        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1298
KA 15-00273
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JENNIFER K. KENNARD, DEFENDANT-APPELLANT.


LAW OFFICES OF JOSEPH D. WALDORF, P.C., ROCHESTER (JOSEPH D. WALDORF
OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Vincent M.
Dinolfo, J.), rendered February 5, 2015. The judgment convicted
defendant, after a nonjury trial, of rape in the second degree (six
counts), rape in the third degree (two counts) and endangering the
welfare of a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, that part of the omnibus motion
seeking to suppress defendant’s statements is granted, and a new trial
is granted.

     Memorandum: On appeal from a judgment convicting her following a
nonjury trial of, inter alia, six counts of rape in the second degree
(Penal Law § 130.30 [1]), defendant contends that County Court erred
in failing to suppress statements she made to the police after she
invoked her right to counsel. We agree. We therefore grant that part
of defendant’s omnibus motion seeking to suppress any statements she
made to the police after her invocation of the right to counsel, and
we grant a new trial.

     On March 15, 2013, defendant was interviewed at the Irondequoit
Police Department by two investigators, who had recently been informed
by a 16-year-old boy that defendant, a teacher’s aide at the boy’s
school, had engaged him in a sexual relationship for the previous two
years. During the custodial interview, which was recorded on video,
defendant waived her Miranda rights and repeatedly denied having sex
with the boy. After answering questions for approximately an hour and
ten minutes, defendant said, “I think I need to talk to an attorney.”
In response, the first investigator stated, “Would you like to talk to
one? If you think that, that’s fine. That’s up to you.” Defendant
replied, “I need to,” before going on to state that she would never
have bad feelings toward the boy and genuinely cared about him. The
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                                                         KA 15-00273

questioning then ceased, and the first investigator allowed defendant
to go outside with the second investigator and a female Child
Protective Services worker to smoke a cigarette.

     While defendant was smoking in the parking garage, the second
investigator engaged her in a lengthy conversation. Unbeknownst to
defendant, the conversation was being digitally recorded by the second
investigator. During the conversation, defendant made numerous
admissions, all but confessing that she had engaged in sexual activity
with the boy. She was thereafter arrested and charged with multiple
counts of rape in the second degree, among other charges. Following
indictment, defendant moved to suppress the statements she made to the
second investigator in the parking garage, contending that they were
obtained in violation of her right to counsel. At the ensuing Huntley
hearing, the two investigators testified, and the recording of the
interview was admitted into evidence. Defendant did not testify or
call any witnesses. The court denied defendant’s motion, ruling that
she had not unequivocally invoked her right to counsel.

     It is well settled that “a suspect in custody who unequivocally
requests the assistance of counsel may not be questioned further in
the absence of an attorney” (People v Harris, 93 AD3d 58, 66, affd 20
NY3d 912; see People v Grice, 100 NY2d 318, 320-321; People v Glover,
87 NY2d 838, 839). “Whether a particular request [for counsel] is or
is not unequivocal is a mixed question of law and fact that must be
determined with reference to the circumstances surrounding the
request[,] including the defendant’s demeanor [and] manner of
expression[,] and the particular words found to have been used by the
defendant” (People v Barber, 124 AD3d 1312, 1313 [internal quotation
marks omitted], lv dismissed 26 NY3d 965; see People v Mitchell, 2
NY3d 272, 276).

     Here, we conclude that, although defendant’s statement “I think I
need to talk to an attorney” may not, standing alone, constitute an
unequivocal invocation of the right to counsel (see People v Twillie,
28 AD3d 1236, 1237, lv denied 7 NY3d 795; People v Davis, 193 AD2d
1142, 1142), her subsequent statement “I need to”—made in reply to the
first investigator stating “Would you like to talk to one? If you
think that, that’s fine. That’s up to you”—removed any ambiguity and
made clear that defendant was requesting the assistance of counsel
(see generally People v Porter, 9 NY3d 966, 967; Barber, 124 AD3d at
1313; Harris, 93 AD3d at 69).

     We disagree with the hearing court that it is unclear exactly
what defendant said to the first investigator after he told her that
she could talk to an attorney if she so desired. In our view,
defendant can be heard to clearly say, “I need to.” In any event,
even assuming, arguendo, that defendant instead said, “I’ll need to,”
as the People suggest, we conclude that defendant’s request for
counsel was no less unequivocal, and that the court therefore should
have suppressed the statements defendant made to the second
investigator in the parking garage. We further conclude that the
court’s error in denying the suppression motion is not harmless
because there is a “reasonable possibility that the error might have
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                                                         KA 15-00273

contributed to defendant’s conviction” (People v Crimmins, 36 NY2d
230, 237; see People v Huntsman, 96 AD3d 1390, 1392; see generally
People v Douglas, 4 NY3d 777, 779).

     We have reviewed defendant’s remaining contentions and conclude
that they lack merit.




Entered:   December 31, 2015                    Frances E. Cafarell
                                                Clerk of the Court
