
    The People of the State of New York, Respondent, v Simeon Duggins, Appellant.
    [766 NYS2d 702]
   Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered May 10, 2001, convicting him of murder in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress his statements to law enforcement officials.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the Supreme Court properly denied that branch of his omnibus motion which was to suppress inculpatory statements he made after his arrest. There is no basis for disturbing the factual findings and credibility determinations of the hearing court, which are entitled to great deference on appeal (see People v Faison, 268 AD2d 487 [2000]; People v Guarino, 267 AD2d 324 [1999]). The totality of the circumstances indicates that the statements were voluntarily made after the defendant knowingly and voluntarily waived his Miranda rights (see Miranda v Arizona, 384 US 436 [1966]; People v Malik, 265 AD2d 577 [1999]; People v Springer, 221 AD2d 386 [1995]). Further, the credible evidence demonstrates that the defendant was not denied his right to counsel.

The Supreme Court’s charge to the jury adequately conveyed the proper standards regarding the voluntariness of the defendant’s statements (see People v Prater, 258 AD2d 600 [1999]; People v Burgos, 244 AD2d 563 [1997]).

The Supreme Court erred in modifying its Sandoval (People v Sandoval, 34 NY2d 371 [1974]) ruling to permit the prosecutor to question the defendant about a prior conviction which the Supreme Court had previously ruled was to be excluded. Contrary to the People’s contention, the defendant did not “open the door” to such questioning. However, the error in permitting the questioning was harmless (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Beaumont, 170 AD2d 513 [1991]).

The evidence of the defendant’s guilt was overwhelming. After his arrest, the defendant gave an oral statement to a detective, reduced to writing and signed by him, in which he admitted that he shot the two victims. He subsequently gave an approximately 50-minute videotaped statement to an assistant district attorney. The videotape reveals that the defendant was alert and readily provided extensive details of the events preceding the shootings, the shootings themselves, and subsequent events, including the fact that a girl named “Cin” came to retrieve the gun used in the shootings and return it to the defendant’s friend. His statements were corroborated by the testimony of Marcus Malloy who, according to the defendant, was present when the second victim was shot. Cindy Jean, another witness, testified that her former boyfriend asked her to pick up something about the time of the shootings, that she went to an apartment where she saw the defendant, and that she was given a McDonald’s bag wrapped in a plastic bag. That testimony was consistent with the defendant’s statement regarding the disposal of the gun. There was further testimony from a detective that the defendant spontaneously made another inculpatory statement approximately 18 months after his arrest when the detective was with him at the Kings County District Attorney’s office. The defendant stated that he 'knew what he did was wrong and that he could do 15 years, but could not do 20 years.

There is no significant probability that the jury would have acquitted the defendant but for the Supreme Court’s error in modifying its Sandoval ruling. The fact that the jury acquitted the defendant of one of the murders does not, as the dissent suggests, indicate that the jury accepted at least part of his testimony disavowing his postarrest statements. The jury considered two counts of murder in the first degree, one as to each of the victims. The jury was charged, pursuant to Penal Law § 125.27 (1) (a) (viii) and (b), that “a defendant is guilty of murder in the first degree when with intent to cause the death of another person, he causes the death of [that] person and as part of the same criminal transaction . . . with intent to cause serious physical injury to or the death of an additional person he causes the death of that additional person provided that neither victim was a participant in the criminal action, and that the defendant was more than 18 years old at the time of the crime.” The defendant was acquitted of the murder of the first victim, but convicted of the murder of the second victim, which occurred approximately an hour and 20 minutes later. Based on the defendant’s statements, the jury could have concluded that he only intended to injure the first victim, while he intended to kill the second victim, resulting in his acquittal with respect to the first shooting and conviction as to the second.

Since the error which occurred was harmless, reversal is not warranted (see People v Crimmins, supra; People v Beaumont, supra). Altman, J.E, Krausman and H. Miller, JJ., concur.

Crane, J.,

dissents and votes to reverse the judgment and order a new trial with the following memorandum, with which Luciano, J, concurs: I agree with the majority’s conclusion that the Supreme Court erred in modifying its Sandoval ruling (see People v Sandoval, 34 NY2d 371 [1974]), to permit the prosecutor to question the defendant about a prior conviction which the court had previously ruled was to be excluded (see People v Moore, 92 NY2d 823, 824-825 [1998]; People v Fardan, 82 NY2d 638, 645-646 [1993]; People v Beniquez, 215 AD2d 678, 679 [1995]). I do not agree, however, that the evidence of the defendant’s guilt of murder in the first degree was so overwhelming as to render harmless the Supreme Court’s error in allowing the prosecutor to cross-examine the defendant regarding his 1998 assault conviction.

The defendant was arrested on July 21, 1999, and charged with two counts of murder in the first degree, four counts of murder in the second degree, and criminal possession of a weapon in the second and third degrees for allegedly shooting and killing Wayne Flowers and Franklin Dennis on July 4, 1999, at the Vanderveer Houses. In written and videotaped pretrial statements, the defendant stated that he had shot Flowers and Dennis, both members of the Crips gang, because he feared they were going to carry out a decree calling for him to be killed. Before trial, the defendant moved to suppress his postarrest statements on the grounds that they were involuntary and were taken in violation of his right to counsel. The defendant testified at a Huntley hearing (see People v Huntley, 15 NY2d 72 [1965]) that, from the moment he was taken into custody, the police engaged in a course of intimidation, threats, promises, deprivations, and physical abuse, in order to get him to confess. The defendant also claimed that he requested an attorney but the police ignored his request. The Supreme Court credited the testimony of the arresting officers and denied suppression of the defendant’s statements, finding that they were voluntarily made after the defendant knowingly and willingly waived his Miranda rights (see Miranda v Arizona, 384 US 436 [1966]).

