Submitted - April 5, 2018
Randall Richards, Bronxville, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY
(John J. Carmody, William C. Milaccio, and Steven A. Bender
of counsel), for respondent.
WILLIAM F. MASTRO, J.P. REINALDO E. RIVERA LEONARD B. AUSTIN
HECTOR D. LASALLE, JJ.
DECISION & ORDER
by the defendant from a judgment of the County Court,
Westchester County (Barbara G. Zambelli, J.), rendered
September 16, 2014, convicting him of murder in the second
degree and criminal possession of a weapon in the third
degree, upon a jury verdict, and imposing sentence. The
appeal brings up for review the denial, after a hearing, of
that branch of the defendant's omnibus motion which was
to suppress his statements to law enforcement officials.
that the judgment is affirmed.
defendant was convicted of murder in the second degree and
criminal possession of a weapon in the third degree relating
to the killing of Tonya Simmons, who was stabbed 31 times and
found dead in the defendant's bed. The defendant appeals.
individual taken into law enforcement custody for questioning
must be informed of his or her Miranda rights
(see Miranda v Arizona, 384 U.S. 436, 467-473; U.S.
Const Amend V). The Miranda warnings are an
''absolute prerequisite to interrogation''
(Miranda v Arizona, 384 U.S. at 471; see People
v Dunbar, 24 N.Y.3d 304, 314). "Interrogation"
includes express questioning or its functional equivalent,
meaning "any words or actions on the part of the police
(other than those normally attendant to arrest and custody)
that the police should know are reasonably likely to elicit
an incriminating response from the suspect" (Rhode
Island v Innis, 446 U.S. 291, 301; see People v
Paulman, 5 N.Y.3d 122, 129). Statements made in response
to such police words or actions are inadmissible in the
absence of Miranda warnings (see People v
Dunbar, 24 N.Y.3d 304, 314; People v Ferro, 63
N.Y.2d 316, 322; People v Tavares-Nunez, 87 A.D.3d
to the hearing court's determination, the challenged
pre-Miranda statements were the product of custodial
interrogation by Detective Gamble, who should have known that
his questions were likely to elicit an incriminating response
(see People v Paulman, 5 N.Y.3d at 129; cf.
People v Chambers, 184 A.D.2d 716, 717). The
20-to-25-minute interview involved discussions about the
defendant's family and criminal history and whether the
defendant knew why he was being questioned, and did not fall
within the exception for pedigree information reasonably
related to the administrative concerns of the police (cf.
People v Rodney, 85 N.Y.2d 289, 293; People v
Rivera, 26 N.Y.2d 304, 309). Accordingly, the hearing
court should not have denied that branch of the
defendant's omnibus motion which was to suppress his
pre-Miranda statements to Detective Gamble (see
People v Paulman, 5 N.Y.3d at 129). However, the
error was harmless beyond a reasonable doubt, since the
evidence of the defendant's guilt, without reference to
the error, was overwhelming, and there is no reasonable
possibility that the error might have contributed to the
defendant's convictions (see People v Crimmins,
36 N.Y.2d 230, 237).
County Court providently exercised its discretion in
precluding the defendant from presenting expert testimony on
the issue of his low intelligence. "CPL 250.10 was
designed to preserve the integrity of the trial process
predicated on a principle of fairness'' (People v
Silburn, 31 N.Y.3d 144, 161). "[A]llowing a
defendant to use unnoticed psychiatric evidence without good
cause shown would be contrary to the 'legislative intent
... to ensure the prosecution sufficient opportunity to
obtain the psychiatric and other evidence necessary to refute
the proffered defense of mental infirmity'" (id. at
157, quoting People v Berk, 88 N.Y.2d 257, 264).
Here, the defendant did not demonstrate good cause for his
failure to timely serve the People with notice of the expert
testimony (see CPL 250.10; People v Silburn, 31
N.Y.3d at 160-161). The defendant's contention that the
People were not surprised by his request at trial to
introduce such evidence since the People had notice prior to
trial of his intent to offer a defense under CPL 250.10 is
without merit. The defendant withdrew his initial CPL 250.10
notice, and indicated that he intended to offer psychiatric
evidence of his diminished mental capacity to commit murder.
The defendant then served a subsequent CPL 250.10 notice
which disclosed that, although he intended to introduce
evidence of his low intelligence as it related to the
voluntariness of his statements to the police at the
Huntley hearing and his ability to understand his
Miranda warnings (People v Huntley, 15
N.Y.2d 72; Miranda v Arizona, 384 U.S. 436), he
specifically was not consulting an expert. Further, contrary
to the defendant's contention that his constitutional
rights were violated by the court's preclusion of the
expert testimony, "courts have long rejected the notion
that a statutory pretrial notice requirement ... is a
constitutional violation of the right to present a
defense" (People v Silburn, 31 N.Y.3d at 159).
record supports the County Court's determination to deny
the defendant's request to charge manslaughter in the
first degree as a lesser included offense. Given the nature
and brutality of the slaying, there was no reasonable view of
the evidence that the defendant intended to inflict serious
physical injury rather than death (see CPL 300.50, ;
People v Butler, 84 N.Y.2d 627, 634; People v
Gonzalez-Alvarez, 129 A.D.3d 647, 648; People v
Collins, 290 A.D.2d 457, 458).
agree with the County Court's determination to deny the
defendant's application to sever the counts of the
indictment relating to a 1993 homicide. Those counts were
properly joined on the basis of overlapping evidence with
regard to the defendant's confessions and their
surrounding circumstances (see CPL 200.20[b];
People v Lane, 56 N.Y.2d 1, 7; People v
Perez, 47 A.D.3d 409, 410-411). Since the offenses were
properly joined in one indictment from the outset pursuant to
CPL 200.20(2)(b), the court lacked the statutory authority to
sever them (see CPL 200.20; People v Bongarzone,
69 N.Y.2d 892, 985; People v Lane, 56 N.Y.2d 1, 7;
People v Acevedo, 160 A.D.3d 975, 976; People v
Smith, 153 A.D.3d 1288).
sentence imposed was not excessive (see People v