People v. Hopkins

Decision Date30 March 1983
Parties, 449 N.E.2d 419 The PEOPLE of the State of New York, Respondent, v. John William HOPKINS, Appellant.
CourtNew York Court of Appeals Court of Appeals
OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division 86 A.D.2d 937, 448 N.Y.S.2d 574, should be affirmed.

The finding that the defendant's prearraignment oral and written confessions were voluntary, having support in the record, is beyond our review (People v. Anderson, 42 N.Y.2d 35, 38-39, 396 N.Y.S.2d 625, 364 N.E.2d 1318; People v. Leonti, 18 N.Y.2d 384, 389, 275 N.Y.S.2d 825, 222 N.E.2d 591; cert. den. 389 U.S. 1007, 88 S.Ct. 566, 19 L.Ed.2d 603). Moreover, absent extraordinary circumstances, a delay in arraignment is but a factor to consider on an issue of underlying involuntariness (People v. Holland, 48 N.Y.2d 861, 424 N.Y.S.2d 351, 400 N.E.2d 293; People v. Dairsaw, 46 N.Y.2d 739, 413 N.Y.S.2d 640, 386 N.E.2d 249). And such a delay does not cause the right to counsel to attach automatically. In any event, in the present case, the unexpected revelations concerning the two unsolved murders were more than sufficient justification for postponing the originally scheduled arraignment to a later time (contra People v. Lockwood, 44 N.Y.2d 769, 406 N.Y.S.2d 37, 377 N.E.2d 481, revg. on dissent of Justice Capozzoli at 55 A.D.2d 17, 20-25, 389 N.Y.S.2d 583).

Nor on the record and the findings here can we say as a matter of law that the confessions were suppressible by reason of a per se deprivation of defendant's right to counsel as delineated under the line of cases which fixes its entitlement as of the commencement of formal adversary proceedings, here the arraignment (People v. Wilson, 56 N.Y.2d 692, 451 N.Y.S.2d 719, 436 N.E.2d 1321).

Not applicable either is the Donovan-Arthur rule (People v. Donovan, 13 N.Y.2d 148, 243 N.Y.S.2d 841, 193 N.E.2d 628; People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537), which precludes questioning in counsel's absence once counsel in fact has entered the picture (see People v. Angus, 56 N.Y.2d 549, 449 N.Y.S.2d 966, 434 N.E.2d 1344, affg. 81 A.D.2d 971, 439 N.Y.S.2d 747). In this regard, the record is undisputed that, whatever may have been the inchoate intention with respect to the entry of counsel at the originally scheduled time of arraignment, it did not go forward at that time. Rather, as found below, such assignment did not come into being until the arraignment actually took place and then only in the form of an attorney different from the one the City Court originally had in mind. Relatedly, also there was a finding that the defendant--29 years of age, intelligent as judged by manner and appearance, as well as a former student of criminology--personally declined prearraignment offers of counsel (People v. Angus, supra; contrast People v. Cunningham, 49 N.Y.2d 203, 424 N.Y.S.2d 421, 400 N.E.2d 360).

With respect to the additional confession made to a deputy sheriff assigned to guard the defendant at the county jail after he was remanded and counsel indeed had been assigned, it is to be remembered that not all remarks uttered by law enforcement personnel constitute impermissible interrogation (People v. Lynes, 49 N.Y.2d 286, 294, 425 N.Y.S.2d 295, 401 N.E.2d 405; People v. Garofolo, 46 N.Y.2d 592, 603, 415 N.Y.S.2d 810, 389 N.E.2d 123). In this perspective, suffice it to say that the finding of spontaneity finds support in the record (People v. Rivers, 56 N.Y.2d 476, 453 N.Y.S.2d 156, 438 N.E.2d 862; People v. Roucchio, 52 N.Y.2d 759, 760, 436 N.Y.S.2d 612, 417 N.E.2d 1000; contrast People v. Lanahan, 55 N.Y.2d 711, 447 N.Y.S.2d 139, 431 N.E.2d 624).

Defendant's further contention that his privilege against self incrimination was infringed when, at the trial, the court permitted cross-examination about a collater matter...

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