People v. Garofolo

• Decision Date: 03 April 1979
• Citation: 46 N.Y.2d 592,415 N.Y.S.2d 810,389 N.E.2d 123
• Parties: , 389 N.E.2d 123, 18 A.L.R.4th 658 The PEOPLE of the State of New York, Respondent, v. Steven Joseph GAROFOLO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 810

415 N.Y.S.2d 810

46 N.Y.2d 592, 389 N.E.2d 123, 18

A.L.R.4th 658

The PEOPLE of the State of New York, Respondent, v. Steven Joseph GAROFOLO, Appellant.

Court of Appeals of New York.

April 3, 1979.

William M. Simon, Forest Hills, for appellant

Patrick Henry, Dist. Atty. (Harry Organek, Ronkonkoma, of counsel), for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

This appeal calls upon us to explore two recurring issues involving the safeguards assuring that the constitutional right to counsel is not thwarted. The first is whether the defendant's constitutional right to counsel was impermissibly impeded by the inadequacy of police procedures that delayed communication between the defendant and a lawyer retained on his behalf. The second is whether so-called casual police inquiries that, without seeming to intend to do so, nevertheless elicited unwarned and uncounseled incriminatory answers were violative of the defendant's rights.

The case may be said to have begun on October 26, 1975, when the partially clad body of a 19-year-old woman was found in a wooded area abutting a Suffolk County tavern. Before the day was out, the defendant, Steven Joseph Garofolo, had twice confessed to her murder, for which he has since been convicted after trial by jury. ¹ Pretrial motions seeking a broad spectrum of relief, including the suppression of both the initial and later confessions as well as certain physical evidence the location of which was thereby disclosed, were all denied. The Appellate Division, unanimously and without opinion, upheld the judgment. For reasons that in the main focus on the various confessions, we are forced to conclude that a new trial is required.

We start with the chronology of events leading to defendant's arrest. In doing so, we accept the suppression court's findings, which, being supported by the record and affirmed by the Appellate Division, are now beyond our review (People v. Gruttola, 43 N.Y.2d 116, 122-123, 400 N.Y.S.2d 788, 790-792, 371 N.E.2d 506, 509-510).

The defendant first came to the attention of the police when he telephoned the decedent's parents to report that on the night of the crime he had seen the murdered woman exiting a tavern in the company of three young men. He left his name and number and when Suffolk County police, who followed up on this information, located him at a pizzeria at which he was employed, the defendant readily agreed to accompany them to Suffolk County's fourth homicide squad to assist in identifying the individuals he claimed to have seen with the victim. The defendant reached the squad's offices at about 8:20 p. m.

Very soon after his arrival, Detective Rodriguez, who was in command of the investigation, noted inconsistencies in the story Garofolo had begun to tell. His suspicions aroused, the interrogating officer, on the hypothesis that Garofolo might well turn out to be the perpetrator of the crime, gave him the warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694. At this juncture, Garofolo, after protesting that he had nothing to hide and would speak to the police without a lawyer, broke into tears and began to pour out a story of how he had choked and bludgeoned the deceased with a nightstick to still her when "she screamed I was trying to rape her". All this had happened so precipitously that it was then only about 8:30 p. m. Further querying followed this revelation so that the oral questioning was completed at approximately 8:55 p. m. The police then undertook to reduce Garofolo's confession to writing, a task they had accomplished by 9:40 p. m., at which time the defendant and the police officers initialed and signed a three-page statement.

In the course of making both the oral statement and the written one that ensued, Garofolo disclosed that he had disposed of the nightstick, a pizza shirt he had worn during the commission of the crime and an earring belonging to the decedent in certain garbage receptacles. He also told the police that he had discarded his undershirt along a highway. Armed with this information, several policemen, promptly dispatched to search for these articles even while the interrogation was yet in progress, apparently had no difficulty in locating them.

Meanwhile, during much of the time that the fourth squad was holding Garofolo, Eric Naiburg, a lawyer previously retained to represent Garofolo on an unrelated pending charge, was busy trying to find his client. He had undertaken that quest at the instance of Garofolo's father, who could tell the lawyer only that his son had been taken away by two police officers but not why he was taken or where he was being held. The time when the father spoke to the lawyer was never fixed with any precision. Naiburg would later estimate that the senior Garofolo's call may have arrived as late as 8:30 p. m. Whenever it was, it is undisputed that Naiburg did not check with Suffolk County's central police headquarters until 9:10 p. m.

