DECISION AND ORDER Defendant is charged, by way of indictment, with the crime of Assault in the First Degree, in violation of Penal Law (PL) section 120.10(1), and other related charges stemming from an incident that allegedly occurred on February 9, 2017. On April 9, 2018, the court conducted a Huntley hearing. The sole witness at the hearing was Police Officer Warren Lau, who testified on behalf of the People. At the end of the testimony, the court heard oral arguments and considered the memorandum of law submitted by each side. I make the following findings of fact and conclusions of law:FINDINGS OF FACTPolice Officer Warren Lau has been employed by the New York City Police Department (NYPD) for approximately 5½ years and is currently assigned to the 67th Precinct. Officer Lau testified credibly that on June 11, 2017, at approximately 2:19 PM, he was at the 72nd Precinct assisting Detective Victor Falcon by serving as a translator in an interview with Defendant who speaks Fuzhounese. Officer Lau is fluent in Fuzhounese. He received certification as a Fuzhounese interpreter from the Berlitz Language Center two weeks before he testified at the hearing, which was approximately ten months after he interviewed Defendant.The interview was memorialized on video and entered into evidence as People’s #2. A certified English transcript of the interview was entered into evidence as People’s #3. Defendant was uncuffed and offered water during the interview. Neither officer had their weapon in the room, no one else was present and there was no evidence of any promises or threats made to Defendant. At the start of the interview, Officer Lau, using a pre-printed form which contained Miranda questions in both English and Chinese, gave Defendant his Miranda warnings in Fuzhounese by translating the warnings from English into Fuzhounese (see Hearing Transcript 4/9/18 [Tr] p 17, lines 8-13). The pre-printed Miranda form was entered into evidence as People’s #1. The English version of People’s #1 reads as follows:1. You have the right to remain silent and refuse to answer questions. Do you understand?2. Anything you do say may be used against you in a court of law. Do you understand?3. You have a right to consult an attorney before speaking to the police and to have an attorney present during any questioning now or in the future. Do you understand?4. If you can not afford an attorney, one will be provided for you without cost. Do you understand?5. If you do not have an attorney available, you have the right to remain silent until you have had an opportunity to consult with one. Do you understand?6. Now that I have advised you of your rights, are you willing to answer questions?The transcript in evidence as People’s #3 reflects the following exchange when Officer Lau administered Defendant his Miranda warnings:Det Falcon (Falcon): We are going to ask you questions. But before we ask you questions, I am going to read you your rights.Officer Lau (Lau): He is going to ask some questions. But before he asks you questions, he is going to tell you what your rights are.Defendant (DEF): (Nodding his head)Falcon: So can I just read him his Miranda Rights?Lau: You have the right to remain silent. You have the right to answer us. That’s to say, it is ok not to answer us when we question you. Understand? You need to answer “understand” if you understand.DEF: (I) understand.Lau: If you understand, then you write here…Falcon: //No, no, no…just do, he would say ‘yes’, write it down. As soon as we done through all of them, and make sure he just verbalizes ‘yes’,Lau: //Ok. (UI) (To DEF) What you say, what you say could be used against you. Understand?DEF: (Nods his head)Lau: Yes? You need to answer. Understand? Understand? Do you really understand?DEF: Understand.Lau: Understand….You have the right to a lawyer, to retain a lawyer for consultation….Do you need a lawyer?DEF: (UI)Lau: You have the right to hire a lawyer; before we talk you can hire a lawyer. Do you want a lawyer? Understand?DEF: (Nods his head)Lau: You understand?DEF: Um.Falcon: You have to say ‘yes’. You have to say ‘yes’.Lau: You need to say ‘understand’. If you understand, you need to say ‘understand’; if you don’t understand, you say ‘don’t understand’. You need to answer out loud.DEF: Understand.Lau: Understand. All right. If you don’t have the money to hire a lawyer, we can provide you a lawyer, free of charge. Do you understand?DEF: (Nods his head) Understand.Falcon: (UI)Lau: If you want to…, that is, if you want to hire a lawyer, but you don’t have a lawyer, don’t have a lawyer for now, you can wait until you hire a lawyer. Do you understand?DEF: (UI) Generally understand. (Nods his head).Falcon: (UI)Lau: I have told you all your rights. Right?DEF: (Nods his head)Lau: Do you understand them all? Do you want to talk?DEF: Yes. (Nods his head).After Officer Lau has