People v. Claudio

• Decision Date: 15 March 1982
• Parties: The PEOPLE, etc., Appellant, v. Angel CLAUDIO and Randolfo Maldonado, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 972

447 N.Y.S.2d 972

85 A.D.2d 245

The PEOPLE, etc., Appellant, v. Angel CLAUDIO and Randolfo Maldonado, Respondents.

Supreme Court, Appellate Division,

Second Department.

March 15, 1982.

John J. Santucci, Dist. Atty., Kew Gardens (Joseph Fisch, Joseph J. Hester, Deborah Carlin Stevens, Barbara H. D. Goldberg and Barry A. Schwartz, Kew Gardens, of counsel), for appellant.

Albert A. Gaudelli, Flushing, for respondent Claudio.

Marvyn M. Kornberg, Kew Gardens, for respondent Maldonado.

Before MOLLEN, P. J., and WEINSTEIN, GULOTTA and THOMPSON, JJ.

WEINSTEIN, Justice.

Several issues with significant constitutional ramifications are raised by this appeal. The primary issue is whether a defendant's confession to law enforcement personnel made prior to the initiation of formal judicial proceedings should be suppressed because it was the result of incompetent advice given by an attorney whom the defendant retained. We are of the opinion that where the law enforcement personnel did nothing to persuade the attorney to give the advice, the confession should not be suppressed.

A. FACTS

I

At approximately 4:10 A.M. on May 15, 1980, in Queens, New York, Steven Zweikert was murdered in the course of a robbery committed while he was returning home from a high school prom. On May 19, 1980, as a result of an anonymous tip, police investigating the killing went to the home of defendant Claudio and requested that he come to the precinct for questioning. At the precinct he told Detective Owen Kelly that he was on the stoop of his building on the night of the robbery/murder, and went to bed at about midnight. Claudio permitted a photograph to be taken of him, and then returned home with his stepmother.

On May 21, 1980, officers were informed that an individual named Andrew Boyle had information about the killing. When contacted that evening, Boyle told the police that at about 6 P.M. on May 14 he had entered into a 1974 green Mustang driven by "Buck". In the back seat was a male Hispanic whom he had never met before. As they drove around, Boyle noticed that the person in the back seat was playing around with a gun. Boyle claimed that he got out of the car at about 8 P.M. and left. An officer then showed Boyle about six or seven loose photographs, and he selected Claudio's as that of the individual in the back seat of the car.

On the evening Boyle was questioned, Claudio, who was 16 years of age at the time, saw the name of the law firm of Heller and Heller in a telephone book. With the assistance of his cousin, David Erasquine, Claudio called the law firm, and left a message. Shortly thereafter, attorney Mark Heller returned Claudio's call, and arrangements were made to meet the following morning at the Brooklyn Criminal Court, where Heller had some business.

Heller, Claudio and Erasquine met the next morning, and Claudio retained Heller to represent him with respect to the Zweikert matter. At a certain point during their conversation, a decision was reached that Claudio would surrender to the Queens County District Attorney. How that decision was reached is a matter of some dispute. According to Heller's testimony at the suppression hearing, Claudio insisted on that course of action, despite Heller's advice that he take some time to think about it. Heller stated that Claudio wanted to come forward and tell the truth because he was extremely troubled by what had happened and could not eat or sleep. On the other hand, Claudio testified that he surrendered because Heller told him to, and he thought that Heller, as an attorney, knew best. Claudio stated that at no time did Heller discuss with him the possible charges, including felony murder, that could arise out of the incident. Nor did Heller advise him of possible defenses or discuss mandatory sentences. In fact, according to Claudio, Heller told him that if he cooperated with the authorities he "might not even have to go to jail". This is disputed by Heller, who stated that he fully informed Claudio of the consequences of surrendering.

In any event, they arrived at the District Attorney's office at about 1:50 P.M. on May 22. Heller left Claudio and his cousin alone and for the next hour or so spoke with various assistant district attorneys, as well as with District Attorney Santucci. Heller told the District Attorney that according to Claudio the shooting was an accident, and that he was remorseful and wished to surrender. Heller attempted to exact a promise that the District Attorney would accept a guilty plea to a charge less than felony murder. Heller was categorically told by Santucci that there would be no plea bargaining in the case. Upon returning to his client, Heller did not tell Claudio that there would be no deal, but only that he was still negotiating.

