People v. Booker

• Decision Date: 03 July 2008
• Docket Number: No. 15982,15982
• Citation: 2008 NY Slip Op 5984,862 N.Y.S.2d 139,53 A.D.3d 697
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LANCE BOOKER, Also Known as NINJA, Appellant.
• Court: New York Supreme Court — Appellate Division

53 A.D.3d 697

862 N.Y.S.2d 139

2008 NY Slip Op 5984

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LANCE BOOKER, Also Known as NINJA, Appellant.

No. 15982

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided July 3, 2008.

Appeal from a judgment of the County Court of Rensselaer County (McGrath, J.), rendered January 6, 2005, upon a verdict convicting defendant of the crime of murder in the first degree (two counts) and conspiracy in the second degree.

Peters, J.

In December 2003, Michael Hoffler allegedly arranged for the murder of the victim, a confidential informant for the City of Albany Police Department who had engaged in two controlled buys with Hoffler in May 2003, in order to prevent the victim from testifying at Hoffler's January 2004 drug trial. Defendant allegedly assisted Hoffler and Gregory Heckstall in that effort.

Following the fatal shooting of the victim on December 30, 2003, one week prior to the commencement of Hoffler's drug trial, defendant, Hoffler and Heckstall were arrested and charged with the victim's murder. At the conclusion of the ensuing jury trial, defendant was convicted, as an accomplice, of murder in the first degree (two counts) and conspiracy in the second degree.¹ County Court sentenced defendant to two concurrent terms of life imprisonment without the possibility of parole upon his murder convictions and a concurrent prison term of 8 1/3 to 25 years for his conspiracy conviction. Defendant now appeals.

Defendant first argues that County Court erred by denying his motion to suppress the four written statements he made to police because his right to counsel had attached at the time the statements were made and a valid waiver of this right was never effectuated. New York's right to counsel attaches "where an uncharged individual has actually retained a lawyer in the matter at issue or, while in custody, has requested a lawyer in that matter" (People v West, 81 NY2d 370, 373-374 [1993]; see People v Grice, 100 NY2d 318, 321 [2003]).

With regard to the first written statement, County Court properly determined that, although defendant's right to counsel had attached when his attorney provided him legal advice over the telephone and informed the police of his representation of defendant (see People v Davis, 75 NY2d 517, 522 [1990]; People v Ellis, 58 NY2d 748, 750 [1982]), defendant thereafter made a knowing, voluntary and intelligent waiver of that right prior to the noncustodial police questioning. The testimony at the Huntley hearing established that, on January 7, 2004, the police wanted to speak with defendant, who was staying in the City of Newburgh, Orange County. While a number of detectives were en route to Newburgh, other police personnel went to the residence of defendant's paramour, Pamela White, in order to execute a search warrant. Shortly after their arrival, Tubosun Osofisan, an attorney who claimed to represent both defendant and White, arrived and had several extended telephone conversations with defendant, during which Osofisan advised defendant not to speak with police. At this point, Osofisan "entered the proceeding" and defendant's right to counsel therefore attached (People v Robles, 72 NY2d 689, 696 [1988]; see People v Hobson, 39 NY2d 479, 483 [1976]). Defendant, however, rejected Osofisan's advice, informing Osofisan that he wanted to speak with the police and that he had "nothing to worry about." Osofisan informed the police that defendant agreed to speak with them in his absence so long as he was notified if the police intended to arrest defendant, and this information was relayed to the detectives before they reached Newburgh to speak with defendant. Because the physical presence of an attorney is not required for a suspect to effectuate a valid waiver of the right to counsel where, as here, the police are assured by the attorney that the decision to waive counsel was made in consultation with the attorney (see People v Beam, 57 NY2d 241, 254 [1982]; People v Yut Wai Tom, 53 NY2d 44, 53-54 [1981]; People v Brown, 244 AD2d 347, 348 [1997], lv denied 91 NY2d 940 [1998]), and since "[s]uch an assurance by the attorney who consulted with defendant is just as valid when made over the telephone" (People v Beam, 57 NY2d at 254), defendant's waiver of his right to counsel was valid.

