 2516604, * *4, 7 (WDNY 2011) (despite "yeoman's effort" not to deliberately elicit information about murders for which defendant was in custody, undercover officer posing as hitwoman violated petitioner's right to counsel by asking questions about Jackson's desire to kill witnesses which he answered with references to pending murder case; habeas denied because erroneous admission of statements was harmless).
Cases from all four departments of the Appellate Division—two of which were domestic violence cases—support the conclusion that defendant's indelible right to counsel on the 2015 case did not preclude questioning on the 2016 case. See People v. Rivera, 277 A.D.2d 470, 471, 472 (2d Dept 2000) (rejecting claims that confession should have been suppressed; detectives questioning Rivera about disappearance of robbery victim "did not exploit ‘concededly impermissible questioning’ " about robbery charge to advance interrogation about murder case, and robbery case was "not so interwoven in terms of ... temporal proximity and factual interrelatedness" to case of victim's abduction and murder that any interrogation about victim's disappearance would " ‘almost necessarily’ " elicit statements about robbery), lv denied, 96 N.Y.2d 833 (2001), habeas denied, 2007 WL 3124558 (E.D.N.Y.2007) ; People v. Campbell, 275 A.D.2d 984, 984 (4th Dept 2000) (rejecting claim that police questioning of defendant regarding uncharged murders was precluded by attachment of right to counsel on attempted murder/assault; murders were not transactionally related to attempted murder; fact that crimes involved common motive or intent or common instrumentality was not dispositive and questions about charged attempted murder not impermissibly intermingled with questions about uncharged matters), lv denied, 96 N.Y.2d 723 (2001), habeas denied, 367 F.Supp.2d 376 (WDNY 2004) ; People v.. White, 244 A.D.2d 765, 766, 767 (3d Dept 1997) (although two offenses involved same victim and probably same motive and intent, South Carolina crime, in which defendant shot at victim when she ended their relationship, and murder of same victim three months later in New York were "not so ‘related’ " as to invoke indelible right to counsel), lv denied, 91 N.Y.2d 1014 (1998) ; People v. Marin, 215 A.D.2d 267, 267 (1st Dept) ("Although the two incidents involved the same victim, they were otherwise unrelated, and thus defendant's representation in connection with the prior pending incident was not a bar to his knowing and voluntary waiver of Miranda rights herein even in the absence of counsel [citations omitted]."), app granted, 86 N.Y.2d 785 (1995), app dismissed, 88 N.Y.2d 931 (1996) . See also People v. Grant, 91 N.Y.2d 989, 991 (1998) (Brooklyn and Schenectady charges not so interwoven that any interrogation on latter would almost necessarily elicit incriminating responses on former; use of same weapon was only common factual element, which had no independent legal significance in absence of any other significant unifying factor), aff'd after remand, 260 A.D.2d 860, 862–63 (3d Dept) (record supported finding of "no purposeful exploitation, no pattern of intermingling of impermissible questions throughout the interrogation and no likelihood that impermissible questioning played any role in [Grant's] admissions."), lv denied, 93 N.Y.2d 1019 (1999).
Marin was clearly a domestic violence case. Marin had an open Manhattan case of attempted third-degree assault, harassment and criminal possession of a weapon from May 1991, in which the complainant was his common-law wife, when he cut her face with a piece of glass in the Bronx three and one-half months later. Some six weeks after that, he menaced her again in Manhattan in the same subway station, 215 A.D.2d at 268 (majority and dissenting opinions). An order of protection had been issued in the first case, id. at 269 (dissenting opinion). The majority rejected the dissent's "focus upon the alleged ‘similarity’ of the two crimes," reasoning that "[t]he only significant common theme is the identity of the victim" and that Marin's "earlier harassment of this victim in the subway does not require a conclusion that the two crimes were ‘related’, for purposes of assuming continuing representation by counsel, particularly where the first charge was at the misdemeanor level, subject to rapid disposition in Criminal Court, and the second offense was a serious felony committed in another county." 215 A.D.2d at 268. But while the first case might have been disposed of by the time of the second alleged crime, it clearly had not been, and this fact plainly was not a but-for cause of the court's holding.
