People v. Hawkins

• Decision Date: 07 April 1982
• Citation: People v. Hawkins, 55 N.Y.2d 474, 450 N.Y.S.2d 159, 435 N.E.2d 376 (N.Y. 1982)
• Parties: , 435 N.E.2d 376 The PEOPLE of the State of New York, Respondent, v. Freddie HAWKINS, Also Known as Fred Hawkins, Appellant. The PEOPLE of the State of New York, Respondent, v. Hector LAFFOSSE, Appellant. The PEOPLE of the State of New York, Respondent, v. Frederick JOHNSON, Appellant. The PEOPLE of the State of New York, Respondent, v. Ismael DIAZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 159

450 N.Y.S.2d 159

55 N.Y.2d 474, 435 N.E.2d 376

The PEOPLE of the State of New York, Respondent, v.Freddie HAWKINS, Also Known as Fred Hawkins, Appellant.

The PEOPLE of the State of New York, Respondent, v.Hector LAFFOSSE, Appellant.

The PEOPLE of the State of New York, Respondent, v.Frederick JOHNSON, Appellant.

The PEOPLE of the State of New York, Respondent, v.Ismael DIAZ, Appellant.

Court of Appeals of New York.

April 7, 1982.

Brent K. Olsson, Brooklyn and William E. Hellerstein, New York City, for appellant in the first above-entitled action.

Robert M. Morgenthau, Dist. Atty. (Robert M. Pitler, Asst. Dist. Atty., of counsel), for respondent in first and third above-entitled actions.

Joyce P. Adolfsen, Asst. Dist. Atty., of counsel, for respondent in the first above-entitled action.

Eric A. Seiff, New York City, for appellant in the second above-entitled action.

Mario Merola, Dist. Atty., for respondent in the second and third above-entitled actions.

Kevin Brady Hurley, New York City and Steven R. Kartagener, Asst. Dist. Atty., of counsel, for respondent in the second above-entitled action.

Shirley Werner and William E. Hellerstein, New York City, for appellant in the third above-entitled action.

David H. Steiner, Asst. Dist. Atty., of counsel, for respondent in the third above-entitled action.

G. Clark Cummings, New York City, for appellant in the fourth above-entitled action.

Robin Dolsky and David H. Fromm, New York City, of counsel, for respondent in the fourth above-entitled action.

OPINION OF THE COURT

GABRIELLI, Judge.

These four appeals present the common question whether a suspect has a right to counsel at an investigatory lineup.In each case, we are urged by the defendant to interpret our State Constitution as providing this right at lineups conducted before the commencement of formal adversarial proceedings against a defendant.

I

In People v. Laffosse, 79 A.D.2d 894, 435 N.Y.S.2d 617, the defendant was convicted of robbery in the second degree for his part in the robbery of an off-duty police officer by three males.Laffosse was apprehended after the officer had selected his picture from a photo array.Once at the station house, the defendant was advised of his Miranda rights and he then agreed to talk to a detective.During the questioning he requested an attorney, but he and the police were unsuccessful in locating the particular attorney he desired; Laffosse then refused the offer of the police to procure a Legal Aid attorney to represent him.Shortly thereafter, he was informed that he was to be placed in a lineup and, once again, Laffosse refused an offer by the police to obtain the services of a Legal Aid attorney, this time stating that he would not need a lawyer until he went to court.Laffosse subsequently was identified at the lineup by his victim.

In People v. Johnson, 77 A.D.2d 820, 429 N.Y.S.2d 979, the defendant was convicted of two counts of murder in the second degree arising from a shooting which occurred during an aborted robbery attempt.Johnson was arrested on the day following the incident, and once at the station house he received preinterrogation warnings, but made no request for counsel.Several hours passed before the police were able to secure the presence of the eyewitnesses to the shooting for the purpose of conducting a lineup.Just before the lineup was about to be held, defendant refused to stand in the lineup and, for the first time, requested the presence of an attorney.Johnson was informed that he had no choice, and the lineup at which he was identified proceeded without counsel.

In People v. Hawkins, 80 A.D.2d 753, 436 N.Y.S.2d 906, the defendant was convicted of rape in the first degree, sodomy in the first degree, robbery in the first degree and burglary in the third degree.Hawkins, a stranger to his victim, gained entrance to her apartment by requesting the use of a pen and paper in order to write a message to another tenant in the building.Once inside the apartment, Hawkins committed the several crimes for which he now stands convicted.Immediately after Hawkins left, his victim went to the police and was able to select defendant's picture from a photo array.Several months later Hawkins was arrested by an officer who had arrested him on a prior occasion for an unrelated drug offense.The arresting officer was aware that the drug charge was still pending against the defendant at the time of his arrest on the rape, sodomy, robbery and burglary charges.Once at the station house he consented to appear in a lineup, without asking for the assistance of counsel.As in the other cases, defendant was then identified by the victim.

