PEOPLE v. RIVERA

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Richie RIVERA, Defendant-Appellant.

Decided: May 13, 2004

NARDELLI, J.P., ANDRIAS, ELLERIN, LERNER, MARLOW, JJ. Laura R. Johnson, The Legal Aid Society, New York (Karen M. Kalikow of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (David M. Cohen of counsel), for respondent.

Judgment, Supreme Court, New York County (Charles J. Tejada, J.), rendered May 8, 2000, convicting defendant, after a jury trial, of murder in the first degree, murder in the second degree (two counts) and robbery in the first degree, and sentencing him to concurrent terms of life without parole, 25 years to life, 25 years to life and 25 years, respectively, unanimously affirmed.

 The court properly denied defendant's suppression motion.   The hearing record establishes that each of defendant's statements was voluntary, and that none were subject to suppression pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.   The initial interrogation was not custodial and thus did not require Miranda warnings (see Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383;  People v. Yukl, 25 N.Y.2d 585, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89).   Defendant willingly accompanied the detectives to the precinct, was expressly told he was not under arrest, was neither handcuffed nor placed in a cell, was left alone and unsupervised in an interview room, and was interviewed in a nonaccusatory manner (see e.g. People v. Collazo, 216 A.D.2d 98, 627 N.Y.S.2d 692, lv. denied 86 N.Y.2d 780, 631 N.Y.S.2d 626, 655 N.E.2d 723).   Under the totality of these circumstances, the fact that a detective confronted defendant with purportedly incriminating evidence was not enough to transform the interview into a custodial interrogation (see Matter of Kwok T., 43 N.Y.2d 213, 219-220, 401 N.Y.S.2d 52, 371 N.E.2d 814;  People v. Rivera, 4 A.D.3d 131, 771 N.Y.S.2d 510).   Once defendant acknowledged his presence at the time the victim was killed, the police promptly administered Miranda warnings before defendant made his first written statement.   Even if we were to find this initial statement to be inadmissible, we would find that defendant's second written statement and his videotaped confession were sufficiently attenuated from the original statement to be admissible (see e.g. People v. Dunkley, 200 A.D.2d 499, 606 N.Y.S.2d 638, lv. denied 83 N.Y.2d 871, 613 N.Y.S.2d 132, 635 N.E.2d 301).   Moreover, there is no suggestion of a police scheme to deliberately withhold Miranda warnings in order to obtain an initial statement that would lead to a post-Miranda statement.

 The court properly ruled on the applications made by both the People and defendant pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.   In each instance, the record supports the court's findings as to pretextuality.   Such findings require the trial court to assess the credibility of the explanations given, and are entitled to great deference on appeal (see People v. Hernandez, 75 N.Y.2d 350, 553 N.Y.S.2d 85, 552 N.E.2d 621, affd. 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395).

 Defendant's claim regarding the court's denial of his challenge for cause of a prospective alternate juror is moot because no alternate jurors participated in the deliberations (see People v. White, 297 A.D.2d 587, 748 N.Y.S.2d 349, lv. denied 99 N.Y.2d 565, 754 N.Y.S.2d 218, 784 N.E.2d 91).

We perceive no basis for reducing the sentence.

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.