Accordingly, defendant's indelible right to counsel on the 2015 case did not extend to the 2016 case, and defendant could properly waive counsel in the absence of counsel on that case.
Defendant Was Properly Mirandized and Waived His Right to Counsel
As is fully set forth above (supra p 4), defendant was properly advised of his Miranda rights before he agreed to answer questions. Through the Spanish-language interpreter, defendant was explicitly told that he had the right to remain silent and refuse to answer questions, that anything he said could be used against him in a court of law, that he had the right to consult with an attorney before answering any questions and to have an attorney present during questioning, and that if he could not afford an attorney one would be appointed for him without cost. When he was asked after each of these questions whether he understood, defendant answered "yes."
To the extent that defendant has suggested that he was not properly Mirandized because the People's interpreter translated the English word "willing" as the Spanish word for "available," that claim fails. Even according to Marte's translation, the second time the People's interpreter asked defendant whether he was "available to answer the questions," he answered, "I am available to answer the questions depending on the questions he wants to ask me" (DX C pp 3–4). After that answer was translated into English, Haider asked, "OK but I, do you understand the rights that I have read to you just now?" Defendant answered, "Yes, yes I know them, yes" (DX C p 4). Given defendant's long criminal record, this response clearly has the ring of truth. The fact that Haider later had to have the interpreter remind defendant to wait until the questions were fully translated into Spanish before he answered them (DX C p 7) further supports my conclusion that defendant fully understood his Miranda rights before he waived them and started answering questions.
Defendant Did Not Invoke His Right to Counsel
I also find that defendant did not invoke his right to counsel when questioned by Haider. A suspect in custody who unequivocally requests the assistance of counsel may not be questioned further in the absence of an attorney. Whether a particular request for counsel is or is not unequivocal must be determined from all of the circumstances surrounding the request, including the defendant's demeanor, manner of expression, and the particular words used. People v. Kennard. 134 AD3d 1519, 1521 (4th Dept 2015).
The evidence does not support defendant's claim that he "made it clear that he wished to speak to an attorney" (H 167). Even Marte's literal translation of his response when asked if he was willing to answer questions does not contain an unequivocal request for counsel:
Yes I can answer questions but what are the motives for, am I not going to see, I have not seen the judge and my attorney to explain to them the situation. I also have to see what she say.
(DX C p 3.) A "notification that counsel exists" does not amount to an unequivocal invocation of the right to counsel. People v. Henry, 133 AD3d 1085, 1086 (3d Dept 2015) ; see also People v. Cotton, 277 A.D.2d 461, 462 (2d Dept 2000) (to the same effect), lv denied, 96 N.Y.2d 757 (2001) ; People v. Patterson, 295 A.D.2d 966, 966 (4th Dept) (defendant's statement that he "wanted his story on paper ‘so my lawyer can have it’ " not an unequivocal request for counsel), lv denied, 99 N.Y.2d 538 (2002). Nor is a statement that defendant "want[s] to wait to speak with a judge," People v. Pierre, 309 A.D.2d 570, 570 (1st Dept), lv denied, 1 NY3d 578 (2003), habeas denied, 2007 WL 241637 (SDNY 2007).
After the interpreter told Haider that defendant said he had not seen his lawyer or the judge yet (DX C p 4), Haider asked him, "OK but I, do you understand the rights that I have read to you just now?" (id. ). Defendant answered in Spanish, "Yes, yes I know them, yes" (id. ). When Haider asked again whether he was willing to answer questions, now that he had been advised of his rights, defendant stated in Spanish, "Yes I can depending on the questions that you will ask me I am going to answer them" (id. ). This answer demonstrated that defendant clearly understood his rights and was not in any way an unequivocal invocation of the right to counsel. People v. Cody, 260 A.D.2d 718, 720 (3d Dept) (rejecting claim that custodial statements were improperly received in evidence, where defendant indicated that he understood Miranda rights and said he would answer questions depending on what questions police were going to ask), lv denied, 93 N.Y.2d 1002 (1999).
