People v. Soto

DECISIONDefendant Jose Soto (“Defendant”) is charged with predatory sexual assault against a child (Penal Law §130.96) and related charges for, among other things, placing a seven-year-old boy’s penis in his mouth. By omnibus motion filed October 5, 2016, Defendant seeks to suppress his post-arrest videotaped statement. By Decision and Order dated November 22, 2016, the Honorable Alvin Yearwood ordered a suppression hearing pursuant to People v. Huntley, 15 NY2d 72 (1965). This Court presided over an eight-day suppression hearing beginning March 12, 2018, at which the People presented the testimony of Detective Delcar Savage-Balcena, whom the Court finds credible. Defendant called Dr. Bruce Frumkin, and, in rebuttal, the People called Dr. Cheryl Paradis — both forensic psychologists who opined on Defendant’s ability to competently waive his Fifth and Sixth Amendment rights under Miranda v. Arizona, 384 US 436 (1966).Defendant, who was advised of his rights in English, essentially argues that his English language skills are so deficient as to render him nearly intellectually disabled and therefore incapable of knowingly and intelligently waiving his rights.Based on the evidence adduced at the hearing, this Court makes the following findings of fact.FINDINGS OF FACTDetective Savage-Balcena’s Testimony and Defendant’s Videotaped StatementOn the morning of November 11, 2015, Defendant was arrested for allegedly sexually molesting a seven-year-old boy. Later that day, he was taken to the 44th Precinct interview room. Detectives Delcar Savage-Balcena and Efrain Medina, then of the Bronx Special Victims Squad, entered the interview room.¹ Detective Savage-Balcena, assigned as the lead detective, sat across a desk from Defendant. Detective Medina sat a few feet away from him.The arresting officer, Police Officer Smith, had previously informed Det. Savage-Balcena that the Defendant spoke English. The interview lasted for approximately 45 minutes, was conducted almost exclusively in English, and was videotaped (see People’s exhibit 1). Defendant was not handcuffed. No other officers or detectives were present in the interview room. Neither detective had weapons drawn. Defendant never claimed or appeared to be tired and did not request food, water, a bathroom break, or an interpreter. Defendant never invoked his Fifth Amendment right to remain silent nor his Sixth Amendment right to counsel. Defendant has previously been arrested 17 times and has 13 prior convictions, 6 of which are felony convictions.At the interview’s start, Det. Savage-Balcena asked Defendant whether he spoke English, to which Defendant responded “a little bit.” Detective Savage-Balcena explained to Defendant that she needed to read to him his Miranda rights but before doing so, told Defendant, “I need you to answer ‘yes’ at the end of every question.” She then orally advised Defendant of each of his Miranda rights in English by reading from a printed card (see People’s exhibit 2), asking Defendant “Do you understand?” before moving on to the next question. Immediately after being advised of each of his rights, Defendant answered “yes” that he understood each right. Finally, Det. Savage-Balcena asked, “Now that I have advised you of your rights, are you willing to answer questions?” Defendant answered “yes” and the detective proceeded to take his pedigree information before asking him additional questions.Defendant’s answers were often in narrative form. In response to “Do you want to tell me what happened today?” Defendant launched into a long account in which he explained that the “kid” who lived in the corner apartment on the same floor entered Defendant’s apartment when Defendant opened the door to ask a neighbor for a cigarette. Defendant reported that though he used the door chain to secure the door, it remained unlocked: “I didn’t close the door. I put the chain…when I came in, the kid coming in, he comin’, come in all the way into my room and see my computer.” Though communicated in broken English, the Defendant explained that the boy was able to slip into Defendant’s apartment and asked to play with Defendant’s computer. Defendant refused to let the boy play with his computer because, as Defendant told the detective, “I’m a sex offender. I’m a level 3.”Although Defendant was able to communicate in English and understood the detectives, there were a few times when Defendant failed to understand certain words. Immediately following the foregoing exchange, for example, Det. Savage-Balcena interjected, “are you compliant,” but Defendant apparently misunderstood her to ask whether he lived