People v. Carmine A.
| Decision Date | 28 April 1981 |
| Citation | 422 N.E.2d 575,53 N.Y.2d 816,439 N.Y.S.2d 915 |
| Parties | , 422 N.E.2d 575 The PEOPLE of the State of New York, Respondent, v. CARMINE A., Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Stephen R. Mahler and Andrew M. Engel, Kew Gardens, for appellant.
John J. Santucci, Dist. Atty. (Aley Z. Alexander, Asst. Dist. Atty., of counsel), for respondent.
The order of the Appellate Division should be reversed, the plea vacated, the statement suppressed and the matter should be remitted to the Supreme Court, Queens County, for further proceedings.
Indicted for criminal possession of a weapon in the third degree and criminal trespass in the third degree, defendant moved to suppress the .25 caliber pistol which is the subject of the first count as the product of an unlawful search and seizure and to suppress a statement (that he had found the weapon in an abandoned car) on the ground that it was involuntary. The Hearing Judge found the statement voluntary. He also found seizure of the pistol lawful, because it was the product of the movement after defendant's arrest of the car defendant had been driving to a more secure area on the racetrack premises for safekeeping. The Appellate Division affirmed, 74 A.D.2d 575, 424 N.Y.S.2d 805 without opinion.
There was no error of law involved in the finding of the courts below that movement of the car for safekeeping was justified and resulted in discovery and seizure of the pistol. With respect to his statement, defendant argues that it was the result of psychological coercion in that it was made after the statement by one of the officers to the other in defendant's presence, while the gun was being vouchered at the precinct, that since defendant denied knowledge of the gun and the car was registered in his aunt's name perhaps she should be arrested for possession of it.
Were voluntariness the only issue, the affirmed finding that the statement was voluntarily made would require affirmance. The People concede, however, that in response to Miranda warnings as given to him defendant answered "No" to the inquiry whether he was willing to answer questions without an attorney present.
Thus, defendant invoked his right to counsel prior to the making of the statement sought to be suppressed (People v. Dean, 47 N.Y.2d 967, 419 N.Y.S.2d 957, 393 N.E.2d 1030). Though his right to counsel was neither preserved nor argued to the courts below or in the briefs in this court, the right is, as we made...
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...159 N.Y.S.2d 168, 140 N.E.2d 258, cert. denied, 353 U.S. 969, 77 S.Ct. 1061, 1 L.Ed.2d 1133 (1957) and People v. Carmine A., 53 N.Y.2d 816, 439 N.Y.S.2d 915, 422 N.E.2d 575 (1981)). Consequently, the procedural bar that otherwise would prevent a petitioner from raising the claim after trial......
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