APPEAL by the defendant from a judgment of the Supreme Court (Fernando Camacho, J.), rendered May 10, 2010, and entered in Queens County, convicting him of attempted robbery in the second degree and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Robert C. McGann, J.), of those branches of the defendant's omnibus motion which were to suppress a videotaped statement made by him to law enforcement authorities, physical evidence, and identification evidence. Lynn W. L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel, Robert J. Masters, and Donna Aldea of counsel), for respondent.
Taylor Prendergrass, Susannah Karlsson, and Christopher Dunn, New York, N.Y., for New York Civil Liberties Union Foundation, American Civil Liberties Union, Brennan Center for Justice, New York State Defenders Association, Pre Trial Justice Institute, New York Association of Criminal Defense Lawyers, Five Borough Defense, and Bronx Defenders, amici curiae (one brief filed).
PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, JEFFREY A. COHEN, JJ.
OPINION & ORDER
The office of the Queens County District Attorney (hereinafter the District Attorney's office) instituted a program (hereinafter the Program) under which arrested individuals are systematically interviewed just prior to arraignment, or, in other words, immediately before those individuals' indelible right to counsel would attach. As part of the Program, the District Attorney's office formulated a script, containing a number of statements, which is read to suspects before they are advised of their constitutional rights as required under Miranda v Arizona (384 U.S. 436). The principal issue presented on this appeal is whether this procedure is effective to secure those individuals' fundamental constitutional privilege against self-incrimination and right to counsel. We hold that it is not, and, therefore, that the defendant's videotaped statement, made to members of the District Attorney's office pursuant to the Program, should have been suppressed.
On April 23, 2009, at 12:40 p.m., the complainant was working as the only cashier at a small commercial establishment that provides money-transfer and other services. A customer entered the store, made some photocopies, and then exited the store. About five minutes later, the customer returned and knocked on the store's locked outer door. The complainant, who was sitting at a counter behind a locked door and a plexiglass barrier, opened the outer door with a button located at the counter. The customer entered, displayed what appeared to be a gun, and demanded money. The complainant got down on the floor behind the counter and called 911, after which, the perpetrator left. The complainant was still lying on the ground when the perpetrator left, and did not see whether the perpetrator fled on foot or in a car. She described the perpetrator as a thin, black man who wore a blue and white striped shirt and a hat.
According to pretrial hearing testimony, Police Officer Frank Diliberto and his partners received a radio call related to this incident, which included a description of a getaway vehicle as a black livery cab with New Jersey license plates. Approximately three minutes later, the police officers stopped a black livery cab, which was occupied by one passenger — the defendant — and a driver, whom a police officer described, at trial, as a dark-skinned, Hispanic man. At that time, the defendant was wearing jeans and a black t-shirt. Officer Diliberto removed the defendant from the vehicle and placed him in handcuffs. According to Officer Diliberto, he then found a black "Yankee hat, " a black "handgun, " which turned out to be an air pistol, and a blue and white striped shirt, "on the floor of the black livery on the back seat." Officer Diliberto later clarified that he found these items "directly on the floor in front of the seat" or "[d]irectly behind the driver's seat, on the floor of the vehicle."
Police Officer Peter Linke arrived at the location where the livery cab had been stopped when the defendant was already in handcuffs. Officer Linke saw Officer Diliberto remove the hat, gun, and blue and white striped shirt from the car. When Officer Linke was confronted at the pretrial hearing with his grand jury testimony that he saw Officer Diliberto remove the items from "under the passenger seat in the front, " Officer Linke indicated: "If that's what I said, that's correct."
Shortly after the livery cab was stopped, a police officer brought the complainant to the location of the stopped vehicle, where she viewed the defendant, who was in handcuffs and surrounded by uniformed police officers. Officer Diliberto was standing next to the defendant and holding the striped shirt at the height of his waist, such that the complainant saw the shirt when viewing the defendant. The complainant identified the defendant as the perpetrator. The defendant was then taken to the police precinct. The time of the defendant's arrest was 12:59 p.m. on April 23, 2009.
About 23 hours later, on April 24, 2009, at 12:03 p.m., Sergeant Mary Picone brought the defendant from the "pens, " where he was waiting to be arraigned before a judge, to an interview room to be questioned by herself and Assistant District Attorney (hereinafter ADA) Tina Grillo. As revealed by the recording of the interview, once the defendant was brought to the interview room, Sergeant Picone and ADA Grillo introduced themselves, and ADA Grillo informed the defendant that, "when [he goes] to court, " he would be charged with, among other stated offenses, attempted robbery in the first degree and criminal possession of a weapon in the fourth degree, related to an incident that had occurred the previous day in Queens County at the above-referenced store. In accordance with the Program, Sergeant Picone informed the defendant that "in a few minutes" she would read him his Miranda rights, and that he would "be given an opportunity to explain what [he] did and what happened at that date, time, and place." Sergeant Picone then instructed the defendant as follows:
"If you have an alibi, give me as much information as you can, including the names of any people you were with.
"If your version of what happened is different from what we've been told, this is your opportunity to tell us your story. If there is something you need us to investigate about this case you have to 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 us.
"This will be your only opportunity to speak with us before you go to court on these charges."
(These statements will be hereinafter referred to as the preamble.) Sergeant Picone explained to the defendant that the interview was being recorded, advised him of his right to be arraigned without undue delay, and then read him the Miranda warnings. The defendant indicated his understanding of each warning, after which, Sergeant Picone asked the defendant if he would answer questions. The ...