with company and said, “No, I live by myself.” Defendant continued to misunderstand the detective, who was asking about sex offender compliance visits. He said, in sum and substance, “No, first time, they come in — the kid used to run around there, you know? Always, I tried to be away from them because I know my situation.”At certain points during the interview, Defendant used a Spanish word or phrase here and there to get his precise meaning across: “When I came in, I put back the kid. The kid comin’ in because the kid’s like, like a little hyper…how do you say ‘cariñoso?’” Attempting to translate this word for himself, Defendant unsuccessfully tried “like a chai kid” and then further explained that the boy “always” greeted him with “Hi, Jose.” Det. Savage-Balcena then suggested, “He’s friendly?” and defendant responded, “Yeah, friendly.”Detective Medina, a Spanish speaker himself, also used a Spanish word or phrase here and there but appeared to do so only to establish a rapport with Defendant and, in any event, consistently followed up with English equivalents or vice-versa: “Cuando fue eso” followed by “When was that”; “How many doors?” followed by “How many puertas”; “El entro” followed by “He came into the apartment.” Other than this limited use of certain words or phrases in Spanish, no extensive or substantive use of Spanish was made.Defendant not only answered the detectives’ questions but also volunteered information throughout the interview. For example, when asked “Have you ever hugged or kissed this boy before?” Defendant said no, “since I got out of jail, no,” and after a pause added, “I get out in 2011, 2009, I came home.”² At one point during the interview, as he told the detectives that his registration as a sex offender required him to report on November 17th, he lamented, “I thought it never gonna happen again, for real.” Detective Medina asked him to clarify and Defendant responded, “Me, to get involved in this situation again…[y]ou can check my computer it got nothing pornographic, nothing like that…I don’t play with pornography things.”The most remarkable facts volunteered by Defendant, however, were (1) his belief that the boy had reported that Defendant had placed the boy’s penis in his mouth; and (2) his admission that he had, in fact, placed the boy’s penis in his mouth.Detective Savage-Balcena testified at the hearing that, prior to interviewing the Defendant, she had interviewed the boy, who told her that Defendant had offered him candy, pulled him inside Defendant’s apartment, kissed him on the mouth and neck, and touched his penis and buttocks. Going into the 44th Precinct interview room, the detectives were unaware of any allegations concerning the Defendant having placed the boy’s penis in his mouth. Yet when Det. Savage-Balcena asked Defendant whether he did anything else besides hug and kiss the boy, Defendant responded, “No I don’t do nothing else. He say, he say I kissa his, his penis. But…. I don’t know.” And much later on in the interview, Defendant volunteered that “[the boy] came back you know, eh, he came back y I put my mouth on his penis.”Throughout the interview, Defendant relayed information to the detectives in a halting way that at times was difficult for them to understand, yet it is clear from the videotape that Defendant understood the detectives and managed to successfully convey his meaning, ultimately providing the detectives with his version of events.Detective Medina asked Defendant to put his statement in writing in either English or Spanish but he refused.The ExpertsAt the hearing, Defendant called Dr. Bruce Frumkin, a forensic psychologist. His expert report was also introduced (see People’s exhibit 4). Dr. Frumkin evaluated Defendant to determine whether he was competent to waive his Miranda rights and concluded that, at the time of the interview, Defendant “would not have been able to give a knowing and intelligent waiver” of his Miranda rights (Hr’g Tr. 96:5-6).Dr. Frumkin’s ultimate conclusion was based upon his two clinical interviews of Defendant and the results of various tests, among them the Wechsler Adult Intelligence Scales-IV (“WAIS-IV”); the Function of Rights in Interrogation (“FRI”); and the Gudjonsson Suggestibility Scale 1 (“GSS 1″). All but one of these tests, the FRI, were administered in English.For example, Dr. Frumkin explained that he used the WAIS-IV (the test used to assess an individual’s IQ) to measure Defendant’s “intelligence compared to people who speak English” (Hr’g Tr. 39:20-22). As compared to English speakers, Dr. Frumkin concluded that Defendant’s full-scale IQ score was 70, placing the Defendant in the lower two percentile range (Hr’g Tr. 145:1-22). However, he tellingly qualified this test result (and others) thusly: “As long as everyone knows I’m not saying he’s innately at the lower two percentage range compared to people, but that when he is functioning in the English language he is” (Hr’g Tr. 106:23-107:1). This score, in Dr. Frumkin’s estimation, renders him nearly, but not exactly, intellectually disabled: “He certainly doesn’t fall in mental retardation range in terms of his verbal skills, but he was deficient in Spanish, but substantially much more so in English” (Hr’g Tr. 37:21-24).