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The PEOPLE of the State of New York, Plaintiff, v. Fredy Zacaria AUGUSTIN, Defendant.
Defendant stands indicted on charges of attempted murder in the second degree, assault in the first degree, assault in the second degree, and criminal possession of a weapon in the fourth degree. On August 2, 2017, a Nassau County patrol officer discovered Eddie Alvayeros lying on the ground behind a gas station, bleeding heavily. After undergoing surgery, Alvaryeros told the police that during a night of drinking, defendant attacked him with a broken beer bottle. Detectives arrested defendant in his home, where they questioned him briefly about whether he was involved in the incident and the whereabouts of the clothes he was wearing at the time of the assault. Defendant answered their questions and consented to the officers taking clothing from laundry bags in his room. At the precinct, defendant made a statement to the police and consented to provide a buccal swab. The parties entered into a stipulation in lieu of motions and agreed that a hearing would be held to determine the legality of defendant's arrest, the admissibility of defendant's clothing and statements, and whether defendant voluntarily consented to provide the buccal swab.
On May 2, 3, and 7, 2018, that hearing was held. The People called five witnesses: Police Officers Robert Galgano, Fransisco Arevalo, and Kevin Gluchowski, and Detectives Juan Bichardo and Michael Kamperveen. Following the hearing, both parties gave oral argument. After reviewing the evidence and the parties' legal arguments, the court finds as follows: The testimony of the People's witnesses was consistent and credible. Defendant's motion to suppress his statements at the precinct and his buccal swab is denied. However, defendant's motion to suppress the statements he made at his residence and the clothing recovered from his bedroom is granted.
Findings of Fact
The evidence established that at 3:30 a.m. on August 2, 2017, Police Officer Robert Galgano was in his car approaching the intersection of Franklin Avenue and Merrick Road in Valley Stream, when he saw a large amount of blood on the wall of a Shell gas station. Galgano parked his car and followed a trail of blood to a man lying on the ground toward the back of the station, bleeding heavily from his arms, face, and neck. Galgano spoke to the man, but he did not respond. Galgano called for an ambulance, additional units, and a Spanish-speaking officer to respond. Officer Marquez arrived and spoke briefly to the victim in Spanish. Marquez told Galgano that the victim said his two friends had done this to him, but did not name them. An ambulance arrived, and a medic began treating the victim. Galgano then drove the victim in the ambulance to the trauma room of South Nassau Communities Hospital, where he was taken to surgery.
Shortly after 5:00 that morning, Detective Michael Kamperveen arrived at the Shell station and observed a large amount of blood on the sidewalk next to the station, more blood, a cell phone, and broken bottles on the ground in the rear of the station, and even more blood, broken bottles, and a hat in a blocked off area behind the station. Kamperveen then went to the hospital, where Galgano relayed that the victim had said he had been drinking with two men. Kamperveen could not speak to the victim at that time because doctors were taking him into surgery. Kamperveen returned to the Shell station and collected the cell phone that had been left at the scene. Through the cell phone company, Kamperveen learned that the victim's name was Eddie Alvayeros. Kamperveen then met with the owner of the Shell Station, where he reviewed the surveillance video and called the electronics squad to secure it.
On August 3, after extensively reviewing the surveillance video from the night of the assault, Kamperveen determined, despite Alvayeros's initial statement, that only one person attacked him. Kamperveen then returned to the hospital with Officer George Diaz, who spoke to Alvayeros in Spanish. Alvayeros told Kamperveen and Diaz that after having a few drinks in a bar with a coworker, he met up with “Fredy Perez,” a former coworker. Fredy asked Alvayeros to play pool, and they played until about 1:00 a.m., when the bar closed for the night. Fredy and Alvayeros then went to the Shell gas station to buy more beer. After drinking beer behind the gas station for a while, Alvayeros told Fredy that he had to go home. Fredy got upset and smacked the phone out of Alvayeros's hand. Fredy then hit Alvayeros in the head with a beer bottle and stabbed him several times with the broken bottle on the side of his face, his neck, and his arm. When Alvayeros collapsed, Fredy left.
