People v. Fleischmann

• Decision Date: 17 June 1964
• Citation: 43 Misc.2d 200,250 N.Y.S.2d 660
• Court: New York Supreme Court
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Richard G. FLEISCHMANN, Defendant.

Page 660

250 N.Y.S.2d 660

43 Misc.2d 200

The PEOPLE of the State of New York, Plaintiff, v. Richard G. FLEISCHMANN, Defendant.

Supreme Court, Criminal Term, Queens County, Part V.

June 17, 1964.

Paul Vladimir, Kew Gardens, and Joshua L. Sussman, Jamaica, for defendant.

Frank D. O'Connor, Dist. Atty., Queens County, Max H. Galfunt, Asst. Dist. Atty., of counsel, for the People.

J. IRWIN SHAPIRO, Justice.

The indictment in this case charges the defendant with the crime of grand larceny in the first degree in that he stole an automobile with the intent to deprive the lawful custodian and owner thereof.

Upon appropriate waiver by the defendant of the right to trial by jury the cause was tried before me without a jury.

The contention of the District Attorney is that the automobile was stolen by the defendant in Queens County, and was thereafter transported by him to the State of Indiana where, on an alarm issued by the New York City police, the defendant was taken into custody.

It appears that on March 23, 1964, the owner of the automobile, as complainant, swore to a complaint charging the defendant with its theft, and that on the same day, a warrant for the arrest of the defendant was issued by a Criminal Court judge. Ten days later, in the State of Indiana, and thereafter in New York, the arresting officer interrogated the defendant with reference to the complainant's automobile and obtained the defendant's confessions to the stealing thereof.

The proffer of the testimony with respect to the alleged confessions made by the defendant was objected to upon the ground that they were obtained in violation of the defendant's constitutional rights in that he was not represented by counsel.

The People take the position that while it is true that the defendant's confessions were obtained from him after the filing of the complaint in the Criminal Court of the City of New York, and after the obtaining of a bench warrant, they were not post-arraignment confessions, and that therefore the defendant's constitutional rights were not violated in obtaining them from him at a time when he was not represented by counsel. This contention seems to me to rest upon the false premise that the only confessions barred are those in cases in which the defendant has already been arraigned on an information charging him with the commission of the crime or after the return of an indictment. I do not so read the cases. The ratio decidendi of People v. Di Biasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825, People v. Waterman, 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445, and People v. Meyer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103, in my opinion, is that a confession or admission made after the commencement of a judicial proceeding on a charge relating to the confession or admission is not admissible in evidence if such confession or admission was made in the absence of counsel. In Di Biasi and Waterman, the judicial proceeding which was commenced prior to the giving of the confession was the return of the indictment charging the crime which the defendant confessed to committing, and in Meyer, the judicial proceeding which was instituted so as to render the admission made, in the absence of counsel, inadmissible was the arraignment in the Megistrates' Court.

However, the clear rationale and effect of these cases, if not the rule explicitly laid down therein, appears to be that once the judicial process has been invoked (People v. Spano, 4 N.Y.2d 256, dissent 265, 266, 173 N.Y.S.2d 793, 800, 801, 150 N.E.2d 226, 231, 232) judicial concern for the defendant's rights makes his interrogation in the absence of counsel 'an impermissible step in the progress of the criminal cause' (People v. Waterman, supra, 9 N.Y.2d 565, 216 N.Y.S.2d 74, 175 N.E.2d 447; People v. Rodriguez, 11 N.Y.2d 279, 284-285, 229 N.Y.S.2d 353, 354-356, 183 N.E.2d 651, 652-653). The State of New York having formally instituted criminal proceedings against the defendant in a court having jurisdiction of the crime charged, even though the defendant had not...