Moreover, as the People correctly argue, defendant's statement, "I also have to see what she say," does not clearly refer to Ms. Dean, his attorney on the 2015 case, and could well have referred to L.H.. Indeed, this understanding of defendant's answer makes more sense than his current claim. After all, having already mentioned the judge and his attorney, his use of the word "also" plainly suggests that he was referring to a third person, and that person logically would be the complainant. See People v. Carrino, 134 AD3d 946, 947, 949 (2d Dept 2015) (hearing court properly denied motion to suppress defendant's first statement; defendant's answer that he would have to call his attorney if complainant were "really pursuing charges" was equivocal and prospective).
For all of these reasons, I reject defendant's claim that he invoked his right to counsel when questioned by Haider.
Finally, I reject defendant's claim that his videotaped statement must be suppressed because the People did not establish whether Gonzalez Mirandized him or promised him anything to answer questions earlier that day, or whether defendant invoked his right to counsel at that time. While the People must establish beyond a reasonable doubt that defendant's statements were voluntary, they do not have to call every police officer who had contact with him to do so, especially where the defendant "presented no bona fide factual predicate which demonstrated that [other] officers possessed material evidence on the question of whether the statements were the product overtly or inherently of coercive methods," People v. Witherspoon, 66 N.Y.2d 973, 973–74 (1985). Merely raising theoretical possibilities about the absence of Miranda warnings or an invocation of the right to counsel does not require suppression, especially where defendant chose not to testify. People v. Drumm, 15 AD3d 910, 910–11 (4th Dept) (county sheriff's investigator established that defendant validly waived Miranda rights, and defendant presented no bona fide factual predicate demonstrating that Irondequoit police officers who arrested him possessed material evidence on question of whether statements were product of coercive methods) , lv denied, 4 NY3d 853 (2005) ; see also People v. Moses, 112 AD3d 447 (1st Dept 2013) (defendant made oral statement in between making two written statements; oral statement was suppressed because police officer could not recall circumstances under which it was made, but where nothing in record indicated that defendant gave second statement as result of oral statement, denial of motion to suppress written statements was proper), lv denied, 23 NY23d 1023 (2014); People v. Morales, 77 AD3d 482, 482–83 (1st Dept) (People not required to produce arresting officer's partner, who had initial brief conversation with defendant, because defendant did not present bona fide factual predicate demonstrating that partner possessed material evidence on question of whether statements were product of coercive methods), lv denied, 15 NY3d 954 (2010) ; People v. Fisher, 19 AD3d 1034, 1034 (4th Dept) (defendant presented no bona fide factual predicate in support of conclusory speculation that statement was coerced and that he might not have been advised of Miranda rights), lv denied, 5 NY3d 805 (2005) ; contrast, U . S. v. Pritchette, 219 F.Supp.3d 379 (SDNY 2016) ; People v. Valerius, 31 N.Y.2d 51, 55 (1972) (where defendant testified to having been physically beaten into confessing by police officer whom People did not call as witness, conclusion that confession was involuntary was "virtually compelled").
Significantly, the suppression court held that "there's some evidence of a conversation between defendant and Irondequoit Police Officers, [but] no evidence was produced at the hearing in regard to that." As in the case here, "[d]efense counsel argued that this created ‘a real hole in the proof’ and argued that ‘the People have not met their burden of proving voluntariness [page citation omitted],’ " People v. Drumm, Appellant's Brief, 2004 WL 5394565 * 2.
Pritchette, which defendant cites, is easily distinguished and therefore irrelevant. Among other things, Pritchette provided his own declaration, which was apparently under oath, and a police witness who interrogated Pritchette and whose credibility was impeached by physical evidence subsequently recanted his hearing testimony, 219 F.Supp.3d at 382, 384, 385. Here, in sharp contrast, defendant has not provided any testimony of his own regarding his encounter with Gonzalez, nor has Guerrero's credibility been impeached.
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Conclusion
For all of these reasons, defendant's motion to suppress his videotaped statement is denied.