The next day, Kamperveen returned to the hospital with Detective Brody and Police Officer Fransisco Arevalo, who spoke to Alvayeros in Spanish. They brought Alvayeros's cell phone with them. Alvayeros again stated that he was drinking with Fredy behind the gas station when Fredy began hitting him with a beer bottle. Alvayeros used his phone to show the detectives Fredy's Facebook page, which had a picture of defendant on it. Kamperveen then showed Alvayeros a picture of defendant from the Shell station's surveillance video (People's exhibit No.1), and he confirmed that defendant was Fredy, the person who assaulted him. Kamperveen sent a copy of that picture to the Police Information Office for release to the press in the hopes that members of the public would help locate defendant. Later that day, someone who had seen the photograph on the news called the tip line and told Arevalo that the man in the photograph lived behind a bank near Emerson and Merrick Road. The caller also indicated that the man had been speaking to friends about the photograph.
After Kamperveen and Arevalo made an unsuccessful first attempt to locate the home referenced by the caller, Brody looked at defendant's Facebook page and saw that defendant's picture had been replaced by a picture of a landscaped yard with a car in the driveway. The license plate on the car led the police to an address in Baldwin. The owner of the home pictured gave Brody the name of their landscaping company, who confirmed that defendant worked for him but had not been coming to work for the past few days, claiming that he was having some problems. The owner, who had driven defendant home on occasion, then took Brody to defendant's house at 72 East Merrick Road and told him that defendant entered through the side door.
Kamperveen and Arevalo went to a bank across the street from 72 East Merrick Road, where they met Detectives Brody and LaPera, and Officers Gluchowski and James. At approximately 3:13 p.m., the six of them went to 72 East Merrick Road. Gluchowski and James guarded the perimeter of the house, while the other four officers knocked on the side door. Clarabell Rodriguez answered the door and had a conversation with Arevalo in Spanish. Rodriguez asked if she could help them, and Arevalo asked her if Fredy lived there. Rodriguez said he did, and Arevalo asked if he was home. She told them she did not know. Leaving the door open, Rodriguez walked inside the house while the officers waited outside. A minute later, Rodriguez came back and waved the officers into the house. The four officers entered, and Rodriguez pointed to a closed door and said that Fredy lived there. The officers knocked on the door and called out “Fredy.” A few seconds later, defendant opened that door and walked out of the room.
Arevalo asked defendant in Spanish if he was Fredy, and defendant said that he was. Arevalo asked defendant if he was involved in an incident a few days prior, and defendant said, “Yes.” Brody then handcuffed defendant. Kamperveen showed defendant the photograph of him in the gas station and asked him, through Arevalo, if he knew where the clothes were that he was wearing in the picture. Defendant said that they were in laundry bags in his room. Kamperveen asked if defendant could show the officers where they were, and defendant responded, “Yes.” Defendant then took the officers back into the room he had exited and pointed toward large laundry bags against the wall. Kamperveen asked if he could go into one of the bags to get the clothes, and defendant said, “Yes.” Kamperveen opened the laundry bag and saw the blue and white polo shirt on top, but he did not see the jeans defendant was wearing in the photograph. Kamperveen asked defendant where the jeans were, and defendant said that they might be in a different laundry bag. When Kamperveen asked defendant if he could look in that bag, defendant said “Yes.” Kamperveen looked in the bag and saw the jeans. He then asked defendant if he could take the jeans, and defendant said “Yes.” None of the officers or detectives had their weapons drawn during this exchange.