³Dr. Frumkin opined that based on all the tests, together with his clinical interviews, Defendant could not have intelligently and knowingly waived his Miranda rights.Dr. Cheryl Paradis, Psy.D., testified for the People as an expert in the field of forensic psychology. Her expert report was also introduced (see People’s exhibit 3). Dr. Paradis examined Defendant twice, both times for about an hour and both times in English.Dr. Paradis testified that, based on her observations of Defendant during the clinical interview and Defendant’s self-reported history, she did not believe Defendant met the diagnostic criteria for an intellectual disability and thus found it unnecessary to administer any intelligence tests. Instead, Dr. Paradis estimated Defendant’s intellectual functioning to be within the average to low average range (Hr’g Tr. 474:18-21). She explained that their sessions were conducted in English, Defendant responded to her questions in English, and Defendant always told her when he did not understand a word.⁴ While he was “at times inattentive and questions needed to be repeated,” his thinking was “logical and coherent” (see People’s exhibit 3 at 4).Dr. Paradis also noted that, relevant to the issue of intellectual disability, Defendant had no deficits in adaptive functioning, a necessary finding before an intellectual disability may be diagnosed under the DSM.⁵ Defendant reported that he was not placed in special education classes, passed the GED exam, obtained a driver’s license, took college courses (all in Spanish except for an English language course), and held a job at Schnipper’s restaurant.Criticizing Dr. Frumkin’s use of the IQ test, she stated:“Well, I mean intelligence is an innate ability. Dr. Frumkin, in his testimony, is talking about intelligence compared to an English speaking population. That’s just not language I’ve seen in reports or testimony before. I think you can say his score was low on this test, but that doesn’t mean his intelligence is low. I mean, your intelligence is your intelligence. Your intelligence doesn’t change if you’re speaking in English or Spanish. Your ability to demonstrate your intelligence, your ability to get a high score could differ because the IQ test was not appropriate to measure intelligence when it’s in a different language.”(Hr’g Tr. 346:15-25).Dr. Paradis opined that from all the data, as well as her viewing of the video statement, Defendant understood the Miranda warnings and waived his rights knowingly and intelligently.BURDEN OF PROOFBecause the People seek to introduce Defendant’s videotaped statement at trial, they must establish the voluntariness of his statement beyond a reasonable doubt (Huntley, 15 NY2d at 78).Not only must the People establish voluntariness in the classic sense, i.e., that his statement was not physically coerced nor obtained by threats, improper conduct, undue pressure, or trickery (see Brown v. Mississippi, 297 US 278 [1936]; see also CPL 60.45 [2]), they must also show that in the case of custodial interrogation, law enforcement officers used procedural safeguards to “effective[ly] [] secure the privilege against self-incrimination” (Miranda, 384 US at 444). Those safeguards are commonly referred to as Miranda warnings or rights: “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed” (id.). In short, Miranda warnings are required when a person is subjected to interrogation while in custody.A person may waive these rights, so long as the waiver is made voluntarily, knowingly, and intelligently (id.). Where the People argue that a defendant has waived his Miranda rights and made a statement, the People must establish the voluntariness of the waiver beyond a reasonable doubt (People v. Jin Cheng Lin, 26 NY3d 701, 719 [2016]).Once the People satisfy their obligations, the burden to show otherwise is on the defendant (People v. Vidal, 44 AD3d 802, 802 [2d Dept 2007]; see also John Brunetti, New York Confessions §9.02 [3] [2014 ed]).