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People v. Silvagnoli

Supreme Court of New York, First Department

June 6, 2017

The People of the State of New York, Respondent,
v.
Roque Silvagnoli, Defendant-Appellant.

          Seymour W. James, Jr., The Legal Aid Society, New York (William B. Carney of counsel), for appellant.

          Cyrus R. Vance, Jr., District Attorney, New York (Stephen J. Kress of counsel), for respondent.

          Sweeny, J.P., Mazzarelli, Moskowitz, Gische, Kahn, JJ.

         Judgment, Supreme Court, New York County (Renee A. White, J. at suppression hearing; Rena K. Uviller, J. at plea and sentencing), rendered November 20, 2012, convicting defendant, upon his plea of guilty, of manslaughter in the first degree, and sentencing him to a term of 18 years, reversed, on the law, the motion to suppress defendant's statements granted, the plea vacated, and the matter remanded for further proceedings.

         Even where two criminal matters themselves are not related, police may not question a suspect on one matter on which he or she is represented by counsel "in a manner designed to elicit statements on an unrelated matter" in which the suspect is not represented (People v Cohen, 90 N.Y.2d 632, 641 [1997]) [internal quotation marks omitted]. The key inquiry is whether the "impermissible questioning... was not discrete or fairly separable" (id.[internal quotation marks omitted]).

         Here, the detective who questioned defendant in a homicide investigation acknowledged that during the questioning a "conversation came up" in which he told defendant that he knew about a pending drug case against defendant in which he knew defendant was represented by counsel. Specifically, the detective recounted telling defendant that "you could say nothing, but that was kind of a dumb thing you did selling drugs to an undercover back in 2007, " and asking if he was so smart why he had sold drugs to an undercover officer.

         Although the reference to the drug charges on which defendant was represented was brief and flippant, it was not, in context, innocuous or discrete and fairly separable from the homicide investigation. The detective told defendant during the questioning that he knew defendant was involved in selling drugs at the location of the murder and that the killing was over a drug debt. The remarks regarding the pending drug case went to defendant's alleged participation in the drug trade at the location of the homicide, the very activity out of which a motivation for killing the victim arose. Indeed, it succeeded in eliciting from defendant a response that may fairly be interpreted as incriminating himself in dealing drugs at the location, the alleged motivation and context out of which the homicide occurred. Accordingly, because questioning regarding the drug case on which defendant was represented by counsel was intertwined with questioning regarding the homicide, defendant's statements should have been suppressed.

         However, we find no other basis for suppression. As the dissent notes, the repeated comments made to defendant by the detective and his colleagues to the effect that defendant should "tell [his] side of the story" immediately because if he were to wait until trial, "[no] one is going to believe" him and he would be "charged with murder, not... manslaughter" did not vitiate the Miranda warnings defendant had received (Matter of Jimmy D. 15 N.Y.3d 417');">15 N.Y.3d 417');">15 N.Y.3d 417');">15 N.Y.3d 417 [2010]).

          All concur except Sweeny, J.P. and Mazzarelli, J. who dissent in a memorandum by Mazzarelli, J. as follows:

          MAZZARELLI, J. (dissenting)

         Over two and one-half years after the homicide for which defendant was ultimately convicted, he was arrested for an unrelated crime. Detective Eric Ocasio, the lead investigator in connection with the homicide, who suspected defendant of being its perpetrator, took custody of him after the arrest, and, after reading defendant his Miranda rights, which defendant waived, questioned him at the 9th precinct stationhouse over the course of three and one-half hours. At the end of the interrogation, defendant confessed to shooting the victim, who he stated was a customer of his drug-dealing business in and around the Campos Plaza projects. According to the written statement, defendant came upon the victim at the projects, and reminded him of a $220 drug debt owed by the victim to defendant. The victim gave him $20, spit in his face and assaulted him. Defendant went up to his girlfriend's apartment and then came back down, where he saw the victim holding a knife. Defendant retrieved a gun that he knew to be hidden in a nearby garbage can. The victim walked towards him holding the knife and threatened to use it if defendant did not shoot him first. Defendant stated that he squeezed the trigger, not expecting the gun to fire since he had tested it previously and it hadn't worked. It did, however, and the victim fled.

         Defendant moved to suppress the statement. At the suppression hearing, Detective Ocasio testified that defendant was in a gang or crew known as the Money Boys that hung out around Campos Plaza, and that multiple people had identified him as the shooter. Ocasio also learned from a witness or witnesses that defendant and his crew fled from the scene immediately after the shooting. Ocasio was unable to locate defendant, who had another criminal case from 2007 pending against him for allegedly selling cocaine to an undercover police officer about five months before the shooting at the same location. On April 30, 2008, Ocasio went to Supreme Court, where defendant had a scheduled court appearance in the 2007 drug case, hoping that defendant would show up. Although defendant's lawyer on that case was present, defendant was not.

         Ocasio described the interrogation as taking place over three discrete sessions, beginning around 4:00 p.m. and marked by breaks that took place at about 5:30 p.m. and again sometime between 7:00 and 7:30 p.m., until defendant gave his statement. During the first session Detective Ocasio elicited general background information about defendant to relax him and build a mutual rapport. During the next session, Ocasio confronted defendant with evidence compiled against him and charges that could be brought. Ocasio told defendant that several people had identified him as the perpetrator of the homicide, showing him the photo array from which defendant had been identified. Ocasio also showed defendant pictures of the victim and falsely told defendant that the victim had gurgled defendant's name before dying. Ocasio further told defendant that his cell phone had been traced to a cell tower in the area.

         Nevertheless, defendant repeatedly denied killing the victim and said words to the effect of "I got nothing to say about this. I've told you what I've got to say." However, Ocasio denied under cross-examination by defendant's counsel that defendant ever said, ...


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