ALBANY – Reversing an attempted-rape conviction, an upstate appellate court has suppressed statements, made without proper Miranda warnings, by an Iraqi refugee with little English, who apparently was confused by police procedure.

A 5-0 panel of the Appellate Division, Third Department, ruled in People v. Nehma, 104048, that Albany County Court Judge Thomas Breslin (See Profile) correctly suppressed statements Walid Nehma made to police as he was being transported to the stationhouse in a police car. But the panel ordered a retrial because it said Breslin also should have thrown out statements that Nehma made later under questioning at the stationhouse.

Nehma had been stopped by police outside an Albany bar after bouncers inside had identified him as a man who had been taking pictures of women on the bar’s dance floor earlier in the evening. Breslin determined that the first set of statements could not be used because Nehman was in police custody at the time and he had not received Miranda warning before making them.

But the appeals court rejected Breslin’s reasoning that the later statements—made after police gave Nehma faulty Miranda rights by omitting that he had the right to be represented by counsel—were admissible because was not technically in police custody when in the stationhouse.

Breslin had ruled that the one hour and 45 minutes that had passed between the questioning in the police car and the stationhouse had, in effect, returned Nehma to the status of one who is not under the “influence of questioning” according to the principles of “attenuation” outlined in the state Court of Appeals’ ruling in People v. White, 10 NY3d 286 (NYLJ, March 21, 2008).

The Third Department judges, in their Dec. 6 decision, said they disagreed with the attenuation finding because of the insufficient Miranda warnings Albany police gave Nehma at the stationhouse.

Instead, the judges said, the relevant inquiry for the court when weighing the admissibility of Nehma’s statements should have been an assessment of a suspect’s custodial status and “whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave” when questioned at the stationhouse.

By that standard, the Third Department concluded that everything pointed to Nehma’s belief that he was in custody while he was interrogated without complete Miranda instructions.

The panel cited Nehma’s “limited fluency” in English, his “evident confusion over and resistance to” being frisked when he was stopped by police, his repeated questioning of officers that indicated he believed he had been stopped for using the bathroom in the bar and the stationing of one of the arresting officers outside the interview room in the stationhouse as Nehma was being questioned.

“Under these circumstances, a reasonable person would not have felt free to leave and, thus, defendant’s statements at the station—denying that he had been to bars in downtown Albany or that he owned a black jacket with white fur—were the product of custodial interrogation and should have been suppressed,” Justice Thomas Mercure (See Profile) wrote for the appeals panel. “Inasmuch as it cannot be said that the improper admission of these statements was harmless beyond a reasonable doubt, reversal is required.”

A search of the suspect’s apartment after his interrogation turned up a black jacket with white fur trimming, like the garment the victim said her assailant had been wearing, and pictures of women dancing in bars. Authorities also introduced evidence at trial linking DNA evidence found under the victim’s fingernails to Nehma.

Justices John Lahtinen (See Profile), E. Michael Kavanagh (See Profile), William McCarthy (See Profile) and Elizabeth Garry (See Profile) concurred in the Nov. 6 decision.

“We respect the decision of the court and look forward to re-presenting the case to a jury,” said Cecilia Logue, a spokeswoman for Albany County District Attorney P. David Soares.

Theresa Suozzi defended Nehma for the Albany County Public Defender’s office.

Nehma, now 29, was sentenced to 14 years after being convicted by a jury in a trial before Supreme Court Justice Joseph Teresi (See Profile). He is in the Elmira Correctional Facility.

@|Joel Stashenko can be contacted at