People v. Clark

• Decision Date: 07 April 1977
• Citation: 41 N.Y.2d 612,363 N.E.2d 319,394 N.Y.S.2d 593
• Parties: , 363 N.E.2d 319 The PEOPLE of the State of New York, Respondent, v. Dwight CLARK, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 593

394 N.Y.S.2d 593

41 N.Y.2d 612, 363 N.E.2d 319

The PEOPLE of the State of New York, Respondent, v. Dwight CLARK, Appellant.

Court of Appeals of New York.

April 7, 1977.

Michael J. O'Bus, James J. McDonough, Matthew Muraskin and Eugene Murphy, Mineola, for appellant.

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

GABRIELLI, Judge.

On the evening of September 30, 1974 three masked bandits entered the home of Manuel Abate, threatened him and his children, and robbed him of a valuable old coin collection, a diamond ring, and an amount of cash. One of the three men wore a bandanna which, during the course of the robbery, slid down exposing his face. The evidence disclosed that during the three-minute period when Abate was emptying his safe, he had more than ample opportunity to view the robber, whom he later identified as Dwight Clark, the defendant.

Following a trial by jury the defendant was convicted of robbery in the first degree and he seeks a reversal on the ground that a taped telephone conversation was introduced into evidence in violation of his right to counsel and that the conversation was introduced without the notice required by CPL 710.30. He further asserts that the affirmative defense to robbery in the first degree, i. e., that the pistol was not a loaded weapon, is unconstitutional (Penal Law, § 160.15, subd. 4). The Appellate Division upheld the conviction, and we affirm.

The three armed men entered Abate's home in Nassau County at about 9:00 p.m. and demanded that he turn over his coin collection, valued at $40,000, or they would shoot his children. One of these men escorted Abate to his safe and pointed a revolver at his head and commanded him to open the safe, which he did. He testified that he did now know whether the pistol was real or toy but he felt it against his head and knew it was made of steel. Then, as directed, Abate put this 2,000-piece coin collection in a pillowcase and gave it to the robbers. During this time he had an opportunity to look at the defendant 10 or 12 times.

In October, Abate viewed a police lineup and identified the defendant as the man whose bandanna slid off during the robbery. Subsequently, defendant was indicted for robbery and larceny in Nassau County and on December 13, 1974 he was arraigned with counsel present. In January, and while out on bail, the defendant left Nassau County and went to New York City where he attempted to sell the stolen coins. As cruel fate would have it, his first contact was not with the hoped-for "fence", but rather with an undercover police officer, not involved in the Nassau County case, who was investigating the sale of stolen property in the city. Clark, thus unaware, met one Gervasi, an undercover officer of the New York City Police Department, and inquired whether he would be interested in any old coins which were currently in the possession of an associate. Gervasi's partner, Sergeant Welsome, had accompanied him to the restaurant where the meeting took place but was not present during the discussions. After the brief conversation between Clark and Gervasi, the two police officers returned to headquarters where, later in the day, they received a telephone call regarding the coins from an unknown third person who was apparently the defendant's associate. Eventually, this unknown person put the defendant on the telephone, and he indicated to Welsome that he had $20 gold pieces and also Mexican gold pieces for sale. While the officers attempted to connect tape recording equipment to the telephone, the defendant hung up. After making the necessary preparations, the officers returned the call and spoke again to the defendant concerning the coin collection. This second conversation was fully recorded on tape. Significantly, during this whole operation, neither of the officers had any knowledge whatsoever of the outstanding Nassau County indictment against Clark. Rather, they were independently investigating criminal activity in their own jurisdiction relating to the unlawful possession of stolen property. During the trial of the defendant the tape was introduced in evidence and played for the jury.

On this appeal the defendant claims that admission of his taped conversation with a police officer made after indictment and in the absence of counsel, violated his right to counsel as defined in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. In Massiah where investigating officers surreptitiously obtained incriminating statements from the defendant after his release on bail, the Supreme Court held that the defendant was denied the protections accorded by his right to counsel "when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel" (supra, p. 206, 84 S.Ct. p. 1203). The rule is well entrenched in New York that incriminating statements obtained from a defendant after a lawyer has entered the proceeding are inadmissible if procured by custodial interrogation in the absence of counsel or a waiver (People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894; People v. Paulin, 25 N.Y.2d 445, 306 N.Y.S.2d 929, 255 N.E.2d 164; People v. Waterman, 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445; People v. Di Biasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825). Indeed, this court has recently reaffirmed the safeguards extended by the right to counsel in holding that only in the presence of a lawyer may a defendant waive his right to counsel after a lawyer has entered the proceeding in connection with the charges under investigation (People v. Hobson, supra ); and the protections extended by this right cover investigations made by the Internal Affairs Division of the New York City Police Department in response to complaints by a defendant (People v. Townes, 41 N.Y.2d 97, 390 N.Y.S.2d 893, 359 N.E.2d 402; People v. Roberson, 41 N.Y.2d 106, 390 N.Y.S.2d 900, 359 N.E.2d 408).

But this rule is not an absolute. Representation by counsel in a proceeding unrelated to the investigation is insufficient to invoke the protections (People v. Hetherington, 27 N.Y.2d 242, 245, 317 N.Y.S.2d 1, 2, 265, N.E.2d 530, 531; People v. Taylor, 27 N.Y.2d 327, 318 N.Y.S.2d 1, 266 N.E.2d 630). And we have also held that a voluntary, spontaneous statement is outside the purview of the rule (People v. Kaye, 25 N.Y.2d 139, 303 N.Y.S.2d 41, 250 N.E.2d 329). Nor, as in this case, does the presence of counsel immunize the defendant from normal, good faith, investigation which occurs after indictment and is unrelated thereto and directed toward other criminal activity (United States v. Garcia, 2 Cir., 377 F.2d 321; United States v. Edwards, 2 Cir., 366 F.2d 853, 872-873). Incriminating statements made to the police in a noncustodial separable setting are admissible despite the attachment of counsel if, as here, the statements are elicited in the course of a good faith police investigation.

The prohibition against custodial interrogation after a...