39 N.Y.2d 479, People v. Hobson

Citation:39 N.Y.2d 479, 384 N.Y.S.2d 419
Party Name:People v. Hobson
Case Date:May 04, 1976
Court:New York Court of Appeals

Page 479

39 N.Y.2d 479

384 N.Y.S.2d 419

The PEOPLE of the State of New York, Respondent,


Henry Cornelius HOBSON, Appellant.

New York Court of Appeals

May 4, 1976.

[384 N.Y.S.2d 420] Gerald J. Callahan, Commack, John F. Middlemiss, Jr., Riverhead, and Leon J. Kesner, Bay Shore, for appellant.

Henry F. O'Brien, Dist. Atty. (Charles M. Newell, Riverhead, of counsel), for respondent.

BREITEL, Chief Judge.

Defendant, following denial of a motion to suppress his incriminating statements, was convicted, after a guilty plea, of third degree robbery (Penal Law § 160.05). He was sentenced to seven years' imprisonment. His conviction was affirmed, and he appeals.

The issue is whether a defendant in custody, represented by a lawyer in connection with criminal charges under investigation, may validly, in the absence of the lawyer, waive his right to counsel.

There should be a reversal. Once a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer (People v. Arthur, 22 N.Y.2d 325, 329, 292 N.Y.S.2d 663, 666, 239 N.E.2d 537, 539). Any statements elicited by an agent of the State, however subtly, after a purported 'waiver' obtained without the presence or assistance of counsel, are inadmissible. Since the purported 'waiver' of defendant's right to counsel was obtained in the absence of his lawyer, who had represented him at a just-completed lineup in connection with the criminal charges, his statements were inadmissible and should have been suppressed.

The facts are undisputed. On February 7, 1973, at approximately 8:30 p.m., defendant entered a delicatessen in Central Islip in Suffolk County. After asking for directions from the owner, George Gundlach, defendant drew a gun and demanded all the cash in the register. After he had received the cash and a number of packages of cigarettes, defendant left.

When the police arrived shortly thereafter, Mr. Gundlach described the robber to Suffolk County Detective Dolan. He then accompanied the detective to the police station, where he eventually identified photographs of defendant as those of the culprit. Mr. Gundlach did state, however, that to be [384 N.Y.S.2d 421] positive he would have to see defendant in person.

Nine months later, on September 26, 1973, defendant was being held in the Suffolk County Jail on charges unrelated to the delicatessen robbery. He was not under arrest for the robbery at that time, although he was a photograph-identified suspect. Defendant was placed in a five-man lineup. Because defendant had requested counsel, Samuel McElroy, a Legal Aid lawyer, was assigned and present to represent him. Mr. Gundlach identified defendant as the robber. Mr. McElroy then left.

After Mr. McElroy left, a Sheriff's deputy asked Detective Dolan if he desired to speak to defendant. Despite his admitted knowledge that defendant was now represented by counsel on the robbery charge, Dolan replied that he would. The detective had not told Mr. McElroy that he was going to speak to defendant, nor did he make any effort to reach counsel before seeing defendant. At the deputy's request, defendant signed an undescribed form of 'waiver' (which Dolan testified he had never seen) and agreed to speak to Dolan. Defendant was then brought to an 'interview' room in the jailhouse.

Detective Dolan read to defendant the standard preinterrogation warnings and asked him if he understood. Defendant said that he did. The detective then asked defendant 'Do you wish to contact a lawyer?' Defendant shook his head, indicating 'No'. The detective then asked 'Having these rights in mind, do you wish to talk to me now without a lawyer?' Defendant replied 'Yes'.

Defendant then inquired of Dolan whether he had been identified by Mr. Gundlach, and the detective told him that he had. Expressing a desire to 'clear up everything', defendant in effect confessed to the robbery.

In People v. Arthur (22 N.Y.2d 325, 329, 292 N.Y.S.2d 663, 666, 239 N.E.2d 537, 539, Supra), the court held: 'Once an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant's right to counsel (People v. Vella, 21 N.Y.2d 249, 287 N.Y.S.2d 369, 234 N.E.2d 422). There is no requirement that the attorney or the defendant request the police to respect this right of the defendant.' The rule of the Arthur case has been restated many times (see People v. Hetherington, 27 N.Y.2d 242, 244--245, 317 N.Y.S.2d 1, 2--3, 265 N.E.2d 530, 531; People v. Paulin, 25 N.Y.2d 445, 450, 306 N.Y.S.2d 929, 933, 255 N.E.2d 164, 166; People v. McKie, 25 N.Y.2d 19, 26, 302 N.Y.S.2d 534, 538, 250 N.E.2d 36, 39; People v. Miles, 23 N.Y.2d 527, 542, 297 N.Y.S.2d 913, 924, 245 N.E.2d 688, 695, cert. den. 395 U.S. 948, 89 S.Ct. 2028, 23 L.Ed.2d 467; cf. People v. Stephen J.B., 23 N.Y.2d 611, 616, 298 N.Y.S.2d 489, 494, 246 N.E.2d 344, 348).

