THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v CLIFFORD GRAHAM, Appellant.
Court of Appeals of New York
Argued March 25, 2015; decided May 5, 2015
[32 NE3d 387, 10 NYS3d 172]
994
Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), for appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), for respondent.
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed.
After defendant attempted to use counterfeit $20 bills to pay for a hotel room and buy groceries at a convenience store, he was arrested and taken to the Criminal Investigations Division of the Syracuse Police Department. A detective read defendant
Approximately three weeks later, defense counsel contacted the detectives and indicated that defendant wished to share additional information about the source of the counterfeit money. Defendant spoke at length with counsel in private before meeting with one of the detectives, and counsel was present for a portion of the ensuing conversation until leaving, with defendant‘s consent, to attend to a prior commitment. It is undisputed that defendant was not advised of his Miranda rights at this second interview. During that interview, he made statements that were allegedly inculpatory.
Defendant subsequently moved, in a pro se omnibus motion, for suppression of the statements that he made to the detectives. He asserted that his statements were the product of “custodial interrogation,” and were made in violation of his Fifth and Fourteenth Amendment rights under the Federal Constitution, as well as his rights under the State Constitution and
During the suppression hearing, defendant asked the court how long his initial waiver of his Miranda rights remained valid, and the People conceded that the waiver was good only for the day on which he was first arrested. Defendant then conducted a cross-examination of the detective with whom he spoke during the second interview. Supreme Court attempted to direct defendant‘s focus by stating, “[s]ee, you‘re not going into the circumstances surrounding your Miranda rights,” and pointing out that defendant‘s questions had no bearing on “whether the interrogation session was legal.”
Supreme Court‘s efforts to focus defendant on a possible violation of his Miranda rights were to no avail and, at the close of the suppression hearing, defendant made an argument that the police lacked probable cause to arrest him. Rejecting that argument “because the orders directing the hearings did not involve any type of probable cause issue,” the court denied
“defendant was in custody on the matter, represented by counsel on the matter and therefore he could not waive counsel on the matter unless counsel was present, which did occur. Once a counsel waiver occurred in counsel‘s presence and the client agreed to submit to the interview on the topic at hand, to wit: counterfeit bills, counsel‘s presence thereafter is not required.”
The matter proceeded to trial, at the close of which a jury found defendant guilty of two counts each of criminal possession of a forged instrument in the first degree and petit larceny. Upon defendant‘s appeal, the Appellate Division affirmed (107 AD3d 1421 [2013]). Regarding defendant‘s motion to suppress statements made during the second interview, the Court concluded that “[i]nasmuch as defendant‘s counsel was present during the first 20 minutes of the interview and informed the detectives that defendant was willing to cooperate, it was permissible for the officers to infer from defendant‘s conduct and his attorney‘s assurances that defendant‘s waiver of his Miranda rights was made on the advice of counsel” (id. at 1422-1423). A Judge of this Court granted defendant leave to appeal (23 NY3d 963 [2014]).
Because we conclude that defendant failed to preserve the issue that he raises on this appeal, we affirm. “Under
The issue argued on this appeal is whether the police were required to again read defendant his Miranda rights when they interviewed him a second time, at his request and in the presence of counsel. In particular, defendant contends that the courts below erred in determining that the presence of counsel obviated the need for police to advise him of his right to remain silent during the second interview. Defendant, however, did not
Moreover, while a general objection—such as that contained in defendant‘s omnibus motion—is sufficient to preserve an issue for our review when the trial court “expressly decided the question raised on appeal” (
Chief Judge LIPPMAN and Judges READ, PIGOTT, RIVERA, ABDUS-SALAAM and STEIN concur; Judge FAHEY taking no part.
Order affirmed, in a memorandum.