People v. Evans

• Citation: 445 N.Y.S.2d 806,85 A.D.2d 740
• Parties: The PEOPLE, etc., Respondent, v. Donald EVANS, Appellant.
• Decision Date: 31 December 1981
• Court: New York Supreme Court — Appellate Division

Page 806

445 N.Y.S.2d 806

85 A.D.2d 740

The PEOPLE, etc., Respondent, v. Donald EVANS, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 31, 1981.

Matthew Muraskin, Mineola (Michael J. Obus, Mineola, of counsel), for appellant.

Denis Dillon, Dist. Atty., Mineola (Martin I. Saperstein and William C. Donnino, Asst. Dist. Attys., Mineola, of counsel), for respondent.

Before LAZER, J. P., and RABIN, COHALAN and BRACKEN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Nassau County, rendered July 25, 1980, convicting him of manslaughter in the first degree and robbery in the first degree, upon his guilty plea, and imposing sentence. The appeal brings up for review the denial of defendant's motion to suppress certain incriminatory statements made by him prior to the taking of his guilty plea.

Judgment reversed, on the law, the plea of guilty is vacated, the motion to suppress is granted, and the matter is remitted to the County Court, Nassau County, for further proceedings.

On February 18, 1976 the defendant and his friend, Edwin Fuller, decided to rob a Tru-Value gasoline station in Farmingdale. Proceeding to the station, they robbed its 16-year-old attendant at gunpoint. Fuller then directed the boy to kneel in front of him with his head down and shot him, causing his death. When the 17-year-old defendant subsequently was apprehended, he was separated from his mother by the police and kept from her counsel through police artifice.

While in custody, defendant confessed his part in the commission of the crime in Nassau County, told the police what had transpired, and also admitted his participation in another robbery in Suffolk County. He was then charged with murder in the second degree and several other crimes arising out of the gasoline station robbery. After his motion to suppress his statements to the police was denied, defendant made a bargain with the District Attorney to provide a question and answer (Q & A) statement and to give testimony to support the People's case against another defendant in the case, Gary Thompson, in return for the acceptance of a plea of guilty to manslaughter and robbery in the first degree plus a promise of a light sentence. The bargain also permitted defendant to plead to lesser charges in Suffolk County. Fuller was tried and convicted of murder in the second degree and is presently serving his sentence. When defendant provided the Q & A statement, his guilty plea was accepted but sentencing was postponed until after he had testified at the trials of Gary Thompson both in Nassau and Suffolk County. In that testimony, defendant clearly incriminated himself.

After his conviction in Nassau County, defendant appealed to this court, contending that the statements the police had elicited from him after his arrest should have been suppressed. The conviction was reversed, the plea of guilty was vacated, the motion to suppress was granted, and the matter was remitted to the County Court, Nassau County (People v. Evans, 70 A.D.2d 886, 417 N.Y.S.2d 99). The reversal was based on the theory that the police conduct which resulted in defendant's confession deprived him of his right to counsel. Defendant's appeal from the Suffolk County judgment of conviction also was reversed, the guilty plea there was vacated in the interest of justice, and the matter was remitted to the Supreme Court, Suffolk County on the basis of what had been done in the Nassau County matter (see People v. Evans, 72 A.D.2d 751, 421 N.Y.S.2d 267).

When prosecution of the Nassau County charges was resumed after the reversal, the District Attorney served notice upon the defendant of his intention to use the Q & A statement and his testimony at the Thompson trials. The defendant moved, in turn, to suppress these statements, but upon denial of his motion, he entered into a new plea bargain and again pleaded guilty. The current appeal is from the second judgment of conviction.

The defendant contends that the statements he made in...