People v. Tutt

• Decision Date: 01 April 1976
• Citation: 384 N.Y.S.2d 444,348 N.E.2d 920,38 N.Y.2d 1011
• Parties: , 348 N.E.2d 920 The PEOPLE of the State of New York, Respondent, v. Dennis TUTT, also known as Dennis Warren, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 444

384 N.Y.S.2d 444

38 N.Y.2d 1011, 348 N.E.2d 920

The PEOPLE of the State of New York, Respondent, v. Dennis TUTT, also known as Dennis Warren, Appellant.

Court of Appeals of New York.

April 1, 1976.

Daniel J. Bernstein and William E. Hellerstein, New York City, for appellant.

Nicholas Ferraro, Dist. Atty. (William G. Schrager, Kew Gardens, of counsel), for respondent.

MEMORANDUM.

The order of the Appellate Division, 47 A.D.2d 911, 369 N.Y.S.2d 624, should be affirmed.

We reach our conclusion on a very narrow ground. We do not suggest that at the time defendant made the statement and surrendered the car keys, both of which are sought to be suppressed, he then waived any aspect of the full preinterrogation admonitions to which he was constitutionally entitled (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694). We agree with the dissenters that the record here would not support any such finding. Rather, we conclude that there should be an affirmance because of the failure of defendant at the suppression hearing to preserve the error on which reliance is now placed for a reversal.

At that hearing defendant advanced but a single, categorical contention--that he had been given None of the constitutionally mandated admonitions before interrogation. There was then no intimation either in his own testimony or in the recorded argument of counsel on his behalf that it would be claimed that that portion of the admonitions covering the right to counsel was deficient in its extent and explicitness. Thus, the People were afforded no opportunity to meet the theory first put forward on appeal, namely, that the preinterrogation statements made by the police did not go far enough explicitly to advise defendant that his right to counsel included the right to have counsel present at his on-the-scene questioning.

There can, of course, be no doubt that the right to counsel extends to representation during any interrogation by the police and that the defendant is entitled to advice to such effect (Miranda v. Arizona, supra, p. 479, 86 S.Ct. 1602; People v. Rodney P. (Anonymous), 21 N.Y.2d 1, 3--4, 286 N.Y.S.2d 225, 233 N.E.2d 255). Where, however, the defendant fails at the suppression hearing to challenge a narrow aspect of the sufficiency of the admonitions given him, at a time when the People would have an evidentiary opportunity to counter his assertion, he may not then be heard to complain on appeal.

GABRIELLI, Judge (concurring).

I concur and am in entire agreement with the memorandum for affirmance, but I think it appropriate to also address the merits of the issue raised on this appeal. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, does not require any ritualistic incantation to effectuate its salutary purpose of alerting a suspect to his constitutional rights to remain silent and to have the assistance of an attorney (see United States v. Vanterpool, 2 Cir., 394 F.2d 697, 698--699). Here the defendant was given the following admonitions by the arresting officer:

'You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you by the state.'