Despite defendant's further assertion that his January 7, 2004 statement was improperly obtained because the police took him from Newburgh to Albany in violation of a condition of the waiver, County Court determined that the only condition Osofisan had placed on the waiver was that he be notified if defendant was going to be formally charged, which the police fully complied with. Inasmuch as Osofisan's testimony that he required notification if the officers left the motel room with defendant conflicted with that of the testifying officers, we decline to disturb County Court's credibility determination on this issue (see People v Bermudez, 31 AD3d 968, 968 [2006], lv denied 8 NY3d 944 [2007]). Accordingly, defendant's right to counsel was not violated and the January 7, 2004 statement was therefore admissible.

With respect to the three subsequent written statements made by defendant during the period from January 25-26, 2004, we find that County Court properly declined suppression. On January 9, 2004, Osofisan was informed by the prosecutor that White was being investigated in connection with the homicide and that a potential conflict of interest existed in his representation of both her and defendant. After some discussion, Osofisan agreed and signed a document, in the presence of the prosecutor and members of the City of Troy Police Department, withdrawing as counsel for defendant.² This document was provided to the People, and the other investigating officers were informed that Osofisan no longer represented defendant. While Osofisan made attempts to contact defendant to inform him of the withdrawal, he was unable to reach defendant, who testified that he was never made aware of Osofisan's actions. More than two weeks later, on January 25, 2004, the police sought defendant for further questioning. According to police, after agreeing to accompany detectives to the police station, defendant waived his Miranda rights and subsequently provided three written statements, without ever requesting counsel or indicating that he had an attorney.

Where, as here, "the police wish[ed] to question defendant without counsel on the same matter after the right ha[d] attached it [was] as a rule their burden to determine whether representation continue[d]" (People v West, 81 NY2d at 376; see People v Marrero, 51 NY2d 56, 59 [1980]). The police may not rely on ambiguities in the attorney-client relationship to justify the questioning of a defendant without counsel and, therefore, where the police are uncertain as to whether the representation has ceased, they should not question a defendant regarding the matter (see People v West, 81 NY2d at 380; People v Marrero, 51 NY2d at 59; People v Coleman, 42 NY2d 500, 507 [1977]). Here, however, we find no such uncertainty.

Police were present when Osofisan, in the presence of the prosecutor, signed the document indicating that he would no longer represent defendant, and the investigating officers relied upon this fact in pursuing further questioning of defendant (compare People v Cotton, 280 AD2d 188, 193 [2001], lv denied 96 NY2d 827 [2001] [finding that there was "no evidence that the police were aware of the conversation between [the] defendant's attorney and the Assistant District Attorney" where counsel indicated that he could no longer represent the defendant due to a conflict and, in any event, the police did not rely upon the disclaimer of representation in questioning the defendant]). Further, although the evidence at the Huntley hearing established that Osofisan neither consulted with defendant prior to withdrawing from representation nor advised defendant of this fact prior to subsequent police questioning, we perceive no obligation on the part of the police—in light of the fact that they possessed a direct, clear and unambiguous awareness that the representation had ceased—to question the validity of the withdrawal or seek assurance that Osofisan had communicated this fact to defendant.

To be sure, while defendant's lack of awareness of counsel's withdrawal may have precluded an effective termination of the attorney-client relationship, we need not "decide whether representation [actually] ceased because under [People v Hobson (39 NY2d 479 [1976], supra)] it [does] not matter: the `important factor ... [is] the police awareness of an attorney's [continued] appearance on the defendant's behalf, rather than the precise terms of the retainer or appointment'" (People v West, 81 NY2d at 376 n 2, quoting People v Marrero, 51 NY2d at 59; see People v Singer, 44 NY2d 241, 251 [1978]). Indeed, we cannot conclude that under these circumstances the police were required to do more to honor defendant's right to counsel, as "it would be unreasonable to require the police to cease a criminal investigation and begin a separate inquiry to verify whether the defendant is actually represented by counsel" (People v Grice, 100 NY2d at 324). In any event, "[e]ven assuming that ... defendant's indelible right to counsel [remained] attached, the right was not violated by [his January 25, 2004] interrogation. `Where a police officer does not know and cannot be charged with knowledge that the suspect has a lawyer, the officer has no obligation to refrain from asking questions'" (People v Bongarzone-Suarrcy, 6 NY3d 787, 788-789 [2006], quoting People v Carranza, 3 NY3d 729, 730 [2004]). As such, we find no fault with County Court's refusal to suppress these statements.

Defendant next contends that his convictions were not supported by legally sufficient evidence because the People failed to establish that h...