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The People &C v. Dean Pacquette

June 7, 2011


The opinion of the court was delivered by: Read, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

On the evening of April 19, 2007, one man was shot to death and another was wounded (he was shot in the buttocks) in a shooting incident that took place outside an abandoned building on Bainbridge Street in Brooklyn, which had become a hangout for a group of young men. The body of the deceased victim was discovered in the building's basement, to which he evidently retreated after he was hit. Defendant Dean Pacquette was indicted for second-degree murder (intentional) (Penal Law § 125.25 [1]); second-degree assault (Penal Law § 120.05 [2]); and second-degree weapon possession (two counts) (Penal Law § 265.03 [1] [b], [3]) in connection with the shooting. He moved to suppress inculpatory statements that he made to the police on the ground that they were obtained in violation of his right to counsel.

At the ensuing Huntley hearing, Detective Alan Killigrew testified that he identified defendant as a suspect because of information he received shortly after the shooting from two eyewitnesses. Then on May 17, 2007, he learned that defendant had been arrested for a drug crime in Manhattan. Detective Richard Amato traveled to Manhattan to "pick up" defendant and bring him to the precinct in Brooklyn for a lineup. Amato found defendant in a holding cell in Manhattan, waiting to be arraigned, and arranged through the New York City Police Department for him to be released temporarily into his custody.

A few hours after Amato arrived at the precinct in Brooklyn with defendant, the police conducted two separate lineups -- one for each of the two eyewitnesses. Both eyewitnesses identified defendant. Before these lineups, at about 9:00 P.M., Miranda warnings were issued to defendant, who claimed that he knew nothing about the shooting; after the lineups, Killigrew advised defendant that he was "charged with homicide." Amato and Detective Erick Parks then escorted defendant back to Manhattan for arraignment for the drug crime. During the ride back, Amato "probably" let defendant know that he had been identified in both lineups.

Upon arrival in Manhattan, Amato spoke to prosecutors to clear defendant's release on his own recognizance after arraignment so that he could be taken back to Brooklyn. Meanwhile, Parks accompanied defendant to the courtroom. When Amato later joined them, defendant sat between the two detectives in the front row, waiting for his case to be called. At some point before defendant's arraignment, attorney Daniel Scott was assigned to represent him on the drug charge. While Scott, Amato and Parks agree that they met and spoke in the Manhattan courtroom, their accounts of exactly what was said differ in certain respects.

According to Amato, Scott introduced himself as "the attorney for the arraignment on this case," meaning "[defendant's] drug case." Scott did not indicate that he represented defendant in any other case. Amato "took [Scott's] business card," which is how Amato later recalled Scott's name. When Scott asked Amato if he could speak to defendant "in private," Amato moved two rows back and Parks slid down the row and away from defendant so as to accommodate this request.

After defendant was arraigned and released on his own recognizance, Amato arrested him "for the homicide." The detectives then took defendant back to where he had been sitting in the courtroom because "the attorney . . . wanted to speak to him." Amato testified that he overheard Scott tell defendant that he was "not going across the bridge into Brooklyn to represent him," and that he didn't

"represent him in the other case. He represents him in the drug case. He'll have an attorney for his new case in Brooklyn. He also said, I advise you not to speak to the police because I can't tell you that you cannot speak to the police but I'm advising you not to."

Amato added that Scott did not at any time tell him that he was representing defendant on the homicide charge; Amato gave Scott his business card at Scott's request.

Parks testified that he, Amato and defendant were sitting in the front row of the courtroom waiting for defendant to be arraigned when someone he assumed to be a Legal Aid attorney (whose name Parks did not recall) "approached" defendant and "asked if he could have a word with" him. He and Amato then "moved [their] position" so as to allow the attorney to interview defendant while they still kept an eye on him. Parks also testified that at some point after the arraignment Amato had a "brief" conversation with the attorney, and that Amato informed him that he had overheard the attorney tell defendant that "he represent[ed] him on the Manhattan case," and "doesn't go over the bridge," and was "not representing him in Brooklyn, that he'll represent him in the Manhattan case." According to Parks, the attorney never told him that defendant was represented by counsel, and never directed him not to question defendant.

Scott testified that when he was assigned to represent defendant in the drug case, he was notified by the clerk of the night court that two Brooklyn detectives had brought defendant to the courtroom. The clerk asked him to expedite the arraignment "because the detectives had brought [defendant] in." The clerk also alerted Scott to the "agreement between the detectives and the district attorney's office [for defendant to] be released into the detectives' custody." Scott introduced himself to defendant, who was sitting between the two detectives, and gave him his business card. He "may or may not have given" business cards to the detectives, but, in any event, "it was apparent who [he] was and what [he] was doing there."

Scott did not interview defendant, because "there was no privacy whatsoever." He simply read the felony complaint and asked defendant if he understood what he was being charged with; there was "no reason to discuss . . . bail because his ROR had . . . previously been worked out." Scott, who was not on the 18B panel in Kings County, testified that he "clearly" recalled warning the detectives that defendant "was represented by counsel and that they should not question him." Similarly, he advised defendant not to "discuss any legal matter with [the detectives] whatsoever."*fn1

Scott denied telling defendant or the detectives that he would not cross over the Brooklyn Bridge; he conceded, however, that he never indicated to defendant that he would be or was considering representing him in the homicide case, although he might have commented that he "would be happy to represent him." In answers to questions posed by the judge, Scott confirmed that he was not defendant's attorney for the homicide, and never told the detectives otherwise:

"THE COURT: I just want to be clear, Mr. Scott, did you tell the detectives from Brooklyn who brought [defendant] over for his arraignment in Manhattan that you were representing [defendant] at any time? Did you tell them that?

"THE WITNESS: Yes, I did, aside from it being --"THE COURT: Okay.

"THE WITNESS: Yes, I said he is represented by counsel, do not question him.

"THE COURT: As far as the drug case or the homicide case or both?

"THE WITNESS: I didn't specify.

"THE COURT: You didn't specify. So you had been engaged to represent him as an 18 B for the drug sale ...

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