People v. Cohen

• Citation: 665 N.Y.S.2d 30,90 N.Y.2d 632,687 N.E.2d 1313
• Parties: , 687 N.E.2d 1313, 1997 N.Y. Slip Op. 9074 The PEOPLE of the State of New York, Respondent, v. Benjamin E. COHEN, Appellant.
• Decision Date: 30 October 1997
• Court: New York Court of Appeals

Page 30

665 N.Y.S.2d 30

90 N.Y.2d 632, 687 N.E.2d 1313, 1997

N.Y. Slip Op. 9074

The PEOPLE of the State of New York, Respondent, v. Benjamin E. COHEN, Appellant.

Court of Appeals of New York.

Oct. 30, 1997.

Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Gary C. Hobbs, of counsel), for appellant.

Sterling T. Goodspeed, District Attorney of Warren County, Lake George (John P.M. Wappett, of counsel), for respondent.

OPINION OF THE COURT

LEVINE, Judge.

Defendant appeals, leave having been granted by a Judge of this Court, from the denial of his omnibus motion to suppress his confession and physical evidence seized pursuant to a search warrant, both obtained in connection with the November 27, 1994 robbery-murder of the store clerk of a Citgo station mini-mart at Exit 23 of the Northway in the Town of Lake George, Warren County.

During the initial police investigation of the Citgo homicide, the police recovered a spent bullet which laboratory analysis later determined had been fired from a .22 caliber older model gun. This information and the statement of an identified informant, Christopher Mackrodt, largely comprised the basis for the warrant. Mackrodt gave his statement with notice that any falsity would subject him to criminal sanctions under Penal Law § 210.45.

Mackrodt related that, when visiting the home of codefendant David McCulloch and in the presence of defendant and codefendant Francis Anderson, he was shown: an older-looking .22 caliber revolver, black-colored with a wooden handle; a .357 caliber revolver; and a third gun which he described in appearance but could not otherwise identify. In his subsequent visits to the McCulloch residence, defendant, McCulloch and Anderson disclosed to Mackrodt that they had stolen the three guns from Thompson's Garage in Lake George Village, and that they were thinking of robbing the Citgo station at Exit 23 of the Northway.

Submitted with the search warrant application for the McCulloch residence was documentary verification of the December 7, 1993 burglary of Thompson's Garage, in which three guns were stolen, a Ruger Blackhawk .357 caliber revolver, a Charter Arms .22 caliber revolver and a P38 Walther semiautomatic pistol. The applicant, Investigator William VanNess of the Warren County Sheriff's Department, opined that the .22 caliber revolver was the weapon used to murder the Citgo clerk. He sought authority to seize all three weapons and the proceeds of the Citgo robbery. The warrant authorized those seizures.

The search warrant was executed at McCulloch's home on Diamond Point, Lake George, in the early evening of December 1, 1994. Sheriff's Department Investigator Robert Snyder and New York State Police Investigator Michael Huskie arrived at that site with the search party from both police agencies. They asked defendant to accompany them to the Sheriff Department's substation for an interview. The suppression court made findings that defendant willingly accompanied the officers, and was advised of his Miranda rights upon arrival at the Lake George substation.

It is uncontested that the initial questioning of defendant by Snyder and Huskie concerned his involvement in the Thompson's Garage burglary and gun thefts and that questions on that subject were interspersed with questions on his participation in the Citgo robbery and murder. This pattern of questioning continued throughout the interrogation, until defendant gave a full written confession to complicity in the latter crimes several hours later.

It is also undisputed that defendant had been a suspect in the Thompson's Garage crimes for some time prior to December 1994, and that in the spring of 1994 the police, notably Investigators Snyder and Huskie, had personally been advised by an attorney that he represented defendant and that defendant was not to be questioned on the Thompson's Garage burglary and weapons theft except in his presence.

The search of the McCulloch residence eventually resulted in the discovery of the .357 caliber revolver, the P38 Walther pistol and, secreted in the attic, a blue nylon gym bag containing the .22 caliber revolver, ammunition, and United States currency in a clear plastic bag.

Following the indictment of defendant, McCulloch and Anderson for intentional and felony murder and robbery, first degree, at the Citgo station, defendant moved to suppress both the physical evidence seized under the search warrant and his confession. Among the grounds urged before County Court regarding the seizure of physical evidence was that informant Mackrodt's arrest, on the very day of the suppression hearing, for the Thompson's Garage crimes demonstrated the falsity of his statement and thereby invalidated the search warrant. Defendant also argued before that court that his confession should be suppressed because the officers' interrogation violated his State constitutional right to counsel which had indelibly attached in connection with the Thompson's Garage criminal investigation.

