By: Denise M. Champagne//May 8, 2015
By: Denise M. Champagne//May 8, 2015//
A question of whether police were required to advise a Syracuse defendant of his right to remain silent at a second interview with police three weeks after his arrest on forgery and larceny charges remains unanswered.
The Court of Appeals, in a decision issued Tuesday, found Clifford Graham, 31, did not preserve for its review his contention that any statements he gave Syracuse police during a September 2008 interview should have been suppressed because police did not advise him of his Miranda rights during that interview, his second with them, at which he had an attorney present for the first 20 minutes.
The matter was prosecuted on appeal by Chief Assistant District Attorney James P. Maxwell, of the Onondaga County District Attorney’s Office, who said he argued when he appeared before the Court of Appeals on March 25 that the matter was not preserved.
“The court agreed and that was the end of it,” Maxwell said. “It really wasn’t something that was litigated in the trial level.”
Graham was represented on appeal by Piotr Banasiak, a senior attorney with the Hiscock Legal Aid Society in Syracuse, who could not be reached Friday morning for comment.
According to court documents, Graham was charged in August 2008 with two counts each of first-degree criminal possession of a forged instrument and petit larceny for passing counterfeit $20 bills at a motel and convenience store.
Police read him his Miranda rights to remain silent and to have an attorney present, which he waived. Graham denied knowing the money was counterfeit.
His assigned counsel arranged three weeks later for Graham to talk to the police again in the hope his cooperation would result in a better plea offer. Police did not give Graham his Miranda rights before the second interview, during which, according to them, Graham revealed someone called “Taz” offered to sell him $1,000 in counterfeit money for $100, but Graham said he declined.
Graham’s attorney had to leave after 20 minutes for another appointment. After the interview, Graham refused to sign the statement and later moved to suppress his remarks, claiming they were involuntary and obtained in violation of his Miranda rights.
Onondaga County Supreme Court Justice John J. Brunetti denied Graham’s motion to suppress, saying “Once a counsel waiver occurred in counsel’s presence and the client agreed to submit to the interview on the topic at hand, to wit: counterfeit bills, counsel’s presence thereafter is not required.”
Graham represented himself at the hearing where the people conceded a waiver of Miranda rights was only good for the day he was arrested. Graham then cross-examined a detective who spoke to him during the second interview. Judge Brunetti tried unsuccessfully to keep Graham focused on the suppression issue, pointing out his questions had nothing to do with whether the interrogation was legal.
Graham proceeded to trial in 2009, again representing himself. A jury found him guilty on all counts.
Graham appealed to the Appellate Division, Fourth Department, which affirmed. It found Graham’s counsel was present for the first 20 minutes and had told detectives Graham was willing to cooperate, so it was permissible for detectives to infer Graham waived his Miranda rights, based on assurances of his attorney that he had and Graham’s own conduct of cooperating, People v. Graham, (2013 NY Slip Op 04150).
Neither the trial court, nor the Appellate Division decided the issue of whether police were required to re-advise Graham of his Miranda rights at the second interview, an interview Graham requested in the presence of counsel. And Graham did not make the argument in his motions papers to the trial court or at the suppression hearing, leaving the issue unpreserved.
The Court of Appeals noted Graham did raise a general objection in his omnibus motion, which is sufficient to preserve an issue for its review when the trial court has “expressly decided the question raised on appeal,” but found the trial court had not expressly decided that particular issue of whether the police were required to advise Graham of his right to remain silent under the circumstances presented by the second interview.
“Rather, the court’s decision was focused on the right to counsel and whether counsel was required to be present for the entirety of that interview,” the decision states in People v. Graham (2015 NY Slip Op 03767). “The court decided that counsel’s continued presence was not required once defendant waived his right to counsel in counsel’s presence and agreed to speak to police regarding the counterfeit bills. Inasmuch as defendant made only a general motion for suppression and it cannot be said that the court expressly decided the issue that defendant raises on this appeal, preservation has not been established and that issue is, therefore, beyond our power to review.”
Graham was sentenced as second-felony offender in fall 2009 to three to six years in state prison. He had previously been convicted of second-degree criminal possession of a weapon.
He was released this Jan. 9 and less than 24 hours later, arrested on several charges for allegedly breaking into the home of his ex-girlfriend and holding her and her 12-year-old son at gunpoint at her Syracuse apartment.
Graham is being held in the Onondaga County Justice Center on charges of first-degree unlawful imprisonment, second-degree menacing, second-degree criminal possession of a weapon, fourth-degree criminal possession of stolen property, endangering the welfare of a child and fourth-degree criminal mischief.