People v. Maerling

• Decision Date: 27 December 1984
• Citation: 64 N.Y.2d 134,474 N.E.2d 231,485 N.Y.S.2d 23
• Parties: , 474 N.E.2d 231 The PEOPLE of the State of New York, Respondent, v. William MAERLING, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 23

485 N.Y.S.2d 23

64 N.Y.2d 134, 474 N.E.2d 231

The PEOPLE of the State of New York, Respondent, v. William MAERLING, Appellant.

Court of Appeals of New York.

Dec. 27, 1984.

Rafael Abramovitz, New York City, for appellant.

Patrick Henry, Dist. Atty. (Mark D. Cohen and Gabrielle Weglein, Asst. Dist. Attys., of counsel), for respondent.

OPINION OF THE COURT

SIMONS, Judge.

Defendant appeals from a judgment convicting him of felony murder and first degree robbery. The charges arose out of the 1972 entry into the Suffolk County home of Jerry LoBasso, a reputed bookmaker, during which LoBasso was killed, his wife injured and jewels and cash belonging to them were stolen. This is the second time the case has been before us (see 46 N.Y.2d 289, 413 N.Y.S.2d 316, 385 N.E.2d 1245). We reversed the prior conviction because the court improperly admitted prejudicial hearsay evidence and testimony relating to defendant's oral statements to a jail guard, Lieutenant Cannatella, statements which had been elicited from defendant in violation of his right to counsel (see People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894). At the second trial, the People relied primarily on a written confession defendant made to the police after his arrest, a confession which defendant testified was not voluntary but the product of physical abuse and coercion. To rebut that claim the People offered evidence that defendant had subsequently confirmed his complicity in the crime in two later oral statements obtained in violation of his right to counsel but which involved neither physical abuse nor coercion. It is the admissibility of that rebuttal evidence and defendant's effort to impeach his own witness with respect to it (see CPL 60.35) which provide the substance of this appeal. Finding no error in the courts' rulings, we affirm the judgment.

Defendant and codefendants Anthony Franciotti and Robert Ragonese were arrested for the LoBasso crimes on February 14, 1973. The night defendant was arrested, he signed a three-page confession in which he stated that he and Ragonese entered the LoBasso house while Franciotti remained in the car. He admitted accidentally wounding Mrs. LoBasso while he was there and stealing property from her home. He also stated that while he was locating jewelry and cash and placing it in a sack, he heard a gunshot in another room and that when he later left the house with Ragonese he saw Mr. LoBasso on the floor. Defendant took the stand in his own defense and alleged that his written confession was false and that he signed it only after being subjected to repeated threats and beatings. On cross-examination, defendant admitted that Suffolk County officials had subsequently met with him on March 3, 1973, but he specifically denied making oral statements to them at that time admitting his participation in the crime. Specifically, he denied making any such statement to Lieutenant Cannatella or, later the same day, to Detective Gill of the Suffolk County Police Department and Patrick Henry, who was an Assistant District Attorney of Suffolk County at the time. In rebuttal Cannatella, Gill and Henry testified that they had met with defendant at his request on March 3, 1973 and that he had made the inculpatory statements. The court permitted the testimony but instructed the jury that it was to be considered only on the issue of defendant's credibility.

Defendant asserts that it was error to permit this rebuttal evidence because the statements were obtained in violation of his right to counsel. Indeed, we so held with respect to the statement to Cannatella in our prior decision (see 46 N.Y.2d 289, 301, 413 N.Y.S.2d 316, 385 N.E.2d 1245) and although we had no occasion at that time to consider the admissibility of the similar statement to Henry and Gill since neither testified at the first trial, the People did not attempt to use it in their direct case and do not dispute that it also was obtained in violation of defendant's right to counsel.

I

In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 and Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570, the United States Supreme Court held that a statement obtained in violation of any aspect of a defendant's Miranda rights, although not admissible as evidence-in-chief, may be used to impeach a defendant who chooses to take the stand and whose testimony is inconsistent with his illegally obtained statement. We have permitted the use of illegally obtained evidence for that purpose also (see People v. Ricco, 56 N.Y.2d 320, 326, 452 N.Y.S.2d 340, 437 N.E.2d 1097; People v. Washington, 51 N.Y.2d 214, 220, 433 N.Y.S.2d 745, 413 N.E.2d 1159; People v. Wise, 46 N.Y.2d 321, 324, 413 N.Y.S.2d 334, 385 N.E.2d 1262; People v. Harris, 25 N.Y.2d 175, 177, 303 N.Y.S.2d 71, 250 N.E.2d 349, affd. 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1; People v. Kulis, 18 N.Y.2d 318, 322-323, 274 N.Y.S.2d 873, 221 N.E.2d 541). Our rule permits the use for impeachment not only of statements obtained in violation of a defendant's Miranda rights (see People v. Washington, supra; People v. Wise, supra; People v. Harris, supra ), but also of those obtained in violation of his right to counsel under the State Constitution (see People v. Ricco, supra; People v. Kulis, supra ). There is some authority holding that a statement obtained in violation of the defendant's Federal constitutional right to counsel is not admissible for impeachment purposes (see United States v. Brown, 699 F.2d 585 (2 Cir.); but cf. People v. Monaghan, 118 Misc.2d 326, 460 N.Y.S.2d 479), but admissibility rests not on whether a constitutional right is implicated but on a determination of voluntariness (see United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559). If the statement was voluntary, it may be used to impeach; if it was not, it may not be admitted, even though it may be reliable (New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292, 59 L.Ed.2d 501 Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 390 People v. Washington, 51 N.Y.2d 214, 433 N.Y.S.2d 745, 413 N.E.2d 1159, supra ). Inasmuch as defendant does not contend that his March 3 statements were involuntary, they were admissible for impeachment purposes.

Nor do we believe any distinction should be made because defendant's inconsistent trial testimony was elicited on cross-examinationexamination rather than on direct examination. Central to the Supreme Court's holding in Havens that "a defendant's statements made in response to proper cross-examination * * * are subject to otherwise proper impeachment by * * * evidence that has been illegally obtained" (446 U.S. supra, at pp. 627-628, 100 S.Ct. at p. 1917) was its conclusion that there is "no difference of constitutional magnitude between the defendant's statements on direct examination and his answers to questions put to him on cross-examination that are plainly within the scope of the...