Appeal from a judgment of the Justice Court of the Town of Southold, Suffolk County (Rudolph H. Bruer, J.), rendered December 14, 2007.
People v Bellissimo (Paul)
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ
The judgment convicted defendant, upon a jury verdict, of criminal trespass in the second degree. The appeal from the judgment of conviction brings up for review, among other things, the denial (Rudolph H. Bruer, J.), without a hearing, of the branches of defendant's omnibus motion seeking to suppress evidence and to compel discovery. By decision and order dated December 3, 2009, this court remitted the matter to the Justice Court for a determination on the merits, following such hearings as might be warranted, of those branches of defendant's omnibus motion seeking the suppression of evidence, and for a report, and the appeal was held in abeyance in the interim (25 Misc 3d 141[A], 2009 NY Slip Op 52463[U]). The Justice Court (Rudolph H. Bruer, J.) has now filed its report, setting forth, among other things, its denial, following a hearing, of those branches of defendant's motion seeking the suppression of evidence.
ORDERED that the judgment of conviction is reversed, on the law, the order denying defendant's motion to suppress evidence is vacated, defendant's motion to suppress evidence is granted to the extent set forth in this decision, and, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed.
Defendant was charged with criminal trespass in the second degree (Penal Law § 140.15) on the theory that he had unlawfully entered the house of his ex-wife and her husband. He was also charged with assault in the third degree (Penal Law § 120.00 ) for allegedly assaulting his ex-wife while inside the house. A defense theory at the jury trial was that defendant had been justified in entering the house (see Penal Law § 35.05 ) because he had heard his daughter screaming inside and feared for her safety. Defendant was acquitted of the assault charge, but convicted of the criminal trespass charge.
In People v Bellissimo (25 Misc 3d 141[A], 2009 NY Slip Op 52463[U]), we concluded, among other things, that the Justice Court erred in summarily denying the suppression branches of defendant's omnibus motion on the ground that the motion was untimely. We held the appeal in abeyance and remitted the matter to the Justice Court to, among other things, hear and report on the branch of defendant's omnibus motion that was to suppress statements on the grounds that they were obtained in violation of Miranda v Arizona (384 US 436 ) and defendant's right to counsel under the New York State Constitution (NY Const, art I, § 6). On remittitur, the Justice Court decided, after a suppression hearing, that the suppression of defendant's statements was not warranted. We now reverse the judgment of conviction and dismiss the accusatory instrument.
The statements at issue are contained in a DVD, introduced into evidence at trial, of a conversation that took place between defendant and a police officer while defendant was sitting handcuffed in the back of the police car after the incident in question. The People correctly concede that defendant was in custody at that time (see e.g. People v Weekes, 52 AD3d 1032, 1034 ). According to the DVD, and the police testimony at the suppression hearing held by the Justice Court following this court's remittal, Miranda warnings were at no point administered.
The DVD reveals that, in the first phase of the conversation, defendant, on his own initiative, asserted that his ex-wife had "been tormenting and torturing" their child. This was a spontaneous statement not requiring suppression under Miranda (see People v Lynes, 49 NY2d 286, 293-295 ; People v Norman, 77 AD3d 497, 498 ). In the next phase of the conversation, defendant first informed the police officer that he had "called [his] attorney already." From this point on, as a New York State constitutional matter (NY Const, art I, § 6), defendant's right to counsel had "attach[ed] indelibly" (People v McLean, 15 NY3d 117, 120  [internal quotation marks and citation omitted]), and he could not be interrogated in his attorney's absence (see id.; People v Burdo, 91 NY2d 146, 149 ). Defendant then asked the police officer whether the officer thought that the incident would be treated as "domestic," and responded with dismay when the officer said, "Right now it's a domestic." The comments made by defendant during this second phase of the conversation were also spontaneous, rather than the product of interrogation, and were therefore not subject to suppression on either Miranda (see People v Lynes, 49 NY2d at 293-295; People v Norman, 77 AD3d at 498) or right-to-counsel (see People v Rivers, 56 NY2d 476, 479 ; People v Cunningham, 49 NY2d 203, 210, n 2 ) grounds.
The next portion of the conversation began with the police officer's responding to defendant's expression of dismay by saying, in part, "We'll see what we can do." The exchange continued with the officer's asking defendant, "You and your wife have been split up for 10 years?"; defendant's answering, "Yeah, for 10 years," and the officer's asking, "[W]hat's the story with [your daughter]?" An extended conversation ensued about defendant's relationship with his wife and daughter. Defendant's statements after the police officer posed these questions were no longer spontaneous, but, rather, were the product of interrogation or its "functional equivalent" (Rhode Island v Innis, 446 US 291, 301 ; see People v Lombardi, 97 AD2d 278 ; see also People v Lanahan, 55 NY2d 711 ; cf. People v Rivers, 56 NY2d at 479-480; People v Lynes, 49 NY2d at 293-295; People v Ziegler, 78 AD3d 545 ; People v Webb, 224 AD2d 464, 465 ), and, as such, should have been suppressed on both Miranda (see Miranda v Arizona, 384 US 436) and New York constitutional right-to-counsel (see People v McLean, 15 NY3d 117) grounds.
The proof of defendant's guilt was not "overwhelming" (People v Crimmins, 36 NY2d 230, 241 ), in that the proof that his entry into the premises was not justified was very weak. Consequently, the erroneous admission of the statements cannot be deemed harmless, and reversal of defendant's conviction is warranted (see id.). Moreover, in light of the weakness of the proof of guilt, rather than order a new trial, we dismiss the accusatory instrument, as a matter of discretion in the interest of justice ...