The officers removed defendant from his home, patted him down, and recovered a cell phone from his person. After defendant was taken out of the house, Brody spoke to Rodriguez and her husband, Kelvin Ramirez Perez, and they signed consent forms allowing the officers to search the house. Officers also spoke to the owner of the home who said that he rented the house to the couple, not to defendant. The police did not conduct any further search of the house after the couple signed the consent forms. Gluchowski and James drove defendant to the 5th Precinct. Gluchowski sat in the back seat with defendant, but did not speak to him during the ten-minute drive. Arevalo followed, and asked defendant at the precinct if he wanted water or anything else to drink.
Kamperveen contacted Detective Juan Bichardo—who was fluent in Spanish—for assistance in speaking to defendant. They began interviewing defendant at approximately 6:15 p.m. Prior to interviewing defendant, Kamperveen told Bichardo about the case, then let Bichardo do most of the questioning. Upon entering the interview room, Bichardo read defendant the Miranda warnings in Spanish from a card (People's exhibit # 2). Defendant wrote “yes” 1 next to each question and initialed them. After Bichardo read defendant the warnings, defendant said he was willing to answer questions and signed the bottom of the card. Defendant then spoke to the detectives. When the interview was over, Bichardo typed defendant's statement in English, then read the statement to defendant in Spanish and asked if it was correct. Defendant said that it was, and signed the two-page statement (People's exhibit # 3), approximately two and one-half hours after the detectives started questioning him. In the statement, defendant admitted that he was drinking beer with “Edi” behind a gas station, but they were both very drunk and he did not remember what happened. About thirty minutes after defendant signed his statement, Bichardo asked defendant if he would consent to give the police a buccal swab, and defendant agreed. Bichardo told defendant that the sample could possibly exonerate him. Kamperveen took the sample from defendant by swabbing the inside of his mouth. Defendant then put his fingerprints on the package containing the sample and signed the packaging.
Conclusions of Law
The Police lawfully entered defendant's residence and had probable cause to arrest him.
Defendant does not contend that the police unlawfully entered 72 Merrick Road to arrest him. In any event, the police entry into the home was lawful because Clarabell Rodriguez, a person with apparent authority over the premises, consented to their entry. See People v. Adams, 53 NY2d 1 (1981); People v. Schof, 136 AD2d 578 (2d Dept 1988). Once Kamperveen was in the house and confirmed that defendant was the person in the gas station surveillance photo, he had probable cause to arrest defendant. “Probable cause to arrest requires the existence of facts and circumstances which, when viewed as a whole, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense had been or is being committed, and that the defendant committed or is committing that offense.” People v. Wright, 8 AD3d 304, 306 (2d Dept 2004); see People v. McRay, 51 NY2d 594, 602 (1980). “Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt.” People v. Bigelow, 66 NY2d 417, 423 (1985). “When determining whether the police had probable cause to arrest, the ‘inquiry is not as to defendant's guilt but as to the sufficiency for arrest purposes of the grounds for the arresting officer's belief that [the defendant] was guilty.’ ” People v. Schulman, 6 NY3d 1, 25 (2005), quoting People v. Coffey, 12 NY2d 443, 452 (1963). “The legal conclusion is to be made after considering all of the facts and circumstances together.” People v. Bigelow, 66 NY2d at 423.
“A statement of a complainant, an identified citizen, is assumed to have veracity and is sufficient to establish probable cause for an arrest.” People v. Read, 74 AD3d 1245, 1246 (2d Dept 2010). Here, Detective Kamperveen, through a Spanish-speaking officer, spoke to the victim at the hospital where he was being treated. The victim told him that “Fredy” had assaulted him after a night of drinking. The victim then showed the officers Fredy's picture on Fredy's Facebook page, and confirmed that the person in surveillance video from the gas station was Fredy. After information from Fredy's boss led them to a home in Nassau County, Kamperveen and other officers entered the home and confirmed that defendant was Fredy. That provided Kamperveen with probable cause to arrest defendant.
Defendant's statements at the house are suppressed for failure to give Miranda warnings.
