People v. Brandon

Ronald E. Kliegerman for defendant. Robert M. Morgenthau, District Attorney (Judy Salwen of counsel), for plaintiff.

OPINION OF THE COURT

MATTHEW F. COOPER, J. The defendant in this case is charged with petit larceny, in violation of Penal Law § 155.25. On May 28 and 29, 2003, the court held a Huntley/Dunaway hearing. The sole witness at the hearing was Investigator Brian J. Shortall of the New York State Police, who testified on behalf of the prosecution. The prosecution also introduced into evidence a five-page written statement and a one-hour audiotape of the defendant's interview with Investigator Shortall and other police officers on June 20, 2002. The court finds the testimony of Investigator Shortall to be credible. Based upon the evidence adduced at the hearing, the court makes the following findings of fact and conclusions of law.

Findings of Fact

This case began after Investigator Shortall received a complaint concerning the defendant from a named citizen informant. According to the informant, she was shopping for a house and went to the defendant's home on May 19, 2002. There, she saw a photo of the defendant in a firefighter's uniform holding something in his hand, which the defendant told her was a hipbone. The informant further stated that the defendant told her that he had taken many "souvenirs" from the World Trade Center site while working there as a volunteer after September 11, 2001. On June 19, 2002, Investigator Shortall and Investigator Tracy Andryshak, posing as prospective home buyers, went to the defendant's residence. While being escorted through the home, the investigators observed a gold-framed photograph of the defendant in the living room. In the photo, the defendant, a retired firefighter, was wearing a firefighter's uniform and holding a large bone, which the defendant stated was a hipbone he recovered while working as a volunteer at the South Tower of the World Trade Center. During this visit, the defendant also showed the officers two pieces of glass and a radio which he said were taken from the World Trade Center site. Based on this information, the officers secured and executed a search warrant of the defendant's home on June 20, 2002. The search warrant was executed by Investigator Shortall and "at least five other people." Prior to entering the defendant's home, Investigator Shortall, accompanied by Investigator Larry Wood, approached the defendant and explained why they were there. Investigator Shortall asked the defendant to sign a form consenting to the search of his home "to show that he was voluntarily the first Miranda warning aloud and the remaining four rights to himself. Once the defendant was done, Investigator Shortall asked him whether he had been advised of his rights under Miranda, to which the defendant answered "yes." Investigator Shortall asked the defendant whether he understood those rights and the defendant responded that he was confused about them. The following colloquy then took place:

"INVESTIGATOR SHORTALL: What is it that confuses you about them? Do you need to re-read them or do you need me to explain them to you?

"DEFENDANT: I'm not comfortable testifying without an attorney, without knowledge of . . .

"INVESTIGATOR SHORTALL: Hold on. Remember I said I can't keep up with you.

"DEFENDANT: Sorry.

"INVESTIGATOR SHORTALL: Okay. You're not testifying, what you're doing is you're providing a statement, a written statement as to . . . I'm going to ask you questions and the answers are going to be from you, and the questions are going to be specifically on, um, about the stuff that was found at your house as far as conversations you had with me and Investigator Andryshak on June 19. It's not testimony, it's a statement. Do you understand that? Do you understand the difference between testimony and statement. Testimony is in court, you go into a court and you testify.

"DEFENDANT: It's the same thing, no?

"INVESTIGATOR SHORTALL: Well, we're not in a courtroom.

"DEFENDANT: Testimony . . . this can be used against me.

"INVESTIGATOR SHORTALL: Absolutely, this can be used against you in a court of law and that's what that fourth line says.

"INVESTIGATOR SHORTALL: I fully understand . . . I have these rights and at this time I agree to waive my rights and make the following statement. Do you agree, do you understand that statement?

"DEFENDANT: Yes sir.

"INVESTIGATOR SHORTALL: Do you fully understand your rights and at this time agree to speak to me about what happened at your house?

"DEFENDANT: Not knowing the implication, I'm not comfortable.

"INVESTIGATOR SHORTALL: Well, I'm asking, do you want to speak to me about what happened at your house and what happened yesterday?

"DEFENDANT: Yes sir.

"INVESTIGATOR SHORTALL: Now, I had to type it again `cause I can't keep up. I said do you wish to talk to me today about what happened at your house yesterday and you said yes sir.

