People v. Gray

DECISION AND ORDER On April 29 and 30, 2019, this Court conducted a Huntley hearing, at which Detective Thomas Reyes testified for the People. The defendant did not present any evidence. The Court heard oral argument from the parties. The Court makes the following findings of fact and conclusions of law.Findings of FactDetective Thomas Reyes, of the 81st Precinct Detective Squad, testified that on June 29, 2015, at approximately 12:30 a.m., he responded to the scene of a homicide that had just taken place at Decatur Street and Malcolm X Boulevard. Reyes learned that the victim, Fawaz Naji, a livery cab driver, had been shot to death. Upon his arrival at the scene, Reyes observed a cell phone in the backseat of the livery cab with a screen saver that showed a picture of a man and the man’s apparent nickname — NIQUE BUCK — across the photo. Reyes recognized the man in the photo as Unique Gray, from prior interactions over the approximately fifteen years that he has been assigned to the 81st Precinct. Additionally, Reyes learned, the cab was equipped with a video surveillance system. Reyes obtained that video, which revealed Unique Gray shooting Naji. Also in the video was a second man — Tyrell Gardenhire.¹ Reyes issued an I-Card for both men.²Reyes testified that Gardenhire was arrested first, on July 3, 2015. After his arrest, Gardenhire confirmed that he was one of the two men on the cab’s video surveillance recording and indicated that the other man on that recording was the defendant. Gardenhire admitted that he and the defendant had robbed the driver, just before the defendant shot him.In late August of 2015, Reyes was contacted by law enforcement officers in Greenville, North Carolina, where the defendant, who had been a passenger in a car during a car stop, had given the officers a false name, and fled from the scene. The North Carolina officers interviewed the woman who had been in the car during the stop. She told the officers that the man who fled, Unique Gray, told her that he was on the run from a homicide. A computer check by the North Carolina authorities revealed the New York I-Card, so the North Carolina officers then contacted Reyes and informed him that the defendant was wanted in North Carolina for identity theft in connection with that car stop.On August 29, 2015, Reyes learned that the defendant had been taken into custody in North Carolina in connection with the identity theft matter. Reyes and fellow officers — Detective Bellisimo and Police Officer Jennifer Velez — traveled to North Carolina, arriving in Greenville on the morning of August 31, 2015, where they met with the defendant, who was being held in the county jail.At approximately 11:50 a.m., Reyes escorted the defendant into an interview room in the local sheriff’s office.³ Reyes came and went from the room several times, checking on the defendant and arranging for a meal of the defendant’s choice. When the food arrived, the uncuffed defendant was left alone to eat, and did so, appearing to relish the soda, fries, and burger. At approximately 12:30 p.m., Reyes returned with Detective Bellisimo and Officer Velez. Reyes told the defendant that he looked thin, as it had been a while since he had seen him. He then informed the defendant that he was going to read him Miranda warnings and that if he did not understand anything, he should so indicate. Reyes read each warning and the defendant answered “yes” out loud to each question, and agreed to speak with the detectives. Reyes and Bellisimo and the defendant then engaged in a conversation. The defendant, who appeared to be alert and oriented, answered the questions posed to him, repeatedly stating that he did not remember being in the cab, and maintaining that he did not shoot the cab driver.At 1:09 p.m., after a forty-minute question and answer, the defendant told Reyes, “I ain’t got nothing — nothing else to tell you right now. Whatever y’all got obviously you’re gonna arrest me for. That’s the end of story.” Detective Bellisimo responded, “It’s not the end of the story, cuz we don’t have the whole story.” The detectives then continued to interrogate the defendant. After being pressed for an additional forty minutes, the defendant told Reyes again, “Hey yo listen, I don’t have nothing else to say. That’s it. When are we going back to New York to get this shit over with, that’s what I wanna know, that’s my question to you.” Reyes continued to interrogate the defendant. Moments later, the defendant reiterated, “I ain’t saying nothing else man.” Reyes tried to continue interrogating the defendant, but the defendant interrupted, asking whether Reyes had been able to reach his mother. Reyes said that he had tried and would try again, and concluded the interview. Shortly thereafter, the defendant, still uncuffed, was permitted to step out of the interview room to call his mother. Reyes testified that immediately prior to, and throughout the interview, the defendant was not threatened or promised anything in exchange for his statement.An arrest warrant was issued by New York authorities on August 31, 2015, and, on September 2, 2015, Reyes and other detectives escorted the defendant back to New York. Reyes picked the defendant up from the local county jail and explained to him that they would be traveling to New York together. During the trip back to New York, Reyes and the defendant spoke about myriad topics — women, the defendant’s mother — but did not discuss the pending homicide charge. As the plane was about to land, the defendant said to Reyes, as he looked out the window at the New York skyline, “this is the last time I am going to see this.” Reyes testified that he had not discussed the homicide or asked the defendant any questions before the defendant’s comment about the New York skyline.Conclusions of LawThe Court fully credits the testimony of Detective Thomas Reyes.HuntleyThe defendant moves to suppress the post-Miranda video recorded statement that he made while in custody in North Carolina, and the statement that he made while on the plane being transported back to New York.Post-Miranda Statement in North CarolinaThe uncontradicted hearing testimony and the video recording establish that the defendant was adequately advised of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1966); People v. Anderson, 146 A.D.2d 638 (2d Dept. 1989). The uncontradicted hearing testimony and the video recording further establish that the defendant’s waiver of his Miranda rights was knowing, voluntary and intelligent. See generally People v. Rivas, 175 A.D.2d 186 (2d Dept. 1991). Additionally, there is no evidence that the defendant was threatened, coerced, or promised anything in exchange for his statement. Indeed, the detectives complied with the defendant’s requests, providing him with the food and drink of his choice, and facilitating a call to his mother.