translated for the Defendant his interpretation of what the pre-printed Miranda form states, Detective Falcon asks that Defendant be told to initialize each Miranda question and then sign his name at the bottom of the pre-printed form. In response to Officer Lau asking Defendant to sign the form, the following exchange takes place:DEF: I don’t know about this. Otherwise, about the signing, I will wait until my family member comes or my lawyer comes before I sign. I don’t know about anything, yet you ask me to sign.Lau: No. I have been sitting here, telling you about all these, all written in Chinese, you can take a look.Falcon: //What is he asking?Lau: Oh, he said like, he wants to speak to his family member, first because he doesn’t know what it is we are asking him to sign.On cross-examination, Officer Lau conceded that he never translated to Detective Falcon Defendant’s statement that he wanted to wait for his lawyer (see Tr, p 21, line 13 — p 22, line 21). Detective Falcon then asks Officer Lau to tell Defendant that they can’t wait for a family member to come and read that and Officer Lau in turn advises Defendant that they can’t wait for a family member to come and translate the paper for Defendant because Officer Lau is “here to help translating.” Detective Falcon then asks Officer Lau to explain to Defendant that these are just his rights and that “this is not saying that he is going to be deported” or that “he is a criminal.” At this point, the following exchange takes place between Officer Lau and Defendant:Lau: // (UI) this is written in Chinese, this is written in Chinese, this is written in English, right? You know how to read Chinese, you can read it, I have also translated it for you. You said you understood…This is not an admission of guilt, not an admission of whose fault, or anything. This is just say that today, I together with Detective Falcon, we two have translated all related information to you. Understand?DEF: (Looks at the paper) Generally I understand.Lau: All right? Then if you ok, you can sign your name, that is, you sign here, sign, sign, sign, sign and sign your name here. Because these are your rights, if we don’t tell you your rights clearly, we are not allowed to talk to you? Understand?DEF: //I understand. (UI) This signing, signing, what is, what is it…(UI)?Detective Falcon then asks Officer Lau what Defendant is saying and Officer Lau explains that Defendant is asking what is it that he is signing. Defendant then asks whether they can talk without him signing and Officer Lau and Detective Falcon both say no and the following colloquy takes place:Falcon: //If he, he, we can’t find out what happened, we can’t talk to him, unless he understands that he has rights, and he agrees to talk to us. See the, the, the problem is, is that by him saying what this is, and he didn’t really understand it. So that’s what we are trying to tell him, just tell him that these are his rights. So read, we have to read him again, so he understands it.Lau: If you have anything that you don’t understand, we will explain it to you one more time.Falcon: //Can he read the same thing? (UI)Lau: //Can you read Chinese?DEF: I can read some.Lau: If you can read, you can (UI), because I can translate all these. I tell you, this is not an admission of guilt, or admission of anything. It means, you admit that we did tell you these today. If you understand, we can talk to you; if you don’t understand, we are not able to talk to you. Understand?Defendant then asks whether the form is for the precinct, for the record or for something else. Officer Lau, without consulting Detective Falcon, responds “American government, American police precinct, American government has to make sure, has to make sure reading this.” Officer Lau then says to Detective Falcon, “Is this a procedural thing? Or this is…I just want to explain one more (UI).” Detective Falcon responds “Yes, it is a procedural [sic]” and exits the interview room. Defendant then asks Officer Lau whether it matters if he signs it or not and Officer Lau explains that “ it is not the matter of signing or not” but that if Defendant signs it he cannot in the future deny that he signed it. Officer Lau continues, “At the time when the judge asks if you if you understand, I need to (UI).” A this point Detective Falcon renters the room and expresses some concern that Defendant didn’t know why he was signing the form and “didn’t know those things,” so he asks Officer Lau to “tell [Defendant] he didn’t have to sign, but we just need him to understand what they are.” The following exchange takes place:Lau: It is ok if you don’t want to sign it. The important thing is if you understand all these items after you read them sitting here. If you understand, you just say ‘understand’. That will be fine.Falcon: Ok. So, what we are doing is, we are going to read them to him