This unequivocal and reiterated statement of the law in this State is no mere 'dogmatic claim' or 'theoretical statement of the rule' (see, contra, People v. Robles, 27 N.Y.2d 155, 158, 314 N.Y.S.2d 793, 794, 263 N.E.2d 304, 305, cert. den. 401 U.S. 945, 91 S.Ct. 959, 28 L.Ed.2d 227, thus characterizing the rule). It is, instead, a rule grounded in this State's constitutional and statutory guarantees of the privilege against self incrimination, the right to the assistance of counsel, and due process of law (see People v. Arthur, 22 N.Y.2d 325, 328, 292 N.Y.S.2d 663, 665, 239 N.E.2d 537, 538, Supra; People v. Failla, 14 N.Y.2d 178, 180, 250 N.Y.S.2d 267, 268, 199 N.E.2d 366, 367; People v. Donovan, 13 N.Y.2d 148, 151, 243 N.Y.S.2d 841, 842, 193 N.E.2d 628, 629; Richardson, Evidence (10th ed.), § 545, at p. 546). Indeed, the rule resisted narrow classification of defendants entitled to its protection; it is applicable to a defendant when taken into custody, whetehr as an 'accused', a 'suspect', or a 'witness' (cf. People v. Sanchez, 15 N.Y.2d 387, 389, 259 N.Y.S.2d 409, 410, 207 N.E.2d 356).

Of course, as with all verbalizations of constitutional principles, the rule of [384 N.Y.S.2d 422] the Arthur case (supra) is not an absolute. Thus, the fact that a defendant is represented by counsel in a proceeding unrelated to the charges under investigation is not sufficient to invoke the rule (see People v. Hetherington, 27 N.Y.2d 242, 245, 317 N.Y.S.2d 1, 2, 265 N.E.2d 530, 531, Supra; People v. Taylor, 27 N.Y.2d 327, 331--332, 318 N.Y.S.2d 1, 4--5, 266 N.E.2d 630, 632--633). The rule applies only to a defendant who is in custody; it does not apply to noncustodial interrogation (People v. McKie, 25 N.Y.2d 19, 28, 302 N.Y.S.2d 534, 540, 250 N.E.2d 36, 40, Supra). Moreover, the rule of the Arthur case (supra) does not render inadmissible a defendant's spontaneously volunteered statement (People v. Kaye, 25 N.Y.2d 139, 144, 303 N.Y.S.2d 41, 45, 250 N.E.2d 329, 331; cf. People v. Robles, 27 N.Y.2d 155, 159, 314 N.Y.S.2d 793, 795, 263 N.E.2d 304, 305, cert. den. 401 U.S. 945, 91 S.Ct. 959, 28 L.Ed.2d 227, Supra).

The Donovan and Arthur cases (supra) extended constitutional protections of a defendant under the State Constitution beyond those afforded by the Federal Constitution (compare People v. Arthur, 22 N.Y.2d 325, 329, 292 N.Y.S.2d 663, 666, 239 N.E.2d 537, 539, Supra; and People v. Donovan, 13 N.Y.2d 148, 151, 243 N.Y.S.2d 841, 842, 193 N.E.2d 628, 629, Supra; with Miran v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694; and Escobedo v. Illinois, 378 U.S. 478, 486--487, 84 S.Ct. 1758, 12 L.Ed.2d 977; see Richardson, Evidence (10th ed.), Op. cit., at pp. 548--549; but cf., e.g., Massiah v. United States, 377 U.S. 201, 205--206, 84 S.Ct. 1199, 12 L.Ed.2d 246; United States v. Thomas, 10 Cir., 474 F.2d 110, 112, cert. den. 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160; United States ex rel. Lopez v. Zelker, D.C., 344 F.Supp. 1050, 1054, affd. 2 Cir., 465 F.2d 1405, cert. den. 409 U.S. 1049, 93 S.Ct. 529, 34 L.Ed.2d 501, dealing with the right to counsel after the commencement of adversary judicial proceedings).

Notwithstanding that warnings alone might suffice to protect the privilege against self incrimination, the presence of counsel is a more effective safeguard against an involuntary waiver of counsel than a mere written or oral warning in the absence of counsel (see United States v. Massimo, 2 Cir., 432 F.2d 324, 327 (Friendly, J., dissenting), cert. den. 400 U.S. 1022, 91 S.Ct. 586, 27 L.Ed.2d 633; compare ALI, Model Code of Pre-Arraignment Procedure (Tent.Draft No. 6, 1974), § 140.8, subd. (2); Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694, Supra). The rule that once a lawyer has entered the proceedings in connection with the charges under investigation, a person in custody may validly waive the assistance of counsel only in the presence of lawyer breathes life into the requirment that a waiver of a constitutional right must be competent, intelligent and voluntary (see People v. Witenski, 15 N.Y.2d 392, 395, 259 N.Y.S.2d 413, 414, 207 N.E.2d 358, 360; Matter of Bojinoff v. People, 299 N.Y. 145, 151--152, 85 N.E.2d 909, 911--912; Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461). Indeed, it may be said that a right too easily waived is no right at all.

Moreover, an attempt to secure a waiver of the right of counsel in a criminal proceeding in the absence of a lawyer, already retained or assigned, would constitute a breach of professional ethics, as it would be in the least-consequential civil matter (see ABA Code of Professional Responsibility, DR7--104, subd. (A), par. (1); People v. Robles, 27 N.Y.2d 155, 162, 314 N.Y.S.2d 793, 798, 263 N.E.2d 304, 307 (Fuld, Ch. J., dissenting), cert. den. 401 U.S. 945, 91 S.Ct. 959, 28 L.Ed.2d 227,...

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