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In re Application of Brown

November 19, 2010



Preliminary Statement

Respondent Joel L. Blumenfeld, Acting Justice, Supreme Court of the State of New York, submits this memorandum of law in opposition to the petition by Richard A. Brown, District Attorney of Queens County, for a writ of prohibition seeking to enjoin Judge Blumenfeld, pursuant to CPLR Article 78, regarding a suppression motion pending before him in People v. Perez, Queens County Indictment Number 1202/09.*fn2

Factual Background

The facts relevant to this proceeding, which are largely not in dispute, appear in the Verified Petition, the Affirmation of Mark F. Pomerantz, and the exhibits thereto.*fn3

The Parties

Petitioner Richard A. Brown is the District Attorney of Queens County (the "District Attorney"). (Pet. ¶ 3.) He is prosecuting the underlying criminal proceeding at issue on this petition, People of the State of New York v. Elisaul Perez, Queens County Indictment Number 1202/09.

Respondent Joel L. Blumenfeld is a Criminal Court Judge and Acting Supreme Court Justice. Judge Blumenfeld is the presiding judge in Part K-23, Supreme Court, Queens County, where the People v. Perez action is currently pending.

Respondent Elisaul Perez is the defendant in the People v. Perez proceeding pending before Judge Blumenfeld.

Perez's Arrest and Post-Miranda Statements

On March 13, 2009, NYPD officers arrested Elisaul Perez for an alleged robbery of an iPod. They took him to the 110th Precinct in Queens County, where Police Officer Edgar Gomez gave Perez Miranda warnings in both English and Spanish. (Ex. A at 7.) *fn4 At the precinct, Perez made the following statement in Spanish: "I fought with the person on the street, and I punched him in the face, and his iPod fell down, and blood from the gentleman's head fell on [my] sneakers." (Id.)

Perez later put his statement into writing, in Spanish. (Id.) Translated, it reads as follows:

I am writing for this so I can get out of this problem I had and the truth is I never wanted to harm anyone and I have never before been jailed in a jail but some time ago someone gave me a beating and left me unconscious and back then I was unable to do anything but then again I found this same person and I fought with him and caused him to bleed a little and blood fell on my sneakers and when I was leaving [unintelligible] and his ipo [sic] fell and I picked it up but I did not take it by force or anything like that I only kept it so that another person would not take it but he made it worse for me and I only tried to make him understand that I did not want to hurt him or anyone else. (Id. at 7--8.)

Perez's Central Booking Queens Interview

On May 14, 2009, prior to arraignment, Perez was interviewed at Central Booking Queens ("CBQ") by a detective and two attorneys from the District Attorney's Office. Perez's interview was conducted pursuant to District Attorney's CBQ Interview Program. (Id. at 8, 14.)

As explained by the District Attorney, under the CBQ Interview Program, which was initiated in 2007, videotaped interviews of individuals awaiting arraignment on felony charges are conducted by investigators from [the District Attorney's] office or by assistant district attorneys in a room in the Central Booking facility in Kew Gardens. The entire interview is videotaped from beginning to end-and the defendant decides whether to speak to [the District Attorney's Office] knowing that the interview is being videotaped. A copy of the videotape is given to defense counsel at arraignment. (Ex. F at ¶ 4.)

The CBQ interview "begins with a standard script, the Miranda warnings, then questions and answers." People v. Ferreira, No. N10208/09, at 5 (Sup. Ct. Queens Cnty. Dec. 17, 2009) (Grosso, J.) (Ex. BB at 5.) As another Queens County Supreme Court Justice has noted, "[i]n the cases [he] ha[s] heard, most arrestees are brought for the CBQ interview between 18--20 hours after arrest." Id.

