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People v. White

Supreme Court, Bronx County

July 5, 2017

The People of the State of New York
Jermaine White, Defendant.

          For the People: Assistant District Rachel Kalman, Bronx County District Attorney.

          For the defendant White: Jason Foy, Esq., Foy & Seplowitz, LLC.

          Martin Marcus, J.

         On May 30 and 31 and June 14, 2017, I conducted a Huntley hearing. [1] At the hearing, Detective Kristin Flood of the New York City Police Department testified for the People. The defendant called no witnesses. For the reasons set forth in this decision, I find that the People have met their burden of proving beyond a reasonable doubt that the defendant's statements were voluntarily made. People v. Thomas, 22 N.Y.3d 629, 641 (2014); People v. Huntley, 15 N.Y.2d 72, 78 (1965); People v. Velez, 211 A.D.2d 524, 524 (1st Dept. 1995). Accordingly, the defendant's motion to suppress the statements he made to the police is denied.

         On August 10, 2013, Detective Flood was assigned to the investigation of the shooting death of Clayton Wright the day before at 4026 Paulding Avenue in the Bronx. Droplets of blood were found in the hallway outside of the apartment where the body was recovered and a sample of that blood was submitted for DNA testing. On November 2, 2013, Detective Flood was notified that the testing had resulted in a "hit" that made the defendant a suspect in the homicide. As a result, Detective Flood issued an "I-card" for the defendant, and on August 19, 2014, he was informed that the defendant was being held in Westchester County on an outstanding Bronx County warrant. Accompanied by Detective Crissfield, Detective Flood traveled to Westchester County and brought the defendant back to the 47th precinct in the Bronx that same day.

         At issue in the hearing were the admissibility of three custodial statements the defendant made after he was brought to the 47th precinct on August 19, 2014: a written statement he made at 12:15 p.m.; a video statement he made beginning at 2:50 p.m. and ending at 3:35 p.m.; and a second video statement he made beginning at 4:30 p.m. and ending at 5:39 p.m. Also at issue was an oral statement he made at the Bronx Homicide Task Force office at 12:20 a.m. on August 21, 2014.

         The People established at the hearing that before each of the defendant's August 19th statements, he was read his Miranda warnings, acknowledged that he understood them, and voluntarily agreed to waive them and make a statement. The administration of the Miranda warnings and the defendant's waiver of his Miranda rights appear at the beginning of the recordings of the defendant's two video statements. As the defendant concedes in a memorandum of law his attorney submitted after the hearing, "there is no doubt that Mr. White knowingly and intelligently waived his privilege against self-incrimination and his right to counsel."

         Pursuant to the Police Department protocol in effect at the time, the defendant's written statement, which preceded his two video statements, was not video recorded. However, Detective Flood testified that he asked each of the Miranda questions, and the defendant responded to each one affirmatively, thereby indicating that he understood his rights as Detective Flood read them to him off the Miranda form, and that he was willing to waive them and to make a statement. The form itself was introduced into evidence. On it, the defendant acknowledged his oral responses by placing his initials next to the "yes" response Detective Flood had written alongside each question on the form, and by signing at the bottom of the form. Moreover, at the beginning of the first video statement the defendant made later that day, he verbally acknowledged that before making his written statement, Detective Flood had read him his Miranda rights, that he had understood them and initialed each "yes" response, and that he had voluntarily made the written statement.

         Between the defendant's written and video statements on August 19th and his oral statement on August 21st, the defendant had the opportunity to use the bathroom and to sleep overnight. Concerning the defendant's August 21st oral statement, Detective Flood testified that based on information obtained in an interview of a witness, the "felony DA" assigned that day wanted to take a third video statement from the defendant. For that purpose, the defendant was brought to the Bronx Homicide Task Force office at 1086 Simpson Street. According to Detective Flood, as he and Detective Malarky were removing the defendant from a holding cell to take him for the statement, the defendant saw a photograph Detective Flood had obtained of Pearce Cuthbert, the defendant's eventual co-defendant, in Detective Flood's "front or rear pocket." Recognizing Cuthbert, the defendant stated, as reflected in a contemporaneous note Detective Flood wrote on the back of the photograph, "I guess you know I shot myself in the leg. I did not kill that man, Pearce did." At that point, the defendant requested an attorney and no video interview with the assistant district attorney took place.

