People v. Knapp

124 A.D.3d 36

995 N.Y.S.2d 869

2014 N.Y. Slip Op. 07801

The PEOPLE of the State of New York, Respondent

v.Robert M. KNAPP, Defendant–Appellant. (Appeal No. 1.)

1023 KA 12-01870

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

Nov. 14, 2014.

Charles Marangola, Moravia, for Defendant–Appellant.

Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, and DeJOSEPH, JJ.

Opinion

Opinion by PERADOTTO, J.

In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, rape in the first degree (Penal Law § 130.35[3] ) and, in appeal No. 2, he appeals from a judgment convicting him upon a jury verdict of endangering the welfare of a child (§ 260.10[1] ). Defendant contends in both appeals that County Court erred in refusing to suppress his confession on two grounds, i.e., that he did not knowingly, voluntarily, and intelligently waive his Miranda rights because he lacked the capacity to do so, and because his intellectual limitations, combined with coercive police tactics, rendered his statements involuntary. We agree.

I

In the fall of 2008, defendant, an “intellectually handicapped” man with an IQ of 68, moved into a trailer owned by his childhood friend and occupied by the friend and her two children. According to the friend, during the two years in which he lived there, defendant “seemed like part of the family” and was “really close” with the children. On October 26, 2010, however, the friend (hereafter, mother) walked into defendant's portion of the trailer and found her three-year-old daughter standing with her pants down a few feet away from defendant. Defendant was sitting on his bed in his boxer shorts with a sheet or blanket partially covering his lap. The mother asked the child why her pants were down, and she replied that defendant had touched her “tu-tu,” the child's term for her vagina. The mother called 911.

The police responded to the trailer and, after speaking with the mother and the child, located the defendant on a farm where he apparently worked “doing hay.” Defendant agreed to accompany the police to the station, stopping first at the trailer, where defendant consented to a search of his living quarters. At the station, a detective read defendant the Miranda warnings, and he waived his rights and agreed to speak to the police. Defendant initially denied that anything happened between him and the child. He ultimately admitted, however, that he had engaged in several sexual acts with the child on a regular basis beginning in September 2010.

By indictment No. 2011–073 (hereafter, first indictment), defendant was charged with 18 counts of sexual misconduct against the child (identified as M.A.). The first five counts of the indictment (counts 1–5) charged defendant with rape in the first degree (Penal Law § 130.35[3] ), criminal sexual act in the first degree (two counts) (§ 130.50[3] ), aggravated sexual abuse in the third degree (§ 130.66[1][c] ), and sexual abuse in the first degree (§ 130.65[3] ), all based upon the October 26, 2010 incident. The indictment alleged that, on that date, defendant engaged in sexual intercourse with M.A., placed his mouth on her vagina, put his penis in her mouth, inserted a foreign object (a medicine dropper) into her vagina, and touched her vagina. The next six counts of the indictment (counts 6–11) charged defendant with rape in the first degree based on conduct allegedly occurring on a weekly basis beginning the week of September 12, 2010 and ending the week of October 17, 2010. Defendant was also charged with two counts of criminal sexual act in the first degree (oral sexual conduct) and one count of sexual abuse in the first degree (vaginal touching) based on alleged incidents occurring between October 1 and 25, 2010 (counts 12–14), as well as two counts of criminal sexual act in the first degree (oral sexual contact) and one count of sexual abuse in the first degree (vaginal touching) based on alleged incidents occurring between September 8 and September 30, 2010 (counts 15–17). Finally, defendant was charged with endangering the welfare of a child (§ 260.10[1] ) (count 18) by subjecting M.A. to sexual contact between September 2009 and October 2010.

M.A.'s brother, J.A., then four, and their cousin, C.S., then six, thereafter made disclosures to the police. By indictment No. 2011–145 (hereafter, second indictment), defendant was charged with course of sexual conduct against a child in the second degree (Penal Law § 130.80[1][a] ) and endangering the welfare of a child (§ 260.10[1] ) based on the allegation that he engaged in two or more acts of sexual conduct with C.S. and “repeatedly subjected her to sexual contact” between October 2008 and October 2010 (counts 1 and 2). Counts 3–5 charged defendant with sexual abuse in the first degree (§ 130.65[3] ) (two counts) and endangering the welfare of a child (§ 260.10 [1 ] ) based upon allegations that between January 2010 and October 2010, defendant touched J.A.'s penis and buttocks. The two indictments were consolidated over defendant's objection.