In light of this statement, which fairly apprised the defendant of his right to an attorney prior to making any statement to the police, defendant's belated claim that the warnings were improper because he was not specifically informed of his right to have an attorney present during questioning, is without merit. Defendant was told without qualification that he had a right to an attorney. In the context of the previous advisement that he did not have to make any statement to the police, the defendant was effectively informed that he had the right to consult an attorney before making any statement to the police. It is sufficient that the preinterrogation admonitions mandated by Miranda be imparted in a manner sufficiently clear and comprehensible for the ordinary person to understand his rights (People v. Swift, 32 A.D.2d 183, 187, 300 N.Y.S.2d 639, cert. den. 396 U.S. 1018, 90 S.Ct. 584, 24 L.Ed.2d 510; United States v. Lamia, 2 Cir., 429 F.2d 373, cert. den. 400 U.S. 907, 91 S.Ct. 150, 27 L.Ed.2d 146). This is especially true in the situation of an 'on the street' confrontation between police officer and suspect, where the coercive atmosphere is not great nor is there significant danger that extended pressure will be brought to bear on a suspect to waive his interrogation rights (see People v. Rodney P. (Anonymous), 21 N.Y.2d 1, 4--5, 286 N.Y.S.2d 225, 233 N.E.2d 255). The Seond Circuit Court of Appeals has upheld warnings in a context similar to that of the instant case where questioning occurred immediately after arrest at the scene of the crime (United States v. Vigo, 487 F.2d 295, 299; United States v. Cusumano, 2 Cir., 429 F.2d 378, cert. den. Sub nom. Riggio v. United States, 400 U.S. 830, 91 S.Ct. 62, 27 L.Ed.2d 61). In the Cusumano case (Supra, p. 380), the court remarked that '(i)t is unrealistic to expect the same degree of formality with respect to waiver in questioning 'on the street' as in the stationhouse.' Furthermore, there is no claim here that the defendant did not understand the admonitions given to him or that he was not capable of making an intelligent and knowing decision to waive his interrogation rights because of any abusive police activity, education, intelligence or other circumstances (People v. Swift, 32 A.D.2d 183, 187, 300 N.Y.S.2d 639, Supra).

'The Supreme Court did not prescribe an exact format to be used in advising a suspect of his constitutional right to remain silent, but rather left to the courts the duty of guarding against any invasion of that right' (United States v. Lamia, 429 F.2d 373, 375--376, Supra). ^* The Judge at the suppression hearing in the case before us found that the arresting officer informed the defendant of his right to remain silent and his right to have an attorney and that the defendant indicated that he understood these rights. No investigative acts nor questioning concerning any criminal acts took place prior to the warnings and advice given by the police. The findings, affirmed by the Appellate Division, are binding upon this court (People v. Robles, 27 N.Y.2d 155, 157, 314 N.Y.S.2d 793, 263 N.E.2d 304; People v. Leonti, 18 N.Y.2d 384, 389, 275 N.Y.S.2d 825, 222 N.E.2d 591). I cannot conclude that as a matter of law the recitation of preinterrogation admonitions was inadequate under the circumstances presented in this case and, therefore, vote to affirm.

COOKE, Judge (dissenting).

I dissent and vote to reverse the order of the Appellate Division.

The failure of the arresting officer to adequately inform defendant of his right to the assistance of counsel prior to and during custodial interrogation violated the principles articulated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Absent a knowing and voluntary waiver of this right, incriminating statements made by defendant after his arrest should have been suppressed.

The only issue at the suppression hearing was whether defendant had waived his Miranda rights. Patrolman Zuefle testified that, while on routine patrol, he spotted defendant and another in an area enclosed by an eight-foot fence. The officer ordered them to climb back over the fence and, not being satisfied with the reason advanced for their presence on the private property, placed them under arrest on a charge of criminal trespass. Subsequent to arrest, Zuefle advised defendant: 'You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you by the state.' When Zuefle asked defendant if he understood, he replied 'Yes'. Then, conducting a search incident to the arrest, the officer retrieved a set of keys from defendant's pocket and, upon inquiry as to what they were for, defendant, pointing to a nearby automobile, answered 'They are for my father's car, this car over here.' A contact with authorities disclosed that the vehicle was wanted on an alarm. At the hearing's conclusion, the court denied defendant's motion to suppress his statements and the keys, on the ground that the statements were voluntarily made and that the keys were found pursuant to a lawful search. That same day, defendant, who had been indicted for criminal possession of stolen property in the first degree and unauthorized use of a vehicle, pleaded guilty to the former in satisfaction of the indictment.

The People, although contending that there was substantial compliance with Miranda, concede that Patrolman Zuefle's admonitions were 'incomplete' and that '(t)here was no evidence that appellant was told that he had the right to consult with a lawyer prior to any questioning and to have an...