People v. Kazmarick

• Decision Date: 26 February 1981
• Citation: 438 N.Y.S.2d 247,52 N.Y.2d 322,420 N.E.2d 45
• Parties: , 420 N.E.2d 45 The PEOPLE of the State of New York, Respondent, v. Michael John KAZMARICK, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 247

438 N.Y.S.2d 247

52 N.Y.2d 322, 420 N.E.2d 45

The PEOPLE of the State of New York, Respondent, v. Michael John KAZMARICK, Appellant.

Court of Appeals of New York.

Feb. 26, 1981.

K. C. Garn, Monticello, for appellant

Joseph Jaffe, Dist. Atty. (Philip E. Conaty, Asst. Dist. Atty., of counsel), for respondent.

OPINION OF THE COURT

MEYER, Judge.

A pending unrelated criminal case upon which an arrest warrant has issued does not bar the police from questioning a suspect when the suspect does not in fact have counsel on the unrelated charge. Although the right to counsel on the unrelated charge indelibly attaches upon the issuance of an accusatory instrument or warrant on that charge and in relation to that charge proscribes waiver of counsel in the absence of counsel, the unrelated charge is pertinent to the suspect's right to counsel on a new charge only if the suspect is in fact represented by counsel on the unrelated charge. It appearing from this record that defendant Kazmarick was not represented on the unrelated charge, his right to counsel was not violated by subjecting him to a lie detector test to which he consented, or by questioning him.

The order of the Appellate Division, 75 A.D.2d 1026, 427 N.Y.S.2d 1021, affirming defendant's conviction, 99 Misc.2d 1012, 417 N.Y.S.2d 671, on his plea of guilty should, therefore, be affirmed.

Defendant, an alcoholic, was a suspect in the arson deaths of five persons in the Village of Monticello in Sullivan County. On the day of the fire he consented to take a polygraph test, but the test was aborted because his state of intoxication at the time rendered any result unreliable. Two days later defendant was arrested on charges of disorderly conduct, assault on a police officer, escape, and criminal mischief. Counsel was appointed for him on those charges, which were satisfied by defendant's plea at arraignment in the Village Court to the disorderly conduct charge. Defendant was sentenced to a 15-day term in the county jail.

Two days after his incarceration for disorderly conduct, defendant was scheduled to appear in the Justice Court of the Town of Thompson, a neighboring jurisdiction, on a pending five-month-old shoplifting charge for which he had been given a desk appearance ticket. When he failed to appear on that charge the Town of Thompson Justice issued an arrest warrant for defendant which was filed with the Sullivan County Sheriff.

Upon the expiration of his disorderly conduct sentence, defendant, now sober, was met at the jail by the detectives investigating the arson and taken once again for a polygraph test. No attempt was made to execute the shoplifting warrant. After the second test defendant was told that his answers were untruthful. He then admitted that he had unintentionally set a fire in the stairwell which he tried but failed to stamp out and that he then "got scared" and ran home.

Defendant was indicted for five counts of murder in the second degree on the theory that he had demonstrated a depraved indifference to human life. His pretrial motion to suppress his confession having been denied after a hearing, defendant pleaded guilty to five charges of criminally negligent homicide. The Appellate Division affirmed the conviction, without opinion.

On this appeal defendant argues that his confession was obtained in violation of his right to counsel, that the evidence before the Grand Jury was insufficient to sustain the indictment because his confession was not corroborated, that it was not voluntary, and that his arrest and incarceration on the disorderly conduct charge was but a pretext to sober him up for the polygraph test and, therefore, improper conduct on the part of the People. The sufficiency of the evidence presented to the Grand Jury cannot now be raised because as we held in People v. Clairborne, 29 N.Y.2d 950, 951, 329 N.Y.S.2d 580, 280 N.E.2d 366, "A bargained guilty plea to a lesser crime makes unnecessary a factual basis for the particular crime confessed." The Trial Judge found the confession to have been voluntary and that incarceration on the disorderly conduct charge was not a pretext. Those findings having been affirmed by the Appellate Division are now beyond our consideration. We therefore discuss only defendant's right to counsel.

With respect to the right to counsel, defendant relying principally on People v. Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400 N.E.2d 1344, and People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709, claims that the pendency of the shoplifting complaint in combination with the issuance of the arrest warrant caused his right to counsel to attach "indelibly" on the unrelated arson case (see People v. Settles, 46 N.Y.2d 154, 165, 412 N.Y.S.2d 874, 385 N.E.2d 612). Therefore, argues defendant, he could not waive counsel in counsel's absence and his confession must be suppressed. We disagree.

