People v. Boodie

• Decision Date: 19 June 1962
• Citation: 16 A.D.2d 904,229 N.Y.S.2d 429
• Parties: The PEOPLE of the State of New York, Respondent, v. Granville BOODIE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 429

229 N.Y.S.2d 429

16 A.D.2d 904

The PEOPLE of the State of New York, Respondent, v. Granville BOODIE, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

June 19, 1962.

Michael J. Aratingi, New York City, of counsel (Anthony F. Marra, New York City, attorney), for appellant.

Richard R. Lutz, New York City, of counsel (H. Richard Uviller, New York City, with him on the brief; Frank S. Hogan, Dist. Atty.), for respondent.

Before BOTEIN, P. J., and VALENTE, McNALLY, STEVENS and STEUER, JJ.

PER CURIAM.

Defendant appeals from a judgment convicting him of manslaughter, first degree, after trial on an indictment charging homicide second degree. The verdict is sustained by proof beyond a reasonable doubt of the defendant's guilt.

Defendant contends his post-arraignment admissions were improperly introduced and the prosecution improperly referred to a knife not in evidence.

Defendant was apprehended for felonious assault on February 27, 1960; on March 7, 1960 he was examined by a prosecutor and his stenographic statement taken. On March 8, 1960 defendant was indicted for homicide, second degree.

The medical examiner testified two stab wounds caused by a sharp instrument, like a knife, were inflicted on the deceased. On the day of the occurrence a freshly cleaned knife was found on the top shelf in defendant's bedroom closet. The knife was marked for identification and became the subject of examination and comment by the prosecution and examination in behalf of the defense, but was not offered in evidence. On the trial defendant was confronted with his pre-trial statement that all knives and forks were kept in his kitchen and denying that the knife was in his bedroom.

We assume, but do not decide, the defendant's statement to the prosecution after his arrest on the complaint for felonious assault and before his indictment for homicide, second degree, on proper objection, was inadmissible. (See People v. Rodriguez, 11 N.Y.2d 279, 229 N.Y.S.2d 353, 183 N.E.2d 651.) However, defendant by his omission to object to the introduction of his post-arraignment admissions failed to preserve, as a matter of right, the legal grounds first presented on this appeal for their exclusion. (People v. Huson, 187 N.Y. 97, 79 N.E. 835; People v. Washor, 196 N.Y. 104, 89 N.E. 441; People v. Fisher, 223 N.Y. 459, 465, 119 N.E. 845, 846; People v. Nixon, 248 N.Y. 182, 161 N.E. 463; People v. Friola, 11 N.Y.2d 157, 227 N.Y.S.2d 423, 182 N.E.2d 100; People v. Wilson, 16 A.D.2d 207, 229 N.Y.S.2d 685.)

Defendant also failed to object to the testimony relating to the knife; contrariwise, defendant participated in the examination concerning it. Moreover, we find no error in the admission of said evidence or the prosecutor's comments thereon. (People v. Del Vermo, 192 N.Y. 470, 85 N.E. 690; People v. Williams, 260 App.Div. 1024, 23 N.Y.S.2d 761, affd. 285 N.Y. 728, 34 N.E.2d 895.)

The verdict is in accord with the evidence. On this record we are not moved to consider questions of law not raised at the time of trial. (People v. Huson, supra; People v. Yui Kui Chu, 273 N.Y. 191, 199, 7 N.E.2d 96, 99.)

The judgment of conviction should be affirmed.

Judgment of conviction affirmed.

All concur except VALENTE and STEVENS, JJ., who dissent in dissenting opinion by VALENTE, J VALENTE, Justice (dissenting).

I dissent, and would reverse the conviction and grant a new trial.

On the trial of an indictment charging the crime of murder in the second degree, for the killing of one Dorothy Butler on February 27, 1960, with an unknown weapon, the jury found defendant guilty of manslaughter in the first degree.

The conviction should not stand because of two prejudicial errors committed at the trial. The death of Mrs. Butler occurred as a result of a quarrel on February 27, 1960 in an apartment occupied by the Butlers in which defendant and his wife had rented a room. The defendant and Mr. Butler were thereupon arrested following the filing of cross-complaints, each accusing the other of felonious assault. Both were arraigned in the Magistrates' Court on February 28, 1960. On the adjourned date of the felonious assault charge, March 7, 1960, defendant was brought from the Felony Court to the office of an assistant district attorney, where he was examined and a stenographic statement taken, in the absence of any attorney on his behalf. The following day he was arraigned on the homicide charge.

During the course of the trial of the murder indictment, defendant was confronted with the answers given by him during his interrogation by the assistant district attorney on March 7, 1960. Moreover, a portion of that statement was read into the record in rebuttal, after defendant had given his testimony on the trial.

The use of the post-arraignment statement made on March 7, 1960, constituted reversible error. People v. Meyer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103, affg. 14 A.D.2d 241, 220 N.Y.S.2d 438. In People v. Meyer, this Court and the Court of Appeals held that logically the admissibility into evidence of a post-arraignment statement should not be treated differently from a post-indictment statement which was interdicted in People v. Waterman, 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445. Thus, the Court of Appeals concluded in People v. Meyer (11 N.Y.2d p. 165, 227 N.Y.S.2d p. 429, 182 N.E.2d p. 104) 'that any statement made by an accused after arraignment not in the presence of counsel * * * is inadmissible.'

The rationale of the decisions in Spano v. New York, 360 U.S. 315, 79 S.Ct. 293, 3 L.Ed.2d 238, People v. DiBiasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825, and People v. Waterman, supra, and the extension of the reasoning in People v. Meyer, supra, permit no differentiation in the instant case because the statement made by defendant after arraignment was not inculpatory and was used only for impeachment purposes as prior inconsistent expressions by defendant. Evidence obtained from a defendant in the form of a statement at a pre-trial stage, in the absence of counsel, may be equally damaging whether it is directly inculpatory or serves as a basis for impeachment. The vice in the use of such a statement consists in its having been obtained by secret interrogation of a defendant without the presence of counsel and thus being violative of the constitutional and statutory right of a defendant to the assistance of counsel at every stage of a criminal cause. Such procedure 'contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons...