Together these five rulings run to fewer than two thousand words, and they are everything New York’s official reports contain on the appeals of two of the state’s worst serial murderers. Arthur J. Shawcross was convicted in Monroe County Court in December 1990 of ten murders of women in and around Rochester, after a trial in which his lawyers did not dispute the killings and argued that he was insane. Joel Rifkin was stopped by state troopers on the Southern State Parkway before dawn on June 28, 1993, after a chase that ended against a utility pole, with the body of Tiffany Bresciani, twenty-two, under a tarpaulin in the back of his pickup truck. Neither man won anything on appeal, and the Appellate Division said so in a few paragraphs each.
The Shawcross memorandum, decided by the Fourth Department on April 14, 1993, is mostly about his psychiatrist. The court does not name her, but the expert the defense chose, an internationally known specialist in violent behavior, told the court during the trial that defense counsel had lied to her about whether a neurologist, Dr. Vernon Mark, had been hired to support her view that Shawcross had brain damage. The court held that the trial judge was right not to question the lawyers about it, and that her loss of composure under a hard cross-examination did not mean he had been denied competent psychiatric help. It also upheld the charge on extreme emotional disturbance and the use of the statements he made to the police, which he had given, the court found, after going with them voluntarily.
The four Rifkin rulings were all handed down by the Second Department on December 3, 2001, one for each county that convicted him. Only the Nassau County appeal, from the one case that went to a jury, says anything of substance, and it holds something a defendant rarely hears: the questions troopers put to Rifkin while he sat handcuffed in the back of a police car were an interrogation, his answers there should have been suppressed, and so should everything else he said at the scene. It affirmed anyway, because the full confession he gave at the station house about five hours later came after Miranda warnings and a clean break, and the rest of the evidence was overwhelming. The Kings, Queens and Suffolk rulings, on his guilty pleas to eight more murders, take a paragraph apiece.
None of these rulings describes the crimes; Appellate Division memoranda state the holding and little else, and a guilty plea leaves almost nothing to review. The names of the women Rifkin and Shawcross were convicted of killing do not appear anywhere in them, and the facts in the opening come from the trial record as reported, not from these courts. Shawcross’s conviction for an eleventh killing, by plea in Wayne County, and his 1972 manslaughter conviction are not part of this record; nor is anything about how either man’s sentence was served.
All five are public records of the New York courts, and the only people named in them are the two defendants, the judges and one physician mentioned as a potential defense expert. Nothing has been withheld. The Shawcross memorandum is headed Appeal No. 2, and no other ruling on his appeals appears in the official reports.
The text is the Caselaw Access Project copy of the Appellate Division Reports and is printed in date order, which puts the older Shawcross memorandum first. Its misprints are kept, among them “Kangs County” in the caption of the Kings County appeal and a reporter’s note on the Suffolk ruling that dates it to 2002 rather than 2001. The bracketed numbers under the captions are the parallel citations in the New York Supplement.
The People of the State of New York, Respondent, v Arthur J. Shawcross, Appellant.
(Appeal No. 2.)
[596 NYS2d 622]
—Judgment unanimously affirmed. Memorandum: We reject defendant’s contention that he was deprived of due process by the court’s failure to inquire into the complaint of his expert witness that defense counsel had lied to her. The court was fully aware of the basis of that accusation as indicated by its remarks upon denying defendant’s motion for a mistrial. The witness’s reference to counsel having lied concerned whether a certain expert, Dr. Vernon Mark, had been hired by the defense to substantiate the witness’s contention that defendant had suffered brain damage. As the trial court noted, before Dr. Mark was contacted, numerous tests had been performed and several neurologists and radiologists had been employed to determine whether defendant suffered from brain damage. Under the circumstances, the complaint of the witness concerning counsel’s failure to employ another expert does not indicate that defendant was deprived of effective assistance of counsel, and the court providently determined not to inquire further. "A Judge should question an attorney’s performance with caution, lest he interfere with counsel’s legitimate strategy and intrude on the attorney/client relationship (see United States v Deeoster, 624 F2d 196, 208)” (People v Claudio, 85 AD2d 245, 259, affd 59 NY2d 556).
