Opinion
02139-2010.
Decided April 18, 2011.
HON. Thomas J. Spota, District Attorney, Suffolk County, By: Emma Pearce, Esq., Special Investigations Bureau, Veterans Memorial Highway, Hauppauge, NY.
KATHLEEN GEARRITY, ESQ., Attorney for Defendant, Legal Aid Society of Suffolk County, Riverhead, NY.
Defendant Mei Xuan is charged with Unauthorized Practice of a Profession in violation of New York State Education Law § 6512 (1) (Count One) and Prostitution in violation of Penal Law § 230.00 (Count Two).
Upon consent of the parties, a combined Huntley and Rodriguez pre-trial hearing was conducted before this Court on March 21, 2011, People v. Huntley, 15 NY2d 72 (1965), People v. Rodriguez, 79 NY2d 445 (1992), appeal after remand 193 AD2d 522 (1st Dept. 1993), lv. denied 82 NY2d 725. Based on the credible evidence at hearing, the Court determines that defendant's motion must be granted in part and denied in part.
The charges arise from an April, 2010 investigation conducted by the Suffolk County Police Department. Police were investigating charges of unlicensed massages and promoting prostitution. On April 8, 2010, undercover officer P.O. Phillip Popielaski entered a massage parlor located in Bellport, New York and requested a therapeutic massage. He was told by defendant to return in forty minutes. Upon his return, defendant advised him of the hourly rates and then administered a body massage to the officer. Defendant offered to manipulate the officer's genital area in exchange for an extra tip. P.O. Popielaski declined the offer. He paid for the massage and left the premises. The following day, police executed a search warrant of the premises. Defendant was arrested. At the scene, P.O. Popielaski identified her as the person whom he had encountered the previous day. Defendant was transported to the police precinct in Patchogue, New York.
The main issue before the Court is a series of statements made by defendant in response to a human trafficking questionnaire. The People concede that, at the time the statements were made to police, defendant was under arrest, in custody and had not been administered Miranda warnings, Miranda v. Arizona, 384 U.S. 436 (1966). The statements were made approximately one hour after the arrest, when defendant was interviewed by Suffolk County Police Officer Charles A. Reisinger. At the time, the two were alone in an interview room at the precinct. Defendant was restrained with a handcuff to a table. A Mandarin Chinese language line interpreter was used. There was no evidence of any promises, threats or mistreatment by police in order to induce defendant to answer the questions.
P.O. Reisinger's stated purpose in speaking to defendant was to obtain pedigree information and to ascertain if defendant was a victim of sexual trafficking. Apart from pedigree questions relating to biographical data, the officer read additional questions from a pre-printed "Human Trafficking Questionnaire" (sic). The questionnaire is a form used by the Suffolk County Police Department in cases in which a person could be subject to human trafficking. In addition to questions concerning health and safety in the workplace, the questionnaire asks, "What type of work do you do" and "Are you being paid". These two questions elicited the answers, "Used to be cashier now massage" and "Found job in World Journal had to leave $200.00 deposit with boss because they would train. Hasn't been paid yet". P.O. Reisinger testified that he asked defendant about her work simply because it was on the questionnaire.
It is the People's position that defendant's responses to the questionnaire fall within the pedigree exception to Miranda because they were elicited while the police were processing the defendant. Defendant maintains that she was treated differently because the questions asked of her were not the pedigree questions asked of other prisoners. Under the facts of this case, the Court determines that the statements generated in response to the human trafficking questionnaire must be suppressed.
The United States Supreme Court has recognized that routine booking questions constitute custodial interrogation. Such questions fall outside the protection of Miranda if they are reasonably related to police administrative concerns, Pennsylvania v. Muniz, 496 U.S. 582, 601-602 (1990). Pedigree questions are those questions necessary for processing a defendant or providing for his physical needs, People v. Rogers, 48 NY2d 167, 173 (1979). See also People v. Hester, 161 AD2d 665 (2nd Dept. 1990), lv. denied 76 NY2d 858 (1990) (medical questionnaire used to process prisoners); People v. Langston, 243 AD2d 728 (2nd Dept. 1997), lv. denied 91 NY2d 871 (1997) (post arrest inventory of defendant's property); and People v. Acevedo, 258 AD2d 140 (2nd Dept. 1999) lv. denied 94 NY2d 819 (1999) (defendant's disclosure of his place of residence). However, the prosecution "may not rely on the pedigree exception if the question, though facially appropriate, is likely to elicit incriminating admissions because of the circumstances of the particular case", People v. Rodney, 85 NY2d 289, 293 (1995).
Contrary to the People's contention, the statements at issue were not made in response to a routine processing question. In this particular case, the officer questioned defendant for the purpose of completing a human trafficking questionnaire that was only utilized in certain circumstances. These questions, posed at police discretion, were only asked of certain persons. As defendant is charged with the felony of Unauthorized Practice of a Profession pursuant to Education Law § 6512(1), proof that defendant practiced a profession that by law requires a license is an essential element of the crime. Defendant's admission that she was employed at a massage parlor would certainly be significant. The testimony that, "It's one of the preprinted questions on the questionnaire" does not justify using the responses obtained in this case against defendant at trial. Here, the questionnaire was particularly likely to elicit relevant, incriminating responses, People v. Rodney, Id. "The questions asked of defendant were clearly not those aimed at ascertaining pedigree since they went to the very heart of the crime charged", People v. Antonio, 86 AD2d 614, 615 (2nd Dept. 1982).
For these reasons, the Court finds that defendant's statements in response to the questionnaire do not qualify as a pedigree exception and must be suppressed.
With respect to the remaining issues, defendant's motion is denied. The undercover officer's identification of defendant was merely confirmatory and was based upon sufficient prior familiarity, People v. Rodriguez, supra. Statements made by defendant to the undercover officer at the massage parlor on April 8, 2010 are admissible as they were spontaneous in nature and part of the res gestae facts of the case, People v. Bretagna, 298 NY 323 (1948), cert. denied 336 U.S. 919 (1949).
The foregoing shall constitute the Decision and Order of the Court.