At a Sandoval hearing (see People v Sandoval, supra), the Supreme Court ruled that the prosecution would be precluded from inquiring into the underlying facts of the defendant’s 1998 conviction for assault in the third degree. However, the Supreme Court ruled that, if the defendant testified at trial and claimed that he did not understand what the police were talking about when they gave him his Miranda warnings, then he would open the door to questioning regarding prior occasions in which he had been arrested and given Miranda warnings. The questioning could include all of the underlying facts of the 1998 assault case.

Despite the fact that the defendant never violated the only condition of the Sandoval ruling, the Supreme Court revised its ruling after the defendant’s direct testimony to enable the prosecutor to question the defendant regarding the 1998 assault case. The underlying facts of that case, about which the Supreme Court permitted cross-examination allegedly to establish that the defendant had a good rapport with his former counsel, concerned an incident that occurred at the apartment of the defendant’s aunt. The defendant was asked, but denied, whether the case involved his following a girl into the bathroom and making sexual advances towards her, putting a knife to her throat when she refused to comply, and cutting her hand when she grabbed the knife. The jury acquitted the defendant of the murder of Wayne Flowers, but found him guilty of murder in the first degree of Franklin Dennis.

The question of whether reversal is required by the Supreme Court’s error in revising its Sandoval ruling entails a two-tiered analysis. First, this Court must determine whether the proof of the defendant’s guilt, without reference to the error, is overwhelming (see People v Crimmins, 36 NY2d 230, 241 [1975]). Only if the proof was overwhelming must this Court determine whether there was a significant probability that the jury would have acquitted but for the error (see People v Crimmins, supra at 242; People v Johnson, 57 NY2d 969, 970 [1982]).

A subtext is also presented: but for the error, is there a significant possibility that the jury would have rejected the defendant’s alleged inculpatory statements as reliable and admissible beyond a reasonable doubt? Merely because there exists a pretrial ruling denying their suppression does not mean that the defendant could not ask the jury for a de novo review of the voluntariness of his statements (see CPL 710.70 [3]; People v Graham, 55 NY2d 144 [1982]; People v Rose, 223 AD2d 607, 608 [1996]).

Other than the defendant’s statements to the police and the prosecutor, which the defendant claimed were coerced; the People’s evidence at trial included the testimony of Marcus Molloy, a then 16-year-old acquaintance of Franklin Dennis, with a criminal history and gang membership, who had been sitting outside the Vanderveer Houses with Dennis at 3:00 a.m. smoking marijuana when Dennis was shot. At the time of the trial this 16-year-old witness was serving a jail sentence for robbery in the first degree, and admitted that he had committed many other robberies and that he was coming up shortly for parole. He belatedly came forward to reveal his story to the police as a means, perhaps, to enhance his own chances for parole release. Quite an unsavory witness! The only other witness—and her testimony applies to both victims—was Cindy Jean, a 19 year old who claimed to be acquainted with the defendant, whom she knew through her boyfriend, “Fife.” This 19-year-old witness testified that “around” July 4, 1999, the precise date she did not remember, she went to an apartment in the Vanderveer Houses, the number or location of which she could not remember, where “somebody” gave her a McDonald’s bag wrapped in a plastic bag to deliver to her boyfriend. The defendant was present in this apartment. The 19-year-old witness testified that she did not know what was in the McDonald’s bag, but the People would have us believe it contained the murder weapon.

This evidence is far from overwhelming under the first prong of Crimmins. Accordingly, there is no need to reach the second step in the harmless error analysis, whether there is a significant-probability that the jury would have acquitted the defendant but for the error (see People v Crimmins, supra at 242; but compare People v Ayala, 75 NY2d 422, 431 [1990], with People v Gilmore, 66 NY2d 863, 867 [1985]). However, were I to reach this question I would conclude that complete acquittal was probable. With the trial focused on the voluntariness of the defendant’s statements to the police and the prosecutor, the admission of testimony regarding the underlying facts of the 1998 assault case was far too prejudicial to conclude that the jury’s view of the evidence was not distorted by this testimony. If the underlying facts of the 1998 assault case had been omitted from cross-examination, the jury would have had a clear-cut issue of credibility between the defendant’s version of how his statements to the police and the prosecutor were elicited and the diametrically-opposed versions of the People’s witnesses. The jury clearly accepted the defendant’s version in part because it acquitted him of the charges as to Flowers. Take away the defendant’s statements and the possibility of acquittal of all the charges becomes significant.

The majority too narrowly applies the Crimmins test by asserting that the defendant’s allegedly coerced statements constitute part of the overwhelming evidence against him. This approach begs the question of whether there is overwhelming proof of the defendant’s guilt aside from the Supreme Court’s error in revising its Sandoval ruling. If the revision was error, a conclusion on which we all agree, it cannot be said that the issue'of coercion of the defendant’s statements was not adversely influenced in the jury’s mind. Therefore, to weigh those statements with the other weak evidence of guilt repudiates the first prong of Crimmins: “[U]nless the proof of the defendant’s guilt, without reference to the error, is overwhelming, there is no occasion for consideration of any doctrine of harmless error” (People v Crimmins, supra at 241 [emphasis added]).

In sum, the proof of the defendant’s guilt, without reference to the error, was far from overwhelming {cf. People v Crimmins, supra at 241), and if it was otherwise, I could not conclude that there is no significant probability that the jury would have acquitted the defendant had it not been for the error which occurred {cf. People v Crimmins, supra at 242).

Accordingly, I would reverse the judgment of conviction and order a new trial.  