Further, we cannot conclude that defendant was deprived of competent psychiatric assistance. At State expense, defendant was provided with "a competent psychiatrist who [did] conduct an appropriate examination and assisted] in evaluation, preparation, and presentation of the defense” (Ake v Oklahoma, 470 US 68, 83). The psychiatrist selected by defendant is an internationally recognized expert in the field of violent criminal behavior and possesses outstanding qualifications. She conducted appropriate and thorough examinations of defendant and assisted in the evaluation, preparation, and presentation of the defense. Moreover, numerous tests and evaluations were performed at her request concerning defendant’s mental condition and she consulted with several neurologists. The report of one neurologist, with whom she had frequently consulted in the past, was received in evidence. No fault can be found with the witness’s presentation on direct examination. Under all of the circumstances, her loss of composure under vigorous cross-examination did not rise to the level of incompetent psychiatric assistance.
We find no error in the court’s charge and supplemental charge on the defense of extreme emotional disturbance or in the court’s refusal to charge in the language requested by defense counsel.
Defendant’s presence at the argument of the omnibus motion was not required because that argument involved only questions of law (see, People v Velasco, 77 NY2d 469, 472). In any event, defendant knowingly and voluntarily waived his right to be present.
There is no merit to defendant’s argument that CPL 300.10 (3) unconstitutionally restricts the court from instructing the jury about the consequences of a verdict of not guilty by reason of insanity. Before the enactment of CPL 300.10 (3), it was proper for the court to deny a request to instruct the jury concerning the consequences of a verdict of not guilty by reason of insanity (People v Adams, 26 NY2d 129, cert denied 399 US 931). CPL 300.10 (3) has changed that result, making it more favorable toward defendants, by permitting the court to inform the jury that a verdict of " 'not responsible by reason of mental disease or defect’ ” will not necessarily result in defendant’s release, but that further proceedings may result in an involuntary commitment.
The court properly denied defendant’s motion to suppress the incriminating statements he made to the police inasmuch as defendant voluntarily accompanied the police and was not in custody when he was questioned. Further, there is no showing in the record that defendant’s statements were induced by threats or promises.
We reject defendant’s argument that the court improperly precluded defense counsel from questioning the police witnesses concerning their states of mind during their interrogation of defendant. The test of whether a person is in custody is not the subjective intent of the police but "what a reasonable man, innocent of any crime, would have thought had he been in the defendant’s position” (People v Yukl, 25 NY2d 585, 589, rearg denied 26 NY2d 883, cert denied 400 US 851).
Lastly, the court was not required to conduct an inquiry to determine whether defendant knowingly waived his right to testify (see, People v Doe, 186 AD2d 1036, lv denied 80 NY2d 895; see also, People v Dougherty, 190 AD2d 989; People v Davis, 190 AD2d 987). (Appeal from Judgment of Monroe County Court, Wisner, J. — Murder, 2nd Degree.) Present— Pine, J. P., Balio, Lawton, Boomer and Davis, JJ.
The People of the State of New York, Respondent, v Joel Rifkin, Appellant.
[733 NYS2d 710]
Appeal by the defendant from a judgment of the County Court, Nassau County (Wexner, J.), rendered June 8, 1994, convicting him of murder in the second degree and reckless endangerment 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 statements he made to law enforcement authorities.
Ordered that the judgment is affirmed.
