Opinion
CR–024439–17QN
01-09-2018
The PEOPLE of the State of New York, Plaintiff, v. Murat TUTAR, Defendant.
Kevin Timpone, Assistant District Attorney, for the People Jessica L. Bettencourt, The Legal Aid Society, for the defendant
Kevin Timpone, Assistant District Attorney, for the People
Jessica L. Bettencourt, The Legal Aid Society, for the defendant
Karen Gopee, J.
A Dunaway/Huntley hearing was held on August 17, 2017. Detective Sebastian Chichotky, of the NYPD Transit Special Victims Squad, testified for the People. The defendant presented no witness testimony or other evidence but filed a written memorandum in support of his suppression motion.
At the hearing's conclusion, defense counsel requested an opportunity to submit a written memorandum of law in support of her suppression motion, which this Court granted and ordered filed by September 18, 2017. However, defense counsel required additional time and filed the memorandum on November 2, 2017.
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Findings of Facts
This Court credits the testimony of Det. Chichotky and makes the following findings of fact.
Det. Chichotky was assigned to investigate a complaint made on May 18, 2017, by complainant S.D. During an in-person interview, the complainant told Det. Chichotky that, as the W train stopped at the Astoria–Ditmars Boulevard station in Queens County, the defendant, hugged her and rubbed his erect penis against her thigh without her consent. She provided the detective with the defendant's name and telephone number, as well as a photograph of him that she had taken. Det. Chichotky issued an Information Card ("I–Card") to detain the defendant for questioning.
Pursuant to that I–Card, Det. Chichotky received a telephone call from Transit District 1 on May 25, 2017, informing him that the defendant was arrested at approximately 1:22 a.m. for theft of services (P.L. § 165.15(3)) at Columbus Circle train station in New York county. Later that morning, at approximately 11:40 a.m., Det. Chichotky met with the defendant at the Transit District 1 office, located at 59th Street and Columbus Circle. At approximately 11:44 a.m., after administering Miranda warnings, Det. Chichotky showed defendant the photograph the complainant had provided, and defendant replied, "This is me. This is certainly me." Det. Chichotky documented this statement on the photograph and asked the defendant to sign it. The defendant refused.No testimonial or other evidence was put forth concerning the conditions of the defendant's detention. Det. Chichotky knew that NYPD Officer Miller "had contact with [the defendant] prior to" him, as Officer Miller was the arresting officer on the unrelated theft of services case. However, Det. Chichotky did not know whether anyone had questioned the defendant about this case during the approximately ten hours between his arrest and the detective's arrival.
Conclusions of Law
The defendant asserts that the noticed statement attributed to him is suppressible under three legal theories. First, he argues that the People failed to meet their burden of going forward, as the prosecution presented no evidence supporting the lawfulness of his extra-jurisdictional arrest for an unrelated theft of services charge that provided Det. Chichotky an opportunity to question him pursuant to the I-card. Second, he asserts that the People failed to demonstrate the absence of coercive events during the time interval between his arrest on an unrelated charge and interrogation by Det. Chichotky that may render involuntary the statement attributed to him. Third, he argues that this same time interval, during which he was in police custody, constituted an arraignment delay on the unrelated charge that, under the totality of the circumstances, renders involuntary the statement attributed to him. Each of these arguments is unavailing.
Pursuant to the People's Burden of Going Forward, the Prosecution Must Present Evidence that Establishes a Lawful Rationale for the Issuance of an I–Card, Not the Defendant's Unrelated, Extra–Jurisdictional Arrest That Allowed for Execution of the I–Card
Where a defendant is questioned pursuant to an I-card, the People bear the burden of going forward with evidence that demonstrates a lawful basis for the I-card's issuance. While the circumstances that gave rise to the opportunity to execute an I-card could implicate the voluntariness of a defendant's statements, there is no statutory or common law per se requirement that, to satisfy their burden of going forward, the People must prove the legality of an unrelated, extra-jurisdictional arrest by which an I-card is executed.
In this case, it is uncontroverted that the detailed information given by the complainant provided Det. Chichotky with probable cause to arrest the defendant. Thus, after mirandizing and obtaining consent from the defendant, Det. Chichotky was authorized to interrogate him at any place or time that did not implicate the voluntariness of the defendant's answers.
