People v. Cooper

• Decision Date: 12 April 1984
• Parties: PEOPLE of the State of New York, Respondent, v. Gregory COOPER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 660

475 N.Y.S.2d 660

101 A.D.2d 1

PEOPLE of the State of New York, Respondent, v. Gregory COOPER, Appellant.

Supreme Court, Appellate Division Fourth Department.

April 12, 1984.

Thomas E. Andruschat, Buffalo, for appellant.

Richard J. Arcara, Dist. Atty., Buffalo, for respondent (Barbara Eberl, Buffalo, of counsel).

Before HANCOCK, J.P., and CALLAHAN, DOERR, GREEN and MOULE, JJ.

HANCOCK, Justice:

Defendant was convicted of felony murder arising from the shooting death of a guard during an attempted bank robbery allegedly committed by defendant and four others. He was sentenced to 25 years to life. Of the several grounds urged for reversal we find one to have merit: that the hearing court should have suppressed the videotaped confession recorded after defendant's arrest but prior to his arraignment because it was taken in violation of defendant's rights under the United States and New York State constitutions. Crucial to defendant's argument is the delay of approximately 24 hours between his arrest shortly before 2:00 p.m. on July 19, 1979, and the filing of the felony complaint and arraignment which took place in the early afternoon of July 20, 1979. The case turns on the effect, if any, of this delay on defendant's critical stage right to counsel (U.S. Const., 6th Amdt., 14th Amdt.; N.Y. Const., Art. I, § 6) which would have accrued earlier were it not for the delay (see People v. Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400 N.E.2d 1344) and the effect, if any, of the delay, in combination with other circumstances, on the voluntariness of the confession (U.S. Const., 5th Amdt., 14th Amdt; N.Y. Const., Art. I, § 6; see People v. Holland, 48 N.Y.2d 861, 424 N.Y.S.2d 351, 400 N.E.2d 293). For the reasons which follow we hold that the taped statement should have been suppressed and that there should be a new trial. A discussion requires a recitation of the events leading up to the statement as detailed in the trial and suppression hearing.

I.

An attempted holdup of a branch of the M & T Bank in Buffalo occurred on July 19, 1979. Defendant, his girlfriend Ethel "Teen" Ridgeway, Otis Samuel, Arthur "Satch" Saddler, and Ronald Amerson were charged with the crime. Amerson pleaded guilty and testified for the prosecution against the other four who were tried jointly.

The trial testimony showed that at about 10:00 a.m. defendant entered the bank with Samuel, Saddler and Amerson. Samuel and Saddler were armed. When the bank guard, Warren Lewis, reached for his weapon, Samuel fired, and within seconds, a bullet from Samuel's gun had killed Lewis, and a shot fired by Lewis had hit Saddler. Leaving the injured Saddler at the door of the bank, Samuel, Amerson and defendant made their getaway in a car driven by Ethel Ridgeway. Sometime later, acting on information from Saddler, the police picked up defendant and took him to the bank to see if any bank personnel could identify him. No one could do so. He was released and picked up again shortly thereafter.

The events surrounding defendant's arrest by the police and their involvement with defendant and his father leading ultimately to defendant's confession, as related at the Huntley hearing by the involved police officers of the Buffalo Police Department, are as follows. Sergeant Dove testified that at 1:59 p.m. on the day of the crime he first met defendant at the homicide office. Defendant was then under arrest. ¹ After advising him of his Miranda rights, Dove questioned him for five or six hours that afternoon and evening. When defendant persisted in denying any involvement Dove and Detective Pantano took him to Buffalo General Hospital where Saddler was being treated for the gunshot wound, ostensibly to have Saddler identify him. At the hospital the police did not take defendant into Saddler's room, but after having ostensibly spoken with him, they told defendant that Saddler had said he was with him at the bank. During the afternoon Dove learned that defendant was receiving kidney dialysis treatments.

Dove's first encounter with defendant's father was a one-half hour conversation at headquarters, shortly after Dove's and defendant's return from the hospital, in which, among other things, the father mentioned defendant's physical condition and, according to Dove, that he wanted defendant to cooperate with the police. During the early evening and under further questioning, defendant told the police that Saddler had remarked that morning that he wanted to rob a bank. Later that evening at about 8:00 p.m. two F.B.I. agents interrogated defendant and again defendant denied involvement but admitted seeing Saddler that morning. Dove filled out the felony complaint at 10:35 p.m. on July 19, charging defendant with murder, second degree, and criminal possession of a weapon, second degree. Defendant was fingerprinted at 4:25 a.m. the next morning, July 20.

