People v. Bacalocostantis

• Decision Date: 19 June 1986
• Citation: 504 N.Y.S.2d 560,121 A.D.2d 812
• Parties: The PEOPLE of the State of New York, Respondent, v. Elias Kostas BACALOCOSTANTIS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 560

504 N.Y.S.2d 560

121 A.D.2d 812

The PEOPLE of the State of New York, Respondent, v. Elias Kostas BACALOCOSTANTIS, Appellant.

Supreme Court, Appellate Division,

Third Department.

June 19, 1986.

Ivan S. Fisher, Fisher & Ely, New York City, for appellant.

Michael Kavanagh, Dist. Atty., Kingston, for respondent.

Before MAHONEY, P.J., and KANE, WEISS, YESAWICH and LEVINE, JJ.

KANE, Justice.

Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered August 20, 1985, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

At about midnight on the evening of May 21, 1983 in the hamlet of Boiceville, Ulster County, defendant was involved in a shooting which resulted in the death of one person and the serious injury of another. As defendant fled from the scene at high speed in his Cadillac Coupe De Ville, he was stopped by a Deputy Sheriff on night patrol a few minutes later, given a traffic summons for speeding and permitted to proceed. When Deputy Sheriff Paul Van Blarcum arrived at the scene of the shooting shortly thereafter, he was given a description of the vehicle involved in the shooting. He thereupon advised the State Police of the description of the vehicle he had stopped a few miles up the road. Notice was dispatched to all police vehicles in the area which resulted in defendant and his girlfriend passenger, Elvira Toth, being stopped by Town of Shandaken constables about 12 miles from the scene of the shooting.

Minutes later, State Troopers Bruce Taylor and Art Daley arrived to take defendant and Toth into custody. As the troopers approached defendant's vehicle with revolvers in hand, Daley asked defendant where his gun was located, to which defendant responded that he had thrown it out. Defendant and Toth were then handcuffed, removed from the car and given their Miranda rights. Both defendant and Toth, standing nearby, stated that they understood their rights, whereupon Toth said to defendant, "Don't say anything until we see a lawyer," to which defendant responded, "Yes." After a cursory search of the vehicle revealed several spent shell casings, the vehicle was removed to a State Police substation to which both defendant and Toth were taken in separate vehicles. During the course of the ride to the State Police station, upon questioning, defendant admitted his part in the shooting, and then stated that he wanted to call someone when he reached the police station. He was not questioned thereafter in the police vehicle. At the station, the individual he called was his brother. At no time did he ask for or call a lawyer.

Upon his arrival at the station, a search of his person disclosed his possession of two vials of white powder later identified as cocaine. After again receiving his Miranda warnings from Investigator Leonard Kasson, defendant gave a detailed description of his activities on May 21 and 22, 1983, which was reduced to writing. In this statement, he admitted shooting two individuals in Boiceville, possession of cocaine in the vehicle and his flight from the scene. An application for a search warrant to search defendant's vehicle was prepared. Attached to this application were defendant's statement, an affidavit from Van Blarcum relating his stopping defendant, and a deposition from Constable Steven Thomas describing his part in the apprehension of defendant. The ultimate search of the vehicle produced live and spent ammunition, a rifle, the speeding ticket and a quantity of white powder, later found to be cocaine. Defendant's motion to suppress his oral and written statements, together with the evidence obtained, was denied and, on the eve of trial, he entered a plea of guilty to the crime of criminal possession of a controlled substance in the third degree.

It is defendant's contention on this appeal that his response of "Yes" to Toth's statement about a lawyer was an adoption by him of her assertion of the right to and the request for the aid of counsel. He therefore contends that any oral or written statement obtained from him and the fruits thereof, which would include evidence seized from his impounded vehicle, should be suppressed (see, People v. Cunningham, 49 N.Y.2d 203, 424 N.Y.S.2d 421, 400 N.E.2d 360; People v. Buxton, 44 N.Y.2d 33, 36-37, 403 N.Y.S.2d 487, 374 N.E.2d 384; People v. Bolden, 75 A.D.2d 622, 427 N.Y.S.2d 45).

The resolution of this issue depends upon close scrutiny of the particular factual setting. If defendant's response of "Yes" to Toth's statement concerning a lawyer can be construed as an unequivocal request for an attorney, or, if equivocal, the totality of the circumstances provide the requisite criteria to find that defendant invoked his right to counsel, there would be merit to his argument. However, the mere expression of "Yes", standing alone and without some amplification of its relationship to the proffered statement, does not spawn an unequivocal request by defendant for the assistance of counsel. Moreover, if we deem the response to be equivocal, the totality of the circumstances do not support defendant's contentions. The questioning that took place in the police vehicle on the way to the barracks occurred after defendant was reminded of his Miranda warnings and ceased when he stated that he wanted to...