People v. Johnson

• Decision Date: 27 March 2003
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>GEORGE JOHNSON, Appellant.
• Court: New York Supreme Court — Appellate Division

303 A.D.2d 903

757 N.Y.S.2d 349

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.GEORGE JOHNSON, Appellant.

Rose, J.

Decided March 27, 2003.

Crew III, J.P., Peters, Lahtinen and Kane, JJ., concur.

Rose, J.

Ten months after a fire and the deaths of two elderly women at the house they shared in the City of Schenectady, Schenectady County, in December 1998, the investigation of those events led city police investigators, John Sims and Robert McHugh, to Mississippi in search of defendant. While there, and before the filing of any accusatory instrument in New York, Sims and McHugh received a lead that resulted in defendant's apprehension across the state line in Eutaw, Alabama. While the officers were in Alabama, but without their knowledge, a Mississippi police investigator, Joe Boswell, obtained a fugitive-from-justice warrant from a Mississippi judge based on Boswell's mistaken belief that charges had been filed against defendant in New York. Although no Alabama police officer was present when Sims and McHugh initially detained defendant and placed him in a Mississippi police car,^[1] an Alabama county sheriff, Johnny Isaac, joined them within 35 minutes and prior to any interrogation. After Isaac confirmed defendant's willingness to leave in the custody of Sims and McHugh rather than remain in Alabama in Isaac's custody, they returned to a police station in Mississippi. There, following a written waiver of his Miranda rights and in response to questioning by Sims and McHugh, defendant made oral and written statements describing his participation in the robberies and homicides of the two Schenectady women. Copies of these statements, together with a previously drafted felony complaint, were then presented to a Schenectady City Court Judge to obtain a warrant for his arrest. After returning to New York, defendant was charged by indictment with multiple counts of murder, burglary, robbery and arson.

Following a four-week jury trial, defendant was convicted of 10 of the 11 charges against him, and County Court later sentenced him to the maximum prison term on each charge, with those relating to separate crimes against each victim running consecutively.^[2] After sentencing, defendant moved pursuant to CPL 440.10 to vacate his conviction on the ground that Aaron Umber, who pleaded guilty to charges arising from his own role in these crimes, had recanted his trial testimony implicating both himself and defendant. Finding Umber's recantation to be unbelievable, County Court denied defendant's motion. Defendant now appeals from the judgment of conviction and, by permission, from the denial of his CPL 440.10 motion.

We turn first to defendant's contention that County Court erred in refusing to suppress his oral and written confessions because they were obtained in violation of the right to counsel that allegedly attached upon issuance of the Mississippi fugitive-from-justice warrant, because there was no probable cause for his arrest, and because his arrest became illegal when Sims, McHugh and Isaac failed to comply with Alabama law. Under New York law, which we apply because "procedural and evidentiary issues are governed by the law of the forum" (People v Benson, 88 AD2d 229, 231 [1982]; see People v Ostas, 179 AD2d 893, 894 [1992], lv denied 80 NY2d 932 [1992]), the right to counsel attaches indelibly and, therefore, may not be waived in counsel's absence, in two situations. "First, it arises when formal judicial proceedings begin, whether or not the defendant has actually retained or requested a lawyer. Second, the right to counsel attaches when an uncharged individual `has actually retained a lawyer in the matter at issue or, while in custody, has requested a lawyer in that matter'" (People v Ramos, 99 NY2d 27, 32-33 [2002] [citations omitted], quoting People v West, 81 NY2d 370, 373-374 [1993]; see People v Gloskey, 105 AD2d 871, 872 [1984]). Although the right to counsel also has been found to attach where there is significant judicial activity (see People v Sugden, 35 NY2d 453, 461 [1974]), a defendant may nonetheless waive that right without the presence of counsel (see People v Coleman, 43 NY2d 222, 226 [1977]).

In this case, defendant's right to counsel did not attach prior to questioning by Sims and McHugh because no accusatory instrument had yet been filed in New York and the warrant issued in Mississippi based on a Mississippi officer's mistaken belief did not constitute an accusatory instrument because it charged no crime (see CPL 1.20 [1]; People v Gloskey, supra at 872). Nor did the mere issuance of the Mississippi fugitive-from-justice warrant constitute significant judicial activity. However, even if the issuance of the Mississippi warrant were considered to be sufficient judicial activity to trigger the right to counsel, defendant's later waiver of that right would still be effective (see People v Coleman, supra at 226).