In Perez's case, he was brought for his interview approximately 14 hours after his arrest. (Ex. E.) Detective Sergeant Mary Picone, reading from the "standard script," began the interview by introducing herself, two assistant district attorneys who were present, and the interpreter. She informed Perez that there were robbery and criminal possession of stolen property charges "pending" against him as the result of an incident that took place on March 13, 2009, at 12:21 a.m., at 9217 53rd Avenue in Queens County. She told Perez that "in a few minutes" he will be read his rights, and after that he would be "given an opportunity to explain what happened at that date, time, and place." (Id.)

Sergeant Picone then made the following statements to Perez:

If you have an alibi, give us as much information as you can, including the names of any people you were with.

If your version of the events of that day is different from what we have heard, this is your opportunity to tell us your story.

If there is something you would like us to investigate concerning this incident, you must tell us now so we can look into it.

Even if you have already spoken to someone else, you do not have to talk to me.

This will be the only opportunity you will have to talk to me prior to your arraignment on these charges.

This entire interview is being recorded with both video and sound.

I will now read you your rights.

Perez was then read his Miranda rights. (Id.)*fn5

After this introduction, Perez agreed to answer questions. During the ensuing interview, Perez said that he beat the complainant because of a past dispute over a girl. He claimed that he had been hospitalized previously after the complainant had beaten him. Perez also repeated his earlier statement that he did not take the iPod from the complainant, but simply picked it up off the ground after it fell when the complainant ran away. Perez also claimed that he had to defend himself because the complainant was going to hit him with a stone. (Id.)

After his CBQ interview, Perez had counsel appointed to represent him and he was arraigned on a felony complaint that charged him with two counts of robbery in the second degree (Penal Law §§ 160.10(1) and 160.10(2)(a)), and one count of criminal possession of stolen property in the fifth degree (Penal Law § 165.40). (Ex. A at 1.)*fn6

Perez's Motion To Suppress His CBQ Statements

On July 3, 2009, Perez filed an omnibus motion seeking, in part, to suppress statements made at his CBQ interview or, in the alternative, to receive a pre-trial hearing to determine whether the statements were obtained in violation of state or federal law. (Ex. I at 6.) On July 28, 2009, the District Attorney's Office responded to Perez's motion, consenting to a hearing but denying that the defendant's statements were unlawfully obtained. (Ex. J at 3.) On August 17, 2009, Acting Supreme Court Justice James Griffin issued an order directing, inter alia, that a pre-trial hearing be held to determine the voluntariness of defendant's statements. (Ex. K at 3.)

A pre-trial hearing regarding defendant's motion to suppress his CBQ statements and other evidence was held before Judge Blumenfeld on November 19, 2009, December 2, 2009, December 11, 2009, and December 18, 2009. (Ex. A at 2.) At the December 11 hearing, ADA Anjula Garg, who participated in the CBQ interviews of Perez and his co-defendant, testified regarding the admissibility of the CBQ statements. (Ex. L.)

Judge Blumenfeld asked ADA Garg some questions at the December 11 hearing. In particular, he asked ADA Garg what the District Attorney's Office had done to investigate the statements Perez and his co-defendant made during their CBQ interviews, given that "[i]n each of these cases, it is said to the defendant that if there's anything that you want to tell us, you must tell us now and we'll investigate it." (Id. at 159.) With respect to Perez's statement, ADA Garg testified that she "personally didn't investigate it," but that the information from each interview was given to "the assigned assistant [district attorney] to then investigate." (Id. at 161.) ADA Garg testified that she "d[id]n't know" if the assigned assistant had done any investigation regarding Perez. (Id. at 162.)*fn7

Perez's counsel similarly asked ADA Garg if she "d[id] anything to investigate" his client's CBQ statements, noting that Perez "told [her] that he had been injured in the prior spring by being assaulted by the complainant and others in this case." (Id. at 174.) ADA Garg reiterated that she "personally did not." (Id.)*fn8

On January 27, 2010, after the suppression hearing ended, Perez submitted a memorandum in support of his motion to suppress the CBQ statements and other evidence. (Ex. M.) Perez argued that the CBQ interview violated his constitutional rights and that the CBQ Interview Program "violates the Disciplinary Rules," specifically DR 7-104(A)(2), and must be suppressed on that basis as well: "Whether a prosecutor obtains a damaging statement from an accused by bypassing existing counsel, or by exploiting the layperson's temporary uncounseled status in the courthouse before the imminent appointment of counsel, the ethical violation is effectively the same and thus the defendant's video statement must be suppressed." (Id. at 22; see id. at 14--22.)