again, slowly, and just ask him if he understands it, again. And we’ll see.Lau: He asks me to translate if for one more time. Read it for you. If you understand, you say ‘understand’; if you don’t understand, say ‘don’t understand’.DEF: I will not sign it, I need to wait for…my lawyer (UI)Lau: //He said…DEF: //As to understanding, after you explained to me, I understand…Falcon: //Does he understand all of them?DEF: //I do, I do understand.Lau: //He said he understands exactly (UI)DEF: //(UI) don’t know about others, (UI) understand…Lau: //…but he said “I don’t want to sign it.”Falcon: //He is not going to sign…ok…Lau: //But he does understand it.Falcon: //Ok. So does he want to answer the questions?Lau: So now I am sitting here and read all these rights to you, you understand all these?…DEF: Um (nods his head).Lau: If you understand these, do you want to talk to us?DEF: Yes.Lau: All right.DEF: //I will not sign it, I don’t know the English there (UI)…Lau: //He said, he is not going to sign it, he doesn’t understand the English, but he does understand what we have asked (UI), and he is willing to talk to us (UI)…Falcon: //Ok, ok. So, fine. Tell him, don’t worry about it. As long as he understands it, that’s fine.Lau: So if you understand it, the most important thing is you understand it. Understand? It is ok if you don’t want to sign it.DEF: Um.Detective Falcon then asks Defendant about a fight that occurred on February 9th and Defendant proceeds to make a statement to the officers about the incident.Officer Lau did not translate verbatim because according to him, he was asked by Detective Falcon “to summarize” (see Tr, p 11, line 25-p 12, line 6; p 18, lines 20-23). In his summary of the conversation to Detective Falcon, Officer Lau failed to convey that Defendant had indicated that he only had a general understanding of the rights he had been advised of (see Tr, p 20, line 13-p 21, line 12; p 22, line 22-p 23, line 16). People’s #3 in evidence reflects that at two different points in the interview, Defendant stated he wanted to wait for a lawyer (see People’s #3, pp 3; 7); yet nowhere does People’s #3 show that Officer Lau translated these requests to wait for a lawyer to Detective Falcon. When asked by defense counsel whether Defendant easily understood the concepts that Officer Lau was trying to convey or whether there was some difficulty, Officer Lau initially indicated that Defendant didn’t appear to have any issues (see Tr, p 20, lines 13-18). Upon further questioning, however, Officer Lau conceded that Defendant expressed some difficulty understanding (see Tr, p 23, line 17-page 24, line 4).CONCLUSIONS OF LAWAt a Huntley hearing, the People have the burden of proving beyond a reasonable doubt that the statements made by Defendant were voluntary. It is manifest that a defendant who is in custody may not be interrogated by law enforcement without being advised of his constitutional rights (Miranda v. Arizona, 384 US 436 [1966]). “[B]oth the elements of police ‘custody’ and police ‘interrogation’ must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda” (People v. Huffman, 41 NY2d 29, 33 [1976]).There is no question that at the time of his videotaped statement, Defendant was in custody. It is also clear that at the start of the interview, Officer Lau attempted to translate the Miranda warnings on People’s #1 from English into Defendant’s native language. The questions remaining are: (1) whether the warnings given to Defendant were sufficient? and (2) whether Defendant waived his right to counsel and if so, was the waiver knowing, intelligent, and voluntary?Defendant contends the People have failed to prove beyond a reasonable doubt that there was adequate advice given to Defendant. Defendant further submits that once he requested counsel, it was incumbent upon Officer Lau to advise Detective Falcon, the lead detective, that Defendant requested counsel, and that the failure to do so negates any finding that there was an effective waiver of Defendant’s rights.The People assert that the video speaks for itself and establishes that Defendant was properly Mirandized and did not unequivocally invoke his right to counsel. They submit that after Defendant was given his rights in Fuzhounese by Officer Lau, he was unwilling to sign the Miranda form without the advice of a family member or counsel, but was willing to answer questions.Sufficiency of Miranda WarningsIn the seminal case of Miranda v. Arizona, supra, the United States Supreme Court held that, to pass constitutional muster, an individual in custody “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed to for him prior to any questioning if he so desires” (Miranda v. Arizona, 384 US at 479). The Court further stated, “Opportunity to exercise these rights must be afforded him throughout the interrogation” (id.). Post-Miranda, courts have consistently