40 N.Y.2d 610, People v. Ramos

Citation:40 N.Y.2d 610, 389 N.Y.S.2d 299
Party Name:People v. Ramos
Case Date:October 26, 1976
Court:New York Court of Appeals

Page 610

40 N.Y.2d 610

389 N.Y.S.2d 299

The PEOPLE of the State of New York, Respondent,


Willie RAMOS, Appellant.

New York Court of Appeals

October 26, 1976.

[389 N.Y.S.2d 300] Ursula Bentele and William E. Hellerstein, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty., New York City (Edward Agnew McDonald and Peter L. Zimroth, New York City, of counsel), for respondent.


The defendant was charged with two counts of murder, attempted robbery in the first degree and possession of a weapon, arising out of an attempted robbery of a liquor store. He moved to suppress certain statements made by him on the ground that they had been obtained in violation of his constitutional rights. Following a hearing, defendant's motion was denied. Subsequently he pleaded guilty to manslaughter in the first degree (Penal Law, § 125.20), in satisfaction of all the counts of the indictment.

In essence, this case presents two issues: (1) whether the defendant's right to counsel was abridged, thus rendering the defendant's incriminating statement inadmissible; and (2) if, in fact, the trial court was in error in refusing to suppress this statement, whether the judgment of conviction, upon his plea of guilty, should nevertheless be allowed to stand.

On January 19, 1971, four men attempted to rob a liquor store in the Inwood section of Manhattan. During the course of the attempted robbery, John Killion, the proprietor of the store, was shot and killed. Four days later the police arrested two men, Gregoria Vasquez and Gammalier Valles, also known as Gammalier Baez, in connection with the incident, and, on February 19, 1971 a warrant for the arrest of the defendant, Willie Ramos, was issued based on an information filed in the Criminal Court charging him with complicity in the homicide.

On August 10, 1971, approximately seven months after the shooting and six months after the issuance of the arrest warrant, the defendant. Under the name of Adalberto Santiago, was arrested in Bronx County for possession of drugs. The following morning, while the defendant was awaiting arraignment on the drug charge in the detention pen below the courtroom, three police officers assigned to the Bronx Narcotics Division, acting on a tip received from a private citizen that morning, sought him out to question him in connection with the liquor store shooting. They located the defendant in the detention pen and asked him if his real name was Willie Ramos. After the defendant responded affirmatively, the [389 N.Y.S.2d 301] officers moved him to a private room for further interrogation. When one of the officers asked: 'Do you know anything about a homicide, a shooting uptown around 180th street?', the defendant replied: 'Yes. It wasn't me, it was Hector 1 that did it all.'

At this point the police officers advised the defendant of his constitutional rights and Ramos then proceeded to describe his presence in the liquor store and his involvement in the shooting. 2 No written record was made of the defendant's statements. He was then returned to the detention pen to await arraignment on the drug charge.

On the arraignment for the drug charge Ramos was represented by a privately retained attorney. At the conclusion of the arraignment proceeding, he was paroled in the custody of a detective from the 34th Detective Squad, Manhattan, who was present in the courtroom with the outstanding arrest warrant relating to the liquor store incident. At this point, in the presence of the detective who was taking Ramos into custody, the attorney representing Ramos on the drug charge stated: 'For the record, I have advised Mr. Santiago not to make any statements to these police officers who are taking him into custody.'

Ramos was taken to the 34th Precinct and later that day to the offices of the District Attorney, where an Assistant District Attorney questioned him with respect to the shooting. Prior to this interrogation the Assistant District Attorney advised Ramos of his constitutional rights during the course of which the following colloquy took place:

'Q. You have the right to a lawyer at this time before any questions, do you understand that?

'A. Right.

'Q. If you do not have a lawyer at this time or you cannot afford a lawyer, a lawyer will be provided for you now before any questioning.

'A. What I can tell about this here I can tell you myself just like it happened. It can go against me, I would like a lawyer. I can tell you that myself, I hope it don't go against me, I am trying to get out of this jam.

