People v. Bertolo

• Decision Date: 30 April 1985
• Citation: 65 N.Y.2d 111,480 N.E.2d 61,490 N.Y.S.2d 475
• Parties: , 480 N.E.2d 61 The PEOPLE of the State of New York, Respondent, v. Joseph F. BERTOLO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 475

490 N.Y.S.2d 475

65 N.Y.2d 111, 480 N.E.2d 61

The PEOPLE of the State of New York, Respondent, v. Joseph F. BERTOLO, Appellant.

Court of Appeals of New York.

April 30, 1985.

Karl E. Bonheim, Hauppauge, and John F. Middlemiss, Jr., Bay Shore, for appellant.

Patrick Henry, Dist. Atty., Riverhead (Daniel J. Murphy, Riverhead, of counsel), for respondent.

OPINION OF THE COURT

JASEN, Judge.

The issue presented on this appeal is whether a suspect's right to counsel is violated by police questioning about a crime then under investigation, where the police know that the suspect was arrested several months earlier on unrelated minor charges but are unaware that those charges are still pending and that the suspect is represented thereon by counsel.

On October 19, 1980, a 10-year-old female child was forcibly sodomized in a town park in Suffolk County. She, and a friend with whom she had been playing that morning, ran to the victim's home where her mother telephoned the police. Although defendant was immediately suspected by some of the police due to the information provided by the two young girls, the investigation did not progress until 10 days later, the evening of October 28, 1980, when Detective Matedero received a telephone call from a neighbor of the victim's family. The caller noted that defendant had been involved in prior incidents with another child in the neighborhood and suggested that he was the sodomist involved in this case as well. The detective thereupon searched the index card file and the arrest book and found that defendant had, indeed, been arrested several months earlier on two separate occasions, April 7, 1980 and May 14, 1980, for public lewdness, a class B misdemeanor (Penal Law § 245.00). The detective did not at that point attempt to locate the case jackets on those charges or to investigate them further. Rather, he sought immediately to interview the caller and other individuals living in the same neighborhood who were familiar with defendant and the earlier incidents. Consequently, he remained unaware that an information complaint had been filed on the prior charges, that they were still pending, and that defendant had been assigned counsel.

Detective Matedero then proceeded to the neighborhood in question and conducted interviews with several individuals who told of defendant's repeated bizarre and obscene behavior. The detective then visited the young victim in this case and her friend. He took them to the police station where they each viewed a photographic array. However, neither child was able to identify defendant. Detective Matedero then drove them past defendant's residence, whereupon both girls identified the automobile parked in the driveway as the same one which, as they had described earlier to the police, was driven on the day of the incident by the man who committed the sodomy.

Several hours later, just prior to midnight, Detective Matedero and his partner, Detective Graniello, proceeded to defendant's home and were admitted into the house by defendant's father. They advised defendant that they wished to speak with him at the police station about a crime in the neighborhood and would also like him to participate in a lineup. Before leaving defendant's home, and in the presence of both his parents, Matedero fully advised defendant of his Miranda rights. Defendant explicitly responded that he understood, that he did not wish t contact a lawyer, and that he was willing to speak to the police at the station unaccompanied by one. Upon arrival at the station, defendant was again advised of his Miranda rights, and he repeated that he understood his rights and was willing to speak to the police without an attorney.

When Matedero told defendant that he wished to discuss a recent neighborhood incident, defendant asked if the detective was referring to the occurrence in the town park. When the detective answered yes, defendant proceeded to render a full oral confession. Immediately thereafter, defendant was asked to repeat his statement for a tape recording and, following advisement of Miranda rights for the third time, defendant agreed to do so. Finally, defendant's confession was typed and, after reading and initialling the preprinted Miranda warnings at the top of the first page, defendant signed the written statement.

Later that same night, defendant consented to both visual and voice identification lineups. The young victim and her friend viewed a five-man lineup separately, but neither could identify defendant. When voice identification procedures were conducted, however, each girl separately recognized defendant's voice among those of five participants as the voice of the man who had confronted them in the park. While statements concerning the voice identification were being prepared, the young victim's mother confronted defendant while he sat handcuffed in a squad room. Defendant exclaimed to her that he was sorry for what he had done to her daughter and promised not to go near the park again.

