DECISION AFTER HEARING The defendant, Tyrik Legette, is charged with one count of each of the following crimes: Assault in the First Degree [PL 120.10-1] and Assault in the Second Degree [PL 120.05-2]. By Decision and Order dated March 10, 2022, the defendant was granted a hearing to determine the admissibility of identification evidence and statements allegedly made by the defendant. A hearing was held on April 7, 2022. Appearing for the People was Executive Assistant District Attorney Michael Milza, Esq. Appearing for the defendant was Kenyon C. Trachte, Esq. The People called two witnesses: Parole Officer Deidre Ryan and Detective Justin Demoullion. The defendant did not call any witnesses. The following items were received into evidence: a photograph (People #1), a compact disc with a video purportedly depicting a portion of the incident (People #2), and a compact disc with video of a statement purportedly made by the defendant (People #3). FINDINGS OF FACT Parole Officer Deidre Ryan is a parole officer who was assigned to supervise defendant while he was on parole on two separate occasions related to two separate cases. Over the course of supervising defendant, PO Ryan had met with the defendant between 25-50 times, sometimes those interactions spanned up to an hour. The meetings were conducted in a combination of in-person and virtual (video with audio) settings. PO Ryan confirmed that she supervises anywhere from 70-80 parolees at any given time, more than 50 percent of whom are black males, and there is a turnover rate in terms of who she supervises. When PO Ryan meets with her parolees she has their file, which contains a photograph of the respective parolees. The photograph is to help confirm the identity of the parolee with whom she is meeting. Parole Officer Ryan was actively supervising defendant on November 4, 2021, when she received a call from Detective Justin Demoullion wherein the detective inquired if she was the parole officer supervising the defendant. After PO Ryan confirmed that she was the defendant’s parole officer, Detective Demoullion met with PO Ryan and had her view a video. The detective did not tell PO Ryan the identity of the person visible in the video prior to her viewing the videotape. While viewing the videotape (People’s 2), PO Ryan identified the only person visible in that video as the defendant. On November 9, 2021, defendant was observed by the police in the vicinity of South Street and Chambers Street in the City of Newburgh. After the defendant confirmed his identity to the police, he was placed under arrest and transported to the police department. When the defendant arrived at the police department he was held in an interview room. His interaction with Detective Demoullion in that room was videotaped. After defendant was advised of his Miranda warnings, he indicated he did not want to speak to the detective. Prior to the Miranda warnings the defendant was asking about whether he was being charged, what the charges were, and what this was about. After the detective advised the defendant he was being charged, the defendant began asserting a self-defense claim. He gave an exculpatory statement, indicating the complaining witness was high on PCP and was punching and kicking him, so he threw her out of the car and tried to get away from her. The defendant claimed he fled and did not cause the injuries sustained by the complaining witness, however, he later stated that as he was driving away she jumped on the back of his car and he didn’t know what happened to her. LEGAL ANALYSIS/CONCLUSIONS OF LAW Defendant moves to suppress the identification of Parole Officer Ryan and to preclude any in-court identification at the trial of defendant by Parole Officer Ryan. He further moves to suppress any statements made by him, and to preclude any use of said statements in cross-examining the defendant should he choose to testify at trial. The People assert that the identification was merely confirmatory, they agree the statement should be suppressed in their case-in-chief, but they claim the statement was voluntarily made and should be available to cross-examine the defendant should he choose to testify on his own behalf. A court’s application of the “confirmatory identification” exception is equivalent to a finding that, as a matter of law, the witness is so familiar with the defendant that there is “little or no risk” that police suggestion could lead to a misidentification. In effect, it is a ruling that however suggestive or unfair the identification procedure might be, there is virtually no possibility that the witness could misidentify the defendant (People v. Rodriguez, 79 N.Y.2d 445 [1992]). The exception may be confidently applied where the respective parties are family members, friends or acquaintances or have lived together for a time. At the other extreme, it clearly does not apply where the familiarity emanates from a brief encounter (People v. Collins, 60 N.Y.2d 214 [1983], People v. Tas, 51 N.Y.2d 915 [1980], People v. Newball, 76 N.Y.2d 587 [1990]). In cases where the prior relationship is brief or remote in time it would be impractical to ignore the possibility that police suggestion may improperly taint the witness’s identification. In an abundance of caution, the People gave