Not that Naiburg did not act with speed. His first efforts to locate his client were in other directions. He initially tried the Suffolk sixth precinct, where Garofolo had once been taken in connection with the earlier charge. Upon learning his client was not there, on the chance that the arrest might have occurred in adjoining Nassau County, he next contacted the Suffolk fugitive squad but met with equal lack of success. Only then did he call the Suffolk headquarters, where, asking for someone in authority, he was connected with Detective Violet Joyce.

Joyce was co-operative, but no central pool of information of persons in the custody of the police department was available to her nor, so far as this record shows, was there one in existence at all. She agreed to make a round of inquiries of all seven Suffolk "general service" squads. Carrying out that commitment, she made her initial inquiry of the fourth squad, which covered the area of defendant's residence and was located across the courtyard from the headquarters itself, ² and then followed up with the other six. Each advised her that it had no prisoner named Garofolo. By the time she got back to Naiburg to report the results, it was at least 9:30 p. m. In the course of her report to him, she observed that she had had some trouble reaching the fourth squad because its personnel was engaged in a homicide investigation, but when she did get through she was told no one was under arrest. Of course, as was later to be learned, the defendant, who was then not only in custody but already under arrest for a confessed murder, was in fact being held incommunicado merely a stone's throw from where Joyce was conversing with his lawyer. Be that as it may, it was not until 11:00 p. m. that Naiburg was finally informed of Garofolo's whereabouts.

In relating these facts to the applicable law, we emphasize that the fundamental rule in this State is that, once the police have been apprised that a lawyer has undertaken to represent a defendant in custody in connection with criminal charges under investigation, the person so held may not validly waive the assistance of counsel except in the presence of the lawyer (People v. Hobson, 39 N.Y.2d 479, 481, 384 N.Y.S.2d 419, 420, 348 N.E.2d 894, 896; People v. Arthur, 22 N.Y.2d 325, 329, 292 N.Y.S.2d 663, 666, 239 N.E.2d 537, 539). This proposition is purposed to do more than merely help to assure that the right to counsel is the "effective" one guaranteed by our Constitutions (U.S.Const. 6th Amdt; N.Y. Const., art. I, § 6). Sensitive that other constitutional rights, such as the privilege against self incrimination and the one guaranteeing due process, are far from self-executing, it looks to their viability as well (People v. Donovan, 13 N.Y.2d 148, 151, 243 N.Y.S.2d 841, 842, 193 N.E.2d 628, 629). It therefore applies whenever a defendant, whether denominated by the police as an "accused", a "suspect", or a "witness", is deemed to be in custody (People v. Sanchez, 15 N.Y.2d 387, 389, 259 N.Y.S.2d 409, 410, 207 N.E.2d 356).

These protections in mind, we turn to consider when, if at all, the entry of counsel was sufficient to invoke them in the present case. In that connection, our recent decision in People v. Pinzon, 44 N.Y.2d 458, 406 N.Y.S.2d 268, 377 N.E.2d 721, forecloses any argument but that Naiburg's 9:10 p. m. call to Detective Joyce at police headquarters must be so construed and that any uncounseled statement taken thereafter must be deemed inadmissible. In this conversation, Naiburg advised Joyce that he represented Garofolo on the previous charge and that, though he was not aware of the nature of his present brush with the law, he assumed it was unrelated. This sufficiently identified his professional interest in the new charge. Nor was it necessary for him to state explicitly that his client was no longer to be questioned in his absence (People v. Arthur, 22 N.Y.2d 325, 329, 292 N.Y.S.2d 663, 666, 239 N.E.2d 537, 539, Supra ), for it is almost universally recognized that, at this stage at least, "any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances" (Watts v. Indiana, 338 U.S. 49, 59, 69 S.Ct. 1347, 1358, 93 L.Ed. 1801 (Jackson, J.)). Finally, since a defendant's rights are not to be impaired by "lack of communication within the law enforcement agencies", the notice Naiburg thus imparted was nonetheless chargeable to the police despite the fact that Joyce was neither a participant in the ongoing interrogation nor possessed of any personal knowledge that it was taking place (People v. Pinzon, 44 N.Y.2d 458, 463-465, 406 N.Y.S.2d 268, 271, 377 N.E.2d 721, 725, Supra ).

In Pinzon, counsel, whose services there too had been enlisted by the defendant's family, had thrice called police headquarters of this very same county and on each occasion a civilian employee, without making any further attempt to verify the fact,...