People v. Evans

• Decision Date: 14 December 1982
• Citation: 444 N.E.2d 7,457 N.Y.S.2d 757,58 N.Y.2d 14
• Parties: , 444 N.E.2d 7 The PEOPLE of the State of New York, Appellant, v. Donald EVANS, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 757

457 N.Y.S.2d 757

58 N.Y.2d 14, 444 N.E.2d 7

The PEOPLE of the State of New York, Appellant, v. Donald EVANS, Respondent.

Court of Appeals of New York.

Dec. 14, 1982.

Denis Dillon, Dist. Atty. (Bruce E. Whitney, Anthony J. Girese and Martin I. Saperstein, Asst. Dist. Attys., of counsel), for appellant.

Michael J. Obus and Matthew Muraskin, Mineola, for responden

OPINION OF THE COURT

JASEN, Judge.

We are asked to decide whether a defendant, who, with the advice and in the presence of counsel, prior to entering into a plea bargain initiated by him, voluntarily furnishes the District Attorney a preplea incriminating statement and, subsequent to the plea and conviction, voluntarily testifies against a codefendant at his trials, is entitled to preclude the People from using any of these statements against him at a subsequent trial ordered by the Appellate Division following suppression of statements made by defendant at the time of his arrest.

On February 18, 1976, defendant and his friends, Edwin Fuller and Gary Thompson, robbed a gasoline service station in Farmingdale, Nassau County, New York. Defendant and Fuller entered the station and held the 16-year-old station attendant at gunpoint. Fuller then directed the boy to kneel in front of him with his head down. While defendant watched, Fuller shot and killed the boy. The three then fled in a car driven by Thompson. On March 27, 1976, after being taken to the police station, defendant made several statements admitting his complicity in the crime. Fuller and Thompson were arrested the same day. Fuller confessed, but Thompson did not.

Defendant and Fuller were indicted by a Nassau County Grand Jury on two counts of murder in the second degree, one for intentional murder and one for felony murder, and on related charges arising out of the service station robbery. Thompson was named as a codefendant in both indictments. After a joint hearing, suppression of defendant's confessions, as well as that of Fuller, was denied. Fuller chose not to plea bargain and proceeded to trial where he was convicted. His conviction was upheld on appeal. (People v. Fuller, 65 A.D.2d 823, 410 N.Y.S.2d 1017, mot. for lv. to app. den. 46 N.Y.2d 943, 415 N.Y.S.2d 1030, 388 N.E.2d 366.)

Defendant, however, chose a different course of action and on November 17, 1976, the day scheduled for his trial, his attorney approached the prosecutor to initiate plea negotiations. Defendant's attorney represented that defendant would plead guilty and co-operate with the District Attorney by testifying at the trials of his codefendant Thompson in return for reducing the crime to which he would plead from a class A to a class B felony. The prosecutor requested that defendant give a complete account of the crime to demonstrate that he was sincere in his desire to co-operate. Defendant agreed and, in the presence of his counsel, acknowledged that he was giving the statement voluntarily, without coercion. Thereupon, defendant, still in the presence of counsel, gave a complete account of the crime.

Later that day, defendant, his attorney and the prosecutor appeared in Nassau County Court where the guilty plea was formally entered and accepted.

The defendant and Thompson had also been charged in a Suffolk County indictment with committing an armed robbery of a liquor store on February 17, 1976. On November 22, 1976, defendant reached an agreement with the Suffolk County prosecutor similar to that which had been approved in Nassau County, under which defendant would receive a sentence to run concurrently with his sentence in Nassau County.

Pursuant to his agreement to co-operate with the prosecutor, defendant, in the presence of his counsel, testified as a witness for the prosecution at the Thompson trial in Nassau County. Defendant's testimony at this trial fully implicated him in the commission of the murder of the 16-year-old station attendant. On May 16, 1977, defendant again testified against Thompson in the latter's trial in Suffolk County, and, in so doing, defendant made admissions which connected him to the Nassau County murder.

On May 24, 1977, defendant was sentenced on the Nassau County conviction to a term of imprisonment of 6 to 18 years, and on June 1, 1977, defendant was sentenced to a concurrent term of imprisonme on the Suffolk County conviction of from 5 to 15 years. Defendant thereafter appealed both convictions.