notice of the identification of defendant by PO Ryan. As a result, the defendant had the opportunity to test the suggestive nature of the identification procedure and question the witness with respect to her relationship and familiarity with defendant. In determining whether this identification procedure was confirmatory in nature, this Court has considered the number of times the witness viewed defendant prior to the identification, the duration and nature of the encounters, the setting, the period of time over which the viewings occurred, the time elapsed between the identification and the previous viewings, and whether the two had any conversations. PO Ryan had and was supervising defendant while he was on parole on two separate occasions, related to two separate cases, over two separate time periods. Over the course of supervising defendant, she met with the defendant between 25-50 times, sometimes for up to an hour and had conversations with him during those interactions. It is clear from the number, nature, and quality of the interactions that PO Ryan is so familiar with the defendant that her identification of him on the video was confirmatory in nature.1 As such, it will not be suppressed and P.O. Ryan’s testimony will not be precluded, despite the suggestive nature of the identification procedure. The statements made by defendant, however, are suppressed. After the defendant was advised of his Miranda warnings, he unequivocally stated he did not want to speak to the detective. After the detective advised the defendant he was being charged, the defendant began asserting a self-defense claim and the detective continued questioning defendant. The manner in which the detective advised defendant of his charges, as well as the subsequent questioning of defendant both were likely to illicit incriminating responses. As such, this Court finds that defendant’s statements were obtained in violation of the defendant’s rights under Miranda v. Arizona, 384 U.S. 436 (1966). Those statements, however, may be utilized for impeachment purposes on the cross-examination of the defendant in the event said testimony is inconsistent with the illegally obtained statement (People v. Harris, 25 N.Y.2d 175 [1969]). Courts have long held that if a statement made by the defendant to the police is voluntary, it may be used for impeachment purposes; but if a statement is involuntary, it will not be admissible, even if it may be deemed reliable (People v. Maerling, 64 N.Y.2d 134, 140 [1984]; People v. Walker, 110 A.D.2d 730, 732, 487 N.Y.S.2d 613 [2d Dept.1985], aff’d for reasons stated 67 N.Y.2d 776, 500 N.Y.S.2d 643, 491 N.E.2d 1100 [1986]). The remedy proposed by defendant would render inadmissible for impeachment purposes any statement elicited by law enforcement after the defendant invoked his right to remain silent. This remedy would essentially overrule the Court of Appeals decision in Harris and its progeny, a remedy this Court is without authority to impose — unless this Court finds the statements made by defendant were involuntary. The statements made by the defendant in this case were voluntary, as depicted in the video of the interaction between the defendant and Detective Demoullion. The statements contained on the video demonstrate that those statements were made freely and voluntarily without coercion or duress. There was no use nor any threatened use of physical force, there was no evidence it was obtained by any improper conduct or undue pressure which could serve to impair the defendant’s physical or mental condition to the extent of undermining his ability to make a choice of whether or not to make a statement. While the detective acknowledged that he was aware of the Harris decision and understood that defendant’s post-Miranda statements could not be used by the People in their case-in-chief but could be utilized by the People for impeachment purposes, there is nothing in the record to support defendant’s contention that the detective consciously circumvented defendant’s invocation of his Fifth Amendment rights or otherwise rendered defendant’s statements involuntary as a matter of law. Once defendant was advised he was being arrested, he provided statements consistent with a self-defense claim. Defendant’s reliance on People v. Nelson, 189 Misc.2d 362, 365, 731 N.Y.S.2d 593 (Monroe County Ct. 2001), is misplaced. The Court of Appeals specifically declined to adopt such a bright-line rule precluding the People from utilizing on cross-examination or rebuttal any statement provided by the defendant to the police after the defendant refuses to waive his Miranda rights. The Court found that doing so would effectively sanction perjury on the part of a testifying defendant by permitting the defendant to offer testimony that is inconsistent with the defendant’s prior statements (People v. Wilson, 28 N.Y.3d 67 [2016]). It is critical to note that the use of those statements taken in violation of the defendant’s constitutional rights are very limited in nature: they only may be utilized for impeachment purposes on cross-examination and only in the event the defendant provides trial testimony that is inconsistent with the illegally obtained statement. The foregoing constitutes the Decision and Order of this Court. Dated: May 20, 2022