None of the caselaw cited by the defendant supports his argument for a per se standard in this case, as each involves a defendant's seizure made pursuant to the charges or I-card at issue, not an unrelated charge. Accordingly, the defendant's motion to suppress the noticed statement attributed to him because the People did not provide evidence of the lawfulness of his unrelated, extra-jurisdictional arrest is DENIED .
The Defense Presented No Bona Fide Factual Predicate Demonstrating the Existence of Material Evidence of Events Occurring During the Defendant's Time in Custody Prior to His Interrogation That Could Result in the Involuntariness of the Statement Attributed to Him, and the People Had No Burden to Disprove the Existence of Such Speculative Events
In People v. Mitchell , 149 A.D.3d 653, 50 N.Y.S.3d 874 (1st Dept. 2017), the First Department affirmed the lower court's denial of the defendant's suppression motion, explaining that the hearing evidence "established the voluntariness of defendant's statements" and there was "no evidence that anything coercive occurred during the overnight and morning periods during which the defendant was lodged at a police station before the investigation detective administered the warning and began the interrogation." Mitchell , 149 A.D.3d at 654, 50 N.Y.S.3d 874 (citation omitted). See also People v. Witherspoon , 66 N.Y.2d 973, 973–74, 498 N.Y.S.2d 789, 489 N.E.2d 758 (1985).
Here, similarly, the defendant points to no evidence of anything coercive having occurred during the overnight period between his extra-jurisdictional arrest on unrelated charges and the detective's post-Miranda interrogation of him pursuant to the instant I-card. The defendant's unsupported assertion that perhaps there was untoward action by the police prior to his lawful interrogation by Det. Chichotky is pure supposition that the People have no burden of disproving.
Accordingly, the defendant's motion to suppress the noticed statement attributed to him because the People did not affirmatively disprove the existence of any pre-Miranda illegality that could render the defendant's statements involuntary is DENIED .
The Defendant's Approximately 10–Hour Pre–Interrogation Detention, After His Arrest on a Charge Unrelated to the Issuance of the I–Card, Does Not, Without More, Implicate the Voluntariness of the Statement
The defendant correctly paraphrases the general rule, as articulated by the Court of Appeals in People v. Ramos , 99 N.Y.2d 27, 750 N.Y.S.2d 821, 780 N.E.2d 506 (2002), that "a delay in arraignment ... bears on the voluntariness of the confession, and is a factor to be considered in that regard." Ramos , 99 N.Y.2d at 34, 750 N.Y.S.2d 821, 780 N.E.2d 506 (emphasis in the original). However, the defendant's assertion that, pursuant to this rule, the statement attributed to him in the instant case was involuntarily made is unpersuasive for two reasons. First, the hearing evidence does not support the defendant's assertion that he was held specifically to delay his arraignment on an unrelated arrest until after questioning on the instant matter. Second, assuming arguendo that such an arraignment delay did occur, the evidence, viewed as a whole does not support a finding of involuntariness.
The defendant was arrested in New York county on an unrelated matter at approximately 1:22 a.m.; he was held until Det. Chichotky interviewed him on the instant matter at about 11:40 a.m. However, the New York Criminal Court arraignment parts were closed from at least 1 a.m. to 9 a.m., consequently delaying his arraignment due to a reason independent from the issuance of the I-card and/or interview by the Detective. No evidence was presented or elicited by the defense demonstrating an appreciable delay in the defendant's arraignment on his unrelated arrest.
Moreover, assuming an appreciable delay arguendo , the defendant proffers nothing beyond the delay itself as support for suppression. This solitary factor, without more, does not support a finding of involuntariness. See People v. Cheng Lin , 105 A.D.3d 761, 963 N.Y.S.2d 131 (2d Dept. 2013) (finding that the lower court properly denied suppression of statements made approximately 28 hours after the defendant's arrest because, "[w]hile an undue delay in arraignment is properly considered when assessing the voluntariness of a defendant's confession, a delay in arraignment alone does not warrant suppression, as it is but one factor in assessing the voluntariness of a confession") (emphasis added); Mitchell , 149 A.D.3d at 654, 50 N.Y.S.3d 874 ("There is no evidence that anything coercive occurred during the overnight and morning periods during which the defendant was lodged at a police station before the investigation detective administered the warning and began the interrogation.") (citation omitted).
Accordingly, the defendant's motion to suppress the noticed statement attributed to him as involuntary due to the pre-arraignment delay on an unrelated arrest is DENIED .
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For these reasons, the defendant's motion to suppress the noticed statement attributed to him is DENIED .
This constitutes the decision and order of this Court.