held that the admonitions set forth in Miranda do not require a catechistic recitation of warnings in any particular language or form, however, the warnings given must reasonably and clearly convey to the suspect his rights as delineated in Miranda (see Duckworth v. Egan, 109 S Ct 2875, 2880 [1989]; People v. Dunbar, 104 AD3d 198, 206 [2nd Dept 2013]; People v. Bracero, 117 AD2d 740, 740-1 [2nd Dept 1986]; People v. Bakerx, 114 AD3d 1244, 1247 [4th Dept 2014]). The failure to adequately advise a suspect of his Miranda rights requires suppression of even voluntary statements (Dunbar, 104 AD3d at 213; People v. Santos, 112 AD3d 757, 758 [2nd Dept 2013]).Here, Officer Lau advised Defendant that he had the right to retain a lawyer for consultation; the right to hire a lawyer “before we talk”; that if he didn’t have the money to hire a lawyer, “we can provide you a lawyer, free of charge”; and that if he wanted to hire a lawyer, but “don’t have a lawyer for now, you can wait until you hire a lawyer”. Officer Lau did not, however, specifically advise Defendant that he had the right to have an attorney present during the questioning. In People v. Hutchinson, 59 NY2d 923, 924 (1983) the Court of Appeals found that the trial court committed reversible error when it denied the defendant’s motion to suppress statements on the ground that the police failed to advise him that he was entitled to the assistance of counsel during his questioning by the officer, “an aspect of the warnings to which defendant concededly was entitled”. Other appellate courts have similarly found that the failure to advise a defendant of his right to have an attorney present during police questioning renders the warnings insufficient (see, e.g., Bracero, 117 AD2d at 740-1 ["The right to have an attorney present during interrogation is a critical component of the constitutionally mandated preinterrogation warnings…Because the defendant was never informed that his right to counsel attached prior to interrogation, the warnings given by the police were constitutionally deficient."]; People v. Graham, 78 AD2d 831, 832 [1st Dept 1980] [where police officer advised defendant that if she did not have an attorney, one would be appointed for her but did not explicitly advise her that she had a right to an attorney present before she answered any questions, warnings were insufficient]; People v. Bowers, 45 AD2d 241, 248 [4th Dept 1974] [failure to advise defendant that he was entitled to have attorney present during police questioning and that he was entitled to stop talking at any time in the course of making a statement rendered warnings given to defendant by police inadequate]). “It is insufficient to merely advise a defendant that he has a right to counsel, retained or appointed, without something more to indicate that the right attached immediately and not at some future time — that he has the right to presence of counsel during questioning” (People v. Dunnett, 44 AD2d 733, 734 [3rd Dept 1974]; cf. People v. Thomas, 69 AD2d 792 [1st Dept 1979] [Although admonition that defendant had right to attorney present at interrogation was not included, adequate notification of right to counsel found where defendant was asked "do you understand that you have a right to an attorney" and "and that if you cannot afford an attorney the court will appoint one for you free of charge?"). Here, Officer Lau's failure to advise Defendant that he was entitled to an attorney present during any questioning by the police rendered the warnings he gave Defendant deficient.Moreover, after reviewing People's #3 in evidence, the translation of the interview between Defendant and the officers, this court cannot find that Defendant was adequately and effectively apprised of his constitutional rights and the consequences of waiving them. Miranda mandates that suspects be informed of their rights in clear and unequivocal terms (see Miranda v. Arizona, 384 US at 467-8). During his administration of the warnings to Defendant, Officer Lau presented Defendant with a series of compound questions making it unclear to the court which question Defendant was responding to. For example, Officer Lau tells Defendant, "You have the right to hire a lawyer; before we talk you can hire a lawyer. Do you want a lawyer? Understand?" In response, Defendant nods his head. In another instance, after purportedly administering all the Miranda rights to Defendant, Officer Lau states, "Do you understand them all? Do you want to talk?" Defendant states "yes" and nods his head.At other times, Officer Lau provided information or gave explanations which resulted in a message that was more bewildering and confusing than clear and unequivocal. For example, at the start of the interview, when Officer Lau attempted to advise Defendant of his right to remain silent and refuse to answer questions, he stated, "You