People v. Colon

• Decision Date: 22 May 1978
• Citation: 62 A.D.2d 398,405 N.Y.S.2d 735
• Parties: The PEOPLE, etc., Respondent, v. Miguel COLON, a/k/a "Mickey", Appellant.
• Court: New York Supreme Court — Appellate Division

Page 735

405 N.Y.S.2d 735

62 A.D.2d 398

The PEOPLE, etc., Respondent, v. Miguel COLON, a/k/a "Mickey", Appellant.

Supreme Court, Appellate Division,Second Department.

May 22, 1978.

David L. Levinson, Newburgh, for appellant and appellant pro se.

David S. Ritter, Dist. Atty., Goshen (Michael Schwartz, Goshen, of counsel), for respondent.

Before SHAPIRO, J. P., and COHALAN, MARGETT and O'CONNOR, JJ.

MARGETT, Justice.

The principal issue in this case is whether a defendant can waive his right to the presence and assistance of counsel and make a statement to the police in the absence of counsel where he has been under indictment for nearly five months.

Defendant was indicted in September, 1975 for crimes arising from alleged sales of heroin to an undercover police officer in Newburgh, New York, in July, 1975. On February 24, 1976 defendant was taken into custody in New York City by two Newburgh police officers. Defendant, who had been in a holding cell at a New York City police precinct, was advised by the Newburgh officers that they had a warrant for his arrest based upon an outstanding indictment and that he would have to return to Newburgh for arraignment. Defendant and his girlfriend (who was not in custody) then accompanied the officers to the Newburgh Police Headquarters, where defendant was taken to the Detective Bureau.

Defendant was read the Miranda warnings from a card and was also told, by a detective, that he did not have to talk and could have a lawyer present. Defendant was asked if he understood his rights and "(h)e gestured yes". Defendant was asked if he wanted to talk and he said "yes." Defendant was then handed a card containing the Miranda warnings and, at the request of the detective, signed the card. The detective then said:

"You know the reason you are here is because we have an outstanding indictment for your arrest, and a warrant for you, and that is why you were brought back to Newburgh."

Defendant allegedly responded that "he knew why he was arrested, because he sold heroin to Louis (Luis Juncosa, the undercover police officer)." ^*

Prior to his trial defendant moved, inter alia, for suppression of any statements alleged to have been made by him. The motion was denied, after a hearing, on the ground that defendant had made a knowing and intelligent waiver of his "post-indictment rights to counsel" (emphasis in original). The "ingredients" of this "valid waiver" were the facts that (a) the Miranda warnings had been given, (b) the defendant had been told that he was under indictment and was informed of the content of the indictment and (c) the defendant was told that he had been arrested on a warrant and was to be brought before a court for arraignment on the indictment.

Defendant was subsequently convicted, after a jury trial, of two counts of criminal sale of a controlled substance in the third degree. He was sentenced on each of the counts to a minimum term of 8 years and 4 months and a maximum term of life the sentences to run consecutively. On appeal defendant contends, inter alia, that the alleged admission about selling heroin should have been suppressed. We agree with this contention and, accordingly, the judgment should be reversed and a new trial ordered.

It is well settled that the Sixth and Fourteenth Amendments of the United States Constitution guarantee to a defendant the right to counsel at any "critical stage of the prosecution" after adversary judicial proceedings have been initiated against him (Kirby v. Illinois, 406 U.S. 682, 690, 92 S.Ct. 1877, 32 L.Ed.2d 411; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246). The right to counsel under the New York State Constitution (art. I, § 6) has, in some areas, been interpreted more expansively than the rights guaranteed under the Fifth and Sixth Amendments of the United States Constitution, as those amendments have been interpreted by the Supreme Court of the United States (see People v. Blake, 35 N.Y.2d 331, 361 N.Y.S.2d 881, 320 N.E.2d 625, and cases cited therein at 35 N.Y.2d pp. 335-336, 361 N.Y.S.2d 881, 320 N.E.2d 625). Indeed, it has been held that "after indictment the right of an accused to the assistance of counsel at every stage of the proceeding against him is absolute" (People v. Loiacono, 40 A.D.2d 856, 337 N.Y.S.2d 870).