"DEFENDANT: Yes sir."

After this exchange, the questioning resumed and the defendant answered questions regarding his statements to the investigators when they visited his home the day before as well as his recovery and removal of items found at the World Trade Center site. The vast majority of the questioning was conducted by Investigator Shortall. There were instances, however, when the defendant was asked questions by either one or both of the detectives from the Port Authority Police Department as well as instances where the defendant was asked questions by two officers simultaneously. At times, the questions were asked in what appeared to be raised voices. Approximately an hour into the interview, Investigator Shortall, in response to the defendant's comment that he was at the World Trade Center site to help families, asked the defendant how removing items from the site helped the families. The defendant answered that he was confused by the question. The question was repeated several times and the defendant repeatedly answered that he did not understand the question. At this point, Investigator Shortall told the defendant that he believed the defendant understood the question but did not know how to answer it because there was no appropriate answer. In response, the defendant stated that he did not want to answer any more questions. The investigator then asked the defendant whether he did not want to answer that question or any more questions and the defendant answered "no more questions." Investigator Shortall concluded the interview and printed out what he had typed on his laptop. Although Investigator Shortall managed to type much of what was said in the interview, the written statement he prepared was in no way a verbatim transcript of the interview. At the beginning of the document printed out by Investigator Shortall, which totaled five pages, there was a reproduction of the Miranda warnings as well as a waiver which read "I fully understand these rights, and at this time I agree to give up my rights and make the following statement." Below the waiver there was a signature line for a witness and for the person waiving his rights. Investigator Shortall signed the witness line and also signed the bottom of each page of the written statement. He then turned the document over to the defendant and asked him to sign the bottom of each page of the document. In response, the defendant told the investigator that he wanted to make a comment on the statement. On the bottom of the first page the defendant wrote "I refused to answer further questions as I feel questioning officer was threatening me with arrest and prosecution if I do not cooperate." The defendant then signed his name at the bottom of page one. The defendant did not, however, sign the Miranda waiver or the remaining four pages of the document. The defendant was not formally placed under arrest until the interview was fully concluded. As Investigator Shortall conceded, however, the decision to arrest the defendant had in fact been made prior to executing the search warrant that morning.

Conclusions of Law

When he was asked to sign the consent to search his home, he refused. When he decided, about an hour into the interview, that he did not want to answer any more questions, he said so in no uncertain terms. Although the defendant expressed some discomfort about speaking at the beginning of the interview, he did not unequivocally invoke his right to remain silent until approximately one hour into the interview. This occurred when Investigator Shortall asked the defendant how he thought he was helping the families by removing items, such as identification cards and photos, from the site. At that point, the defendant stated that he did not wish to answer any more questions and the interrogation ceased. With respect to the defendant's handwritten notation that he "refused to answer further questions," the court credits Investigator Shortall's testimony that the defendant wrote this after the interview had been concluded and after all five pages of the document had been printed out. Here, the defendant made a knowing, voluntary and intelligent waiver of his Miranda rights, including his right to counsel and his right to remain silent. He was properly advised of his Miranda rights twice, he indicated that he understood those rights, and at least twice he answered that yes, he wanted to speak to the police. Additionally, the People established that at the time of the statement there was no compelling influence, such as threats, coercion, pressure or trickery, exerted over the defendant. Together these circumstances demonstrate that the defendant exercised a voluntary, knowing and intelligent waiver of his Miranda rights. (See, e.g., People v Davis, 55 NY2d 731 [1981]; People v Bretts, 111 AD2d 864 [2d Dept 1985].) Furthermore, "[t]hat defendant understood the Miranda warnings administered to him, including his right to remain silent, is evidenced by defendant's ultimate indication that he no longer wished to talk, at which point the interview was concluded." (See People v Barrios, 259 AD2d 407, 407 [1st Dept 1999].) Accordingly, the defendant's motion to suppress his statement on the grounds that it was taken in violation of his Miranda rights is denied. [1] The warnings given to the defendant by Investigator Wood were: "Sir, you have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you're being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you free of charge before any questioning if you wish. "You may decide at any time to exercise these rights and not answer any questions or make any statements."