Both Samuels and Rogers deal with when the right to counsel indelibly attaches and, therefore, may not be waived in counsel's absence. The line of cases of which Samuels is a recent manifestation holds that upon the commencement of formal adversary proceedings the right arises, without regard to whether defendant in fact has or has requested counsel (People v. Cunningham, 49 N.Y.2d 203, 208, 424 N.Y.S.2d 421, 400 N.E.2d 360). Proceedings are commenced, we have held, upon the filing of a felony complaint (People v. Samuels, supra ), upon indictment (People v. Settles, supra ), as well as upon arraignment (People v. Meyer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103). As expressed in Settles, supra, 46 N.Y.2d at p. 163, 227 N.Y.S.2d 427, 182 N.E.2d 103), the justification for this principle is that when "the character of the police function shifts from investigatory to accusatory" the assistance of counsel becomes "indispensable".

The right to counsel may, however, "indelibly attach" apart from the commencement of formal adversary proceedings. As we recognized in Cunningham, 49 N.Y.2d, at p. 208, 424 N.Y.S.2d 421, 400 N.E.2d 360, there is a second distinct line of cases beginning with People v. Donovan, 13 N.Y.2d 148, 243 N.Y.S.2d 841, 193 N.E.2d 628, and running through People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537, and People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894, which articulates the rule that a suspect who has retained or been assigned counsel may not be questioned about the specific charge on which he is being held in the absence of counsel. That rule was extended in People v. Rogers (supra), to bar questioning of a suspect who is in custody and represented by an attorney, about matters unrelated to the charge on which he is being held, in People v. Cummingham (supra), to a suspect in custody not yet represented by counsel but who has requested counsel, and in People v. Skinner, 52 N.Y.2d 24, 436 N.Y.S.2d 207, 417 N.E.2d 501, to one not in custody but who was questioned about a matter under investigation in relation to which he was known by the officials to have obtained counsel. The predicates for this branch of the counsel rule are fundamental fairness, the belief that an attorney's presence is the most effective means of minimizing the disadvantage of the accused person in custody, and the recognition that an unrepresented defendant in custody who has requested an attorney has indicated his own belief that without legal advice he is not competent to deal with those in whose custody he is being held (People v. Cunningham, supra, 49 N.Y.2d at pp. 207-209, 424 N.Y.S.2d 421, 400 N.E.2d 360). That ruling, we said in Hobson and reiterated in Cunningham (49 N.Y.2d at p. 208, 424 N.Y.S.2d 421, 400 N.E.2d 360), "breathes life into the requirement that a waiver of a constitutional right must be competent, intelligent and voluntary."

Defendant in an overly simplistic lumping of the two lines of cases argues from Samuels that the arrest warrant and accusatory instrument ¹ on the shoplifting charge ² created a nonwaivable right to counsel and from Rogers that attachment of that right prevented interrogation on any other criminal matter. While the filing of an accusatory instrument triggers a right to counsel with respect to the charge made by the accusatory instrument, the right to counsel and representation by counsel are not the same thing. The fact that defendant Kazmarick may have been entitled to counsel on the shoplifting charge does not require, automatically and in all events, acting as though he was in fact represented by counsel and, therefore, protected even as to an unrelated charge. Simply put, the legal fiction of representation indulged by the Samuels line of cases is not tantamount to the actual or requested representation protected by the Rogers-Cunningham line. To accept the "strict liability" rule for which defendant argues would tax law enforcement officials anywhere with knowledge of accusatory instruments on unrelated charges everywhere, and unnecessarily and unrealistically limit police interrogation procedures (see People v. Servidio, 77 A.D.2d 191, 433 N.Y.S.2d 169; cf. People v. Miller, 76 A.D.2d 576, 430 N.Y.S.2d 865).

This is not to say that law enforcement officials may never be chargeable with knowledge that defendant is in fact represented by counsel, or has requested counsel on an unrelated charge, in such a way as to cut off their rights to interrogate except in the presence of, or after waiver made in the presence of, counsel. Though the emphasis in the Rogers line of cases has been upon actual awareness by the police that defendant has counsel (People v. Marrero, 51 N.Y.2d 56, 59, 431 N.Y.S.2d 508, 409 N.E.2d 980; People v. Garofolo, 46 N.Y.2d 592, 599, 415 N.Y.S.2d 810, 389 N.E.2d 123; People v. Blake, 35 N.Y.2d 331, 338, 361 N.Y.S.2d 881, 320 N.E.2d 625; People v. Arthur, supra, 22 N.Y.2d at p. 329, 292 N.Y.S.2d 663, 239 N.E.2d 537), we noted in People v. Cunningham, supra, 49 N.Y.2d at p. 209, 424...