have the right to remain silent. You have the right to answer us. That's to say, it is ok not to answer us when we question you." Officer Lau's explanation of the Miranda warning that anything you say could be used against you was also misleading in that he first advised Defendant that what he says could be used against him, but later, when trying to convince Defendant to sign the Miranda Warnings form, Detective Falcon advised, "Let him know these are just his rights…This is not saying that he is going to be deported, he is a criminal, this is not an immediate result" and Officer Lau explained, "This is not an admission of guilt, not an admission of whose fault, or anything." Later, Officer Lau again states, "I tell you, this is not an admission of guilt, or admission of anything. It means, you admit that we did tell you these today. If you understand, we can talk to you; if you don't understand, we are not able to talk to you. Understand?"Where, as here, the clear and unequivocal warnings set forth in Miranda are combined with the compound questions and inaccurate information contained in Officer Lau's explanations, the message conveyed to Defendant is muddled and ambiguous (see Dunbar, 104 AD3d at 207). At a minimum, "it must be shown that the individual grasped that he or she did not have to speak to the interrogator; that any statement might be used to the subject's disadvantage; and that an attorney's assistance would be provided upon request, at any time, and before questioning is continued" (People v. Williams, 62 NY2d 285, 289 [1984]). The record before this court falls short of establishing that Defendant’s Miranda rights were reasonably conveyed to him or that he understood “the immediate meaning of the warnings” (id. at 287). Accordingly, this court finds that the Miranda warnings provided to Defendant by the police were insufficient and that Defendant’s statement to the police must therefore be suppressed.Validity of Any WaiverAssuming arguendo, that the warnings given to Defendant by Officer Lau were sufficient, the question remains whether Defendant waived his right to counsel and whether his waiver was knowingly, intelligently and voluntarily made. The Second Department has repeatedly held that an express waiver of Miranda is not required for a finding that a defendant has knowingly, intelligently and voluntarily waived his rights (see People v. Harris, 115 AD2d 619, 619 [2nd Dept 1985]; People v. Reed, 75 AD2d 650, 651 [2nd Dept 1980]). Rather, the determination rests on an examination of the totality of the circumstances surrounding the interrogation, including an evaluation of the defendant’s age, experience, education, background, and intelligence, as well as his capacity to understand the Miranda rights given to him and the consequences of waiving those rights (see Dunbar, 104 AD3d at 210; Reed, 75 AD2d at 651-2). A defendant’s prior involvement with the law and any express indication that he understands his rights may also be considered (see Harris, 115 AD2d at 619).With respect to the right to counsel, Defendant twice made reference to waiting for a lawyer. Defendant contends that this was an invocation of his right to counsel. He asserts that his unwillingness to sign the Miranda form and his statement that he needed to wait for his lawyer indicated that he believed that there was an attorney on the way to advise him or that one had been appointed to him. He further submits that he was unable to benefit from his assertion of his right to counsel because it was never communicated to Detective Falcon. The People contend that Defendant did not unequivocally invoke his right to counsel, but rather indicated he would not sign the paper without a lawyer. They argue that Defendant’s question, about whether they could talk without him signing the paper, is an indication that Defendant did not invoke his right to counsel.“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, manner of expression and the particular words found to have been used by the defendant” (People v. Glover, 87 NY2d 838, 839 [1995]). Here, after Officer Lau advised him of his rights and presented him with the Miranda form, Defendant stated “I don’t know about this. Otherwise, about the signing, I will wait until my family member comes or my lawyer comes before I sign. I don’t know about anything, yet you ask me to sign.” He is told that they cannot wait for a family member and is again presented with the pre-printed Miranda form, which is in Chinese and English, and is asked to read it for himself. Defendant appears to read it and states he “generally” understands. He then asks whether they can speak without his signing and is told no. Afterward, he is told that it doesn’t matter if he signs or not as long as he understands all the items after he reads them. Defendant then states “I need to wait for my lawyer.”In People