At a certain point, Assistant District Attorney DelVecchio came to Heller with a tape recorder and asked that Claudio give a statement. At first Heller refused, saying that they should "book him and arraign him". DelVecchio told Heller, "I want to talk to him, we can't book him and arraign him on nothing". Indeed, according to Santucci, DelVecchio and other Assistant District Attorneys who testified at the suppression hearing, the prosecutors knew that without a statement they lacked sufficient evidence to charge Claudio with the Zweikert murder. Heller denied being told this, but he did admit knowing that Claudio had been questioned two days earlier, without having been arrested, and he also admitted that he never ascertained whether Claudio was wanted by the police.

Heller then left DelVecchio and spoke with his client. When he returned, he told DelVecchio that Claudio wanted to make a statement. As with the initial decision to surrender, the circumstances of this decision are in dispute. Heller testified that he did not want Claudio to give a statement, but that the latter insisted on doing so. Heller claimed to have outlined the alternatives for Claudio but declined to give specific advice, leaving it up to his client to make a decision. Heller acknowledged that he did not tell the District Attorney not to question Claudio. Claudio's testimony was that he consented to make the statement on Heller's advice.

The confession was made with Heller present and after Miranda warnings had been given to Claudio. Answers given by Claudio, as evidenced by a tape of the confession, suggest that it was Claudio's decision to surrender and to confess; according to Claudio, however, he had answered affirmatively to these questions because Heller had told him to do so. Whether Criminal Term accepted this explanation is unclear, but it is clear that Criminal Term concluded that Heller did have at least some control over Claudio as to the statement, and could have prevented the confession from being made if he had chosen to.

After the confession, Claudio was told that he was going to be arrested. Up to that point, he had not been handcuffed. Claudio testified that, when told that he was under arrest and was going to jail, he was surprised and angry, and that he felt Heller had "fooled" him.

II

Shortly thereafter, District Attorney Santucci held a press conference in which Heller participated. Heller also made statements to the press subsequent to the press conference. Among other things, Heller made a plea through the media to the other persons involved in the Zweikert robbery and homicide to surrender themselves. According to Santucci, he was asked by Heller to join in this plea; he flatly refused.

Defendant Maldonado saw and heard on television Heller's appeal to surrender. On May 24, with the assistance of Claudio's aunt, Maldonado contacted Heller by telephone and discussed surrendering. Maldonado testified that Heller told him to wait until the weekend was over, that he, Heller, would turn him in on the following Tuesday, and that if anything happened in the meantime, he should co-operate with the police. Heller disputes this account; he testified that he told Maldonado that he would not give any advice over the telephone. There is no indication in the record that Heller was given Maldonado's name, or that they discussed the terms of any representation. Subsequent to the telephone conversation, Heller called Detective Kelly and informed him that he might have someone to surrender and would get back in touch.

On May 26, Detective McKnight received an anonymous telephone call. The caller said: "I am calling about the student killing, he's waiting to give up at 359 Crescent St. He's waiting for you." He gave the person's name as "Randy". Thereupon, four officers, including two detectives, went to an apartment at the location. Several persons were in the apartment, including Mrs. Freida Maldonado and about six other relatives of defendant Maldonado, three of whom were children.

The officers were invited into the home, and Mrs. Maldonado called her son inside to join them. According to the officers, Maldonado was told that they were investigating the Zweikert homicide and that they were told he might have some information which would help them. At that point, Maldonado stated: "I was with Angel that night, it was an accident."

Detective Kelly then took Maldonado into a bedroom and, with his mother present, told him he was going to be arrested and questioned him further. According to Kelly, prior to questioning Maldonado in the bedroom, he gave him his Miranda warnings. This is disputed by Maldonado's mother and aunt, who stated that it was only after Maldonado finished making further admissions that the Miranda warnings were given. According to their testimony, when Maldonado was told he had a right to remain silent, he refused to say anything more.

Subsequently, in a police car on the way to the precinct, Maldonado was questioned again and made additional statements. Maldonado testified that in the police car he told the officers he had spoken to a lawyer. Detective Kelly asked him who the lawyer...