People v. Brown

• Decision Date: 15 June 1995
• Citation: 216 A.D.2d 670,628 N.Y.S.2d 211
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph P. BROWN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 211

628 N.Y.S.2d 211

216 A.D.2d 670

The PEOPLE of the State of New York, Respondent, v. Joseph P. BROWN, Appellant.

Supreme Court, Appellate Division Third Department.

June 15, 1995.

Joseph Joch, Ithaca, for appellant.

Robert J. Simpson, Atty. Gen. (Gerald A. Keene, of counsel), Owego, for respondent.

Before MIKOLL, J.P., and MERCURE, CREW, CASEY and YESAWICH, JJ.

CASEY, Justice.

Appeal from a judgment of the County Court of Tioga County (Siedlecki, J.), rendered May 17, 1991, upon a verdict convicting defendant of the crimes of murder in the second degree (two counts), robbery in the first degree, burglary in the first degree and grand larceny in the third degree.

The body of the victim, a 91-year-old man, was found on the bed in his mobile home in the Village of Waverly, Tioga County. The victim's throat had been cut with a sharp instrument which caused him to bleed to death, and the mobile home had been partially destroyed by fire. The victim was known to have kept large sums of cash in his mobile home. However, subsequent to the murder, a search for money by the victim's son revealed none.

The investigation of the murder ultimately focused on defendant. Although he initially made a written statement denying any involvement in the murder, he admitted the earlier commission of two burglaries in an abandoned building in the vicinity of defendant's mobile home. When defendant indicated that he did not want to be questioned further, the questioning ceased. Shortly thereafter, defendant was informed that he would be charged with burglary and he was arrested.

While defendant was being questioned, other members of the investigation were interviewing defendant's girlfriend, Debbie Frisbee. Frisbee stated that she had spent the early evening hours on the night of the homicide with defendant and that he left her shortly before the fire at the victim's mobile home. In her written statement, Frisbee admitted that when defendant returned home on the night of the homicide he had money that he did not have earlier in the evening. Frisbee did not, however, directly implicate defendant and she was released.

Later, after Frisbee met with her sister and her brother-in-law, all three returned to the Sheriff's substation where Frisbee gave a second statement. In it she revealed that defendant had returned home on the night of the homicide covered with blood and carrying a pillow case with the victim's last name printed on it, which contained bundles of money wrapped with rubber bands in the approximate amount of $30,000. According to Frisbee, defendant removed his bloody clothes, placed them in the pillow case, showered and left the apartment with the pillow case. Frisbee stated that defendant admitted killing the victim and further admitted setting fire to the mobile home. Frisbee also gave the police a handwritten note addressed to defendant in which she apologized for telling the police what she knew. Upon obtaining this note and Frisbee's statement, the District Attorney withdrew the pending burglary charge against defendant and, pursuant to an order signed by the judge who conducted the arraignment on the burglary charge, defendant was released from the County jail.

The police immediately sought to reinterview defendant and he was advised of his Miranda rights. When confronted with Frisbee's second statement and handwritten note, defendant responded to the officers, "So you know, huh." Defendant then described to the officers how he entered the mobile home, unaware that the victim was there, until the victim came at him with a knife. Defendant admitted kicking and punching the victim and knocking the victim back on the bed. Defendant stated that he was bloody from the victim's wounds and that he collected the money that was laying on the open floor, put the money into a pillow case, set some papers which he found there on fire and left the mobile home. Defendant claimed he later threw the money and his clothes into the river. Defendant drew diagrams of the mobile home and the area where he disposed of the clothes and money. When defendant thereafter refused to sign a statement, the questioning ceased.

After defendant was indicted, Huntley and Wade hearings were conducted and Frisbee appeared at these hearings as a witness. She recanted her second statement, claiming that it had been coerced by the police. County Court assigned an attorney to represent Frisbee, who then claimed her right against self-incrimination. At the conclusion of the hearings, County Court denied defendant's omnibus motion to, inter alia, suppress defendant's statements. At trial, defendant testified on his own behalf. Frisbee did not testify. Following the verdict, defendant was sentenced to an indeterminate term of imprisonment of 25 years to life on each of the murder convictions, 8 1/3 to 25 years on the burglary and robbery convictions, and 2 1/3 to 7 years on the larceny conviction. All sentences were concurrent except for the burglary conviction, which was to run consecutively with the first murder conviction. Defendant appeals.

Defendant contends that his right to counsel and right to remain silent were violated when the police reinterrogated him following his release from custody on the burglary charge. We find no merit in defendant's claim that his right to counsel attached as a result of his "acceptance" of assigned counsel on the burglary charge and was subject to the rule established in People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709. There is no evidence that defendant actually requested counsel or that assigned counsel was actually representing defendant on the burglary charge (see, People v. Rosa, 65 N.Y.2d 380, 387-388, 492 N.Y.S.2d 542, 482 N.E.2d 21; People v. Stanko, 199 A.D.2d 992, 608 N.Y.S.2d 922, lv. denied 83 N.Y.2d 810, 611 N.Y.S.2d 146, 633 N.E.2d 501). Accordingly, defendant's right to counsel arose not under the People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894 line of cases but under the People v. Di Biasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825 line of cases, which holds that the right attaches upon the commencement of formal proceedings (see, People v. West, 81 N.Y.2d 370, 373, 599 N.Y.S.2d 484, 615 N.E.2d 968), in this case the filing of the felony complaint containing the burglary charge. Thus, even if defendant remained in custody on the burglary charge, he could waive his right to counsel in the absence of counsel and answer questions on any matter unrelated to the burglary charge (see, People v. Ruff, 81 N.Y.2d 330, 333-334, 599 N.Y.S.2d 221, 615 N.E.2d 611). We conclude that the homicide and other crimes that occurred in the victim's mobile home were unrelated to the pending burglary charge, which was not part of the same criminal transaction as the homicide and occurred at least one month earlier in a different building (cf., People v. Carl, 46 N.Y.2d 806, 413 N.Y.S.2d 916, 386 N.E.2d 828; People v. Vella, 21 N.Y.2d 249, 287 N.Y.S.2d 369, 234 N.E.2d 422).

In any event, it is the general rule that "[w]hen the prior charge has been disposed of by dismissal or conviction, the indelible right to counsel disappears and * * * defendant is capable of waiving counsel on the new charge" (People v. Bing, 76 N.Y.2d 331, 344, 559 N.Y.S.2d 474, 558 N.E.2d 1011; see, People v. Mann, 60 N.Y.2d 792, 469 N.Y.S.2d 681, 457 N.E.2d 788). That the dismissal of the burglary charge was procured so that the police could question defendant on the unrelated homicide does not alter the general rule (see, People v. Robles, 72 N.Y.2d 689, 536 N.Y.S.2d 401, 533 N.E.2d 240). We re...