“Whether a defendant knowingly and intelligently waived his or her rights to remain silent and to an attorney is determined upon an inquiry into the totality of the circumstances surrounding the interrogation, including an evaluation of the defendant’s age, experience, education, background, and intelligence” (People v. Santos, 112 AD3d 757, 758 [2d Dept 2013] [internal quotation marks omitted], quoting Fare v. Michael C., 442 US 707, 725 [1979]; see People v. Williams, 62 NY2d 285, 288 [1984]).CONCLUSIONS OF LAWThe People concede that Defendant was in custody at the time he was interviewed. Thus, the only issues before the Court are whether Defendant’s statements were voluntary in the classic sense and his waiver knowing and intelligent. Because the People have met their burden of proof, Defendant’s motion to suppress is denied.As already noted, the People bear the burden of proving the voluntariness of Defendant’s statement beyond a reasonable doubt, including that any custodial interrogation was preceded by the administration of Miranda rights (see supra at 7). To meet this burden, the People are required to establish that Defendant “was aware of and understood his Miranda rights, and that he willingly made statements during interrogation” (see People v. Thomas, 137 AD3d 698, 699 [1st Dept 2016]).Here, as soon as Det. Savage-Balcena entered the interview room, prior to any questioning, she read Defendant his Miranda rights. No other detectives but Savage-Balcena and Medina were present; Defendant was not handcuffed; no guns were drawn. Defendant showed no signs of discomfort and never requested food, water, or rest. Defendant replied affirmatively, in English, that he understood each of these warnings.Significantly, Defendant is no babe in the criminal-justice woods. He is a 68-year-old man with 17 prior arrests and numerous felony convictions spanning over 40 years. Courts have presumed waivers valid in circumstances where defendants are younger and have far fewer contacts with the police (see e.g. People v. Reyes, 162 AD2d 420, 421 [1st Dept 1990] [presuming 20-year-old defendant with three prior arrests "to have been familiar with his situation and the imminent interrogation"]; People v. Gray, 51 AD3d 63, 66 [1st Dept 2008] [finding defendant's Miranda waiver voluntary when "viewed in the context of [his] extensive 10-year criminal record during which [he] had been arrested on at least eight different occasions”]).Defendant takes issue with Det. Savage-Balcena’s statement, made immediately after informing him that she was about to read to him his Miranda rights, that she needed him to answer “yes” that he understood them. He likens the detective’s assertion to the “preamble” in People v. Dunbar, 24 NY3d 304 (2014) and other cases that courts in the state have held undercut Miranda warnings.Those cases, however, involve extensive pre-Miranda colloquy between defendants and law enforcement officers that effectively confuse defendants and subvert any clear expression of a defendant’s constitutional right to remain silent. Contrary to defense counsel’s argument, the detectives here did not make any improper statements of the type discussed in Dunbar. Detective Savage-Balcena’s pre-warnings statement — “I need you to answer ‘yes’ at the end of every question” — does not contradict the Miranda warnings or otherwise misinform or mislead Defendant about any of his Miranda rights (see People v. Cornelius, 137 AD3d 663, 665-66 [1st Dept 2016] [suppression denied despite detective's statement that defendant was "not being interrogated" because Miranda warnings were not "coupled with statements that directly contradicted [Miranda ] warnings” and record did not “suggest that police misinformed or misled defendant about any of the other rights recited in the Miranda warnings”]; cf. Dunbar, 24 NY3d at 315-16 [suppression granted where officers told defendants that by invoking their rights they would "be giving up a valuable opportunity to speak with an assistant district attorney, to have their cases investigated or to assert alibi defenses"]).The Court holds that based on the foregoing, the People have established beyond a reasonable doubt that Defendant was aware of and understood his Miranda rights and that he implicitly waived his rights by willingly making a statement during the interrogation, which was conducted in a non-coercive environment (People v. Sirno, 76 NY2d 967, 968 [1990] [noting that where "undisturbed findings have been made that a defendant clearly understands his Miranda rights and promptly after having been administered those rights willingly proceeds to…answer questions during interrogation, no