Opinion
109875
12-01-2022
The PEOPLE of the State of New York, Respondent, v. Sean J. REICHEL, Appellant
Mark Schneider, Plattsburgh, for appellant. J. Anthony Jordan, District Attorney, Fort Edward (Taylor Fitzsimmons of counsel), for respondent.
Mark Schneider, Plattsburgh, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Taylor Fitzsimmons of counsel), for respondent.
Before: Garry, P.J., Lynch, Reynolds Fitzgerald, Ceresia and McShan, JJ.
MEMORANDUM AND ORDER
McShan, J.
Appeal from a judgment of the County Court of Washington County (Kelly S. McKeighan, J.), rendered September 8, 2017, upon a verdict convicting defendant of the crimes of driving while intoxicated, attempted criminal mischief in the fourth degree and harassment in the first degree (two counts).
In October 2016, police officers with the Washington County Sheriff's Department observed defendant driving his vehicle erratically in the Village of Hudson Falls, Washington County. The officers then followed defendant into a convenience store parking lot and approached the vehicle to investigate. Upon observing defendant slouched over the steering wheel, the officers asked if he needed assistance. Defendant responded by threatening the officers and repeatedly reaching under his seat, prompting the officers to remove him from the vehicle. The officers detected the odor of alcohol on defendant, and further observed that he had an unsteady gait and glassy eyes. Defendant was eventually placed under arrest and escorted to a patrol vehicle for transport to the Sheriff's Office for processing. Upon being handcuffed and placed in the back of the patrol vehicle, defendant continued shouting threats at the officers, kicked the rear windows of the vehicle and banged his head on the plexiglass barrier separating the front and back seats. After the officers transported defendant to the Sheriff's Office, he was moved to a recorded interview room for processing, where he continued acting belligerently and directing various threatening statements toward the officers and their families. Defendant was subsequently charged by indictment with driving while intoxicated (hereinafter DWI), attempted criminal mischief in the fourth degree and two counts of harassment in the first degree. In an omnibus motion, defendant moved to, among other things, suppress his statements made to the officers following the arrest and during processing. County Court granted defendant a Huntley hearing; however, on the date of the hearing, defendant appeared with trial counsel and waived the hearing on the record. At the ensuing jury trial, the video containing the recording of defendant's processing was admitted without objection. Ultimately, defendant was found guilty as charged and County Court thereafter sentenced defendant to a prison term of 1 to 4 years on the DWI conviction and time served on the remaining convictions. Defendant appeals.
The single contention properly raised by defendant on this appeal asserts that counsel was ineffective for waiving the Huntley hearing. We disagree. "To establish a claim of ineffective assistance of counsel, a defendant is required to demonstrate that he or she was not provided meaningful representation and that there is an absence of strategic or other legitimate explanations for counsel's allegedly deficient conduct" ( People v. Green, 208 A.D.3d 1539, 1545–1546, 175 N.Y.S.3d 355 [3d Dept. 2022] [internal quotation marks and citations omitted]; see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ). As relevant here, "the failure to request a suppression hearing, standing alone, does not establish that defense counsel provided ineffective assistance, particularly in the absence of any basis upon which to conclude that a defendant had a colorable claim or that counsel's actions were not premised upon a legitimate strategy" ( People v. Hall, 147 A.D.3d 1151, 1152, 47 N.Y.S.3d 147 [3d Dept. 2017], lv denied 29 N.Y.3d 1080, 64 N.Y.S.3d 170, 86 N.E.3d 257 [2017] [internal quotation marks and citations omitted]; accord People v. Johnson, 201 A.D.3d 1208, 1208–1209, 159 N.Y.S.3d 779 [3d Dept. 2022] ).
Rather than identifying any specific statements that warranted suppression, defendant instead suggests that the entire sum of his statements following his arrest were suppressible in the absence of Miranda warnings. That assertion is without merit, as the admissibility of each statement made while defendant was detained would be subject to an individualized determination rather than blanket suppression (see e.g. People v. Higgins, 124 A.D.3d 929, 1 N.Y.S.3d 424 [3d Dept. 2015] ). To this end, it is well established "that spontaneous statements made while in custody which are not the product of questioning or its functional equivalent clearly are admissible regardless of whether Miranda warnings were given" ( People v. Smith, 21 A.D.3d 587, 588, 800 N.Y.S.2d 636 [3d Dept. 2005], lv denied 5 N.Y.3d 833, 804 N.Y.S.2d 47, 837 N.E.2d 746 [2005] ; see People v. Davis, 204 A.D.3d 1072, 1077, 166 N.Y.S.3d 377 [3d Dept. 2022], lv denied 38 N.Y.3d 1032, 169 N.Y.S.3d 234, 189 N.E.3d 341 [2022] ). Moreover, statements made in response to questions seeking pedigree information are "not the type of interrogation proscribed by Miranda " ( People v. Rivera, 26 N.Y.2d 304, 309, 310 N.Y.S.2d 287, 258 N.E.2d 699 [1970] [internal quotation marks and citation omitted]), and "[t]he test for suppression is not whether the information is inculpatory but whether the police were trying to inculpate defendant or merely" asking questions inherent to the task of processing him ( People v. Hester, 161 A.D.2d 665, 666, 556 N.Y.S.2d 97 [2d Dept. 1990] [internal quotation marks and citation omitted], lv denied 76 N.Y.2d 858, 560 N.Y.S.2d 998, 561 N.E.2d 898 [1990] ; see People v. Raucci, 109 A.D.3d 109, 120, 968 N.Y.S.2d 211 [3d Dept. 2013], lv denied 22 N.Y.3d 1158, 984 N.Y.S.2d 642, 7 N.E.3d 1130 [2014] ; People v. Youngblood, 294 A.D.2d 954, 954, 742 N.Y.S.2d 762 [4th Dept. 2002], lv denied 98 N.Y.2d 704, 747 N.Y.S.2d 423, 776 N.E.2d 12 [2002] ).
