People v. Augustine

• Decision Date: 10 November 2011
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent,v.Travis AUGUSTINE, Appellant.

89 A.D.3d 1238

932 N.Y.S.2d 247

2011 N.Y. Slip Op. 07879

The PEOPLE of the State of New York, Respondent,

v.Travis AUGUSTINE, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 10, 2011.

Matthew C. Hug, Troy, for appellant.Terry J. Wilhelm, District Attorney, Catskill (Joshua Vinciguerra, New York Prosecutors Training Institute, Inc., Albany, of counsel), for respondent.Before: PETERS, J.P., SPAIN, STEIN, McCARTHY and GARRY, JJ.McCARTHY, J.

Appeal from a judgment of the County Court of Greene County (Pulver Jr., J.), rendered June 2, 2009, upon a verdict convicting defendant of the crimes of murder in the second degree, aggravated cruelty to animals and criminal possession of stolen property in the fourth degree (two counts).

When defendant was arrested on unrelated charges on July 18, 2008, he was driving the victim's truck and had her cell phone and debit card in his possession. On July 28, 2008, the victim's body was discovered buried on her property, beneath the body of her dog. Defendant was indicted and found guilty of murder in the second degree, aggravated cruelty to animals and criminal possession of stolen property in the fourth degree (two counts). County Court sentenced him, as a second felony offender, to 25 years to life for murder, two years for aggravated cruelty to animals and 2 to 4 years for each count of criminal possession of stolen property, all to be served consecutively. Defendant appeals.

County Court properly denied defendant's motion to suppress his statements to police. The narrow issues presented on appeal with regard to this argument are whether defendant was represented by counsel on his violation of probation charge so that questioning could not take place unless counsel was present or he waived his rights in counsel's presence, and whether the police were required to provide Miranda warnings before questioning him on July 27, 2008. “[A] defendant in custody in connection with a criminal matter for which he [or she] is represented by counsel may not be interrogated in the absence of his [or her] attorney with respect to that matter or an unrelated matter unless he [or she] waives the right to counsel in the presence of his [or her] attorney” ( People v. Lopez, 16 N.Y.3d 375, 377, 923 N.Y.S.2d 377, 947 N.E.2d 1155 [2011] ). On the other hand, if a suspect in custody is not actually represented by counsel on pending charges and does not request counsel, police may question that person about unrelated matters ( see People v. Hooks, 71 A.D.3d 1184, 1185, 896 N.Y.S.2d 501 [2010] ). To determine whether the police may question a defendant on matters unrelated to the pending offense, a court must inquire as to three elements: custody, actual representation and entry of counsel ( see People v. Lopez, 16 N.Y.3d at 382, 923 N.Y.S.2d 377, 947 N.E.2d 1155; People v. West, 81 N.Y.2d 370, 377, 599 N.Y.S.2d 484, 615 N.E.2d 968 [1993] ). The defendant bears the burden of showing that he or she was actually represented by counsel on the earlier charge at the time of questioning ( see People v. Rosa, 65 N.Y.2d 380, 387, 492 N.Y.S.2d 542, 482 N.E.2d 21 [1985] ).

Here, defendant was in custody on an unrelated violation of probation charge. ¹ The parties dispute whether defendant was represented by counsel on that charge. Defendant presented the Town Court arraignment memorandum on which the court had checked the “Yes” box next to “[c]ounsel assigned” and had written in “Public Defender[']s Office.” On the other hand, the Town Justice testified that, upon advising defendant of his right to counsel at arraignment, defendant stated that he “didn't think he needed an attorney ... or wasn't sure that he wanted an attorney.” The Town Justice testified that he listed the Public Defender's office to permit that office to do an intake and determine if defendant was eligible for services, to be sure that defendant could be represented when he appeared in court again. Defendant had been represented by the Public Defender's office on the charge that resulted in him being placed on probation, and an attorney from that office appeared with him at his next appearance on the violation of probation charge, which occurred after the two interrogations at issue. Given this equivocal evidence regarding representation, defendant did not meet his burden of showing that he was represented on the probation violation charge at the time of questioning.