other indication prior to the commencement of interrogation is necessary to support a conclusion that the defendant implicitly waived those rights"]).This Court also rejects defense counsel’s contention that Defendant’s waiver is invalid because defendant is nearly (but not exactly) intellectually disabled in the English language and is therefore incapable of knowingly and intelligently waiving his rights.To be clear, the thrust of defense counsel’s argument is not that Defendant’s English language skills are so poor that he cannot understand his rights (such a contention is plainly contradicted by the videotape). Nor does defense counsel argue that Defendant is intellectually disabled (Dr. Frumkin chose not to test Defendant’s adaptive functioning — a prerequisite to any such diagnosis under the DSM). Instead, defense counsel’s argument and Dr. Frumkin’s testimony conflate both language deficiencies and purported cognitive deficiencies in an effort to artificially magnify them.The first problem is Dr. Frumkin’s administration of the WAIS-IV test. Based on the testimony of both experts here, the purpose of this test is to measure an individual’s innate intelligence.Dr. Frumkin used this test, not to measure the Defendant’s innate intelligence, but to measure Defendant’s cognitive functioning in a second language. Dr. Frumkin’s own testimony that the WAIS-IV test results are invalid and that of Dr. Paradis, who has never seen the IQ test administered in this way before, establish the unreliability of using this exam’s test results as a basis for any conclusion concerning the waiver (see Hr’g Tr. 153:4-6 [Frumkin] ["If that IQ score was a valid IQ score, which it wouldn't be because we're not comparing him to people who are Spanish speaking…."]; 356:21-357:5 [Paradis] ["[W]hen he talks about intelligence compared to English speakers I am not even sure I would say I agree with him, just not sure what he is really talking about. I have never seen intelligence described in that way.”]).⁶A further ground for rejecting the use of the IQ test results here is Dr. Frumkin’s own testimony that the validity of such exams rests, in large part, on the propriety of an exam’s normative group. As Dr. Frumkin explained, a normative group or an exam’s “norm” or average refers to the sample of test takers who are representative of the population for whom the test is intended (Hr’g Tr. 101:11-20). Here, not only does Dr. Frumkin (mis)use the WAISIV exam for a purpose different than that for which it was intended, he also scores it independently of any normative group whatsoever.Second, Dr. Frumkin’s testimony concerning the Defendant’s high score on the FRI supports the conclusion that Defendant intelligently waived his Miranda rights. This exam, Dr. Frumkin explained, was to test Defendant’s ability to “appreciate the significance of the rights based on what he understood about the legal system…I was interested in how he understood the legal system to work in reference to the Miranda rights” (Hr’g Tr. 80:19-21, 23-24).Q: So how did Mr. Soto — how was — what was his assessment on the FRI?A: As I said, he did really well.(Hr’g Tr. 81:2-4). These test results satisfy Dr. Frumkin’s own definition of an intelligent waiver: “An intelligent waiver has to do with the decisionmaking capacity, how one appreciates the significance of the rights based upon what they understand about the legal system” (Hr’g Tr. 28:17-19).Third, Dr. Frumkin fundamentally misunderstands Miranda waiver requirements under New York law. He was asked to explain his contention that the right to remain silent presents a complicated concept such that Defendant is incapable of understanding it:Q: What is complicated about that concept?A: Well, first the whole concept of a right is more of an abstract concept and a right to remain silent has to do with tying that into the police and how that — you know, the information can be used against you and being able to weigh the pros and cons and so on — believes that invoking the right to silence that’s going to be held against them in court which is at least in the United States, that’s an erroneous assumption, then that is a complicated, it’s more abstract and requires a higher level of reasoning.