Officer’s Intent Irrelevant When Determining Whether Defendant Was Subject to Custodial Interrogation

In People v. Thomas (3d Dept. 11/9/2018), the Third Department held that the defendant was not subjected to custodial interrogation, even though a police officer testified that he would not have allowed the defendant to leave after he had entered the defendant’s residence.

The police responded to the defendant’s residence following a 911 call reporting a shooting. Defendant was initially asked to back up into the kitchen. The police explained that they simply wanted to be able to enter the residence safely and check the premises. A police officer then interviewed the defendant, his girlfriend, and two roommates together in the kitchen of the residence. The defendant was never handcuffed or otherwise restrained, and the defendant was free to move around the kitchen during the interview. However, a police officer testified that he would not have allowed the defendant to leave after he entered the residence. In other words, the defendant was not free to leave, but the officer never communicated that fact to the defendant.

The Third Department held that the officer’s subjective intent is irrelevant when determining whether or not a suspect was in custody at a particular time, where the officer’s subjective intent is not communicated to the suspect.  Instead, the proper inquiry is “what a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant’s position.” The Court concluded, on the facts in the record, that a reasonable person would not have believed that he or she was in custody. Because he was not in custody during the questioning in his kitchen, the police were not required to give him Miranda warnings.

Further, the post-Miranda statements the defendant made at the police station cannot be considered “the fruit of the poisonous tree” because the initial statements were not the product of pre-Miranda custodial interrogation. The Court thus rejected the defendant’s claim that defense counsel was ineffective for failing to raise that ground for suppression of his post-Miranda statements. (BJD)

In companion underage drinking cases, beer purchase tips the weight-of-the-evidence review

In People v. Kellie St. Andrews (3d Dept. 3/10/2011) and People v. Jimmy Joe St. Andrews (3d Dept. 3/10/2011), the Third Department reached conflicting conclusions on strikingly similar facts. In the two cases, the wife and husband, respectively, were both convicted of Endangering the Welfare of a Child. Both defendants were present on April 20, 2008, when their 16 year old son hosted a party behind the house with 20-40 guests, many of whom were under the age of 21. According to witnesses, Kellie St. Andrews purchased a 30 pack of Keystone-light beer for the guests’ consumption and “left it in the truck” for her son’s friends. As a result, she was further convicted of Unlawfully Dealing with a Child 1°. In addition to facilitating access to the beer, witnesses suggested that she condoned the behavior, because no one concealed the beer cans while she walked around. Even though some witnesses called into question whether she could actually see the underage drinking and that she may not have seen the underage drinking, the conflicting testimony was not resolved in her favor. 

A weight of the evidence review involves an independent evidentiary analysis of whether a different verdict would have been reasonable and asks the court to “weigh the probative force of conflicting testimony and resulting inferences.” The wife’s conviction was supported by the record and thus, not against the weight of the evidence. 

By contrast, Jimmy Joe St. Andrews’s conviction was set aside. He was also present, but most witnesses agreed that during the party, he was either busy taking care of his five year old grandchildren or had went inside by 7:30PM, when it was “really dark.” Further testimony revealed that “a man – who may or may not have been the defendant” yelled at a female guest who was riding a child’s toy and drinking beer; nonetheless, the court reasoned that it was still unlikely that he would have seen any drinking. The court resolved that it was “purely speculative” that he would see the beer cans “at a distance while he was tending to his two grandchildren.” Given the substantial amount of people drinking at the party, the court did not consider his ability to hear or in any way notice such a gathering.  

Both defendants claimed that they were unaware that underage drinking occurred. The factual distinction is Kelly St. Andrews’s beer purchase and more recognizable presence at the party, which supported her knowledge and patent facilitation of the underage drinking. (RB/LC)

 

Defendant violated order of protection even though victim not home

In People v. Clisby (3d Dept. 3/3/2011), the Third Department affirmed that a "stay away" provision in an order of protection is violated by a defendant even if the victim is not home at the time.  In that case, the Defendant was the subject of a Family Court order of protection that required him to stay at least 1,000 feet away from the victim's home.  The Defendant was convicted of Criminal Contempt 2º after he drove into the parking lot of the victim's apartment building when she was not home. 

The court rejected the Defendant's argument that he committed, at most, a "technical violation" of the order and the charge should have been dismissed.  The plain terms of the order required him to stay away from the victim's residence.  Criminal Contempt 2º did not require evidence that the victim was home or otherwise alarmed or annoyed by the Defendant's conduct.  (LC)

AD3 finds no duplicity in assault charge

Last week, I blogged about a recent Court of Appeals decision on multiplicity: charging multiple offenses for a single crime.  The flip side of multiplicity is duplicity: charging multiple crimes in a single count.  The latter concern implicates notice and jury unanimity.  If a defendant is charged with multiple crimes in one count, it is difficult for him to know how to defense himself and whether a jury's guilty verdict is unanimous as to the method or act of the crime.

In People v. Wright (3d Dept. 2/24/2011), the Appellate Division held that a count of Aggravated Assault was not duplicitous.  The case involved an 11-year-old who suffered a left orbital fracture in her face.  The indictment charged that the Defendant caused this injury "by means of punching and/or striking and/or pushing her."  The Defendant argued that this language caused a duplicity problem, but the Third Department disagreed:

Defendant complains that [the child's mother]'s trial testimony — indicating that defendant punched, kicked, slapped and spanked his daughter more than 80 times in the alleged time period — made it impossible to determine if the verdict was unanimous or if the jury found him guilty of one crime based upon different instances of abuse … . This fear is unfounded because the count specifies that it relates to the assault which resulted in the eye injury. Thus, the count contained only one offense and was not duplicitous, either as charged or based upon the evidence presented at trial.

Thus, the court suggests that where multiple, alternative acts are alleged to cause only a single injury, there is not a duplicity problem with the indictment.  The court properly distinguished the Court of Appeals' decision in People v. Bauman (Ct. App. 3/26/2009), in which the court found a depraved indifference assault charge to be duplicitious when it alleged:

striking [victim] about the head and body with fists and/or a baseball bat and/or a hammer; and/or burning said person with a frying pan; and/or scalding said person with hot water; and/or placing a vacuum cleaner hose on said person's genital area; and/or providing inappropriate and/or inadequate nutrition; and/or subjecting said person to inadequate and/or inappropriate living conditions; and/or failing to seek medical attention. 

In that case, there were multiple acts and multiple results; thus, the charge was duplicitious. (LC)

Depraved indifference murder applies to one-on-one killing of baby

It is now black-letter law in New York that depraved indifference murder cannot apply to a one-on-killing … unless the victim was particularly vulnerable and the murder itself was brutal.  In People v. McLain (3d Dept. 1/20/2011) (Spain, J.), the Defendant was accused of murdering her 2-year-old son.  The victim had numerous, severe bruises and traumatic brain injuries that left him comatose.  The defense was that her boyfriend was the one who inflicted the injuries.  The jury rejected this claim and the Third Department found that there was ample evidence that she, not her boyfriend, caused the injuries.

The Third Department also found that the Defendant's conduct met the definition of depraved indifference.  "[T]he cause of death was the blunt force injuries caused by an estimated 10 or more blows to the head."  Moreover, the child had fresh bruises all over his body, including his head, and he had retinal hemorrhaging, a rib fracture, and a damaged lung.  This medical evidence demonstrated that the Defendant acted with "uncommon brutality" against a particularly vulnerable victim.  (LC)