People v. Dashnaw

• Decision Date: 16 June 2011
• Citation: 85 A.D.3d 1389,925 N.Y.S.2d 262,2011 N.Y. Slip Op. 05141
• Parties: The PEOPLE of the State of New York, Respondent,v.Edward A. DASHNAW, Appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1389

925 N.Y.S.2d 262

2011 N.Y. Slip Op. 05141

The PEOPLE of the State of New York, Respondent,

v.Edward A. DASHNAW, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

June 16, 2011.

Mitch Kessler, Cohoes, for appellant, and appellant pro se.Andrew J. Wylie, District Attorney, Plattsburgh (Paul A. Clyne of counsel), for respondent.

Before: MERCURE, J.P., ROSE, McCARTHY and EGAN JR., JJ.ROSE, J.

Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered June 14, 2007, upon a verdict convicting defendant of the crimes of murder in the first degree (two counts), grand larceny in the fourth degree (two counts), criminal possession of stolen property in the fifth degree (three counts) and criminal possession of a forged instrument in the second degree (two counts).

The victims in this case, David Donivan and Lorraine Donivan, operated a furniture business known as the House of Pine from their home in the Town of Schuyler Falls, Clinton County. On December 29, 2005, David's body was found hidden in the basement of their home. Two days later, Lorraine's body was located concealed in the loft of the furniture showroom. Although the exact time of death could not be determined, evidence indicated that the couple had been stabbed to death sometime on or about December 20, 2005. An extensive investigation resulted in an 11–count indictment against defendant. Following a lengthy trial, the jury convicted defendant of two counts of murder in the first degree, two counts of grand larceny in the fourth degree, three counts of criminal possession of stolen property in the fifth degree and two counts of criminal possession of a forged instrument in the second degree. Defendant was sentenced to two concurrent prison terms of life without parole on the murder convictions, as well as lesser sentences on the remaining charges.

During the course of the investigation, defendant was questioned three times by the police. The first interrogation took place on December 29, 2005 after defendant agreed to accompany the investigators to the State Police barracks in the City of Plattsburgh, Clinton County. It was established at the Huntley hearing that defendant was not in custody when the police interview began at around 1:30 P.M. However, at approximately 3:30 P.M., after the discovery of David's body, defendant was given Miranda warnings and, as County Court correctly determined, it was at this point that defendant was in custody. Because the hearing testimony established that defendant then invoked his right to remain silent and requested counsel, the court properly admitted those statements made by defendant prior to 3:30 P.M., but excluded any statements made as a result of the subsequent custodial interrogation from that point until he was released from custody at about 3:30 A.M. on December 30, 2005.

The second interrogation began approximately 11 hours later, at 2:30 P.M. on December 30, 2005, when police investigators intercepted defendant on the interstate after being informed that he was on his way to speak to them. According to the testimony of various investigators, defendant then voluntarily accompanied them to the State Police barracks in the Village of Keeseville, Clinton County, where an 8 1/2-hour interrogation ensued. Finding that defendant was no longer in custody and that, in any event, he voluntarily waived any previously invoked right to counsel, County Court denied suppression of those statements made by defendant. Thereafter, defendant was arrested on January 12, 2006 and, after waiving his Miranda rights, made incriminating statements that the court deemed admissible.

Defendant asserts that County Court erred in not suppressing his statements made on the afternoon of December 30, 2005 and on January 12, 2006 as the product of unlawful police interrogation. We agree. As is relevant to this appeal, the right to counsel indelibly attaches “when an uncharged individual ‘has actually retained a lawyer in the matter at issue or, while in custody, has requested a lawyer in that matter’ ” ( People v. Ramos, 99 N.Y.2d 27, 32–33, 750 N.Y.S.2d 821, 780 N.E.2d 506 [2002], quoting People v. West, 81 N.Y.2d 370, 373–374, 599 N.Y.S.2d 484, 615 N.E.2d 968 [1993] [emphasis added] ). The right is referred to as indelible because, once it attaches, it cannot be waived outside the presence of counsel ( see People v. Jones, 2 N.Y.3d 235, 242, 778 N.Y.S.2d 133, 810 N.E.2d 415 [2004]; People v. Grice, 100 N.Y.2d 318, 320–321, 763 N.Y.S.2d 227, 794 N.E.2d 9 [2003] ). Here, the record is clear that the right to counsel in this matter indelibly attached on December 29, 2005 when defendant, while in custody, requested counsel. Any further questioning on that matter was precluded whether or not defendant was in custody at the time of questioning. Notwithstanding the People's contention that the encounter on December 30, 2005 was voluntary, defendant could not waive that indelible right without counsel present ( see People v. Jones, 2 N.Y.3d at 242, 778 N.Y.S.2d 133, 810 N.E.2d 415; People v. Grice, 100 N.Y.2d at 320–321, 763 N.Y.S.2d 227, 794 N.E.2d 9; People v. Payne, 233 A.D.2d 787, 788, 650 N.Y.S.2d 833 [1996] ). Furthermore, with regard to the January 12, 2006 statements, again, defendant could not voluntarily waive his Miranda rights outside the presence of counsel. Nor did the passage of two weeks from the initial invocation of his Miranda rights negate the indelible right to counsel on the matter at issue ( see e.g. People v. West, 81 N.Y.2d at 379–380, 599 N.Y.S.2d 484, 615 N.E.2d 968).

A violation of the indelible right to counsel, however, must be reviewed under the harmless error doctrine before reversal is required ( see People v. Lopez, 16 N.Y.3d 375, 386, 923 N.Y.S.2d 377, 947 N.E.2d 1155 [2011]; People v. West, 81 N.Y.2d at 373, 599 N.Y.S.2d 484, 615 N.E.2d 968). “Errors of this type are considered harmless when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury's verdict” ( People v. Lopez, 16 N.Y.3d at 386, 923 N.Y.S.2d 377, 947 N.E.2d 1155 [internal quotation marks and citation omitted] ). Prior to defendant being in custody on December 29, 2005, he stated to police investigators that he went to the House of Pine on December 20, 2005 to look for a gift for his girlfriend and, while there, inquired about employment because he had previously worked for the Donivans. According to defendant, Lorraine agreed to hire him to shovel snow as...