MICHELLE BERNSTEIN Assistant District Attorney For the People
PATRICK J. REVILLE, ESQ. Reville & Cullen Attorney(s) for Defendant
SUSAN I. KETTNER, City Court Judge.
The People move for leave to reargue this Court's Decision and Order, dated March 23, 2012 which suppressed the defendant's statement upon a finding of two defective Miranda warnings. In the present motion, the People ask the Court to reconsider its prior decision and deny the defendant's motion to suppress the defendant's statement.
Defendant stands charged with the following offenses: Obstructing Governmental Administration 2nd degree, a violation of Penal Law §195.05 and Harassment 2nd Degree-Physical Contact, a violation of Penal Law §240.26(1). This Court held a Huntley Hearing on February 23, 2012 and found that the defendant's statement made during the course of a court-ordered anger management program must be suppressed as the defendant was given two defective Miranda warning, which failed to advise him that anything he said would be used "against him" in a court of law. 
The People's motion for rearguement advances a dually-faceted argument: that the omission of the words "against you" is a minor and inconsequential deviation; and that based upon the totality of the circumstances, the "defendant could not have possibly interpreted the Miranda warnings in any other way, aside from the way in which these warnings were intended, " to place him on notice. (People's Affirmation at Page 2.). The People also cite the following factors to buttress their argument: the fact that the warnings were given twice, (albeit, in the same, incomplete truncated fashion) and that the defendant was familiar with the court system, as this was not his first interaction with the criminal justice system. Defendant argues that he was given inadequate warnings, in violation of his constitutional rights and therefore, the statements must be suppressed. Specifically, the defendant argues that the warnings were both insufficient, insofar as the defendant was never notified that any statement he made would be used against him.
As pointed out in People v. Huntley, 15 N.Y.2d 72, 78 ), the People bear the burden of proving the voluntariness of the defendant's statements beyond a reasonable doubt.
The testimony clearly established that Detective Carpano issued the truncated Miranda warnings twice, leaving out the words that the defendant's statement would be used "against him". [Emphasis Added] . Defendant's statement, which is the subject of the suppression hearing contained incriminating and exculpatory elements. The statement was made after he acknowledged to the detective that he understood his rights, (as stated to him) and did not request an attorney or avail himself of the opportunity to make a phone call.
While this court fully acknowledges that Miranda warnings need not be read or recited verbatim, California v Prysock, 453 U.S. 355, 101 S.Ct. 2806; nor does the court "need to examine Miranda warnings as if construing a will or defining the terms of an easement, " Duckworth v Eagan, 492 U.S. 105, 109 S.Ct. 2875, the Fifth Amendment of the United States Constitution affords a citizen the right to be informed, prior to custodial interrogation, that "he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney, one will be appointed for him prior to any questioning, if he so desires." Miranda v Arizona, 384 U.S. 456, 479, 86 S.Ct. 1602 (1966) [Emphasis Added]. The analysis for reviewing courts is whether the warnings that were administered, reasonably conveyed to the suspect the rights required by Miranda. Prysock, supra. No "talismanic incantation" is required to satisfy the warnings required by Miranda. Prysock, supra. The language used in the Miranda decision or the "fully effective equivalent" are prerequisites to the admissibility of any statement made by a suspect pursuant to a custodial interrogation. So, the issue before the court again is whether the abbreviated Miranda warnings administered by the detective in this case, constitutes a "fully effective equivalent" of the language used in the Miranda decision and whether, based upon the totality of circumstances, the People have proven the voluntariness of the statement sought to be suppressed beyond a reasonable doubt.
Virtually every single case cited by the People in support of their motion, deals with that prong of the Miranda warnings pertaining to the right of an accused to have an attorney present during interrogation.  Of the remaining cases cited, the records are completely devoid of the factual basis of challenged warning.  The People have not cited one case standing for the proposition that omitting the words "against you" in a Miranda warning is acceptable or constitutes a "fully effective equivalent" of the language required by the Miranda court. We question whether there can there be a voluntary, knowing and intelligent waiver of a privilege or a right where a suspect is not fully informed of the consequences of forgoing it. As there are no cases on this point, dealing with this specific prong of the Miranda warning, we defer to the original Miranda court for the underlying rationale of the critical importance of this prong of the argument-that prong which advises the individual of the consequences of waiving the privilege against self incrimination:
"The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it". Miranda, supra [Emphasis Added]. The court further underlined the importance of this prong of the warning because it serves to "make the individual more acutely aware that he is faced with a phase of the adversary system-that he is not in the presence of persons acting solely in his interest" Miranda, supra.
The People argue that "the defendant could not have possibly interpreted the Miranda warnings in any other way, aside from the way in which these warnings were intended" and that looking at the "totality of the circumstances....[t]hese warnings given to the defendant, twice, adequately advised the defendant of the consequence of ...