People v. Bolden

• Decision Date: 21 April 1980
• Citation: 75 A.D.2d 622,427 N.Y.S.2d 45
• Parties: The PEOPLE, etc., Respondent, v. Rickie BOLDEN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 45

427 N.Y.S.2d 45

75 A.D.2d 622

The PEOPLE, etc., Respondent, v. Rickie BOLDEN, Appellant.

Supreme Court, Appellate Division, Second Department.

April 21, 1980.

James S. Carroll, III, New York City, for appellant.

Denis Dillon, Dist. Atty., Mineola (Martin I. Saperstein and William C. Donnino, Asst. Dist. Attys., Mineola, of counsel), for respondent.

Before LAZER, J. P., and GIBBONS, GULOTTA and COHALAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Nassau County, rendered May 27, 1977, convicting him of attempted murder, assault in the second degree and criminal impersonation, upon a jury verdict, and imposing sentence.

Judgment reversed, on the law, and new trial ordered.

Because of two substantial errors committed by the trial court which reach beyond the pale of harmless error, we are constrained to reverse the judgment of conviction and order a new trial.

The crimes of attempted murder, assault in the second degree and criminal impersonation, of which the defendant was convicted, occurred in Nassau County on May 9, 1974. These offenses involved the use of a firearm by the defendant upon the complainant, Anita Perry, a registered nurse who was returning from work.

As the result of an investigation of an unrelated but somewhat similar incident which occurred in Queens County, the defendant was arrested approximately seven months later at about 7:40 A.M. on December 27, 1974 by New York City police officer Thomas McMahon at the Forest Hills apartment of Rachel Block, with whom the defendant was residing.

The first question presented here is whether the defendant had requested the aid of counsel at the time of his arrest, and, if so, whether an inculpatory statement involving his possession of a gun, given to the arresting officer, concededly, in the course of interrogation concerning an unrelated matter, was impermissibly permitted to be received as evidence upon the trial.

The facts insofar as they may pertain to this issue are as follows: As the defendant was being escorted, under arrest, from the apartment by Detective McMahon at about 8:30 A.M., there ensued a conversation between Rachel Block and the defendant.

At a Huntley hearing the detective testified:

"But on second recollection, your Honor, Rachel Block said, 'I'll call an attorney for you'. He said, 'Okay' and he was satisfied with that."

According to Detective McMahon's testimony at the trial, he described the conversation as follows:

"Q Now, when you were leaving the house do you recall Rickie Bolden saying to Rachel Block 'Call my attorney,' do you recall that?

"A No, he didn't say that. She said, 'Honey ', she said, 'I'll call an attorney for you.'

"He said, 'Okay, call a lawyer.' That's what he said.

"Q Well, do you recall her saying, 'I'll call your attorney?'

"A Yes, I heard her say that."

They then proceeded to the police car where Detective McMahon read the Miranda warnings to the defendant, and when he was asked if he understood his rights and was willing to talk to the detective without a lawyer present, he answered in the affirmative. He then gave an oral statement in relation to his arrest for the crime committed in Queens County in which, inter alia, he denied that he shot Susan Schneider, the complainant in the Queens County prosecution. When Detective McMahon asked him, "What did you do with the gun?", he answered, "I don't have the gun anymore." He said, "I had a gun six months ago and I threw it away." This statement, although made in connection with an unrelated matter, constituted an admission that he possessed a gun at the time of the commission of the crime herein, which took place seven months before the interrogation.

The record also discloses that Rachel Block called the attorney, Edgar Walker, after 9:00 A.M. on December 27, 1974 and that he arrived at the police station at about 11:30 A.M. that morning and represented the defendant at the lineup conducted on that day.

We cannot share the view of the Trial Judge that "it is not clear from the testimony at the hearing as to who initiated the conversation nor, indeed, precisely what was said." We find that from the conversation above alluded to, which took place in the presence of the police officer, it was made manifestly clear that when the statement was given by the defendant, he had already expressed a desire to have an attorney and that within not more than two and one-half hours such attorney did appear upon the scene to represent him.

The trial court also erroneously concluded that the rule in People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537, to the effect that a defendant in police custody may not waive his constitutional rights in the absence of his attorney, does not become operative until the defendant has actually retained counsel in the matter which provides the basis for the arrest, and that under the circumstances of this case, the police were not, in any event proscribed from interrogating the defendant and obtaining a statement in relation to an unrelated criminal prosecution.

The defendant's oral statement should have been suppressed.

In People v. Buxton, 44 N.Y.2d 33, 403 N.Y.S.2d 487, 374 N.E.2d 384, the Court of Appeals held that where the defendant, while being taken away under arrest, expressed a desire for counsel by telling his superior "Call my wife and call my lawyer," the police could not, thereafter, properly interrogate him in the absence of an attorney. The court there held (pp. 36-37, 403 N.Y.S.2d p. 489, 374 N.E.2d pp. 386-387):

"It is (well) established that if a suspect 'indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning' (Miranda v. Arizona, 384 U.S. 436, 444-445, (86 S.Ct. 1602, 1612, 16 L.Ed.2d 694) supra ). That defendant's request was made to a third party is of little significance, since the request was made in the presence of police. Under these circumstances, it would be an absurd formality to hold that defendant had not sufficiently indicated his desire for a lawyer. Therefore, we conclude initially that, having been apprised of defendant's request for counsel, the police violated his constitutional rights by questioning him, in the absence of an attorney, within less than an hour of his request (see People v. Jackson, 22 N.Y.2d 446, 452-453, (293 N.Y.S.2d 265, 269-270, 239 N.E.2d 869, 872); see, also People v. Noble, 9 N.Y.2d 571 (216 N.Y.S.2d 79, 175 N.E.2d 451); cf. Escobedo v. Illinois, 378 U.S. 478, 485-486 (84 S.Ct. 1758, 1762, 12 L.Ed.2d 977))." (Emphasis added.) (See, also, People v. Stroh, 63 A.D.2d 326, 408 N.Y.S.2d 77,...