People v. Lopez

• Decision Date: 18 February 1971
• Citation: 319 N.Y.S.2d 825,268 N.E.2d 628,28 N.Y.2d 23
• Parties: , 268 N.E.2d 628 The PEOPLE of the State of New York, Respondent, v. Gustavo LOPEZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 825

319 N.Y.S.2d 825

28 N.Y.2d 23, 268 N.E.2d 628

The PEOPLE of the State of New York, Respondent, v. Gustavo LOPEZ, Appellant.

Court of Appeals of New York.

Feb. 18, 1971.

Joseph D. S. Hinkley and Milton Adler, New York City, for appellant.

Frank S. Hogan, Dist. Atty. (Bennett L. Gershman and Michael R. Juviler, New York City, of counsel), for respondent.

BERGAN, Judge.

After defendant's indictment in New York County for murder he was arrested by Federal officers on a warrant and made a statement to them concerning the crime. Before the statement was made he was advised of his right to counsel and his right to remain silent and that any statements made could be used against him. He expressly waived those rights in a written document which he signed.

The trial court has found, after a hearing on this question, that 'the People have proven beyond a reasonable doubt that the defendant intelligently understood the warnings and knowingly expressed his waiver of his Constitutional rights'. The evidence in the record supports such a finding.

Defendant does not dispute either the waiver or the sufficiency of the evidence to find that it was intelligently and understandingly made. His argument is, rather, that because he had been indicted when arrested 'his waiver was not valid'; and, therefore, his admission to the Federal officer was inadmissible.

It has been held that a statement taken after indictment and before arraignment in the absence of counsel is inadmissible. (People v. Waterman, 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445.) Decisions broadly consistent with this are Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, 14 L.Ed.2d 682, which applied Massiah to State prosecutions; People v. Gunner, 15 N.Y.2d 226, 257 N.Y.S.2d 924, 205 N.E.2d 852; People v. Meyer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103; People v. Di Biasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825; Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265.

But these cases upholding the rule that after indictment a defendant may not be questioned without counsel do not decide the question whether the right may be knowingly and intelligently waived. Nor does People v. Miles, 23 N.Y.2d 527, 297 N.Y.S.2d 913, 245 N.E.2d 688, decide the question, for there defendant had been indicted, arraigned, and had counsel, and the holding was that waiver not in the presence of such counsel would not be recognized.

The principle laid down in People v. Bodie, 16 N.Y.2d 275, 266 N.Y.S.2d 104, 213 N.E.2d 441, seems controlling here. There the criminal prosecution had been instituted by the filing of an information and the issuance of a warrant. The court's opinion noted that 'no valid distinction may be made between a postindictment and a postinformation statement' (p. 279, 266 N.Y.S.2d p. 107, 213 N.E.2d p. 443).

The holding was that the right to counsel could be, and there was, waived. The waiver there deemed sufficient was oral (p. 278, 266 N.Y.S.2d p. 106, 213 N.E.2d p. 442).

Indeed, the commencement of a criminal proceeding by information and by indictment are logically indistinguishable as far as waiver of counsel is concerned. The rational distinction is between this and the situation where, after arraignment, counsel has actually appeared. It has been held that right to counsel may be expressly and knowingly waived at the trial itself. (People v. Higgins, 23 A.D.2d 504, 257 N.Y.S.2d 99, affd. 16 N.Y.2d 751, 262 N.Y.S.2d 119, 209 N.E.2d 733.)

Defendant was not advised that he had been indicted when the waiver was executed. If this were a willful concealment it might be considered as undermining the validity of a waiver. But there is no suggestion of that here, and although the Federal officer knew at the time of the interview that defendant had been indicted, he did not recall whether or not he had advised defendant of this.

No prejudice is shown. Defendant certainly knew he was being prosecuted for the murder because he was taken into custody. Whether the prosecution had started with an arrest on probable cause, or on an information, or on an indictment, it was certain to go forward and the right to counsel was just as important to a defendant thus arrested whether or not he had been indicted as far as waiver on interrogation was concerned. There has been no finding of misrepresentation as to the origin of the prosecution.

As for the rest, the record fully supports the conviction of murder in the second degree on testimony by a witness who saw defendant deliberately shoot Michael Descartes to death.

The judgment should be affirmed.

BREITEL, Judge (dissenting).

This case is another in which the court backtracks on its principle to the effect that a defendant in a pending criminal action is entitled to the advice of a lawyer and that the right may not be waived except in the presence and with the acquiescence of counsel. To be distinguished is the investigative interrogation of a suspect before a criminal action is instituted with respect to which the Supreme Court imposed its mandate (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694).

