People v. Albro

• Citation: 73 A.D.2d 73,425 N.Y.S.2d 1000
• Parties: The PEOPLE of the State of New York, Respondent, v. Lawrence Raymond ALBRO, Jr., Appellant.
• Decision Date: 28 February 1980
• Court: New York Supreme Court Appellate Division

Page 1000

425 N.Y.S.2d 1000

73 A.D.2d 73

The PEOPLE of the State of New York, Respondent, v. Lawrence Raymond ALBRO, Jr., Appellant.

Supreme Court, Appellate Division, Third Department.

Feb. 28, 1980.

Robert L. Miller, Elmira, for appellant.

Stewart E. McDivitt, Dist. Atty., Watkins Glen, for respondent.

Before MAHONEY, P. J., and GREENBLOTT, SWEENEY, STALEY and MIKOLL, JJ.

MAHONEY, Presiding Justice.

Following an unsuccessful attempt to suppress his written confession, defendant was convicted after a jury trial at which the confession was admitted into evidence. The confession related defendant's participation in the events of June 5, 1976, during which defendant's stepmother was fatally shot and her companion seriously injured. Defendant urges several reasons why his confession should have been suppressed and found inadmissible at trial, only one of which has merit and requires discussion.

Five state troopers confronted defendant at his apartment at 5:00 A.M. on June 6, 1976. While at the apartment, one of the troopers found a plastic bag containing marijuana in plain view. Defendant was subsequently taken to various State Police substations where he was interrogated concerning the prior night's shooting for approximately 18 hours. Although defendant gave two exculpatory statements during this period, the investigators indicated they felt he was lying, and defendant was ultimately arrested for possession of the previously discovered marijuana at 11:00 P.M. on June 6. He was then taken to the Cortland City Police Station where he was arraigned before a judge who set bail at $5,000.

Defendant was rearraigned the following day at 9:00 A.M., and at 4:00 P.M. he again appeared before the judge who this time released him on his own recognizance. Trooper Allen had taken defendant to see the judge the third time. Upon being released, defendant accompanied Allen to the State Police substation in Cortland. After being advised of his rights, defendant confessed to the murder and assault at 5:30 P.M.

An understanding of the recent Court of Appeals decision in People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709, is essential for resolution of this appeal. In Rogers, the court held that once an attorney has entered the proceeding, a defendant in custody may not be further interrogated in the absence of counsel, and any information obtained through questioning in the absence of counsel cannot be used against that defendant. Departing from earlier cases which permitted questioning in the absence of counsel about a charge unrelated to that on which the defendant was represented (People v. Hetherington, 27 N.Y.2d 242, 317 N.Y.S.2d 1, 265 N.E.2d 530; People v. Taylor, 27 N.Y.2d 327, 318 N.Y.S.2d 1, 266 N.E.2d 630; see People v. Hobson, 39 N.Y.2d 479, 483, 384 N.Y.S.2d 419, 421, 348 N.E.2d 894, 897), the Rogers court stated that "(w)e may not blithely override the importance of the attorney's entry by permitting interrogation of an accused with respect to matters which some may perceive to be unrelated" (48 N.Y.2d 167, 169, 422 N.Y.S.2d 18, 19, 397 N.E.2d 709, 711).

Before deciding if the facts in this case fit within the Rogers rule, we turn first to the issue of whether the Rogers rule is even applicable since Rogers was not decided until after defendant's conviction. The easy to apply common-law rule that cases on direct appeal received the benefit or detriment of changes in decisional law and that final judgments were not affected by subsequent changes is no longer valid (see People v. Morales, 37 N.Y.2d 262, 267-269, 372 N.Y.S.2d 25, 29-31, 333 N.E.2d 339, 342-343). Instead, the United States Supreme Court has instructed that each constitutional rule of criminal procedure must be individually analyzed to determine if it will be given retroactive application (Johnson v. New Jersey, 384 U.S. 719, 728, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882).

Three factors must be considered in determining whether a rule will be applied retroactively: (1) the purpose to be served by the new standards; (2) the extent of the reliance by law enforcement authorities on the old standards; and (3) the effect on the administration of justice of a retroactive application of the new standards (Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248; Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199; People v. Morales, 37 N.Y.2d 262, 269, 372 N.Y.S.2d 25, 31, 333 N.E.2d 339, 343, supra ). The most important of these factors is the purpose to be served by the new constitutional rule (Desist v. United States, supra ), and retroactivity is not precluded by the mere fact that law enforcement authorities acted in reliance on prior decisional law, as was done in this case (Roberts v. Russell, 392 U.S. 293, 295, 88 S.Ct. 1921, 1922, 20 L.Ed.2d 1100; Witherspoon v. Illinois, 391 U.S. 510, 523, n.22, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776).

