People v. Gray

OPINION OF THE COURT

Abdus-Salaam, J.

Under the circumstances of this case, we hold that defendant’s attorney did not deprive him of the effective assistance of counsel by declining to move to reopen the suppression hearing.

At the suppression hearing preceding defendant’s murder trial, a police detective testified that, after receiving information implicating defendant in the murder, he interviewed defendant about the crime at a North Carolina police station, where defendant was being held by local authorities at the New York detective’s request. The detective issued oral Miranda warnings (see Miranda v Arizona, 384 US 436 [1966]) from memory at the start of the interview, and defendant initially stated that he wanted to take the blame for the crime because his half brother, an alleged accomplice in the murder, had spent enough time in prison already. The detective ceased questioning, read Miranda warnings from a form provided by North Carolina officers, waited 45 minutes to receive a New York Police Department (NYPD) Miranda form via fax and then issued Miranda warnings again from the NYPD form. After the 45-minute break and the issuance of those warnings, the detective resumed questioning defendant, eliciting defendant’s statement that, inter alia, he had shot at the victim’s groin and fled the scene without seeing what happened next, and his half brother had not shot at or harmed the victim. The detective wrote down this statement at defendant’s request.

Based on the detective’s description of the interrogation at the hearing, the hearing court granted defendant’s motion to suppress his initial statement and his post-break statement due to the detective’s purported failure to issue a complete set of Miranda warnings at the outset of the interview. However, the Appellate Division reversed and denied the suppression motion, reasoning that defendant’s second statement had been attenuated from the first, and it therefore remanded the case for trial (see People v Gray, 51 AD3d 63, 64-67 [1st Dept 2008]).

At the start of trial, the parties stipulated to the admission of defendant’s first statement about taking the blame for the crime into evidence, as counsel wished to use that statement to suggest that defendant’s second statement had been inaccurately transcribed and, at any rate, had stemmed from a desire to save his half brother. Later at trial, however, the detective who had interrogated defendant gave a different account of defendant’s statements than the one set forth in his hearing testimony. In particular, the detective testified, while defendant had still said that he wished to take responsibility for the murder to exculpate his half brother, he also indicated that he had shot at the victim’s groin, much as he did in his statement following the 45-minute break in the interview. In addition, prior to the break between defendant’s two statements, the detective spoke to defendant for about an hour and 10 minutes, which was a longer period than was indicated by the detective’s hearing testimony.

At a sidebar, defense counsel complained about the detective’s revised account of defendant’s first statement and asked that the detective instead limit his account of that statement to the information contained in his hearing testimony, and the court granted counsel’s request. Thereafter, the detective testified consistently with his hearing testimony. At the end of trial, the jury returned a verdict convicting defendant of murder in the second degree (see Penal Law § 125.25 [1]), and the court later sentenced him to a prison term of 25 years to life.

Afterward, defendant filed a motion to vacate the judgment pursuant to CPL 440.10, alleging that defense counsel had rendered ineffective assistance by failing to move to reopen the suppression hearing based on the detective’s trial testimony about his interview with defendant. The People opposed the motion, asserting that defense counsel had properly declined to move to reopen the hearing in light of his evident recognition that he could not have won suppression of defendant’s second statement. Defense counsel filed an affidavit explaining his trial strategy. In sum and substance, counsel averred that he had believed that defendant’s second statement would almost certainly be admitted into evidence at trial and that therefore he had focused on using the exculpatory preface of the first statement to cast doubt on the probative worth of defendant’s more incriminating subsequent comments. Supreme Court denied defendant’s postjudgment motion without a hearing, finding that counsel had a legitimate strategic basis for declining to move to reopen the suppression hearing and that counsel’s mistakes, if any, had not prejudiced defendant.

On a consolidated appeal from the order denying defendant’s postjudgment motion and from the judgment, the Appellate Division affirmed (see People v Gray, 116 AD3d 480, 480-481 [1st Dept 2014]). The Appellate Division concluded that, regardless of whether counsel had a sound strategy, counsel had not been ineffective for declining to make fruitless renewed efforts to suppress defendant’s second statement, as the detective’s trial testimony still revealed that the second statement was clearly attenuated from the first (see id. at 480-481). A Judge of this Court granted defendant leave to appeal (24 NY3d 1084 [2014]), and we now affirm.