(Hr’g Tr. 174:5-13).As the Court of Appeals made clear in Williams, “[a]n individual may validly waive Miranda rights so long as the immediate import of those warnings is comprehended, regardless of his or her ignorance of the mechanics by which the fruits of that waiver may be used later in the criminal process” (62 NY2d at 289).The Williams case is very instructive on this point. The defendant there was a “functionally illiterate, borderline mentally retarded man who also suffered from organic brain damage” and had previously been hospitalized for psychosis. Defense counsel in that case argued that defendant was incapable of fully comprehending the legal implications of the Miranda warnings rendering his waiver invalid. Rejecting that argument and affirming the trial court’s rejection of two defense experts on this issue, the Court elaborated that the “inquiry is focused initially upon the accused’s understanding of the immediate meaning of the warnings. If that comprehension is present, then the waiver will be given effect in the absence of other factors suggesting a lack of voluntariness” (id. at 290).In the instant case, the videotape shows Defendant understood the “immediate meaning” of the warnings and the expert testimony established that as well.Concerning voluntariness, although Dr. Frumkin went to great pains to avoid opining on the voluntariness of Defendant’s confession and testified that he did not examine Defendant for any “psychological characteristics relating to the voluntariness component of the Miranda waiver” (Hr’g Tr. 164:12-13), it turns out, he did test for “suggestibility,” and this came out on cross-examination:Q: And in your report, you don’t mention anything regarding whether he’s suggestible?A: That’s correct, because my report dealt with only one of the psych/legal issues I was asked to address and suggestibility was not related to one’s ability to make a knowing or intelligent waiver of Miranda rights.Q: And what was the result of your testing for him being suggestible?A: The results are that he’s lower than average in terms of his overall interrogative suggestibility.Q: What does that mean?A: That means in comparison to other people, he’s less likely to give in to misleading or leading questions.(Hr’g Tr. 155:19-156:6).These findings, then, would seem to obviate defense counsel’s and Dr. Frumkin’s concern that Defendant was ceding to the detective’s directive that Defendant answer in the affirmative when asked whether he understood his Miranda rights (Hr’g Tr. 109:4-10).Finally, and only because this decision has to end, the Court rejects Dr. Frumkin’s testimony because it is frequently internally inconsistent and deliberately confusing. Attempting to decipher it was like trying to succeed at a game of three-card monte.For example, on the issue of whether the Defendant is intellectually disabled, he offered the following non sequitur :“According to DSM-V he very well meets the criteria for intellectual disability, but a lot of people meet that criteria, but certainly he is not extremely intellectually deficient in the Spanish language. He has communication problems. He’s functioning at the probably lower ten percent range or whatever but that doesn’t make someone have the original diagnosis of mild mental retardation.”(Hr’g Tr. 124:10-16).Despite Dr. Frumkin’s efforts to characterize Defendant as intellectually disabled, he was forced to admit that he could not:Q: In the English language, would you say he is mildly mentally retarded or has mild mental retardation?A: It’s a complicated question because if we are using the DSM-V diagnosis — excuse me — DSM-IV criteria, you also have to have deficits in adaptive functioning and I didn’t specifically evaluate him for deficits in adaptive functioning.(Hr’g Tr. 124:20-25).And although Defendant’s intellectual capabilities was an issue raised by defense counsel and Dr. Frumkin himself, Dr. Frumkin deemed adaptive functioning irrelevant even though an individual’s adaptive functioning must be assessed before an intellectual disability may be diagnosed:Q: So you didn’t ask any of the adaptive functioning questions, right?A: I only asked those questions that were relevant specifically to issues having to do with Miranda. I didn’t want to go beyond the scope of the evaluation and get at issues that were not relevant.(Hr’g Tr. 190:10-15).The picture that emerges, then, after several days of testimony (and 213 pages of Dr. Frumkin’s testimony alone), is that of Dr. Frumkin cherry picking those test results that support his position, while declaring as irrelevant tests results that do not.The bottom line is that as the videotaped statement unequivocally establishes that Defendant understood his Miranda rights and knowingly, intelligently, and voluntarily waived them, no expert testimony is necessary on the issue of whether there is a knowing and intelligent waiver here.⁷ Defendant’s motion to suppress is therefore denied in its entirety.It is so ordered.Dated: June 5, 2018Bronx, New York