In the final case, People v. Diaz, 79 A.D.2d 893, 436 N.Y.S.2d 790, the defendant was convicted of sodomy in the first degree, assault in the second degree and attempted sexual abuse in the first degree emanating from his separate attacks on two young boys.The defendant's identity was discovered when, following the second episode, the police discovered at the scene of the crime a bail bond receipt issued to Diaz following his arraignment on the previous day on charges unrelated to the attacks on the two boys.After the second boy selected his picture in a photo array, Diaz was arrested and placed in a lineup at the station house.Diaz was not represented by counsel at the lineup, and the police did not contact the Legal Aid attorney who represented him at the arraignment on the prior unrelated charges.Both complainants identified Diaz in the lineup as the man who had attacked them.

In each of these four casesthe defendant moved to suppress the corporeal identification on the ground that he had been deprived of his right to the assistance of counsel at his lineup.Each lineup in these four cases was conducted before an accusatory instrument had been filed and before an adversary criminal proceeding had commenced.Suppression was denied in each case, and the subsequent convictions were later affirmed at the Appellate Division.We also affirm.

II

Initially, we observe that defendants present no cognizable claim under the United States Constitution to a right to counsel at their lineups, since these lineups occurred prior to the initiation of formal prosecutorial proceedings (seeKirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411).The Supreme Court in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 held that a person accused of a crime by Federal or State officials is entitled under the Sixth and Fourteenth Amendments to have his attorney present at pretrial lineups.In Kirby v. Illinoissupra, however, the court limited that holding and refused to extend this principle to provide a right to counsel at lineups held prior to the initiation of formal prosecutorial proceedings.In reaching this conclusion, the court observed that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him (Kirby v. Illinois, supra, 406 U.S. at p. 688, 92 S.Ct. at 1881).The court went on to indicate that a formal charge, preliminary hearing, indictment, information or arraignment may mark the initiation of such adversary judicial proceedings (supra, at p. 689, 92 S.Ct. at 1882;Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424).¹

In addition, the plurality opinion in Kirby also noted that the Fifth Amendment protection against self incrimination is not implicated at a preindictment lineup, nor does the Fifth Amendment provide the protection of counsel at this stage.The privilege " ' "protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature" ' "(Kirby v. Illinois, supra, 406 U.S. at p. 687, 92 S.Ct. at 1881, citingUnited States v. Wade, 388 U.S. 218, 221, 87 S.Ct. 1926, 1929, 18 L.Ed.2d 1149, supra).The court explained its conclusion that the Fifth Amendment provides no right to counsel at this stage by noting that the doctrine of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 is inapplicable in the realm of corporeal identifications.²The court stated that "the Miranda decision was based exclusively upon the Fifth and Fourteenth Amendment privilege against compulsory self incrimination, upon the theory that custodial interrogation is inherently coercive"(Kirby v. Illinois, supra, 406 U.S. at p. 688, 92 S.Ct. at 1881).It is now firmly established that the Miranda rule evolved solely as a procedural safeguard to protect the accused's privilege against compulsory self incrimination (Michigan v. Tucker, 417 U.S. 433, 438-439, 94 S.Ct. 2357, 2360-61, 41 L.Ed.2d 182).Accordingly, although Miranda extended the protections of counsel to an event occurring before the attachment of the Sixth Amendment right to counsel, it did so only in the limited area of custodial interrogations and has no applicability to lineups.

It follows, therefore, that the defendants in the four cases here presented to us had no right to counsel at their lineups by virtue of the United States Constitution.Each lineup occurred before the initiation of formal judicial proceedings and, accordingly, defendants' Sixth and Fourteenth Amendment right to counsel had not yet attached.Nor did defendants have any right to counsel under the Fifth and Fourteenth Amendments, since the Miranda warnings and protections apply only to custodial interrogations.

Nevertheless, defendants press their contention that the lineup identifications must be suppressed, arguing that our State Constitution should be so interpreted as providing a right to counsel at investigatory lineups.

III

On several occasions in the custodial interrogation context this court has extended the protections of counsel afforded to a defendant under our State Constitution beyond those afforded by the United States...