New York Family Law Blog
The plaintiff is an experienced police informant, met the defendant towards the end of December, 1997 when they were both incarcerated at the Nassau County Jail. At the time that they met, the police informant was charged with the felony of scheme to defraud in the first degree and misdemeanor criminal contempt charges. The two men became friends in the correctional institution, and in March of 1998 defendant confided to him that he had secreted monies from his mother’s estate. Defendant told him in substance that he had been held in contempt by the Surrogate for withholding estate monies for which he had not made a proper accounting to the court. Defendant also indicated that he was represented by counsel in connection with the civil contempt proceeding. Defendant stated that he considered his brothers to be partially responsible for his incarceration, that he hated both of his brothers, and that he wanted to have one of his brothers killed. Defendant also expressed a desire to harm the Surrogate. Finally, defendant spoke of a woman to whom he had entrusted $45,000 who had squandered the money. He was concerned about this woman because she was in possession of certain documents of his which would prove damaging if they were obtained by the IRS. The police informant told defendant that he knew someone who could “take care” of his brother for him.
On March 18, 1998 the police informant wrote a letter to Surrogate informing him of defendant’s intentions and offering to be of assistance to law enforcement. Surrogate forwarded the letter to the Nassau County District Attorney’s office. In response to defendant’s letter, ADA and the investigator of the Nassau County District Attorney’s Office arranged to meet with him on March 24. At the meeting Ms. Meister questioned Miller about the matters mentioned in his letter to Surrogate took notes, and told him she would get back to him shortly as to whether he would be accepted for cooperation with the District Attorney’s office. On June 3, defendant again met with the police informant and stated that he wanted to “rearrange” the hit and to have the police informant contact and act as “the middleman.” Defendant also indicated that he had a $2,000 check which was available as a down payment on the contract. An indictment was filed against defendant on June 11, 1998.
Defendant contends that the grand jury proceeding was defective because the testimony of the police informant, a government informant, was elicited largely through leading questions. Whether a witness may be examined by leading questions in the grand jury is within the discretion of the district attorney as the law advisor to the grand jury. Since he was an informant, he was neither hostile to the prosecution nor reluctant to testify. However that may be, testimony concerning preliminary matters may be elicited through leading questions in order to expedite the proceedings. To the extent that his testimony in the grand jury was of a preliminary nature to show how defendant was introduced to the detective, it was not an abuse of discretion for the prosecutor to use leading questions to elicit this testimony.
The defendant also contends that the prosecutor engaged in leading questions concerning the subject of the purported renunciation of the contract to kill defendant’s brother. The grand jury minutes make clear that when this subject was first introduced, the prosecutor expected a negative response to the question, “Was it your understanding that he had permanently decided to cancel plans to kill his brother” Minutes at 14. That the witness surprised the prosecutor by answering “yes” to this question belies any claim that defendant was prejudiced because the question suggested a particular answer. Subsequent questioning merely clarified the witness’ position on the issue and was not of a leading nature.
The court also notes with respect to the prosecutor’s manner of examining the police informant that criminal charges had been pending against the witness. Despite the fact that the police informant had recently entered a guilty plea, there remained the possibility that the plea could be withdrawn. Thus, the prosecutor was entitled to utilize leading questions to control the witness’ testimony and avoid the danger of conferring immunity.
The defendant next argues that the grand jury proceeding was defective because the prosecutor failed to present evidence of the police informant’s prior convictions to the grand jury. The prosecutor owes a duty of fair dealing to the accused in the grand jury. However, a grand jury proceeding is not an adversary proceeding, and the People are not obligated to present all evidence in their possession which is favorable to the accused. Thus, the prosecutor is not obligated to impeach a witness with prior criminal convictions when the prosecutor believes that the witness’ testimony is truthful. Nor was it necessary to show the precise terms of his cooperation agreement or specifically charge the grand jury that he is expected to receive a benefit from his testimony. In any event, the court notes that the grand jury was advised as to the nature of his pending charges, as well as the fact that he was currently incarcerated.
With respect to the defendant, evidence was presented to the grand jury that defendant had been found to be in civil contempt by the Nassau County Surrogate’s Court and was currently incarcerated. The court has determined that appropriate limiting instructions were given to the grand jurors. The instructions were to the effect that they could consider this evidence only as bearing on defendant’s motive for soliciting the undercover to assault or kill defendant’s brother and opportunity to contact the undercover from the Nassau County jail. The grand jurors were instructed not to consider this evidence as showing a propensity or disposition to commit the crimes charged.
Finally, contrary to defendant’s contention, the grand jurors had reasonable cause to believe that defendant had not renounced the plan to kill his brother. As stated in the court’s prior decision, the tape recorded conversations make clear that defendant’s fear of detection was, at least in part, his motive to call off the criminal venture. Accordingly, that branch of defendant’s motion which seeks to dismiss the indictment is denied.
During the course of the hearing, defendant moved to preclude certain statements made to the police informant on the ground that the statements varied from the “sum and substance” of the statements as to which notice had been given pursuant to CPL Sec. 710.30. The issue of whether the challenged statements were actually made is beyond the scope of this hearing and must await resolution until the trial of the action. CPL Sec. 710.30(1) provides that whenever the People intend to offer at a trial evidence of a statement made by defendant to a “public servant,” which statement if involuntarily made would render the evidence thereof suppressible, they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered. Defendant argues that since a confidential informant is a state agent, he should be considered a “public servant” for purposes of the CPL Sec. 710.30 notice requirement.