Defendant thereafter moved to suppress his statement to the police on the grounds that he lacked the capacity to knowingly and intelligently waive his Miranda rights, and that his mental limitations, combined with the police interrogation tactics, rendered his confession involuntary. Defendant submitted the report of a forensic psychologist who examined defendant on two dates in June 2011, took his history, reviewed the videotape of the interrogation, and performed a number of psychological tests. The defense expert opined that defendant was “not capable of intelligently waiving his Miranda [r]ights” due to his “cognitive and abstracting deficits,” and that he was “a suggestible and overly compliant individual, ... causing him to be easily intimidated by the interrogation process.”

At the Huntley hearing, the People presented the expert testimony of a forensic psychiatrist who interviewed defendant in jail and reviewed the videotape of his confession. The People's expert acknowledged that defendant was “intellectually handicapped,” with a full-scale IQ of 68, but concluded that defendant was “not that retarded” and could understand his Miranda rights. The defense expert testified that defendant's IQ placed him in the “mentally retarded range of intellectual functioning.” Defendant's verbal IQ was 63, which placed him in the first percentile, meaning that he performed worse than 99% of the test population. Based upon defendant's “very poor” level of verbal functioning, the defense expert opined that, although defendant was “able to understand the words of the Miranda rights,” he was “not capable of intelligently waiving” those rights. He further opined that defendant was “a very suggestible and very compliant man as is not atypical of persons who are mentally retarded,” which placed him at risk of falsely confessing.

The court denied defendant's motion, concluding that defendant knowingly, voluntarily, and intelligently waived his Miranda rights. The court determined that, although defendant “has impaired intelligence and limited verbal comprehension ability,” there was “no evidence of mental retardation so great as to render [him] completely incapable of understanding the meaning and effect of the confession.” The court further determined that the police conduct “did not overbear the defendant's will or ... undermine his ability to make a choice whether or not to make a statement.”

By its verdict, the jury convicted defendant of rape in the first degree (Penal Law § 130.35[3] ), criminal sexual act in the first degree (four counts) (§ 130.50[3] ), aggravated sexual abuse in the third degree (§ 130.66 [1][c] ), sexual abuse in the first degree (three counts) (§ 130.65 [3] ), and endangering the welfare of a child (§ 260.10[1] ) as charged in counts 1–5, 12–14, and 17–18 of the first indictment. The jury also convicted defendant of endangering the welfare of a child (§ 260.10[1] ) as charged in count 2 of the second indictment. Defendant now appeals.

II

It is well established that, “[f]or a statement to be admissible, the People must prove a voluntary, knowing, and intelligent waiver of the privilege against self-incrimination” (People v. Aveni, 100 A.D.3d 228, 236, 953 N.Y.S.2d 55, appeal dismissed 22 N.Y.3d 1114, 983 N.Y.S.2d 768, 6 N.E.3d 1124 ; see People v. Rodney, 85 N.Y.2d 289, 292, 624 N.Y.S.2d 95, 648 N.E.2d 471 ; People v. Williams, 62 N.Y.2d 285, 288, 476 N.Y.S.2d 788, 465 N.E.2d 327 ). “Whether a defendant knowingly and intelligently waived his or her rights to remain silent and to an attorney is determined upon an inquiry into the totality of the circumstances surrounding the interrogation” (People v. Santos, 112 A.D.3d 757, 758, 976 N.Y.S.2d 565, lv. denied 22 N.Y.3d 1158, 984 N.Y.S.2d 642, 7 N.E.3d 1130 [internal quotation marks omitted]; see Williams, 62 N.Y.2d at 288, 476 N.Y.S.2d 788, 465 N.E.2d 327 ), including the defendant's “age, experience, education, background, and intelligence, and ... whether he [or she] has the capacity to understand the warnings given him [or her], the nature of his [or her] Fifth Amendment rights, and the consequences of waiving those rights” (Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197, reh. denied 444 U.S. 887, 100 S.Ct. 186, 62 L.Ed.2d 121 ).

Where a “person of subnormal intelligence” is involved, “close scrutiny must be made of the circumstances of the asserted waiver” (Williams, 62 N.Y.2d at 289, 476 N.Y.S.2d 788, 465 N.E.2d 327 ). “A defendant's mental deficiency weighs against the admissibility of an elicited confession, so that any such confession must be measured by the degree of the defendant's awareness of the nature of the rights being abandoned and the consequences of the decision to abandon them” (People v. Dunn, 195 A.D.2d 240, 242, 607 N.Y.S.2d 689, affd. 18...