Defense counsel did not deprive defendant of the effective assistance of counsel when he decided not to move to reopen the suppression hearing based on the detective’s trial account of the statement made by defendant prior to the issuance of the North Carolina Miranda warnings. Because the Appellate Division had rejected counsel’s original arguments for suppression of the post-break statement prior to trial and cited a number of factors that remained extant throughout the proceedings in this case, counsel reasonably thought that the statement would be admitted into evidence regardless of any new developments, and instead of making what he sensibly thought was a long-shot motion to reopen the hearing, he decided to use the exculpatory portion of defendant’s first statement to undermine the credibility of the second statement and place it in context.

Contrary to defendant’s and the dissent’s position (see dissenting op at 87-91), counsel properly recognized the highly remote possibility that the defense would have succeeded in convincing the court to reopen the suppression hearing and suppress the second, post-break statement. As a threshold matter, notwithstanding the dissent’s protestation (see dissenting op at 88), it is not entirely clear that the court would have exercised its discretion to reopen the hearing (see CPL 710.40 [4]; see People v Clark, 88 NY2d 552, 555-556 [1996]). In that regard, CPL 710.40 (4) grants a trial court discretion to permit a defendant to renew a motion to suppress evidence provided that the defendant shows “that additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion.” Here, when counsel told the trial court that “we,” presumably referring to the defense, already “knew that [the detective] spoke at some length to [defendant]” before any proper Miranda warnings were given, counsel suggested that he was aware of the full extent of defendant’s comments prior to the issuance of the North Carolina Miranda warnings, and therefore the detective’s trial testimony about the entire conversation between him and defendant prior to those warnings may not have disclosed previously undiscovered or undiscoverable facts warranting a reopened hearing.

Moreover, at a reopened hearing, it was highly unlikely that the court would have suppressed the statement made by defendant following the issuance of the New York Miranda warnings. Significantly, the totality of the circumstances of the interrogation described by the detective at trial, including the detective’s administration of some form of Miranda warnings at the start of the interrogation, the 45-minute break between defendant’s two statements, the issuance of written Miranda warnings before and after the break, defendant’s prior experience speaking to the police during his eight previous arrests and the mixed inculpatory and exculpatory nature of his statements, plainly showed that the post-break statement was voluntary and attenuated from the pre-break statement (see People v Paulman, 5 NY3d 122, 130-131 [2005]; People v Chappie, 38 NY2d 112, 115 [1975]; cf. Missouri v Seibert, 542 US 600, 611 [2004 plurality, Souter, J.]; id. at 620-622 [Kennedy, J., concurring]).* In light of the weakness of defense counsel’s potential bid for suppression at a reopened hearing, counsel pursued a legitimate strategy in forgoing an unavailing motion to reopen the hearing and attempting to use the exculpatory part of defendant’s pre-break statement to discredit the post-break statement in the eyes of the jury. Notably, too, had counsel sought a reopened hearing, the detective would have had the opportunity to strengthen his account of the interrogation and the voluntariness of defendant’s statements, potentially placing the People in a better position to undermine counsel’s efforts to attack the credibility of the post-break statement at trial. Thus, counsel had a reasonable trial strategy, and defendant’s current disagreement with it does not entitle him to relief on his ineffective assistance claim (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Hogan, 26 NY3d 779, 785 [2016]; see generally People v Evans, 16 NY3d 571, 576 [2011]; cf. People v Clermont, 22 NY3d 931, 933-934 [2013]). Finally, we have considered and rejected defendant’s remaining claim. Accordingly, the order of the Appellate Division should be affirmed.

* It is true, as the dissent observes (see dissenting op at 89-90), that defendant made similar statements to the same detectives before and after the 45-minute break. However, as we have previously observed, no one factor or subset of factors is dispositive of the question of attenuation, and the totality of the circumstances here strongly indicated that the second statement was attenuated from the first (see Paulman, 5 NY3d at 130-131).