The right to a lawyer in a criminal action is as esteemed and valued a constitutional right as the privilege against self-incrimination (People v. Donovan, 13 N.Y.2d 148, 151, 243 N.Y.S.2d 841, 842, 193 N.E.2d 628, 629). Progressively, this court, well in advance of the United States Supreme Court, defined the stage at which a criminal action incepted with the right to counsel, again as distinguished from the investigation which precedes the criminal action (People v. Di Biasi, 7 N.Y.2d 544, 549--551, 200 N.Y.S.2d 21, 24--26, 166 N.E.2d 825, 827--829 (upon surrender by lawyer after indictment); People v. Waterman, 9 N.Y.2d 561, 564--566, 216 N.Y.S.2d 70, 73--75, 175 N.E.2d 445, 446--448 (after indictment without more, in which it was observed that it was not necessary for defendant to insist upon his lawyer's presence); People v. Meyer, 11 N.Y.2d 162, 164--165, 227 N.Y.S.2d 427, 428--429, 182 N.E.2d 103, 104--105 (after arraignment before indictment); People v Rodriguez, 11 N.Y.2d 279, 284, 229 N.Y.S.2d 353, 355, 183 N.E.2d 651, 652 (before adjourned arraignment after information filed); People v. Bodie, 16 N.Y.2d 275, 266 N.Y.S.2d 104, 213 N.E.2d 441 (after warrant issued, but holding counsel could be waived)). The rules were not sparingly but generously applied to protect defendants in fullfledged criminal actions (People v. Malloy, 22 N.Y.2d 559, 566--567, 293 N.Y.S.2d 542, 548--549, 240 N.E.2d 37, 41--42 (after information but before indictment with purported 'waiver' of counsel rejected); People v. Gunner, 15 N.Y.2d 226, 231--232, 257 N.Y.S.2d 924, 927--929, 205 N.E.2d 852, 854--856 (prior to arraignment but after information filed and lawyer retained); People v. Friedlander, 16 N.Y.2d 248, 250, 265 N.Y.S.2d 97, 98, 212 N.E.2d 533 (after arraignment in absence of counsel); People v. Robinson, 13 N.Y.2d 296, 301, 246 N.Y.S.2d 623, 625, 196 N.E.2d 261, 262 (excluding statements in the absence of counsel made after a sham vagrancy arraignment); cf. People v. Paulin, 25 N.Y.2d 445, 450, 306 N.Y.S.2d 929, 933, 255 N.E.2d 164, 167). ¹ A quite different rule has been applied, understandably, where unrelated criminal charges are involved and counsel has not been retained or a criminal action begun in the matter in relation to which the statements were obtained (People v. Simons, 22 N.Y.2d 533, 539, 293 N.Y.S.2d 521, 525, 240 N.E.2d 22, 25; People v. Stanley, 15 N.Y.2d 30, 32--33, 255 N.Y.S.2d 74, 75--77, 203 N.E.2d 475, 476--477).

In due order the court in a preindictment but postarrest situation, held that where a lawyer 'enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant's right to counsel' (People v. Arthur, 22 N.Y.2d 325, 329, 292 N.Y.S.2d 663, 666, 239 N.E.2d 537, 539). Even the failure to object to the admissions being used in evidence was held immaterial because there was involved a 'deprivation of a fundamental constitutional right' (id.). Indeed, a short time before, the court had held that a defendant could not 'waive' his right to counsel when questioned about a crime related to that on which he had been arraigned and had counsel (People v. Vella, 21 N.Y.2d 249, 251, 287 N.Y.S.2d 369, 234 N.E.2d 422; Contra, People v. Bodie, Supra, thus constituting the first time that the Bodie case was qualified, see Infra). A unanimous court, except for the Chief Judge who concurred in result only, accepted a plain and unqualified restatement of these principles (People v. Miles, 23 N.Y.2d 527, 542, 297 N.Y.S.2d 913, 924, 245 N.E.2d 688, 695; cf. People v. Stephen J.B. 23 N.Y.2d 611, 616, 298 N.Y.S.2d 489, 494, 246 N.E.2d 344, 348). Strangely, in the light of other developments to be described shortly, the court again agreed quite recently upon a restatement of these principles (People v. Hetherington, 27 N.Y.2d 242, 244--245, 317 N.Y.S.2d 1, 2--3, 265 N.E.2d 530, 531).

Having marched up the mountain, the direction has been reversed and the march is now evidently downhill. In People v. Stockford, 24 N.Y.2d 146, 299 N.Y.S.2d 172, 247 N.E.2d 141, in omen of the shift, it was said that: 'This court has held the issuance of a warrant is the commencement of a criminal proceeding (People v. Bodie, 16 N.Y.2d 275, 266 N.Y.S.2d 104, 213 N.E.2d 441; People v. Malloy, 22 N.Y.2d 559, 293 N.Y.S.2d 542, 240 N.E.2d 37) but this stage of the proceeding has not yet been...