Opinion
20050160.
Decided August 1, 2005.
Michael C. Green Monroe County District Attorney Brett Granville, A.D.A. (at hearing) Sonal Rana, A.D.A., (presently) Rochester, New York, for the People.
James S. Hinman, Esq., Rochester, New York, for the Defendant.
Defendant stands accused of burglary in the third degree and petit larceny. Defendant moved for various relief and the Court granted him a combined Wade/Huntley hearing ( see, United States v. Wade, 388 US 218; People v. Huntley, 15 NY2d 72), which was conducted on July 21 and 22, 2005.
FINDINGS OF FACT
At the hearing, the prosecution presented the testimony of Monroe County Sheriff's Investigator Thomas VanThof and Deputy Robert Day. The Court received five exhibits into evidence, (1) a supporting deposition of Pete Francione [People's Exhibit No. 1]; (2) a Miranda warning card [Defendant's Exhibit A]; (3) the felony complaint [Defendant's Exhibit B]; (4) investigative action report [Defendant's Exhibit C]; and (5) Wegman's Chase Pitkin Notice [Defendant's Exhibit D]. Defendant offered no witnesses.
Deputy Day testified that on June 20, 2004, in the early morning hours, he responded to a complaint of larceny at the Wegman's store in the Town of Penfield, in Monroe County (hereinafter Penfield Wegman's). At approximately 3:30 a.m. on June 20, 2004, Day viewed store security surveillance tapes with Pete Francione, a Wegman's loss prevention specialist. Initially, Francione did not give the names of the suspects on the surveillance tape and he did not discuss the identity of the individuals depicted therein. Francione told Day that he would print photographs from the video and meet with Day later that night. When they met later, Francione identified the suspects from the tape and his photographs as defendant and another person.
Day took a supporting deposition from Francione [People's Exhibit No. 1]. Francione knew defendant from prior contact with him at Wegman's and had viewed approximately 30 photographs of defendant on prior occasions.
VanThof testified that on July 29, 2004, the defendant was held in a "holding room" at Greece Town Court. VanThof had requested that defendant be held after receiving notice from a court clerk that the defendant had appeared in Greece Town Court on a different charge. VanThof testified that he arrived approximately 23 minutes after notification and his purpose for going to Greece Town Court was to "pick up defendant, interview him, and then take him to Penfield Town Court for arraignment" on the charge before this Court.
At approximately 4:15 p.m., VanThof advised defendant of his Miranda ( 384 US 436) rights from a Miranda warning card [Defendant's Exhibit A], while defendant was in the rear seat of VanThof's patrol car. Defendant was handcuffed. Defendant indicated that he understood his rights and agreed to talk about the matter. VanThof made no threats or promises to defendant and defendant did not appear intoxicated. They had an extensive conversation for approximately 20 minutes regarding the June 20, 2004 incident at the Penfield Wegman's. Defendant made oral admissions that he participated in the larceny and that he knew his privilege to be on Wegman's and Chase Pitkin property had been revoked in 2003. At the conclusion of the conversation, defendant declined to give a written statement. Defendant never requested an attorney.
VanThof testified that the felony complaint was prepared several days in advance of defendant's arrest and that the felony complaint was not filed so that defendant could be questioned.
The above constituted the relevant testimony and evidence presented during the hearing.
CONCLUSIONS OF LAW
For purposes of this decision, and upon a thorough review of the evidence, the Court finds the unrefuted testimony of the prosecution to be credible.
I.Defendant's Statement
Defendant's primary contention is that the police delayed filing the felony complaint. The felony complaint against a co-defendant was filed on July 21, 2004. However, the felony complaint against defendant was not filed until July 29, 2004, after VanThof's interview of defendant. Defendant contends that this delay in filing the felony complaint was intended to deprive him of his right to counsel and, as such, defendant's statement should be suppressed.
Regarding defendant's oral statements, which was noticed pursuant to CPL 710.30, in New York, a confession or admission is admissible at trial only if its voluntariness is established by the People beyond a reasonable doubt ( see, People v. Valerius, 31 NY2d 51). The issue presented is whether, under the totality of the circumstances, defendant's statements were obtained in violation of his constitutional rights against self-incrimination and/or his constitutional right to counsel. As noted, the prosecution has the burden to negate the issue and to establish voluntariness beyond a reasonable doubt.