We believe that the Rogers rule (supra ) should be given retroactive effect. The rule was fashioned to guard an individual's privilege against self-incrimination and right to counsel. "(R)ight to counsel decisions are among those which have most commonly been deemed retroactive" (People v. Morales, supra, 37 N.Y.2d p. 270, 372 N.Y.S.2d p. 32, 333 N.E.2d p. 344). This is so because denial of that right must almost invariably deny a fair trial (Arsenault v. Massachusetts, 393 U.S. 5, 6, 89 S.Ct. 35, 36, 21 L.Ed.2d 5). Thus, in spite of the countervailing considerations presented by this case reliance on the old rule of People v. Taylor, 27 N.Y.2d 327, 318 N.Y.S.2d 1, 266 N.E.2d 630, supra ) and the potential impact of retroactivity upon the administration of justice, we hold that People v. Rogers (supra), be given retroactive effect. (See People v. Holcombe, App.Div., --- N.Y.S.2d ---; People v. Hardy, App.Div., 423 N.Y.S.2d 772 (1979).

Having decided that the Rogers rule applies to this case, we return to the question of whether the factual pattern presented fits within the rule. The Rogers rule is activated only in those situations where a defendant is in custody and his attorney has entered the proceeding. It is clear that defendant's attorney had entered the proceeding prior to the questioning which ultimately elicited defendant's confession. Defendant was represented on the drug charge at the 9:00 A.M. arraignment on June 7, 1976 by an attorney who indicated his willingness to be replaced by assigned counsel due to his own unfamiliarity with criminal matters and defendant's inability to pay for private counsel. Following these remarks by his attorney, defendant requested assigned counsel which was never provided.

More troubling, however, is the issue of whether defendant remained in custody throughout the period of June 6-June 7, or whether there was a meaningful interruption of custody when he was released on his own recognizance and he then voluntarily accompanied Trooper Allen to the Cortland substation for further questioning. A review of defendant's Huntley hearing and the order denying the motion to suppress discloses that this question remains unresolved. Defendant testified that he was in handcuffs when taken by Trooper Allen to see the judge and that be remained shackled while he was taken to the State Police substation in Cortland. Allen disputed this and testified that defendant voluntarily agreed to accompany him. In denying defendant's motion to suppress his confession, the trial court made no finding as to custody since it found that Miranda warnings had been given prior to the statement. Since the court was acting prior to the decision in People v. Rogers (supra), it was not concerned with the question of whether custody had been interrupted. However, since that issue is now critical to resolution of this appeal and the record contains conflicting testimony concerning the circumstances surrounding defendant's release on June 7, 1976, the matter should be remitted and a hearing held on the issue of custody.

The decision should be withheld, and the matter remitted to the County Court of Schuyler County for further proceedings not inconsistent herewith.

MIKOLL, Justice (dissenting).

I respectfully dissent.

This case was submitted to the jury by the defendant on the sole issue of whether defendant was guilty not of murder in the second degree but only of manslaughter in the first degree because he was acting under extreme emotional disturbance. Defendant conceded to the jury his guilt of manslaughter in the first degree and of assault. In my view the judgment of conviction should be affirmed.

The defendant here took the stand in his own defense and testified. He confessed in open court before the jury. He described the crimes committed fully, in as much, if not more, detail than contained in the written confession. Defendant made affirmative use of the very evidence he earlier claimed was inadmissible. In so doing he effectively waived any error in its admission in the trial and did not preserve the alleged error for appellate review (People v. Di Piazza, 24 N.Y.2d 342, 352, 300 N.Y.S.2d 545, 553, 248 N.E.2d 412, 417; People v. De Renzzio, 19 N.Y.2d 45, 277 N.Y.S.2d 668, 224 N.E.2d 97; People v. Rutigliano, 261 N.Y. 103, 184 N.E. 689; Hayden v. Palmer, 2 Hill (N.Y.) 205, 209-210; Gale v. Schillock, 4 Dak. 182, 196, 29 N.W. 661, 666; People v. Workman, 283 App.Div. 1066, 1067, 131 N.Y.S.2d 100, 101, affd. 308 N.Y. 668, 124 N.E.2d 314; Paperno and Goldstein, Criminal Procedure in New York (Revised ed.), part II, § 46, p. 101; 1 Wigmore on Evidence (3d ed.), § 18, pp. 344-345). While it is true that where constitutional error is involved, as here, it has been held that the defendant must do more than merely waive his earlier objection to the admission of evidence (People v. Arthur, 22 N.Y.2d 325, 329, 292 N.Y.S.2d 663, 666, 239 N.E.2d 537, 539; U.S. ex rel. Cruz v. La Vallee, 2 Cir., 448 F.2d 671), the defendant has done just that...