Detective Sergeant Gorski, who came on duty at 11:00 p.m. on July 19 testified that at about midnight he and his partner Parsons took defendant from his cell and questioned him for approximately two hours. Gorski told defendant that Saddler had implicated him and that there were probably films of the attempted robbery, ² and defendant responded, "[W]ell, then, you'll see I'm not the person who shot the guard." At the end of the questioning Gorski said that defendant could contact him again during the night if he wished.

Sometime before 9:00 a.m. on the morning of July 20 defendant asked to speak to the officers who had questioned him the day before. When the officers again began asking him about the attempted holdup, defendant said he first wanted to telephone his father and with Dove's permission he talked with his father twice. During the second call Dove interrupted and spoke to defendant's father, who, among other things, asked, "What about an attorney?" Dove testified, "I told him it was up to him," by which, he said, he meant it was up to either defendant or his father, but he did not tell defendant that his father had inquired about an attorney. When defendant finished talking with his father, he told Dove that he wanted to tell the story but first wanted to speak to the district attorney.

At about 10:15 a.m. on July 20 Assistant District Attorney Frank Clark met with defendant. After checking with his office Clark told defendant that he was authorized to offer him a plea to a class "C" felony in return for his cooperation: specifically "a full and complete and truthful statement from him with respect to everything that he knew, both before, during and after the incident in question * * * [including] any evidence he was aware of that we could use to corroborate statements that he would make * * * [and, if necessary,] his testimony at hearings and the trial of codefendants * * *." During his call to the office, Clark had obtained information about defendant's prior record so that he could discuss accurately the permissible sentences and had learned that defendant was a predicate felon. Based on this information he broached a range of sentences from a minimum of three to six years and a maximum of 7 1/2 to 15 years. Defendant's main concern, Clark said, was "primarily on what was the most he could receive as a result of a plea". He conceded that it was an "uncommon" procedure for his office to discuss sentences.

Commencing at 10:52 a.m. on July 20, as part of the "deal", defendant gave a videotaped confession filling two tapes and lasting until 12:13 p.m. Chief Leo Donovan of the Homicide Bureau, who conducted the taping, testified that defendant repeatedly yawned deeply, was slow in responding to questions, and spoke in a low voice, but the hesitation, he thought, was not a product of fatigue but of the effort involved in trying to tell the story. At one point in the second tape, however, he asked defendant if he was falling asleep and defendant replied "Yes", although he asserted that he was still "thinking straight". ³

During the taping, Chief Donovan said, he realized that defendant was not giving "his full cooperation" because he was omitting any involvement of his girlfriend Ethel Ridgeway. Although Donovan thus concluded that the deal was off, he did not tell this to defendant but let him complete the taped confession. ⁴ Following the taping a typewritten statement was prepared which defendant refused to sign. Defendant was arraigned during the afternoon of July 20, 1979 when, apparently, the felony complaint was filed. ⁵

According to all prosecution witnesses, neither defendant nor his father made a specific request for counsel at any time. Defendant and his father, however, both testified that they made numerous requests for counsel which were ignored and the officers, defendant said, told him that he could not have a lawyer because if he did, he would not confess. When he arrived at headquarters on the afternoon of July 19, defendant's father said, the police urged him to advise defendant to cooperate and he did so. Again, during the telephone call the next morning, prior to defendant's meeting with the Assistant District Attorney, he was requested to encourage his son to cooperate.

In his testimony, defendant also claimed that police told him he would not be permitted to receive dialysis until he confessed. Defendant was scheduled to be treated on July 19 and received treatment after he was arraigned on July 20. As a result of the delay in treatment, defendant stated, he was "exhausted and sick", "scratching", and falling asleep during the taping and his thoughts were "all confused". His father testified that on July 20 defendant looked "fatigued" and "doped" and Dove stated that during that day defendant grew increasingly tired. While the police were aware that defendant was a dialysis patient, it is not clear that they knew he needed treatment on July 19 and, according to Dove and Donovan, defendant declined to receive dialysis on July 19.

Dove stated that once a felony...