'Q. Well, that's your decision to make, if you want a lawyer you can have one. What I am asking you are you willing to answer questions at this time without a lawyer?

'A. Well, can I ask you this? If I was to tell you it myself would that do any good, would a lawyer do any better?

'Q. I cannot tell, I can tell you what your rights are, do you understand?

'A. Yes. I have never been through this before, I don't know how it works out. You got a lawyer, I don't know what to do. I can explain it to you myself, in the liquor store, if it's going to go against me that's what I want.

'Q. That is your decision?

'A. If I get a lawyer I can set it in front of him?

'Q. You can speak with a lawyer.

'A. I already talked to detectives, if they got that record already it don't make no difference.

'Q. Yes because they told about your rights too, is that right?

'A. Right. I told them just like it happened, it's the same thing, their record is the same as yours.

'Q. I don't know of any record at this point, it is up to you. If you want to answer questions without a lawyer I'd like to ask you some questions.

'A. Go ahead, ask me some questions.'

The Assistant District Attorney proceeded to inquire about the incident and Ramos [389 N.Y.S.2d 302] repeated in greater detail the account of the shooting which he had previously given to the police officers. A stenographer was present and a transcript was made of the entire question and answer session.

Subsequently, Ramos was charged in an indictment with two counts of murder, attempted robbery in the first degree, and possession of a weapon as a felony, all charges stemming from the January 19, 1971 shooting. Before trial Ramos moved to suppress the statements he had made to the three police officers and the statement made and transcribed before the Assistant District Attorney. After a hearing, defendant's motions were denied and thereafter Ramos entered his plea of guilty of manslaughter in the first degree.

When Ramos appeared for sentencing he sought to withdraw his guilty plea, the application was denied and the defendant was sentenced to the maximum term of from 8 1/3 to 25 years in prison.

On this appeal the defendant contends, Inter alia, that his statements before the Assistant District Attorney should have been suppressed in that they were made during the course of an interrogation which occurred while the defendant was in custody and after an attorney had appeared in the proceedings on his behalf. Therefore, defendant argues, the prosecutor was prohibited from questioning the defendant in the absence of his attorney, and any purported waiver of defendant's right to counsel, obtained in the absence of his lawyer, was ineffective. The prosecutor, on the other hand, contends that the defendant was not represented by counsel at the time of the interrogation in question; that the defendant was fully apprised of his constitutional rights; and that the defendant knowingly, willingly and voluntarily waived his right to counsel. We agree with the defendant.

The law in this State has long been settled that once a lawyer has entered a criminal proceeding representing a defendant in custody in connection with criminal charges under investigation, the prosecution cannot question the defendant in the absence of his attorney (People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537; People v. Gunner, 15 N.Y.2d 226, 257 N.Y.S.2d 924, 205 N.E.2d 852), nor can the defendant waive his right to counsel in the absence of his lawyer (People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894; People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537, Supra). Thus the threshold question is whether, under these circumstances, an attorney had entered the proceedings representing the defendant. An examination of the cases provides us with guidance in the resolution of this issue.

In People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537, Supra, the defendant was arrested for throwing his two-year-old son off a bridge. The incident took place at approximately 5:30 p.m., and the defendant had been arrested shortly thereafter and taken to police headquarters for questioning. At approximately 6:00 p.m. an attorney who had known the defendant for a period of approximately two years and who had acted as his attorney in other matters, saw a news broadcast on television relating to the incident. On his own initiative, the attorney proceeded to police headquarters where he informed the officer who appeared to be in charge of the investigation that he was an attorney representing the defendant. The police officer went to check on the status of the interrogation. When he returned he informed the attorney that the police were finishing up their questioning and, if the attorney waited a few minutes, he could see the defendant. Sometime after the attorney arrived on the scene but prior to the time he was allowed to speak with the defendant, the defendant signed a written statement inculpating himself.

When the police completed their questioning, the attorney was allowed to speak with the defendant. After a short conference, the attorney returned home, but not [389 N.Y.S.2d 303] before stating to the officer in charge that he thought the defendant was "pretty sick and I think you should leave him alone. There is no sense in talking to...

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