A Grand Jury indicted defendant, charging him with two counts of sodomy in the first degree (Penal Law § 130.50). At a pretrial hearing, defendant moved, inter alia, to suppress all evidence of the oral, tape-recorded and written statements made by him on the night of October 28-29, 1980, on the grounds that they were involuntary (CPL 60.45) and in violation of his right to counsel under the New York State Constitution. The court denied defendant's motion, finding that defendant had voluntarily accompanied the detectives to the police station, that he had understandingly waived his Miranda rights, and that he had voluntarily given all the statements in question. Further, the court also found that, although the police were aware that defendant had been arrested and charged with public lewdness in connection with two prior incidents, they were unaware of the status of those charges at the time defendant was questioned, they had no knowledge that defendant was being represented by counsel on those charges, and defendant never mentioned to them that he already had an attorney despite having been advised by them, on at least three separate occasions, that he had a right to have a lawyer present and appointed if he so desired. In light of these findings, the suppression court held that defendant's statements had not been "involuntarily made" within the meaning of CPL 60.45, and that defendant's right to counsel under the rule enunciated in People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709 had not been violated.

Subsequently, defendant was convicted, upon a jury verdict, of both counts of sodomy in the first degree and was sentenced, as a predicate felon, to two indeterminate terms of imprisonment of 7 to 14 years to run concurrently. A divided Appellate Division, 102 A.D.2d 193, 478 N.Y.S.2d 19, affirmed the judgment of Supreme Court. The court unanimously agreed that defendant's first oral statement, given immediately upon his arrival at the station, was not suppressible, either by reason of involuntariness or violation of his right to counsel, inasmuch as the statement was freely given and defendant had not yet been placed in custody. Likewise, the court was unanimous in holding that defendant's statement to the victim's mother was admissible as a spontaneous outburst unaffected by police presence or prior confessions and, in any event, that defendant chose at the suppression hearing to waive any objection to its admission.

On the other hand, the court divided on the admissibility of the tape-recorded and typewritten statements. There was no disagreement that defendant was repeatedly advised of his Miranda rights, that he gave his statements without coercion or inducement, and that the police who questioned him did not in fact know that defendant was being represented on the prior charges or that those charges were still pending at the time of the interrogation. But there was disagreement on the effect of that lack of actual knowledge. The majority of the court believed the officers' lack of actual knowledge to be dispositive of the correctness of the suppression court's rulings, but the two dissenting Justices, relying on this court's decision in People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371, were of the view that the interrogating police had a duty to inquire whether defendant was indeed represented by counsel in connection with those previous offenses and that their failure to do so was fatal to the admissibility of the custodial statements obtained in that counsel's absence.

Leave to appeal to this court was granted by one of the dissenting Justices. We now affirm the order of the Appellate Division for the reasons that follow.

At the outset of our analysis, it should be noted that the so-called indelible right to counsel as enunciated by this court in People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709, supra and People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371, supra applies only to custodial interrogations. Where the police know that a suspect is represented by counsel on pending charges, or where the police know that charges are pending but fail to make inquiry which would disclose that counsel has been assigned or retained, any custodial questioning of the suspect by them in counsel's absence is barred. (See, People v. Lucarano, 61 N.Y.2d 138, 145-146, 472 N.Y.S.2d 894, 460 N.E.2d 1328; People v. Fuschino, 59 N.Y.2d 91, 98, 463 N.Y.S.2d 394, 450 N.E.2d 200.) By contrast, eliciting inculpatory statements from a suspect under noncustodial circumstances "involves no violation of [the] right to counsel even [where] the police are aware that [the suspect] has counsel on a prior unrelated charge". (People v. Farruggia, 61 N.Y.2d 775, 777, 473 N.Y.S.2d 158, 461 N.E.2d 295; see also, People v. Johnson, 61 N.Y.2d 932, 474 N.Y.S.2d 967, 463 N.E.2d 368; People v. Hauswirth, 60 N.Y.2d 904, 470...