Seymour W. James, Jr., The Legal Aid Society, New York
(William B. Carney of counsel), for appellant.
R. Vance, Jr., District Attorney, New York (Stephen J. Kress
of counsel), for respondent.
Sweeny, J.P., Mazzarelli, Moskowitz, Gische, Kahn, JJ.
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.
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 ) [internal quotation marks omitted].
The key inquiry is whether the "impermissible
questioning... was not discrete or fairly separable"
(id.[internal quotation marks omitted]).
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.
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.
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 ).
concur except Sweeny, J.P. and Mazzarelli, J. who dissent in
a memorandum by Mazzarelli, J. as follows:
MAZZARELLI, J. (dissenting)
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.
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
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.
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, ...