People v. Heller

• Decision Date: 14 February 1984
• Citation: 471 N.Y.S.2d 883,99 A.D.2d 787
• Parties: The PEOPLE, etc., Respondent, v. Kenneth HELLER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 883

471 N.Y.S.2d 883

99 A.D.2d 787

The PEOPLE, etc., Respondent, v. Kenneth HELLER, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 14, 1984.

Irving Anolik, New York City, for appellant.

Kenneth Gribetz, Dist. Atty., New York City (Barbara Branch, Piedmont, of counsel), for respondent.

Before LAZER, J.P., and THOMPSON, BRACKEN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Rockland County, rendered May 13, 1981, convicting him of burglary in the third degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of defendant's motion to suppress statements and physical evidence.

Judgment affirmed.

On this appeal, defendant argues that his confession should have been suppressed because it was the fruit of an illegal arrest and was taken in violation of his right to counsel, and that certain physical evidence taken from his automobile and the stolen property found at his direction should have been excluded from trial. His contentions are without merit.

Defendant was arrested on a valid warrant issued as a result of his violation of the terms of a conditional discharge imposed upon a previous conviction. The fact that the police were primarily interested in questioning defendant with regard to the burglary involved in the instant matter is insufficient to make the otherwise valid arrest invalid (see People v. Sano, 89 A.D.2d 666, 453 N.Y.S.2d 274; People v. Cypriano, 73 A.D.2d 902, 424 N.Y.S.2d 214).

Defendant claims that his right to counsel had attached in three ways prior to his confession: (1) by his specific request for counsel; (2) by his request to his wife to obtain counsel; and (3) by the fact that he was represented by counsel on the charge underlying the conditional discharge which he violated.

Although it is axiomatic that upon defendant's request for counsel, interrogation must cease until an attorney is present (see Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694; People v. Cunningham, 49 N.Y.2d 203, 205, 424 N.Y.S.2d 421, 400 N.E.2d 360; People v. Farmer, 71 A.D.2d 903, 419 N.Y.S.2d 615), the hearing court found that no such request was made, and there is no basis in the record for reversing this determination. Defendant's request to his wife was not a sufficient invocation of his right to counsel to require the police to cease questioning (see People v. Fuschino, 59 N.Y.2d 91, 100, 463 N.Y.S.2d 394, 450 N.E.2d 200).

Under People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371 and People v. Smith, 54 N.Y.2d 954, 445 N.Y.S.2d 145, 429 N.E.2d 823, a defendant's right to counsel attaches immediately when the police know or should know that the defendant was represented by counsel on a prior unrelated charge. This rule has never been held to apply, however, where the prior charge is no longer pending (cf. People v. Brownlee, 119 Misc.2d 996, 465 N.Y.S.2d 422), and, indeed, all of the cases discussing it refer to a prior unrelated pending charge (see, e.g., People v. Hawkins, 55 N.Y.2d 474, 450 N.Y.S.2d 159, 435 N.E.2d 376; People v. Ferrara, 54 N.Y.2d 498, 446 N.Y.S.2d 222, 430 N.E.2d 1275; People v. Kazmarick, 52 N.Y.2d 322, 332, 438 N.Y.S.2d 247, 420 N.E.2d 45). In the case at bar, the only connection between the prior charge, which had been disposed of more than two years earlier, and the instant matter, was the fact the predicate for def...