" Miranda v. Arizona ( 384 US 436) requires that at the time a person is taken into custody or otherwise deprived of his freedom, he must be advised of his constitutional rights" ( People v. Yukl, 25 NY2d 585, 588, cert denied 400 US 851; see, People v. Harris, 48 NY2d 208, 215; People v. Robbins, 236 AD2d 823, lv denied 90 NY2d 863). The issue of whether a suspect is in custody is generally a question of fact ( People v. Centano, 76 NY2d 837), and the standard to be applied is whether a reasonable person, innocent of any crime, would have believed that he was in police custody ( see, People v. Yukl, 25 NY2d 585, 589, cert denied 400 US 851). The factors to be considered include the amount of time the individual spent with the police, whether his freedom of action was significantly restricted, the location of the questioning and atmosphere under which he was questioned, his degree of cooperation, whether he was apprised of his constitutional rights, and whether the questioning was investigatory or accusatory in nature ( see, People v. Macklin, 202 AD2d 445, lv denied 83 NY2d 912; People v. Bailey, 140 AD2d 356, 358).
VanThof took defendant into custody on July 29, 2004. Prior to any custodial interrogation, VanThof advised defendant of his Miranda rights. VanThof did not make any threats or promises to defendant. Defendant did not request an attorney and was not intoxicated.
Defendant knowingly and voluntarily waived his Miranda rights before VanThof questioned him ( see, People v. Williams, 62 NY2d 285, 287). The questioning occurred over an approximately 20 minute time period.
"[A] delay in arraignment for the purpose of further police questioning does not establish a deprivation of the State constitutional right to counsel" ( People v. Ramos, 99 NY2d 27, 37). "Rather, such a delay bears on the voluntariness of the confession and is a factor to be considered in that regard" ( id., at 34). In People v. Ramos, supra, the Court stated "we have never held that a deliberate delay of arraignment for the purpose of obtaining a confession triggers the State constitutional right to counsel." Importantly, People v. Ramos, supra, abrogated People v. Cooper, 101 AD2d 1, a case upon which defendant relies. Additionally, People v. Cooper, supra, involved a delay between arrest and arraignment, while here there was pre-arrest delay ( see, People v. Dyson, 221 AD2d 1004, lv denied 87 NY2d 1019). As such, defendant's reliance on People v. Cooper, supra, is misplaced.
"There is . . . no constitutional right to be arrested" ( People v. Dyson, supra, at 1004; Hoffa v. United States, 385 US 293; People v. Keller, 148 AD2d 958, lv denied 73 NY2d 1017). Deliberate delay in filing a felony complaint and failure to obtain an arrest warrant before speaking to the defendant to avoid attachment of the defendant's right to counsel, does not require suppression of defendant's statement ( People v. Martin, 254 AD2d 692, lv denied 93 NY2d 855).
Upon the totality of the evidence and circumstances presented ( see, People v. Anderson, 42 NY2d 35, 38), the Court concludes that the prosecution has sustained its burden of proof that defendant's oral and written statements were made voluntarily ( see, People v. Towndrow, supra; People v. Reyes, 190 AD2d 693, lv denied 81 NY2d 975; People v. Bilbrew, 177 AD2d 582, lv denied 79 NY2d 918; see also, People v. Ramos, 99 NY2d 27).
Therefore, the Court determines that defendant's oral statement was obtained with due regard to his constitutional rights, and as such, defendant's statement referenced in the People's CPL 710.30 notice, is duly admissible at trial. Therefore, defendant's motion to suppress his oral statements to the police is denied in its entirety.
II. Identification
There was not a police arranged identification procedure for which a CPL 710.30 notice was required ( see, People v. Gee, 99 NY2d 158). " Wade hearings typically involve determinations as to whether law enforcement officials presented an image of a particular person (the defendant) in such a way as to suggest unfairly to the witness that the defendant committed the crime" (People v. Gee, 99 NY2d 158, 163).
Deputy Day testified that at approximately 3:30 a.m. he responded to the larceny at the Penfield Wegman's, where he met with Francione. In silence, they viewed a surveillance video on DVD depicting the larceny. Thereafter, Francione, on his own, printed photographs of the suspects from the surveillance video. When Francione met with Day at approximately 10:00 p.m., Francione told Day that the suspects depicted in the surveillance video were defendant and another person, that he knew defendant from prior encounters at Wegman's, and that Francione had viewed approximately 30 photographs of defendant during his work in security. Under these facts, there was no police arranged identification procedure.
Alternatively, even if it were a police arranged identification procedure, Francione's identification of defendant was confirmatory in nature ( see, People v. Perez, 12 AD3d 1028, lv denied 4 NY3d 801; see generally, People v. Rodriguez, 79 NY2d 445, 450; People v. Collins, 60 NY2d 214, 219).
As such, defendant's motion to suppress the out-of-court and potential in-court identification evidence must be denied.
This constitutes the Decision and Order of this Court.