The People's post-hearing memorandum argued, among other things, that Perez's CBQ interview had not violated any ethical rules, including DR 7-104(A)(2). (Ex. N at 4.) Nothing in the memorandum suggested that Judge Blumenfeld was prohibited from considering ethical issues arising out of the interview or the motion to suppress.

Other Queens County Judges Consider the Legal and Ethical Propriety of the CBQ Interview Program

This case is not the first in which the legal and ethical propriety of the CBQ Interview Program has been raised by the parties or addressed by a court. Starting in the summer of 2009, Judicial Hearing Officer Thomas A. Demakos, the former Chief ADA under two previous Queens County District Attorneys and a former Justice of the Supreme Court, recommended the suppression of a defendant's CBQ statements in five separate opinions. People v. Floyd, No. 3034/08 (July 20, 2009) (Ex. X-1); People v. Ware, No. 1916/08 (July 20, 2009) (Ex. Y-1); People v. Comery, No. 1376/08 (Aug. 4, 2009) (Ex. Z-1); People v. Bonaparte, No. 37/09 (Dec. 2, 2009) (Ex. AA-1); People v. Davis, No. 2512/08 (Apr. 30, 2010) (Ex. CC-1).

In each of these cases, JHO Demakos, after viewing the videotaped interview and conducting a hearing, found that the CBQ procedure violated the defendant's Miranda rights. In his view, "the remarks made prefatory to the issuance of Miranda warnings diluted the effect of issuance to such an extent that the defendant's waiver of his rights cannot be said to have been knowingly and intelligently made." Ware, slip op. at 8 (Ex. Y-1 at 8); see Davis, slip op. at 6 (Ex. CC-1 at 6); Comery, slip op. at 14(Ex. Z-1 at 14); Floyd, slip op. at 7 (Ex. X-1 at 7).

In each of these cases but one (People v. Davis),JHO Demakos also found that the CBQ interview ran afoul of Disciplinary Rule 7-104(A)(2) of the New York Code of Professional Responsibility, which "direct[s] that in representing a client, a lawyer shall not '[g]ive advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyer's client.'" Comery, slip op. at 15--16 (Ex. Z-1 at 15--16); Ware, slip op. at 8--9 (Ex. Y-1 at 8--9); see Bonaparte, slip op. at 5 (Ex. AA-1 at 5); Floyd, slip op. at 7--8 (Ex. X-1 at 7--8). He concluded that this ethical violation provided an independent basis to suppress the defendants' CBQ statements. Comery, slip op. at 17 (Ex. Z-1 at 17); Floyd, slip op. at 8(Ex. X-1 at 8); Ware, slip op. at 9 (16-A at 9); see Bonaparte, slip op. at 5 (Ex. AA-1 at 5).

JHO Demakos's recommendations to suppress were initially endorsed by the presiding Supreme Court justices in Ware (Judge Gavrin), Comery (Judge Buchter), and Davis (Judge Hollie). (Ex. Y-2 (Ware);Ex. Z-2 (Comery); Ex. CC-2 (Davis).) After orders to suppress were issued in these cases, however, the District Attorney personally wrote letters to each of the Judges, requesting that they "withdraw [their] decisions adopting Judge Demakos' reports until at least such time as [they] can rule on the issues raised in the reports with the benefit of full and fair argument by all parties to the cases." (Ex. Y-3 (Ware and Comery); see Ex. CC-3 (Davis).) After receiving the District Attorneys' letter, each judge withdrew the decision, ordered further briefing on the legal and ethical issues, and eventually denied suppression of the CBQ statements on both constitutional and ethical grounds. (Exs. Y-4 & Y-5 (Ware); Exs. Z-3 & Z-4 (Comery); Exs. CC-4 & CC-5 (Davis).)