County Court rejected those and other grounds for suppression and denied defendant's motion in all respects. Defendant then pleaded guilty to second degree murder. The Appellate Division affirmed (226 A.D.2d 903, 640 N.Y.S.2d 921). That Court ruled that the search warrant was not vitiated by informant Mackrodt's subsequent arrest for the Thompson's Garage crimes, because that arrest did not establish the falsity of the relevant portions of his prior statement. The Appellate Division also rejected defendant's argument that entry of counsel on the Thompson's Garage matter required suppression of his confession to the Citgo robbery-homicide. In so concluding, it held that the two criminal transactions were unrelated, and that the intermingling of questions on both matters was of no moment because "the questions concerning the [Thompson's] burglary were not the crucial element in securing defendant's confession" (226 A.D.2d, at 904, 640 N.Y.S.2d 921, supra ).

I

Addressing, first, defendant's argument attacking the validity of the search warrant because of the implications of Mackrodt's subsequent arrest for the Thompson's Garage crimes, we agree with the Appellate Division that the subsequent arrest was insufficient on this record to invalidate the warrant. Granting suppression based on the demonstrated lack of veracity of a search warrant applicant is designed to deter and penalize the knowing or reckless submission of false information by law enforcement officers, not to open the door to evidentiary impeachment of their sources.

"The requirement that a warrant not issue 'but upon probable cause, supported by Oath or affirmation,' would be reduced to a nullity if a police officer was able to use deliberately falsified allegations to demonstrate probable cause, and, having misled the magistrate, then was able to remain confident that the ploy was worthwhile" (Franks v. Delaware, 438 U.S. 154, 168, 98 S.Ct. 2674, 2682, 57 L.Ed.2d 667).

Thus, the United States Supreme Court expressly limited this avenue of suppression to instances of deliberate falsity or reckless disregard on the part of law enforcement affiants. "The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant " (id., at 171, 98 S.Ct. at 2684 [emphasis supplied] ).

The record of the instant suppression hearing is barren of any evidence that when Investigator VanNess applied for the search warrant he knew or recklessly disregarded evidence that Mackrodt had participated in the Thompson's Garage burglary and weapons theft. VanNess did not swear or affirm to the truth of his informant's statement, nor was he required to do so in order to establish probable cause (see, People v. Sullivan, 56 N.Y.2d 378, 383, 452 N.Y.S.2d 373, 437 N.E.2d 1130). At most, the testimony adduced at the hearing was equivocal as to whether VanNess, in any other manner, vouched for his informant's reliability, which, in any event, was also unnecessary here on the issue of probable cause (see, People v. Sullivan, supra, at 384, 452 N.Y.S.2d 373, 437 N.E.2d 1130). Thus, defendant has failed to sustain his burden of proof that the search warrant affiant in this case knowingly or recklessly submitted false information to the issuing Magistrate in order to obtain the search warrant (see, People v. Tambe, 71 N.Y.2d 492, 504, 527 N.Y.S.2d 372, 522 N.E.2d 448), and the motion to suppress the evidence obtained pursuant to the warrant was properly denied.

II

We reach a different conclusion with respect to the validity of defendant's confession. The uncontested evidence at the suppression hearing was that the police initiated their interrogation of defendant with questions concerning his participation in the Thompson's Garage burglary and weapons theft, and thereafter persisted in intermingling questions on that subject throughout the interrogation until defendant had fully incriminated himself on the Citgo murder and robbery. The officers admitted that they questioned defendant on the Thompson's Garage matter because they believed that the Citgo murder weapon was one of the guns stolen during the garage burglary. Thus, for the police, the two crimes were concededly related; proof of defendant's participation in the burglary and gun larceny at the garage would be probative of his involvement in the crimes committed at the Citgo station.

Our case law involving police interrogation of a suspect on the subject of one crime after the right to counsel had indelibly attached by the actual appearance of an attorney representing that suspect in another crime falls into two relevant categories. ^* The first of these is where the two criminal matters are so closely related transactionally, or in space or time, that questioning on the unrepresented matter would all but inevitably elicit incriminating responses regarding the matter in which there had been an entry of counsel. In such...