People v. Bell

• Decision Date: 16 February 1989
• Citation: 535 N.E.2d 1294,538 N.Y.S.2d 754,73 N.Y.2d 153
• Parties: , 535 N.E.2d 1294 The PEOPLE of the State of New York, Respondent-Appellant, v. Richard BELL, Appellant-Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 754

538 N.Y.S.2d 754

73 N.Y.2d 153, 535 N.E.2d 1294

The PEOPLE of the State of New York, Respondent-Appellant, v. Richard BELL, Appellant-Respondent.

Court of Appeals of New York.

Feb. 16, 1989.

Patrick M. Wall and Oren Root Jr., New York City, for appellant-respondent.

Robert Abrams, Atty. Gen. (Edward D. Saslaw, O. Peter Sherwood, Lawrence S. Kahn, John Michael Ryan, Christine Duisin and Stephen J. Quigley, New York City, of counsel), for respondent-appellant.

OPINION OF THE COURT

SIMONS, Judge.

Defendant has been convicted of various charges involving violation of the tax and liquor laws, bribing a witness and conspiracy to obstruct governmental administration, and sentenced as a second felony offender to multiple concurrent terms of imprisonment having a maximum of four and a minimum of two years. ¹ On appeal, a divided Appellate Division, modified the judgment by vacating the sentence as a second offender and otherwise affirmed. Justice Sullivan, who dissented and voted to affirm, granted both parties leave to appeal.

Defendant's principal challenge is to the validity of the bribery convictions. He contends that evidence of the briberies, established by a tape-recorded telephone conversation with a police informant, was obtained in violation of his right to counsel under the State and Federal Constitutions because at the time the conversation occurred defendant had retained an attorney to represent him on the tax violations then under investigation. He claims further that he could not be guilty of bribing a witness because at the time he made his telephone call he did not know that the informant had been subpoenaed to testify before the Grand Jury or that he might be subpoenaed in the future. Finally, defendant maintains that he cannot be sentenced as a second felony offender because he was originally sentenced on the predicate felony more than 10 years before commission of the present felonies (see, Penal Law § 70.06[1][b][iv] ). The Appellate Division accepting this argument, held that the date of a predicate felony for enhanced sentencing purposes is the date of the original sentence notwithstanding that the original conviction was subsequently vacated as the result of a successful appeal and defendant resentenced after further proceedings. Defendant also raises several other points before this court which require no discussion. We find no merit to defendant's contentions and therefore modify the order of the Appellate Division, reinstate the second offender sentence and remit the matter to the Appellate Division for consideration of the factual issues as to sentence.

I

Defendant Richard Bell and his codefendants John Dobson and Vincenzio Caravello owned and operated two Manhattan night clubs, The Mine Shaft Club and The Hell Fire Social Club. The Attorney-General, at the request of the Commissioner of Taxation and Finance, had commenced an investigation into allegations that The Mine Shaft had failed to pay taxes (see, Executive Law § 63[3] ). On November 7, 1985, defendant warned Walter Wallace, a former manager of The Mine Shaft, that there might be a subpoena out for him and told him to stay around the house. The next day Wallace attended a meeting with defendant, Caravello and Dobson at which defendant told Wallace to go on "vacation" and to avoid "subpoena people" and reporters working on the investigation but to "keep in touch" while out of town. Wallace was assured he would be given money for expenses and $2,000 was subsequently delivered to him for that purpose. Wallace went to stay with friends in Westchester. The next day, after seeing his picture on the front page of the New York Post, Wallace spoke with defendant and Caravello and defendant told him, in a manner Wallace perceived as threatening, that he should leave that night for Hawaii with Caravello.

As a result, Wallace decided to get counsel and speak to the authorities. He and his attorney met with members of the Attorney-General's staff on November 13, discussed his involvement with The Mine Shaft and the instructions he had received from defendant and the other partners, and offered to assist in the investigation. On November 19, 1985, the Attorney-General's staff decided to accept Wallace's assistance and to attempt to tape-record his telephone conversations with The Mine Shaft partners. The same day, the Grand Jury issued a subpoena duces tecum to defendant requesting documents pertaining to the operation of The Mine Shaft. Defendant then retained an attorney who notified the Assistant Attorney-General of his representation on the morning of the 20th.