         Based on Detective Flood's testimony, the People claim that this statement was spontaneous and not the product of interrogation, and was thus admissible without the prior administration of Miranda warnings. Alternatively, they argue that, even if interrogation did occur, Miranda warnings did not have to be administered, since they had been read to the defendant three times before, and each time he had waived them. Pointing out that Detective Flood's note on the back of the photograph begins, "U/S [undersigned] [and] Malarky attempted to speak with the suspect. Suspect was shown a single photograph of Pearce Cuthbert..., " the defendant argues that the defendant's statement was the product of custodial interrogation, and that because of the lapse in time since the last administration of Miranda warnings, their readministration was required before interrogation could begin.

         Given that it is the People's burden to prove voluntariness beyond a reasonable doubt, given Defendant Flood's contemporaneous notation that he and Detective Malarky were "attempt[ing] to speak" with the defendant, and that the defendant " was shown a single photograph of Cuthbert" (emphasis added), and given the improbability that the defendant would have been able to inadvertently observe Cuthbert's photograph in one of Detective Flood's pockets, I do not credit Detective Flood's testimony that the defendant's statement was spontaneous, and find instead that it was the product of the "effective equivalent" of express interrogation. Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980); see People v. Ferro, 63 N.Y.2d 316, 322-23 (1984) (following Innis in holding that the effective equivalent of express interrogation occurs when the police "should have known [that their words or actions were] reasonably likely to elicit an incriminating response") (internal quotation marks and citation omitted). Thus, the defendant's statement is admissible only if the requirement of Miranda warnings was satisfied by those warnings that were unquestionably administered on August 19th.

         Repetition of previously given Miranda warnings is not necessary "where there ha[s] been no break in custody and defendant's statement [is] made within a reasonable time after his initial... waiver of Miranda rights." People v. Irizarry, 199 A.D.2d 180, 181 (1st Dept. 1993); see People v. Encarnacion, 259 A.D.2d 309, 310 (1st Dept. 1999) ("Readministration of Miranda warnings after a 6-hour interval was unnecessary, since defendant knowingly and intelligently waived those rights [initially] and had remained in continuous custody, in non-coercive environment, during [the interval]") (internal quotation marks and citation omitted; brackets in original); People v. Shomo, 235 A.D.2d 208 (1st Dept. 1997) (readministration of Miranda rights unnecessary where "defendant had knowingly and intelligently waived those rights five hours earlier and had remained in continuous custody, in a non-coercive environment, during that period"); People v. Glinsman, 107 A.D.2d 710 (2d Dept. 1985) ("It is well settled that where a person in police custody has been issued Miranda warnings and voluntarily and intelligently waives those rights, it is not necessary to repeat the warnings prior to subsequent questioning within a reasonable time thereafter, so long as the custody has remained continuous"). Here, of course, there was no break in custody, and no evidence at the hearing, and no assertion by the defendant, that the environment was in any way coercive. The question remains whether, nonetheless, the time between the defendant's last Miranda waiver and his oral statement, thirty-one hours and fifty minutes, was "reasonable."

         In People v. Zappulla, 282 A.D.2d 696, 698 (2d Dept. 2001), the Second Department found a period of twenty-four hours between a defendant's two statements to be unreasonable, but there the court held that "under the circumstances of this case, " that gap was unreasonable because the "defendant spent much of March 17, 1998, at the hospital being treated for injuries sustained in a car accident on the way to central booking and therefore, was not in a continuous custodial environment. Moreover, the second interrogation concerned a crime unrelated to that for which he was initially arrested." In this case, unlike in Zappulla, there was no break in custody, the interrogation concerned the same crime about which he had been previously questioned, and Miranda warnings were previously administered not once or twice, but three times.

         While there appear to be no cases on point in the First Department, the Second Department has twice found a delay of twenty-five hours to be reasonable. In People v. Petronio, 34 A.D.3d 602, 604 (2d Dept. 2006), "during his continuous and uninterrupted detention, the defendant waived his Miranda rights and confessed to killing the victim. The defendant then proceeded over the ensuing hours to spin a series of differing tales describing the manner of the killing and disposal of the body." Noting that, "[d]uring that time, the police obtained a search warrant to search the defendant's home and investigated the defendant's varied assertions, " and that "[t]he defendant was provided with food and the opportunity to use toilet facilities, as well as opportunities to rest in solitude, " the court held that "the passage of a total of 25 hours from the time the police administered Miranda warnings to the time of the defendant's final statement was not unreasonable." Id. Similarly, in People v. Gega, 74 A.D.3d 1229, 1231 (2d Dept. 2010), the court found, without describing the testimony ...

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