People v. Coleman

• Decision Date: 22 November 1977
• Parties: , 371 N.E.2d 819 The PEOPLE of the State of New York, Respondent, v. John COLEMAN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 57

401 N.Y.S.2d 57

43 N.Y.2d 222, 371 N.E.2d 819

The PEOPLE of the State of New York, Respondent, v. John COLEMAN, Appellant.

Court of Appeals of New York.

Nov. 22, 1977.

Patrick F. Broderick, Bayside, for appellant.

John J. Santucci, Dist. Atty. (Bruce E. Whitney and George Freed, Kew Gardens, of counsel), for respondent.

OPINION OF THE COURT

JASEN, Judge.

We are asked to pass on the question of whether a defendant, incarcerated pending trial on a charge for which he was represented by counsel, may waive, in the absence of an attorney, his right to counsel at a lineup, held in an unrelated investigation, in which his presence was secured pursuant to a court order of removal.

On May 21, 1974, a robbery occurred at a bar in Queens County. Two witnesses to the robbery identified defendant from a photographic display shown to them on May 22, 1974. As a result of these identifications, two lineups were held on May 28, 1974 to allow the witnesses an opportunity to identify the defendant in person. At the time of the lineups, defendant was incarcerated in the Queens House of Detention on an unrelated charge. To secure his presence in the lineups, the police obtained an ex parte order from the Criminal Court of the City of New York directing defendant's removal from the detention center. At each of the lineups conducted, defendant was identified by the witnesses. On the basis of these identifications, as well as the earlier photographic identifications, defendant was indicted on May 29, 1974.

At a hearing held to determine the admissibility of these identifications, the photographic identifications were suppressed as suggestive; however, the lineup identifications were held admissible. Subsequently, after a jury trial, the defendant was convicted of two counts of robbery in the first degree. The Appellate Division affirmed, with two Justices dissenting.

Cognizant of the dangers of misidentification and suggestive procedures which may accompany a corporeal viewing, the Supreme Court has held that a postindictment lineup is a critical stage, at which point the accused has a right to have counsel present at the identification. (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178.) The rule has been refined in Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 1880, 32 L.Ed.2d 411, where the Supreme Court held that an accused's right "to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him." (See People v. Blake, 35 N.Y.2d 331, 335, 361 N.Y.S.2d 881, 886, 320 N.E.2d 625, 628.) In acknowledging the difficulty in determining the exact moment at which the right to counsel attaches, the court noted that in all those cases in which the right to counsel has been found to attach, adversary judicial proceedings have been initiated either by "formal charge, preliminary hearing, indictment, information, or arraignment." (Kirby v. Illinois, 406 U.S., at p. 689, 92 S.Ct., at p. 1882, supra; see People v. Blake, 35 N.Y.2d, at p. 335, 361 N.Y.S.2d, at p. 886, 320 N.E.2d, at p. 628, supra.)

Interpreting the Federal mandate formulated in Kirby, we held that a criminal proceeding is initiated in New York by the filing of an accusatory instrument. (People v. Blake, 35 N.Y.2d, at p. 339, 361 N.Y.S.2d, at p. 890, 320 N.E.2d, at p. 631, supra.) "Consequently, upon the filing of an accusatory instrument, whether or not a lawyer has been retained or assigned for general purposes, there may not be, except in exigent circumstances, a corporeal viewing of the defendant for identification purposes in the absence of counsel" (People v. Blake, 35 N.Y.2d, at p. 340, 361 N.Y.S.2d, at p. 891, 320 N.E.2d, at p. 632, supra).

Although in Blake the commencement of adversary judicial proceedings was equated with the filing of an accusatory instrument, it has been recognized that the filing of an instrument other than one forming the basis of an arraignment or issuance of an arrest warrant, may nevertheless constitute a "formal" proceeding triggering an accused's right to counsel. In People v. Sugden, 35 N.Y.2d 453, 461, 363 N.Y.S.2d 923, 929, 323 N.E.2d 169, 174, we held that a court order directing the removal of a defendant serving a sentence on an unrelated charge requiring him to visit the scene of a crime he was alleged to have committed, was "sufficiently 'judicial' in nature, not unlike arraignment or the issuance of an arrest warrant, so that a right to counsel exists at 'critical stages' held after that order is issued (see People v. Blake, 35 N.Y.2d 331, 361 N.Y.S.2d 881, 320 N.E.2d 625; People v. Waterman, 9 N.Y.2d 561, 565-566, 216 N.Y.S.2d 70, 74-75, 175 N.E.2d 445, 447-448; see, also, Kirby v. Illinois, 406 U.S. 682, 689-690, 92 S.Ct. 1877, 32 L.Ed.2d 411; Massiah v. United States, 377 U.S. 201, 205-207, 84 S.Ct. 1199, 12 L.Ed.2d 246)." In Sugden, we did not reach the question whether a defendant may waive the right to counsel after it has attached as a result of a judicial order of removal. Today we reach this question and decide that the right to counsel may be waived notwithstanding the absence of counsel whom a defendant had retained with respect to a wholly unrelated charge.

At the time the police secured the presence of defendant at the lineup, pursuant to a court order of removal, he was incarcerated pending trial on an unrelated charge. Although the defendant was represented by counsel on the unrelated charge a fact which the police admittedly were aware of he was not represented by counsel in the investigation of the robbery complaint for which the lineup order was obtained. For this reason People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894, is not, as appellant would contend, dispositive of the permissibility of a waiver of the right to counsel.

In Hobson, where an attorney had been appointed to represent the defendant during a lineup, we held that defendant, while being held in custody and questioned by a police officer, could not thereafter waive his right to counsel in the absence of his attorney. In reaffirming the vitality of the Donovan-Arthur principle (see People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537; People v. Vella, 21 N.Y.2d 249,...