People v. Silvagnoli ( 2017 )

Judgment, Supreme Court, New York County (Renee A. White, J. at suppression hearing; Rena K. Uviller, J. at plea and sentencing), rendered November 20, 2012, convicting defendant, upon his plea of guilty, of manslaughter in the first degree, and sentencing him to a term of 18 years, reversed, on the law, the motion to suppress defendant’s statements granted, the plea vacated, and the matter remanded for further proceedings.

Even where two criminal matters themselves are not related, police may not question a suspect on one matter on which he or she is represented by counsel “in a manner designed to elicit statements on an unrelated matter” in which the suspect is not represented (People v Cohen, 90 NY2d 632, 641 [1997] [internal quotation marks omitted]). The key inquiry is whether the “impermissible questioning . . . was not discrete or fairly separable” (id. [internal quotation marks omitted]).

Here, the detective who questioned defendant in a homicide investigation acknowledged that during the questioning a “conversation came up” in which he told defendant that he knew about a pending drug case against defendant in which he knew defendant was represented by counsel. Specifically, the detective recounted telling defendant that “you could say nothing, but that was kind of a dumb thing you did selling drugs to an undercover back in 2007,” and asking if he was so smart why he had sold drugs to an undercover officer.

Although the reference to the drug charges on which defendant was represented was brief and flippant, it was not, in context, innocuous or discrete and fairly separable from the homicide investigation. The detective told defendant during the questioning that he knew defendant was involved in selling drugs at the location of the murder and that the killing was over a drug debt. The remarks regarding the pending drug case went to defendant’s alleged participation in the drug trade at the location of the homicide, the very activity out of which a motivation for killing the victim arose. Indeed, it succeeded in eliciting from defendant a response that may fairly be interpreted as incriminating himself in dealing drugs at the location, the alleged motivation and context out of which the homicide occurred. Accordingly, because questioning regarding the drug case on which defendant was represented by counsel was intertwined with questioning regarding the homicide, defendant’s statements should have been suppressed.

However, we find no other basis for suppression. As the dissent notes, the repeated comments made to defendant by the detective and his colleagues to the effect that defendant should “tell [his] side of the story” immediately because if he were to wait until trial, “[no] one is going to believe” him and he would be “charged with murder, not . . . manslaughter” did not vitiate the Miranda warnings defendant had received (Matter of Jimmy D., 15 NY3d 417 [2010]).

Concur—Moskowitz, Gische and Kahn, JJ.