⁴ So, too, the detectives treated him courteously and with respect throughout. Nevertheless, as the defendant invoked the right to silence at least three times during the statement, the portion of the statement that followed the first invocation must be suppressed.⁵It is axiomatic that if at any time during an interrogation, an individual being interrogated invokes the right to silence, the interrogation must cease immediately. People v. Ferro, 63 N.Y.2d 316 (1984). Once invoked, an individual’s right to silence must be scrupulously honored. People v. DePasquale, 54 N.Y.2d 693 (1981); People v. Wander, 47 N.Y.2d 724 (1979). An individual may not, therefore, “within a short period thereafter and without a fresh set of warnings be importuned to speak about the same suspected crime.” People v. Ferro, 63 N.Y.2d at 322.Here, the People concede that the defendant, towards the end of the interview, invoked his right to silence when he told Reyes, “Hey yo listen, I don’t have nothing else to say. That’s it. When are we going back to New York to get this shit over with, that’s what I wanna know, that’s my question to you.” The People also concede that the detectives did not scrupulously honor that invocation, instead, asking him additional questions. The People further concede that just moments later, the defendant again invoked his right to silence when he told Reyes, “I ain’t saying nothing else man.” The People also concede that the detectives did not scrupulously honor the defendant’s second invocation, instead asking additional questions.Inexplicably, however, the People distinguish the two aforementioned invocations of the right to silence from the defendant’s earlier invocation, some forty minutes prior, when the defendant told Reyes, “I ain’t got nothing — nothing else to tell you right now. Whatever y’all got obviously you’re gonna arrest me for. That’s the end of the story.” To which, Detective Bellissimo immediately responded, “It’s not the end of the story, cuz we don’t have the whole story,” and continued interrogating the defendant. Despite the defendant’s use of words decidedly similar to the two later invocations that the People do concede, they argue that the defendant’s first invocation was not a true invocation, as he subsequently answered additional questions. Not so. Scrupulously honor means scrupulously honor. Thus, when the defendant informed the detectives that he had nothing else to say, unequivocally invoking his right to silence, the detectives were required to cease all questioning immediately. See e.g. People v. Antonio, 86 A.D.2d 614 (2d Dept. 1982); People v. Johnson, 106 A.D.3d 1272 (3d Dept. 2013); compare People v. Silvagnoli, 31 N.Y.3d 1103 (2018); People v. Horton, 46 A.D.3d 1225 (3d Dept. 2007); People v. Lowin, 36 A.D.3d 1153 (3d Dept. 2007); People v. Barrios, 259 A.D.2d 407 (1st Dept. 1999); People v. Hendricks, 90 N.Y.2d 956 (1997).Not only did the detectives fail to honor the defendant’s invocation of the right to silence scrupulously, they outright refused to accept it — telling the defendant that they were not done interrogating him as they did not have “the whole story” — they wanted more, a full confession. And, it bears repeating, the detectives ran roughshod over the defendant’s invocation of the right to silence two subsequent times.⁶ Indeed, at no time did the detectives pause to administer a fresh set of Miranda warnings. In fact, it wasn’t until the defendant took charge and redirected the conversation by asking to call to his mother, that the detectives finally gave up trying to obtain a confession.⁷Accordingly, the portion of the statement following the defendant’s initial invocation of his right to silence on the video at approximately 1:09 p.m. is suppressed.⁸Statement on PlaneNotwithstanding, the defendant’s statement to Detective Reyes, made two days later and as the defendant was being transported back to New York, was spontaneous and, therefore, is not suppressed.⁹Indeed, the uncontradicted hearing evidence unequivocally demonstrates that the defendant’s statement was unsolicited. At no time did Reyes induce, provoke, or encourage the defendant to make the statement, see People v. Browne, 144 A.D.3d 834 (2d Dept. 2016); People v. Galarza, 159 A.D.3d 1584 (4th Dept. 2018), and it was not made in response to express questioning, or its functional equivalent. See People v. Ellis, 58 N.Y.2d 748 (1982); People v. Slattery, 147 A.D.3d 788 (2d Dept. 2017); People v. Powell, 125 A.D.3d 1010 (2d Dept. 2015). That Reyes and the defendant were in one another’s company for several hours and had engaged in banter regarding matters wholly unrelated to the pending homicide charge, does not warrant suppression. So, too, as the statement was made two days after the defendant had invoked his right to silence, and not made during the course of an interrogation or questioning of any kind, suppression is similarly not warranted. See People v. Kinnard, 62 N.Y.2d 910 (1984).Accordingly, the defendant’s motion to suppress the statement that he made on the plane is denied.ConclusionThis constitutes the Decision and Order of this Court.Dated: May 6, 2019Brooklyn, New York