Even if—despite evidence to the contrary—the arraignment memorandum constituted assignment of counsel such that defendant was represented on that charge, there was no proof of entry by counsel. Entry requires “actual appearance or communication by an attorney” ( People v. Grice, 100 N.Y.2d 318, 322, 763 N.Y.S.2d 227, 794 N.E.2d 9 [2003] ). The proof showed that defendant did not request counsel on the pending charge. Testimony and documents from the jail showed that the facility did not permit attorneys to call inmates due to a lack of personnel, and no one from the Public Defender's office visited defendant at any time prior to the questioning at issue. Before each interview, defendant signed a form agreeing to speak with police and acknowledging that he had a right to counsel, but he did not indicate to the police that he had counsel. Prior to the interview on July 29, 2008, the police called the District Attorney, who then called the Town Justice and confirmed that defendant did not request or have counsel on the violation of probation charge. Because defendant did not show that he was represented by counsel or entry by counsel, his rights were not violated ( see People v. Blanchard, 279 A.D.2d 808, 810, 718 N.Y.S.2d 722 [2001], lv. denied 96 N.Y.2d 826, 729 N.Y.S.2d 446, 754 N.E.2d 206 [2001]; People v. Vaughn, 275 A.D.2d 484, 489, 712 N.Y.S.2d 193 [2000], lv. denied 96 N.Y.2d 788, 725 N.Y.S.2d 653, 749 N.E.2d 222 [2001] ). Additionally, the police were not required to Mirandize defendant prior to the July 27, 2008 interview because the questioning was investigatory rather than accusatory; defendant was not a suspect in the missing person case at that time and was merely being questioned for information that could help determine the victim's whereabouts ( see People v. Winchell, 98 A.D.2d 838, 839, 470 N.Y.S.2d 835 [1983], affd. 64 N.Y.2d 826, 486 N.Y.S.2d 930, 476 N.E.2d 329 [1985]; see also Matter of Melinda I., 110 A.D.2d 991, 992, 488 N.Y.S.2d 279 [1985]; compare People v. Ripic, 182 A.D.2d 226, 231–232, 587 N.Y.S.2d 776 [1992], appeal dismissed 81 N.Y.2d 776, 594 N.Y.S.2d 712, 610 N.E.2d 385 [1993] ). Thus, County Court did not err in denying defendant's suppression motion.

County Court did not deny defendant his right to counsel after he requested new counsel. While a defendant is entitled to a different assigned counsel upon a showing of good cause ( see People v. Porto, 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010]; People v. Nunez, 35 A.D.3d 902, 903, 825 N.Y.S.2d 806 [2006], lv. denied 8 N.Y.3d 883, 832 N.Y.S.2d 495, 864 N.E.2d 625 [2007] ), defendant's letter to the court contained generalized complaints about counsel. The court received the letter less than a week prior to trial, so any substitution in this complicated case would have delayed the trial for months. Defendant contends that the court deprived him of an opportunity to explain his concerns, but he agreed with the court's advice that he should remain silent to protect his interests. Considering the lack of factual support for defendant's complaints and the timing of his request, along with counsel's adequate pretrial performance, the court did not deprive defendant of his right to counsel ( see People v. Porto, 16 N.Y.3d at 100, 917 N.Y.S.2d 74, 942 N.E.2d 283; People v. Linares, 2 N.Y.3d 507, 510–512, 780 N.Y.S.2d 529, 813 N.E.2d 609 [2004] ).

Defendant's convictions were not against the weight of the evidence.² When he was arrested, defendant was driving the victim's truck and possessed her debit card. Bank records show that the debit card was used numerous times in the city where defendant traveled. Defendant admitted that he used the card. Although defendant averred in one statement that he was allowed to use the card because the victim put some of his money in her bank account, he told the police in his first two statements that he used the card without the victim's permission. Contrary to his statements wherein he asserted that he bought the victim's truck from her and the receipt was above the visor, no such receipt was located in the vehicle, and the title in the vehicle was not signed over to him by the victim. Defendant told his friends that he was not supposed to have the victim's truck. He also told his half brother to sell the...