We agree with the defendant’s contention that the hearing court should have suppressed the statements he made to the police and State troopers at the scene of his arrest. Although the police may ask a suspect preliminary questions at a crime scene in order to find out what is transpiring (see, People v Johnson, 59 NY2d 1014; People v Greer, 42 NY2d 170; People v Huffman, 41 NY2d 29; People v Soto, 183 AD2d 926), where criminal events have been concluded and the situation no longer requires clarification of the crime or its suspects, custodial questioning will constitute interrogation (see, People v Huffman, supra, at 34; People v Soto, supra). Contrary to the hearing court’s finding, the initial questions posed to the defendant after he had been handcuffed and placed in the back seat of a police car were not merely designed to clarify the situation, and thus constituted interrogation. Since these initial statements were made prior to the administration of Miranda warnings (see, Miranda v Arizona, 384 US 436, 444-445), they should have been suppressed (see, People v Chapple, 38 NY2d 112; People v Santarelli, 268 AD2d 603). Moreover, since there was no definite, pronounced break between the statements which preceded Miranda warnings and the additional statements which the defendant made at the crime scene, all of the crime scene statements should have been suppressed (see, People v Bethea, 67 NY2d 364; People v Chapple, supra). However, in light of the otherwise overwhelming evidence of the defendant’s guilt, reversal is not warranted (see, People v Krom, 61 NY2d 187, 201; People v Santarelli, supra; People v Molina, 248 AD2d 489, 490).
We find no merit to the defendant’s further claim that the hearing court should have suppressed the full confession he subsequently made to different police officers at the station house approximately five hours after his arrest. The confession was made after the defendant knowingly, intelligently, and voluntarily waived his Miranda rights, and after a definite and pronounced break in the interrogation sufficient to remove any taint from the initial crime scene statements (see, People v Santarelli, supra; People v Morgan, 277 AD2d 331; People v James, 253 AD2d 438; People v Nisbett, 225 AD2d 801; People v Salami, 197 AD2d 715; People v McIntyre, 138 AD2d 634). Moreover, the defendant did not testify at the suppression hearing, and no evidence was adduced to support his claim that his confession was made on constraint of the prior inadmissible statements under the “cat out of the bag” theory (People v Morgan, supra; see, People v James, supra; People v McIntyre, supra). Ritter, J. P., Krausman, S. Miller and Florio, JJ., concur.
The People of the State of New York, Respondent, v Joel Rifkin, Appellant.
[734 NYS2d 854]
Appeal by the defendant from a judgment of the Supreme Court, Kangs County (Pesce, J.), rendered December 13, 1995, convicting him of murder in the second degree (three counts), upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
In addition to indictments in Kings, Queens, and Suffolk Counties, the defendant was indicted in Nassau County and moved to suppress certain statements he made to law enforcement authorities following his arrest. An order of the County Court, Nassau County, denied his motion for suppression, and the defendant entered a plea of guilty in Kings County.
The record does not support the defendant’s claim that the Nassau County hearing courts’s denial of his motion to suppress induced his decision to plead guilty in Kings County (see, People v Lloyd, 66 NY2d 964; People v McLaughlin, 269 AD2d 858, 859; People v Gomez, 192 AD2d 549, 551). Ritter, J. P., Krausman, S. Miller and Florio, JJ., concur.
The People of the State of New York, Respondent, v Joel Rifkin, Appellant.
[734 NYS2d 855]
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hanophy, J.), rendered January 25, 1996, convicting him of murder in the second degree, tampering with physical evidence, and illegal removal of a body, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
In addition to indictments in Kings, Queens, and Suffolk Counties, the defendant was indicted in Nassau County and moved to suppress certain statements he made to law enforcement authorities following his arrest. An order of the County Court, Nassau County, denied his motion for suppression, and the defendant entered a plea of guilty in Queens County.
The record does not support the defendant’s claim that the Nassau County hearing court’s denial of his motion to suppress induced his plea of guilty to charges in Queens County (see, People v Lloyd, 66 NY2d 964; People v McLaughlin, 269 AD2d 858, 859; People v Gomez, 192 AD2d 549, 551). Ritter, J. P., Krausman, S. Miller and Florio, JJ., concur.
Second Department,
December, 2001
(December 3, 2001)
The People of the State of New York, Respondent, v Joel Rifkin, Appellant.
Not published with other Second Department decisions of December 3, 2002.
—Appeal by the defendant from a judgment of the County Court, Suffolk County (Jones, J.), rendered September 18, 1995, convicting him of murder in the second degree (four counts), upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant effectively waived his right to appeal upon his plea of guilty (see, People v Kemp, 94 NY2d 831). Ritter, J.P., Krausman, S. Miller and Florio, JJ., concur.