Also unavailing is defendant's alternate contention that his statements should have been suppressed because his warrantless arrest was made without probable cause. Prior to defendant's arrest, Sims and McHugh were aware that Elise Ottendorf, a friend of defendant, had averred that defendant admitted stealing jewelry from the victims' residence and participating in their homicides. Connie Maier, who formerly lived with defendant, similarly averred that defendant had admitted participation in the homicides. Other evidence, including Umber's statement naming defendant as a participant in the crimes, also implicated him. These sworn statements were more than sufficient to support this warrantless arrest (see People v Bailey, 295 AD2d 758, 759 [2002], lv denied 99 NY2d 533 [2002]; People v Bourdon, 258 AD2d 810, 811 [1999], lv denied 93 NY2d 897 [1999]).

Nor do we find merit in defendant's argument that his arrest in Alabama violated Alabama law. Generally, police officers from New York have no power to make arrests outside their geographic jurisdiction (cf. People v La Fontaine, 235 AD2d 93, 95 [1997], revd on other grounds 92 NY2d 470 [1998]). There is an exception, however, where the officers are actively assisted by officers of the state where the arrest is made (see People v Perea, 182 AD2d 718, 719 [1992], lv denied 80 NY2d 836 [1992]; People v Wallace, 155 AD2d 708, 709 [1989], lv denied 75 NY2d 819 [1990]). Even if not so assisted, the officer's out-of-state actions may be allowable as a "citizen's arrest" pursuant to the law of the state where the arrest is made (see People v La Fontaine, supra at 96-99).

Since Sims and McHugh apprehended defendant outside their geographic jurisdiction in the absence of an Alabama police officer, the arrest here can only be justified when viewed as a citizen's arrest. Such a warrantless arrest by a private person is expressly authorized under Alabama law (see Ala Rules of Crim Pro, rule 4.1 [b] [1] [i]). Once arrested, however, defendant had a statutory right to be delivered to a judge, magistrate or law enforcement officer without unnecessary delay (see Ala Rules of Crim Pro, rule 4.1 [b] [2]; Ala Code § 15-10-7 [e]). Isaac's presence at the scene within 35 minutes after defendant's arrest clearly satisfied this requirement. If defendant had been taken into Isaac's custody, then Isaac would have been obligated to give him an appearance ticket, allow him to make bail or take him before a judge or magistrate within 48 hours (see Ala Rules of Crim Pro, rule 4.3 [a] [1]). Isaac's testimony at the suppression hearing established that he asked defendant whether defendant wished to be detained by Isaac and questioned in Alabama, or to return to Mississippi in the custody of Sims and McHugh. At trial, defendant testified that he responded to Isaac's question by saying that he was willing to go back to Mississippi with Sims and McHugh. Thus, the record clearly demonstrates that it was by defendant's choice that he was not transferred into Isaac's custody and that, as a result, Isaac was not required to allow him bail or take him to a judge. Accordingly, we find that this citizen's arrest did not violate Alabama law. In any event, even if defendant's arrest were deemed to be illegal, the record does not support a finding that Sims, McHugh or Isaac knowingly or intentionally deprived defendant of a statutory right. Without more, such a violation of statutory requirements does not mandate suppression (see People v Sampson, 73 NY2d 908, 909-910 [1989]).

Next, we turn to defendant's contention that County Court improperly instructed the jury regarding the voluntariness of his oral and written statements by omitting the so-called "truthfulness" portion of the charge suggested in the New York Criminal Jury Instructions (hereinafter CJI) (see 1 CJI[NY] 11.01, at 656). Since it was a key defense strategy to present evidence contradicting certain factual assertions in his confession, defendant maintains that County Court's instruction effectively permitted the jury to consider his statements as evidence against him regardless of their truth or falsity. Specifically, defendant's incriminating oral and written statements included a description of how he and the other perpetrators gained access to the victims' house by using a ladder placed between the second-floor windows of the victims' house and a neighboring building. Defendant contends that the credible evidence at trial shows that such an entry was...