Defendant's statements at the house where he was arrested must be suppressed.2 Statements that are the product of custodial interrogation must be preceded by Miranda warnings. See Miranda v. Arizona, 384 US 436 (1966). The test for determining whether a suspect is in custody is ‘what a reasonable man [or woman], innocent of any crime, would have thought had he [or she] been in the defendant's position.” People v. Reardon, 124 AD3d 681, 683 (2d Dept 2015), quoting People v. Yukl, 25 NY2d 585 (1969). Interrogation refers to express questioning as well as “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.” Id., quoting Rhode Island v. Innis, 446 US 291 (1980). At the time defendant was questioned in the house—under arrest, in handcuffs, and surrounded by four police officers—he was in custody. No reasonable person would have felt free to leave under those circumstances. Moreover, the questions—asking defendant if he was involved in an incident a few days earlier, and the location of the clothes he was wearing in the surveillance video from the gas station—were designed to elicit incriminating responses. Therefore, the officers were required to administer Miranda warnings to defendant before questioning him. See People v. Reardon, 124 AD3d at 681.
Defendant's consent to search his room was not voluntary.
The People failed to satisfy their “heavy burden” of proving that defendant's consent to search his room for the clothes was voluntary. See People v. Gonzalez, 39 NY2d 122, 128 (1976) “Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice.” Id. “Whether consent has been voluntarily given or is only a yielding to overbearing official pressure must be determined from the circumstances.” Id. “[C]ustody or arrest alone does not necessarily preclude voluntariness.” Id. In Gonzalez, the Court of Appeals set forth several factors to consider in determining whether consent is voluntary, with no one factor being determinative. Id. at 128. The factors to consider include 1) whether the consent was given while the individual was in police custody, how many police officers were present, and whether the individual was handcuffed; 2) the personal background of the individual, including his or her age and prior experience with the law; 3) whether the individual offered resistance or was cooperative; and 4) whether the individual was advised of his right to refuse consent. Id. at 128–30; People v. Hill, 153 AD3d 413, 417 (1st Dept 2017).
Applying those factors here, the People failed to show that defendant's consent was voluntary. At the time defendant consented to Kamperveen's request to search for and take the clothing from his bedroom, he was under arrest, handcuffed, and surrounded by four officers. Moreover, the officers who obtained defendant's consent had been let into the home by someone else, so defendant encountered them right outside his bedroom door, and they immediately started questioning him before he had any time to realize what was happening. Defendant did not speak English, and there was no indication that he had any previous criminal convictions or contact with the police. Moreover, although defendant was cooperative with the police, under the circumstances noted above, and considering that he was not advised that he had the right to refuse his consent or given Miranda warnings before being questioned, there is no reason to believe that he felt he had any other choice than to tell the police where his clothes were and give them permission to retrieve them. As Gonzalez succinctly noted: “Submission to authority is not consent.” 39 NY2d at 129.
Defendant's statements at the precinct are admissible.
Notwithstanding the earlier Miranda violation, defendant's statements to Kamperveen and Bichardo at the precinct were sufficiently attenuated from his earlier statements, and are therefore admissible. Under New York law, “where an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a ‘single continuous chain of events,’ there is inadequate assurance that the Miranda warnings were effective in protecting a defendant's rights, and the warned statement must also be suppressed. People v. Paulman, 5 NY3d 122, 130 (2005), quoting People v. Chapple, 38 NY2d 112, 114 (1975). Courts consider a number of factors in determining whether there was a single continuous chain of events, including: “the time differential between the Miranda violation and the subsequent admission; whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; and whether, prior to the Miranda violation, defendant had indicated a willingness to speak to the police.” Id. at 130–31. “The purpose of the inquiry is to assess where there was a sufficiently ‘definite, pronounced break in the interrogation’ to dissipate the taint from the Miranda violation,” in which case the subsequent statement is admissible. Id. at 131, quoting People v. Chapple, 38 NY2d at 115.