Later on the 20th, an investigator from the Attorney-General's office met with Wallace in Ohio, where he had gone after his meeting with the Attorney-General's staff. The investigator had Wallace sign a cooperation agreement, served him with a Grand Jury subpoena and interviewed him concerning The Mine Shaft operations. At that time, Wallace agreed to allow the investigators to monitor and tape his future telephone calls. During the next two days he called Caravello twice, as he had been instructed to do by defendant, and, in response to Caravello's request, he gave Caravello a number where defendant could reach him.

At approximately 1:00 P.M. on November 21 defendant telephoned Wallace and bribed him. The call was monitored and recorded by the police and is the subject of this appeal. In that conversation defendant told Wallace that he hoped The Mine Shaft information did not "have to come out for a long time", to "stay away" and that money would be sent to him. He also told Wallace what to say if he were questioned by authorities about its operation. For the most part, the conversation was sustained by defendant's instructions to Wallace to stay in Ohio, to avoid investigators and, if he was interviewed, to make sure his story was consistent with defendant's story. During the conversation Wallace told defendant, falsely, that he had learned a subpoena had been left at his New York apartment. Defendant responded, "Right. What there [sic] really doing they subpoenaed everybody * * * its [sic] just not you."

As a result of this conversation, defendant was charged with two counts of bribery in violation of section 215.00 of the Penal Law. The first count charged an offense under subdivision (a), attempting to influence Wallace's testimony, and the second, an offense under subdivision (b), seeking to influence Wallace to avoid testifying.

Based on the testimony of Wallace, other employees and the police officers involved in the investigation defendant was also charged with several tax and liquor law violations and conspiracy to obstruct governmental administration. The Supreme Court, New York County, granted defendant's motion for a Huntley hearing addressed to the tape-recorded telephone conversation with Wallace and, after the hearing, denied his motion for suppression. Defendant then waived a jury and agreed to a trial by the court based on the Grand Jury minutes and the minutes of the suppression hearing. On the basis of that evidence the trial court convicted defendant and sentenced him as a second felony offender.

II

Defendant seeks a dismissal of the entire indictment, contending that his recorded conversation with Wallace, a prosecutorial agent, should be suppressed and that in its absence the other counts fail for lack of sufficient corroboration. Noting that the conversation with Wallace took place after the Attorney-General knew he was represented, he claims that his State and Federal constitutional rights to counsel were violated. He relies principally on the broader State rule as developed in People v. Skinner, 52 N.Y.2d 24, 436 N.Y.S.2d 207, 417 N.E.2d 501.

When a defendant in custody is represented on a pending charge, he may not, without his attorney present, be questioned about that charge (People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894), or about unrelated criminality if the police know of his representation (People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709) or know of another pending charge on which defendant is represented (People v. Smith, 54 N.Y.2d 954, 445 N.Y.S.2d 145, 429 N.E.2d 823; People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371). In Skinner, we took a further step and prohibited noncustodial interrogation about a matter under investigation if counsel had been retained specifically on the matter and had instructed the police not to question the defendant in his absence. Our ruling was designed to prevent the police from rendering the right to counsel ineffective by questioning the defendant about matters relating to the subject of the representation in the absence of counsel retained on the matter (id., 52 N.Y.2d at 32, 436 N.Y.S.2d 207, 417 N.E.2d 501; People v. Hauswirth, 89 A.D.2d 357, 359, 455 N.Y.S.2d 442, affd. 60 N.Y.2d 904, 470 N.Y.S.2d 583, 458 N.E.2d 1260). The holding also granted the same protection to criminal defendants, as a matter of State constitutional law, as that granted a civil litigant who enjoys the benefit of "the ethical responsibility of attorneys in civil matters not to communicate on the subject of the representation with an individual known to be represented by an attorney on the matter" (People v. Skinner, supra, 52 N.Y.2d at 29, 436 N.Y.S.2d 207, 417 N.E.2d 501).

In the present case defendant had been served with a Grand Jury subpoena duces tecum in connection with the tax investigation calling for him to produce records in his possession. His right to counsel attached on that matter on November 20, 1985 when his lawyer contacted the Attorney-General (see, People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709, supra ). Moreover, Wallace was clearly acting as an agent of the police when he allowed the police to monitor and tape his conversation because he had agreed to cooperate with them for the purpose of obtaining evidence against...