The testimony at trial and the video evidence of defendant's processing reveals that his various threats to law enforcement made after he was placed in custody were spontaneously given and would not fall under the protection of Miranda. As to defendant's threatening statements in the back of the patrol vehicle, there is no indication that those statements were made in response to any manner of inquiry from the officers (see People v. Kenyon, 108 A.D.3d 933, 936, 970 N.Y.S.2d 638 [3d Dept. 2013], lv denied 21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 [2013] ; see generally People v. Cox, 215 A.D.2d 684, 684–685, 628 N.Y.S.2d 294 [2d Dept. 1995], lv denied 86 N.Y.2d 841, 634 N.Y.S.2d 450, 658 N.E.2d 228 [1995] ). Further, while the video of defendant's processing reveals that officers at times engaged in a back and forth with defendant in response to his threats, it is clear that the vast majority of defendant's threatening statements were made to the officers during periods of silence, in response to requests for general pedigree information or in response to words or actions that were "normally attendant to arrest and custody" ( People v. Paulman, 5 N.Y.3d 122, 129, 800 N.Y.S.2d 96, 833 N.E.2d 239 [2005] [internal quotation marks and citations omitted]; see People v. Wortham, 37 N.Y.3d 407, 414, 159 N.Y.S.3d 352, 180 N.E.3d 516 [2021], cert denied ––– U.S. ––––, 143 S.Ct. 122, ––– L.Ed.2d ––––, 2022 WL 4652307 [2022] ; People v. Ero, 139 A.D.3d 1248, 1249, 32 N.Y.S.3d 674 [3d Dept. 2016], lv denied 28 N.Y.3d 929, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016] ; People v. Dunn, 195 A.D.2d 240, 244, 607 N.Y.S.2d 689 [2d Dept. 1994], affd 85 N.Y.2d 956, 626 N.Y.S.2d 1007, 650 N.E.2d 854 [1995] ; see also People v. Luffman, 233 A.D.2d 726, 729, 650 N.Y.S.2d 354 [3d Dept. 1996], lv denied 89 N.Y.2d 943, 655 N.Y.S.2d 894, 678 N.E.2d 507 [1997] ). Moreover, our review of the record reflects that counsel's decision to withhold objection to the introduction of the video of defendant's processing was not devoid of any strategy, as it is clear that counsel utilized the video in an attempt to highlight the deficiencies in the People's case pertaining to defendant's impairment and the officers’ reactions to defendant's threats (see People v. Sposito, 193 A.D.3d 1236, 1238–1239, 147 N.Y.S.3d 195 [3d Dept. 2021], affd 37 N.Y.3d 1149, 159 N.Y.S.3d 753, 180 N.E.3d 1053 [2022] ; People v. Fiorino, 130 A.D.3d 1376, 1382, 15 N.Y.S.3d 498 [3d Dept. 2015], lv denied 26 N.Y.3d 1087, 23 N.Y.S.3d 644, 44 N.E.3d 942 [2015] ; see also People v. Colburn, 123 A.D.3d 1292, 1297, 998 N.Y.S.2d 257 [3d Dept. 2014], lv denied 25 N.Y.3d 950, 7 N.Y.S.3d 279, 30 N.E.3d 170 [2015] ; compare People v. Noll, 24 A.D.3d 688, 689, 808 N.Y.S.2d 381 [2d Dept. 2005], lv denied 16 N.Y.3d 897, 926 N.Y.S.2d 33, 949 N.E.2d 981 [2011] ). Altogether, we are unpersuaded that counsel's decision to forgo the Huntley hearing, which was approved by defendant, rendered his representation ineffective (see People v. Tineo–Santos, 160 A.D.3d 465, 466, 74 N.Y.S.3d 216 [1st Dept. 2018], lv denied 31 N.Y.3d 1088, 79 N.Y.S.3d 110, 103 N.E.3d 1257 [2018] ; compare People v. Stackhouse, 194 A.D.3d 113, 124, 144 N.Y.S.3d 779 [4th Dept. 2021] ).
To the extent that defendant contends that the admission of the video in its entirety was reversible error, his contention is unpreserved and, in any event, our determination makes clear that it is without merit (see People v. Rogers, 34 A.D.3d 504, 505, 824 N.Y.S.2d 121 [2d Dept. 2006], lv denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800 [2007] ; People v. Seymour, 255 A.D.2d 866, 866–867, 683 N.Y.S.2d 673 [4th Dept. 1998], lv denied 93 N.Y.2d 902, 689 N.Y.S.2d 714, 711 N.E.2d 990 [1999] ). Defendant's remaining contentions directed toward the sufficiency of the evidence pertaining to the two counts of harassment and his related contention concerning the sufficiency of the jury instructions on those counts are improperly raised for the first time in his reply brief and, accordingly, we may not consider them on this appeal (see People v. Perkins, 203 A.D.3d 1337, 1338 n, 164 N.Y.S.3d 332 [3d Dept. 2022], lv denied 38 N.Y.3d 1035, 169 N.Y.S.3d 225, 189 N.E.3d 332 [2022] ; People v. Blume, 92 A.D.3d 1025, 1027–1028, 937 N.Y.S.2d 724 [3d Dept. 2012], lv denied 19 N.Y.3d 957, 950 N.Y.S.2d 109, 973 N.E.2d 207 [2012] ).
Garry, P.J., Lynch, Reynolds Fitzgerald and Ceresia, JJ., concur.
ORDERED that the judgment is affirmed.