In Comery, although he ultimately denied the defendants' motions to suppress their CBQ statements, Judge Buchter "fe[lt] compelled to register [his] disapproval of the program" and to "note that a like program instituted by the United States Attorney for the Southern District of New York in the 1970s was terminated after several panels of the Second Circuit Court of Appeals expressed their disapproval." Comery, slip op. at 2 (Nov. 10, 2009) (citing United States v. Foley, 735 F.2d 45 (2d Cir. 1984), United States v. Perez, 733 F.2d 1026, 1036 (2d Cir. 1984), and United States v. Duvall, 537 F.2d 15, 23--24 (2d Cir. 1976)) (Ex. Z-4 at 2).*fn9 While finding the CBQ Program, at least under facts of that case, to be "in technical compliance with existing precedent and the disciplinary rules of the Code of Professional Conduct," Judge Buchter expressed the view that the script was "deceptive" and that, through their participation in the CBQ interviews, the District Attorney and his Assistants "fail[ed]" to comply with their "obligation to deal fairly with the accused." Id.

JHO Demakos's two other recommendations to suppress CBQ statements, in Floyd and Bonaparte, were rejected by the presiding Supreme Court judges. (Ex. X-2 (Floyd); Ex. AA-2 (Bonaparte).) While denying the motion to suppress in Floyd, however, Judge Kron made clear that "the practice of the District Attorney's Office to engage in pre-Miranda questioning of a defendant awaiting arraignment is a matter of concern." Floyd, slip op. at 4 (Sept. 9, 2009) (Ex. X-2 at 4). Judge Kron stated that, although he did not find a legal or ethical violation in the case, "[c]ertainly, the detective should have administered Miranda warnings initially since defendants are clearly in custody and the initial script is the functional equivalent of questioning because it is reasonably likely to elicit a response." And Judge Kron advised that "[t]he District Attorney's Office may want to review and reevaluate this process because of its vulnerability to the fact specific challenges it may likely face." Id.

In two other decisions, People v. Ferreira and People v. Taylor, Judge Grosso denied motions to suppress CBQ statements on legal and ethical grounds. (Ex. BB (Ferreira); Ex. DD (Taylor).) Like Judges Buchter and Kron, Judge Grosso expressed reservations about the CBQ Interview Program, noting that similar procedures "have been criticized in the federal courts" and that "[c]courts in this county have been critical of the program, yet no court has held that the program is, per se, constitutionally infirm." Ferreira, slip op. at 5--6 (Dec. 17, 2009) (citing United States v. Duvall, 537 F.2d 15 (2d Cir. 1976)) (Ex. BB at 5--6). Judge Grosso stated that he was "trouble[d] . . . that at a moment in time when all of the 'awesome machinery possessed by the state' confronts an individual, he stands alone and unrepresented." Id. at 6 (quoting People v. Cunningham, 49 N.Y.2d 203 (1980)). This struck Judge Grosso, he stated, as "facially unfair." Id.

Judge Blumenfeld's Prior CBQ Decisions

This case is also not the first time that Judge Blumenfeld has considered a defendant's motion to suppress CBQ statements. In several prior cases, Judge Blumenfeld denied defendants' motions to suppress statements made during their CBQ interviews. People v. McAllister, No. 1106-09 (Oct. 5, 2010); People v. Halliburton, No. 2060/2008 (Mar. 20, 2009); People v. Piercing, No. 2060/2008 (Mar. 20, 2009); People v. Simpson, No. 2060/2008 ...

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