Here, defendant made his second statement approximately three hours after his unMirandized initial statement, and he made his second statement at a different location, the precinct. Further, the extent of the improper questioning preceding defendant's first statement was minor, consisting of only a few questions at the time of defendant's arrest. See People v. White, 10 NY3d 286, 292 (2008) (brevity of initial exchange significant under Paulman; fifteen-to-twenty-minute break between pre-Miranda statement and subsequent admission sufficiently pronounced to dissipate taint of Miranda violation). Moreover, although Detective Kamperveen was involved in both statements, Detective Bichardo, who was conducting the interrogation at the precinct, had not been at the house with defendant. Under these circumstances, the statements made by defendant at the precinct were not part of a single continuous chain of events, and were sufficiently attenuated from the taint of his initial statement at the scene of his arrest. See People v. Williams, 106 AD3d 759 (2d Dept 2013); People v. Nelson, 73 AD3d 811 (2d Dept 2010); People v. James, 253 AD2d 438 (2d Dept 1998). Moreover, there was no evidence that defendant “felt so committed by the pre-Miranda statement that he believed himself bound to confess.” People v. Nelson, 73 AD3d at 811.
Finally, defendant's statement at the precinct was preceded by Miranda warnings and was free of threats or coercion. Therefore, this court finds that the People satisfied their burden of proving beyond a reasonable doubt that defendant's written statement was made voluntarily and after he knowingly, voluntarily, and intelligently waived his Miranda rights. See People v. Dunbar, 24 NY3d 304, 313–14 (2014); People v. Huntley, 15 NY2d 72 (1965); CPL § 60.45. Similarly, although defendant's initial unMirandized statements are not admissible on the People's direct case, they too were obtained without threats and coercion. They were given voluntarily and may be used as impeachment if defendant testifies at trial. See People v. Washington, 51 NY2d 214 (1980).
Defendant voluntarily consented to provide the police with a saliva sample.
Finally, the evidence at the hearing established that defendant voluntarily consented to provide the police with a saliva sample for DNA testing. See People v. Dail, 69 AD3d 873 (2d Dept 2010). Defendant had been at the precinct for only a few hours when he consented to giving the sample, there were only two detectives in the room with him when he gave his consent, and prior to giving his consent, defendant waived his Miranda rights and voluntarily spoke to those detectives about the incident. Moreover, although when Bichardo told defendant the sample could possibly exonerate him, he did not also tell him that the sample could connect him to the assault, that omission was not a deception “so fundamentally unfair as to deny due process.” See People v. Abrams, 95 AD2d 155 (2d Dept 1983); see also People v. Robinson, 8 AD3d 131 (1st Dept 2004).
This constitutes the decision and order of the court.
1. While Bichardo was reading defendant the Miranda warnings, defendant said that he did not know how to write. Bichardo did not remember if he instructed defendant to write “yes” on the Miranda card.
2. Initially, defendant sought preclusion of the statements because the People failed to serve notice of the statements within fifteen days of arraignment. See CPL § 710.30(1)(a); People v. Chase, 85 NY2d 493 (1995); People v. Barnette, 150 AD3d 1134 (2d Dept 2017). However, defendant also wanted the statements suppressed on Miranda grounds, so that he could argue that the seizure of his clothing was a fruit of the Miranda violation. While that claim would appear to be unavailing as a matter of federal constitutional law (see United States v. Patane, 542 US 630  ), New York appellate courts have yet to decide the issue as a matter of state law (see, e.g., People v. Jaquez, 150 AD3d 543 [1st Dept 2017). When the court questioned whether defendant could seek both preclusion and suppression (see CPL § 710.3 ), defendant ultimately asked that the evidence be suppressed. As discussed below, the court need not determine whether the Miranda violation requires suppression of defendant's clothing because, the search was unlawful on independent Fourth Amendment grounds.
Robert A. Schwartz, J.
Response sent, thank you
Docket No: 1354N–17
Decided: June 05, 2018
Court: Supreme Court, Nassau County, New York.
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