The court notes at the outset that it is unclear whether the People are required to give notice pursuant to CPL Sec. 710.30 as to statements made to confidential informants. While it appears that CPL Sec. 710.30 notice must be served in the Second Department, the First Department has held that confidential informants are not public servants, so that notice is not required. While the question of whether informants are “public servants” is intriguing, the court need not answer it to resolve the current motion.
Defendant moves to suppress all of the statements which he made to the police informant and the detective on the theory that the police informant was acting as an agent of the police, and that all of the statements to them were taken in violation of defendant’s right to counsel because counsel had been assigned in the civil contempt proceeding. The People concede that the police informant became a state agent upon the issuance of a formal cooperation letter on March 26, 1998. However, defendant, based upon the fact that he had previously provided information to the federal government, argues that he was a state agent from the beginning of his encounter with defendant. Clearly the fact that an informant has previously provided information on other defendants and received a benefit for his cooperation is relevant to the question of whether an agency relationship has been established. However, since there is absolutely no evidence that the police or District Attorney’s office were aware of the police informant’s conversations with defendant until after they received the letter from Judge no agency relationship could have arisen before that time.
In arguing that his statements to the parties were taken in violation of his right to counsel, defendant seeks to extend the right to counsel rules which apply when a defendant has retained counsel in a criminal proceeding. After the right to counsel has indelibly attached by the actual appearance of an attorney representing the defendant in a criminal case, the police are prohibited from interrogating the individual concerning a new case in the absence of his attorney in two distinct situations. The first of these is where the two criminal matters are so closely related transactionally, or in space or time, that questioning on the unrepresented matter would all but inevitably elicit incriminating statements regarding the matter in which there had been an entry of counsel. A second line of precedent involves interrogations concerning crimes less intimately connected, but where the police were aware that the defendant was actually represented by an attorney in one of the matters. In both situations, the right to counsel which is recognized on the new case is a “derivative right to counsel,” that is it is derived from the attorney’s appearance in the prior related, criminal case. Where the new case is “unrelated,” defendant is free to waive his rights in the absence of counsel.
In the case at bar, defendant asserts a derivative right to counsel based on his representation by counsel in the civil contempt proceeding. A recent case from the Appellate Division, Third Department indicates that there is no such derivative right to counsel based on an attorney’s appearance in a civil case. Defendant’s claim to a derivative right to counsel is far weaker than the claim asserted in Kent. Inasmuch as defendant is not being prosecuted for embezzlement of estate assets, he cannot claim that the criminal solicitation prosecution arises out of the same matrix as the civil contempt proceeding. That his motivation for soliciting his brother’s murder was revenge for the contempt citation does not render the two proceedings “related” within the meaning of Bing. The purpose of a civil contempt proceeding is to coerce compliance with the court’s mandate. Manifestly, the purpose of a criminal action is to secure a criminal conviction and accord punishment to the accused. As the Third Department accurately reasoned in Kent, the disparate forms of relief sought in the two actions show that the present criminal prosecution is unrelated to the prior civil contempt proceeding. Thus, his representation by counsel in the civil contempt matter does not give rise to a derivative right to counsel in these subsequent criminal proceedings.
Even, assuming arguendo, that representation in civil contempt proceedings could give rise to a derivative right to counsel, the new crime in progress exception would defeat defendant’s asserted right to counsel herein. Neither the Federal nor the State constitutional guarantee of the right to counsel includes the right to have counsel present when a criminal enterprise is being planned or executed. Defendant’s statements to the police informant constitute the planning and preparation of his solicitation of detective to harm defendant’s brother. Defendant’s statements to the detective constitute the actual performance of the criminal solicitation. All of these statements come within the new crime exception to any purported right to counsel.
Nor was there any Miranda violation. The questioning of an inmate in a correctional institution is not custodial interrogation unless it entails added constraint that would lead the inmate reasonably to believe that there has been a restriction of his freedom over and above that of ordinary confinement in a correctional facility. Ultimately, defendant’s challenge to the admissibility of the statements he made to them boils down to the question of whether the investigation techniques were so fundamentally unfair as to violate due process of law. As with any undercover operation, a measure of guile and deception was utilized. Quite obviously, defendant was not told that the police informant was an informant or that “Billy” was really a detective. However, the stratagem involved no risk that defendant would falsely incriminate himself. Defendant claims that his statements were somehow involuntary because he was “vulnerable” to the police informant’s suggestion that he contact. Granted, defendant had been in jail for over a year and was desperate to extricate himself from his predicament. However, as does any contemnor, he held the keys to his own freedom. Despite his incarceration, he had the power to purge his contempt and obtain his release by performing the acts he had been directed to perform, that is, making a proper accounting to the Surrogate’s Court. See Judiciary Law Sec. 775. That he made the deliberate choice to pursue criminal means in an attempt to escape the consequences of his contempt of court did not render him vulnerable and does not make the ensuing statements involuntary. Accordingly, that branch of the motion which is to suppress statements is in all respects denied.
Accordingly, the court held that the defendant’s motion to suppress statements is denied. The motion to re-inspect the grand jury minutes is granted, but upon re-inspection the motion to dismiss the indictment is denied.
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