People v. Fields

212 A.D.3d 648

181 N.Y.S.3d 335

The PEOPLE, etc., respondent,

v.Jamil FIELDS, appellant.

2019–11425

Ind. No. 893/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—December 5, 2022

January 11, 2023

John De Chiaro, Larchmont, NY, for appellant.

Miriam E. Rocah, District Attorney, White Plains, NY (William C. Milaccio and Brian R. Pouliot of counsel), for respondent.

BETSY BARROS, J.P., VALERIE BRATHWAITE NELSON, JOSEPH J. MALTESE, WILLIAM G. FORD, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (Anne E. Minihan, J.), rendered September 3, 2019, convicting him of attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress identification testimony and his statement made in the presence of a law enforcement official.

ORDERED that the judgment is affirmed.

The defendant was charged with, inter alia, attempted murder in the second degree in connection with a shooting which occurred on Interstate 95 in Mamaroneck on July 18, 2017. The complainant, who was shot multiple times at close range inside a U–Haul van that the defendant was driving, was transported to the hospital in critical condition. During an investigation, which included a photo array identification procedure and a request for information from the defendant's cell phone carrier on the ground of exigent circumstances, state police investigators identified the defendant as a suspect and arrested him on July 22, 2017. While awaiting arraignment, the defendant was placed in a holding room at the Harrison Police Department, while a police investigator remained approximately five feet outside of the open door in full view of the defendant, including while the defendant met with his assigned counsel. Notwithstanding the known presence of the investigator outside of the door, the defendant spontaneously made a certain statement in a loud voice to his counsel, which the investigator overheard.

Prior to trial, the defendant moved to suppress identification testimony and his statement made in the presence of the law enforcement official. After a combined Wade / Rodriguez hearing (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 ; People v. Rodriguez, 79 N.Y.2d 445, 583 N.Y.S.2d 814, 593 N.E.2d 268 ), the County Court denied that branch of the defendant's motion which was to suppress identification testimony, determining, inter alia, that the photo array was merely confirmatory due to the complainant's prior familiarity with the defendant. In addition, the court denied that branch of the motion which was to suppress the defendant's statement made in the presence of the law enforcement official and allowed the People to introduce testimony about the overheard statement. A jury subsequently found the defendant guilty of attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree. The defendant appeals.

The County Court "properly determined that the complainant was impervious to suggestion due to his familiarity with the defendant" ( People v. Richardson, 200 A.D.3d 984, 985, 159 N.Y.S.3d 120 ; see People v. Coleman, 73 A.D.3d 1200, 1202, 903 N.Y.S.2d 431 ), and, therefore, properly denied that branch of the defendant's omnibus motion which was to suppress identification testimony.

The County Court also properly denied that branch of the defendant's omnibus motion which was to suppress the defendant's statement made in the presence of the law enforcement official. To the extent that the defendant contends that he was deprived of his right to counsel, "the lack of an adequate record bars review on direct appeal" ( People v. McLean, 15 N.Y.3d 117, 121, 905 N.Y.S.2d 536, 931 N.E.2d 520 ). In any event, "statements made by a defendant who has invoked the right to counsel may nevertheless be admissible at trial if they were made spontaneously" ( People v. Harris, 57 N.Y.2d 335, 342, 456 N.Y.S.2d 694, 442 N.E.2d 1205 ; see People v. Cascio, 79 A.D.3d 1809, 1811, 914 N.Y.S.2d 490 ). Here, the statement at issue was not uttered to, but within the hearing of, a police investigator, and was made spontaneously, i.e., not induced, provoked or encouraged by any action of the investigator (see People v. Harris, 57 N.Y.2d at 343, 456 N.Y.S.2d 694, 442 N.E.2d 1205 ). Moreover, contrary to the defendant's contention, his statement was not protected by the attorney-client privilege. "Generally, communications made between a defendant and counsel in the known presence of a third party are not privileged" ( People v. Osorio, 75 N.Y.2d 80, 84, 550 N.Y.S.2d 612, 549 N.E.2d 1183 ; see People v. Cooper, 307 N.Y. 253, 259 n. 3, 120 N.E.2d 813 ). Here, the defendant not only made his statement in the known presence of the investigator, but made it in such a way that indicated that he was not interested in keeping private what he said to his counsel (see People v. Harris, 57 N.Y.2d at 343, 456 N.Y.S.2d 694, 442 N.E.2d 1205 ).

Contrary to the defendant's contention, the County Court providently exercised its discretion in permitting the testimony of a ballistics expert at trial although no handgun or ballistics evidence was recovered. The admissibility of expert testimony is generally addressed to the discretion of the trial court (see People v. Williams, 20 N.Y.3d 579, 584, 964 N.Y.S.2d 483, 987 N.E.2d 260 ; People v. Lee, 96 N.Y.2d 157, 162, 726 N.Y.S.2d 361, 750 N.E.2d 63 ). "The guiding principle is that expert opinion is proper when it would help to...