v. Kennard, 134 AD3d 1519, 1521 (4th Dept 2015), the Appellate Division concluded that standing alone a defendant’s statement “I think I need to talk to an attorney” was not an unequivocal request for counsel, but her subsequent statement “I need to” in response to the question “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 had invoked her right to counsel. As in Kennard, here, Defendant’s statement that he will wait for his lawyer followed by his subsequent statement that he needed to wait for a lawyer was a clear indication that he sought the assistance of an attorney. The court is significantly troubled by the fact that twice, Officer Lau, neither in his capacity as a translator nor in his capacity as a police officer, found it necessary to communicate Defendant’s request for an attorney to Detective Falcon, the lead detective.Defendant’s requests to wait for an attorney and Officer Lau’s failure to advise Detective Falcon of said requests coupled with the other circumstances surrounding Defendant’s interrogation leaves this court with serious concerns as to whether defendant waived his right to counsel and if so, whether such waiver was knowingly and intelligently made (see People v. Rivera, 66 AD2d 714, 714 [1st Dept 1978]). Here, in initially advising Defendant of his right to counsel, Officer Lau states, “You have the right to a lawyer, to retain a lawyer for consultation…. Do you need a lawyer?”, Defendant’s response was not audible so Officer Lau continues, “You have the right to a lawyer; before we talk you can hire a lawyer. Do you want a lawyer? Understand?” Defendant nods his head and Officer Lau follows up with, “You understand?” Defendant responds “Um.” Later when asked if he understood that if he didn’t have a lawyer available, he can wait until he hired a lawyer, Defendant responds that he “generally understood.” When presented with the Miranda form and told he can read it in Chinese for himself, Defendant again indicates that he only “generally understands.” And later still, after Defendant stated that he needed to wait for his lawyer a second time, Detective Falcon asks “Does he understand all of them?” Defendant responds, “I do, I do understand,” which Officer Lau translates into, “He said he understands exactly.” Defendant then says, “(UI) don’t know about others, (UI) understand,” but this statement is not translated.Officer Lau testified that he takes the term “generally understand” to mean “understand, fully understand” (see Tr p 36, lines 5-6). That Defendant “fully understood” the rights conveyed to him by Officer Lau is belied not only by Officer Lau’s own testimony wherein he concedes that Defendant expressed some difficulty understanding (see Tr, p 23, line 17 — p 24, line 4), but also by the video and transcript of the interrogation admitted into evidence as People’s #2 and #3 respectively. The transcript of the interrogation shows that on at least two occasions, Detective Falcon acknowledged that Defendant did not appear to understand the rights that had been conveyed to him by Officer Lau. Detective Falcon stated, “See the, the, the problem is, that by him saying what this is, and he didn’t really understand it. So that’s what we are trying to tell him, just tell him these are his rights. So, read, we have to read to him again so he understands it” (see People’s #3, p 5). Notwithstanding Detective Falcon’s suggestion, the transcript does not reflect that Officer Lau gave Defendant his Miranda warnings again. Later, Detective Falcon again expresses concern over Defendant’s understanding. He states, “Just listen, all right. Cause he, he, he worried at first, he didn’t know why he was signing it. He didn’t know those things (UI), right?” and then indicates that Defendant doesn’t have to sign the form but needs to understand what they are. He then directs Officer Lau to read the warnings to Defendant “again, slowly, and just ask him if he understands it, again” (see People’s #3, p 6). Officer Lau then advises Defendant that the Detective wants him to translate the form for him one more time. It is at this point that Defendant for the second time states that he needs to wait for his lawyer. People’s #3 lacks any indication that Officer Lau translated the form to Defendant again as directed by Detective Falcon or that Officer Lau translated Defendant’s request for an attorney to Detective Falcon.On this record, the court cannot find that Defendant understood his Miranda rights or the consequences of waiving those rights. Because the People have failed to meet their burden of establishing that Defendant knowingly, intelligently and voluntarily waived his Miranda rights, his videotaped statement must be suppressed.Accordingly, Defendant’s motion to suppress his statement is granted.This constitutes the decision and order of the court.Dated: Brooklyn, New YorkMay 29, 2018