It has long been recognized that police interrogation of a person who has been indicted is such a critical stage of the proceedings against him that a failure to guarantee the aid of counsel during such interrogation "might deny a defendant 'effective representation * * * at the only stage when legal aid and advice would help him' " (Massiah v. United States, 377 U.S. 201, 204, 84 S.Ct. 1199, 1202, 12 L.Ed.2d 246, supra, citing Mr. Justice DOUGLAS' concurring opinion in Spano v. New York, 360 U.S. 315, 326, 79 S.Ct. 1202, 3 L.Ed.2d 1265; see, also, McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, 14 L.Ed.2d 682, revg. State v. McLeod, 1 Ohio St.2d 60, 203 N.E.2d 349). Since the filing of an indictment presumably imports that the People have legally sufficient evidence of the defendant's guilt of the crime charged (People v. Waterman, 9 N.Y.2d 561, 565, 216 N.Y.S.2d 70, 175 N.E.2d 445), it is manifest that postindictment interrogation is "a form of pretrial discovery" where "the defendant is the all but irrevocable target" (People v. Lopez, 28 N.Y.2d 23, 319 N.Y.S.2d 825, 268 N.E.2d 628, dissenting opn. at pp. 28-29, 319 N.Y.S.2d at pp. 828-829, 268 N.E.2d at pp. 630-631, cert. den. 404 U.S. 840, 92 S.Ct. 133, 30 L.Ed.2d 74). Thus, "(p)ost-indictment questioning without the aid of counsel violates very basic concepts of fairness" (People v. Loiacono, 40 A.D.2d 856, 337 N.Y.S.2d 870, supra ; see, also, People v. Waterman, supra ).

In contrast to these generally accepted principles, the law with respect to when a defendant can waive his right to counsel at a postindictment interrogation has been divergent among jurisdictions and is unsettled in New York. The genesis of the controversy is Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246, supra, where it was held that the defendant was denied 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" (emphasis supplied). A number of jurisdictions have construed this language broadly and literally, and have held inadmissible all postindictment statements obtained when counsel was not present (see United States ex rel. O'Connor v. New Jersey, 405 F.2d 632 (CCA 3d), cert. den. sub nom. Yeager v. O'Connor, 395 U.S. 923, 89 S.Ct. 1770, 23 L.Ed.2d 240; Hancock v. White, 378 F.2d 479 (CCA 1st); United States ex rel. Lopez v. Zelker, 344 F.Supp. 1050 (SDNY), affd. 465 F.2d 1405 (CCA 2d), cert. den. 409 U.S. 1049, 93 S.Ct. 529, 34 L.Ed.2d 501; State v. Green, 46 N.J. 192, 215 A.2d 546, but cf. United States ex rel. Wooden v. Vincent, 391 F.Supp. 1260 (SDNY)). Other jurisdictions have adopted "a more restrictive view of Massiah, allowing the admission of post-indictment statements voluntarily and deliberately made by a properly warned defendant who was not tricked into speaking by some deliberate act of the investigating officers" (United States v. De Loy, 421 F.2d 900, 902 (CCA 5th); see, also, United States v. Tucker, 435 F.2d 1017 (CCA 9th); Cephus v. United States, 122 U.S.App.D.C. 187, 352 F.2d 663; Commonwealth v. Frongillo, 359 Mass. 132, 268 N.E.2d 341).

New York had apparently been one of the jurisdictions "classified" in the latter category by reason of People v. Lopez, 28 N.Y.2d 23, 319 N.Y.S.2d 825, 268 N.E.2d 628, supra (see Blizzard v. State, 30 Md.App. 156, n. 7, 351 A.2d 443). In Lopez, the defendant was arrested by Federal officers and interrogated after he had been indicted in New York County for murder. Prior to the commencement of questioning, he was advised of his right to counsel, his right to remain silent and that any statements made could be used against him. He signed a written waiver of those rights and made a statement to the officers concerning the crime. In affirming defendant's conviction, the Court of Appeals held that defendant had validly waived his rights even though counsel was not present at the time of the waiver.

A powerful dissent by Judge (now Chief Judge) BREITEL charged the majority with "backtrack(ing)" from the principle, developed in a progression of cases, many of which antedated parallel decisions of the Supreme Court of the United States, "that a defendant in a pending criminal action is entitled to the advice of a lawyer and that the right may not be waived except in the presence and with the acquiescence of counsel" (28 N.Y.2d at p. 26, 319 N.Y.S.2d at p. 827, 268 N.E.2d at p. 629). Judge BREITEL continued (p. 29, 319 N.Y.S.2d p. 830, 268 N.E.2d p. 631):

"Putting aside jurisprudential principles, the practical effect is unfortunate. It seems elementary that in the protection of individuals (even in civil matters, let alone in criminal matters) waivers obtained in a pending action in the absence of counsel are, in truth, a denial of the right to counsel in that action. The denial is the more egregious where counsel is already retained or assigned, but the frustration of the right may be as grave if the waiver comes on the very eve of the inevitable retainer or assignment of counsel as is now the case in criminal actions. Lip service is paid to the right, to be sure, and counsel will be provided, but not until persons, already defendants in criminal actions, have first confessed under the most transparently manipulated 'voluntary' waivers of 'known rights.' Surely, if Mr. Justice JACKSON was right that no lawyer worth his salt would advise a...