People v. Davis

106 A.D.3d 144, 963 N.Y.S.2d 48
Appellate Division of the Supreme Court of the State of New York·Decided April 4, 2013·Published·Cited by 7 cases

Opinion

OPINION OF THE COURT

Renwick, J.

Prior to pleading guilty, defendant moved to suppress a gun, recovered from his pocket, and videotaped statements he made to the prosecution as fruits of an unlawful seizure. He also [146]*146moved to suppress the statements as obtained in violation of his Miranda rights. We conclude that the facts disclosed in the record were such as to warrant a person of reasonable caution to believe that defendant was reaching for a weapon when the arresting officer grabbed his arm. We also find that defendant’s videotaped statements were not suppressible, notwithstanding the suppression of prior written statements made more than seven hours earlier to police officers, because the videotaped statements were attenuated by a “definite, pronounced break in the interrogation” (People v Chapple, 38 NY2d 112, 115 [1975]).

Procedural and Factual Background

The facts developed at the suppression hearing were based upon the testimony of one of the arresting officers, Officer John Facchini, and the testimony of one of the interrogating officers, Detective Conrad Crump. Defendant did not testify or present any other evidence at the suppression hearing.

According to Officer Facchini, on November 27, 2005, at approximately 12:05 a.m., he and his partner were on patrol in the lobby of the Rangel Houses, a public housing project. Facchini heard two gunshots, about four seconds apart, from the direction of another public housing building, the Polo Grounds, which is located about 80-to-100 yards away from the Rangel Houses. About 60 seconds after hearing the shots, Facchini saw “[t]wo males [later identified as defendant and Jeffrey Graves] with hoods and . . . their hands in their pockets” going from the entrance of the Polo Grounds toward the Rangel Houses. Reportedly, defendant and Graves were walking “fast” and “with a purpose,” not “calmly.”

The officers approached defendant and Graves. No one else was in the area. Facchini spoke with defendant while his partner spoke with Graves. After Facchini identified himself as a police officer, he asked defendant how he was doing. Defendant said, “Good.” Facchini asked if he and Graves were “coming from the Polo Grounds”; defendant stated that they were. Facchini asked, “Did you hear the two gunshots?” Defendant answered, “Yes, that’s why we are leaving.” Facchini asked defendant if they had seen anybody, and defendant stated that they had not. Facchini asked defendant if he “had any ID on him,” and defendant said, “Yes.” Immediately after asking that question, Officer Facchini also asked defendant if he had “any weapons or anything like that on [him,]” and defendant responded, “No.” When Facchini saw that defendant began to place his hand in bis back pocket, Facchini reacted by grabbing defendant’s arm. [147]*147Officer Facchini explained that, given that he had recently heard gunshots in the area, he wanted to frisk defendant before allowing him to reach in his pockets. Facchini attempted to pat down defendant’s waistband to check for weapons, but before he could do so, defendant used both of his hands to push Facchini away. Facchini then grabbed defendant somewhere on his upper body. Defendant struggled to escape and ran into a fence located about four feet behind them. This caused Facchini to strike the fence too. They fell to the ground, with defendant lying on his stomach and Facchini on top of defendant’s back. At that point, Facchini saw the handle of a firearm sticking out of defendant’s back pocket. Facchini pulled the gun out of defendant’s pocket and placed him in handcuffs. Facchini unloaded the gun, which felt warm, and discovered it had three cartridges and two empty shell casings. Meanwhile, Facchini’s partner arrested Graves. Soon thereafter, Facchini learned that a dead body with gunshot wounds had been found near the Polo Grounds.

At approximately 12:45 a.m., Facchini and his partner transported defendant and Graves to the police station. Defendant was placed in room 219 for interrogation.

Detective Crump, the “lead investigating officer,” was the only witness who testified about the interrogation. Crump testified that during the interview, he provided defendant with cigarettes and never threatened or made any promises to him. Crump asked defendant what happened between him and the shooting victim, and why he had the gun. Defendant initially denied knowing anything about the shooting. Instead, he explained that he had found the gun somewhere, picked it up, put it in his pocket, and planned to give it to the police. Crump repeatedly asked defendant if he was “sure” that he did not shoot someone with the gun, and defendant responded that he did not.

Detective Crump did not believe defendant’s account, and temporarily left the room. When he returned, he told defendant that the shooting might have been “an accident,” adding that Crump had been informed by defendant’s uncle that defendant and the victim were “friends.” (They were actually cousins.) Defendant then admitted that he had been “playing with the gun” when it suddenly fired and shot the victim in the head. Crump then asked defendant to write a statement.

At the suppression hearing, Crump initially testified that he read defendant his Miranda rights “[bjefore [he] spoke with the defendant,” which was “approximately about . . . 2:00 [a.m.]” [148]*148However, he later testified that he read the Miranda rights from a sheet which was signed by defendant with the time marked “3:45 [a.m.]” When the court asked Crump about this discrepancy, he responded that 3:45 a.m. was “the time I actually started speaking to him about interviewing him and I Mirandized him first before I started speaking to him and g[o]t a statement from him.” Defendant wrote a statement in which he crossed out some words, and then wrote another statement, which was substantially identical to, but neater than, the first. On both statements, Crump wrote the approximate time as 3:50 a.m. According to the second written statement, on the night of the shooting, defendant and his cousin, Dickey, had been drinking alcohol, smoking marijuana, and having “mad fun” with “a couple of ladies.” Graves was also present. Defendant was “drunk and high.” The group headed for a friend’s apartment, planning to have an “orgy.” They stopped at two stores to buy liquor and juice. Then, Dickey asked defendant if he would like to “bust some shots in the air.” Defendant agreed, and followed Dickey’s instructions to pull a gun from the purse of one of their friends. Defendant started “playing” with the gun, but did not know how to use it. One of the women shouted, “Stop playing!” As defendant was attempting to fire a shot into the air, “the gun went off twice by accident.” At first Dickey appeared to be ducking, but then he fell to the ground. Realizing that he had shot Dickey, defendant started “walking fast” away from the area, accompanied by Graves. Two police officers approached, “grabbed” them, retrieved the gun, told them to get on the floor, and arrested them. Defendant added that he loved Dickey and did not mean to shoot him.

Crump further testified that Detectives Stewart and Imbornoni also spoke with defendant, sometime after Crump had read defendant his Miranda rights. Crump did not know when Stewart or Imbornoni arrived at the station, when they spoke with defendant, or the length or content of those conversations, other than that they were about the shooting. Crump added, “We was [sic] in the room till approximately 5:45 [a.m.]”

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People v. Davis, 106 A.D.3d 144, 963 N.Y.S.2d 48 (N.Y. Ct. App. 2013).

106 A.D.3d 144 (People v. Davis) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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