Subsequently, the Appellate Division reversed the Nassau County Court conviction, holding that defendant's station house statements were unconstitutionally obtained in violation of his right to counsel and remanded the case for a new trial. (70 A.D.2d 886, 417 N.Y.S.2d 99.) Defendant's Suffolk County conviction was subsequently reversed as a matter of discretion in the interest of justice. (72 A.D.2d 751, 421 N.Y.S.2d 267.)

Upon remand of the Nassau County murder charge, the People served defendant with a written notice (CPL 710.30) of their intent to offer in evidence at trial defendant's November 17, 1976 Question and Answer (Q and A) statement and his sworn testimony at Thompson's Nassau and Suffolk County trials. Defendant moved to suppress and preclude those statements, raising several grounds: (1) that the statements in question were an integral part of the plea which was vacated by the Appellate Division and the failure to suppress them would constitute a violation of his right against self incrimination and the rule of People v. Spitaleri, 9 N.Y.2d 168, 212 N.Y.S.2d 53, 173 N.E.2d 35; (2) that the statements were impelled by the erroneous refusal of the County Court to suppress defendant's previously unlawfully obtained prearraignment confessions; (3) that the statements were the fruit of the poisonous tree; and (4) that the statements were involuntarily made in that they resulted from promises of reduction of charges and sentences.

The motion was denied on May 22, 1980 and, thereafter, defendant pleaded guilty a second time to manslaughter in the first degree and robbery in the first degree, and sentence of the same length as the original term was imposed.

On appeal, the Appellate Division reversed defendant's second Nassau County Court conviction, concluding that defendant's Q and A statement and his testimony in the Thompson trials were the impermissible fruit of the original station house statements. (85 A.D.2d 740, 445 N.Y.S.2d 806.) We disagree.

We commence our analysis by noting the circumstances which attended defendant's November 17, 1976 Q and A statement and plea bargain. The plea minutes disclose that the defendant had consulted with his attorney and that he gave the statement willingly; his attorney was present and participated in the transcription of the Q and A statement. Defendant further agreed to testify at the two trials of Thompson; there was a full colloquy between the court and defendant as to the factual elements of the service station robbery and murder and defendant's participation in it as well as to the consequences of his plea; defendant stated that his plea was not the result of force, threats, pressure or persuasion and that he had discussed all the facts and circumstances, possible defenses, and his legal and constitutional rights with his attorney, and that there had been no "conversations, commitments, promises, assurances or anything * * * said" other than what had been indicated on the record; the court concluded that the plea was voluntary and made by defendant of his own free will.

Defendant in the Appellate Division successfully argued that the Q and A statement and his testimony at the Thompson trials were impelled by the prospect of the imminent use of his prior unconstitutionally obtained station house confessions and were thus the fruit of a poisonous tree. In support of his argument, he cited the holding of the Supreme Court of the United States in Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047. In that case on the defendant's first trial, when the People introduced defendant's three pretrial confessions, he took the witness stand to explain and in part to refute those confessions. On appeal after conviction, defendant's pretrial confessions were held to have been unconstitutionally obtained and his conviction was reversed. At the second trial, the prosecutor read the defendant's prior testimony. On appeal from the affirmance of the defendant's second conviction, the Supreme Court reversed, holding that the defendant's testimony at his first trial was inadmissible on his second trial because it was the fruit of the illegally procured initial confessions.

By contrast, in this case, while the illegally obtained station house confessions preceded the Q and A statement and the Thompson trial testimony in point of time, the interposing of a voluntary guilty plea, based upon the defendant's assessment of the case, provided insulating attenuation to the illegally procured initial statement by severing the causal link between the predicate illegal activity and defendant's decision to incriminate himself. There can be little doubt that the plea bargain was voluntarily negotiated and concluded by defendant on advice of his counsel and by it he obtained the considerable independent advantage of a reduced plea and sentence in the event that his first conviction was not overturned for error in the denial of suppression of the station house confessions. However, the fact that his first conviction was thereafter reversed did not negate this independent, bargained-for advantage. In effect, defendant had hedged his position; he stood to gain either by a reversal of his conviction, or, if not, by conviction of a lesser crime.

Under these circumstances, we believe that the connection between defendant's original unconstitutionally procured station house confessions and the voluntary preplea incriminating statement made by him to the prosecutor, as well as the testimony given at the Thompson...