People v. Mandrachio
| Decision Date | 03 March 1981 |
| Citation | 79 A.D.2d 278,436 N.Y.S.2d 642 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Mario MANDRACHIO, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Steven M. Jaeger, New York City, of counsel (William E. Hellerstein, New York City, attorney), for defendant-appellant.
Allen H. Saperstein, Asst. Dist. Atty., of counsel (Billie Manning, Asst. Dist. Atty., with him on the brief; Mario Merola, Dist. Atty., attorney), for respondent.
Before FEIN, J. P., and LUPIANO, SILVERMAN, BLOOM and CARRO, JJ.
Defendant appeals from a judgment convicting him, after a jury trial, of murder in the second degree and assault in the first degree. He was sentenced to concurrent indeterminate terms of twenty-five years to life on the murder count and five to fifteen years on the assault count. The proof of defendant's guilt was overwhelmingly established on the record herein. Defendant's girlfriend testified that on December 31, 1973, she, the defendant and one Edwards had been drinking. While in defendant's room in a rooming house, Edwards, in defendant's absence, touched Ms. Norris' breasts. Defendant, returning from the bathroom, observed this incident, began punching Edwards and then grabbed a carpet knife which he used to repeatedly stab the unarmed Edwards. Ms. Norris fled downstairs to the room of Jesus Santiago. Being informed by Ms. Norris of what was transpiring, Mr. Santiago went upstairs to the defendant's room and in the hallway saw defendant repeatedly stab the deceased (Mr. Edwards) and then throw the deceased's body out of the hallway window. Frightened, Santiago returned to his room, soon followed by defendant who proceeded to stab Santiago some five or six times in the chest and stomach. Defendant desisted in his attack at the urging of Ms. Norris. Mr. Santiago barely survived this violent attack.
The only issue which appears to be troubling to some members of this Court is whether two statements of defendant introduced at trial should have been suppressed at the pre-trial Huntley hearing (held before defendant's first trial, the instant trial being his second trial for these violent crimes) in that they were obtained in disregard of defendant's alleged refusal to make a statement and defendant's alleged assertion of his right to counsel. At the pre-trial Huntley hearing, defendant admitted that he had been previously convicted of other crimes and that on those occasions he had been advised of his rights and was familiar with them. He, in effect, conceded that he was not a novice in the war between society and its criminal element. At the time of his arrest, two weeks after the commission of the violent crimes alluded to above, defendant, who was accompanied by a friend "Duke", was given full Miranda warnings. Defendant responded: "I know all about that shit, but what's this all about." He also nodded that he understood the warnings.
At the precinct and after being informed of the death of Edwards, defendant was asked if he wished to make a statement. Defendant replied: "Do you think I am ... crazy or what?" The detective then asked defendant if he wanted to talk to his friend "Duke." The defendant requested such opportunity, and after a private conversation with "Duke" volunteered (in a tape-recorded conversation admitted at trial) that he found Edwards making several advances to his (defendant's) girlfriend; that Edwards pulled a knife during the fight; that Santiago joined in the melee, during the course of which both Santiago and Edwards were stabbed and Edwards "fell" out the window.
Defendant initially claims that this first statement is inadmissible because, although the police informed him that he had a right to counsel and that if he could not afford one, one would be assigned free of charge, they did not apprise him of his contemporaneous right to counsel, i. e., they informed him only of his right to an attorney and did not include an admonition that he had the right to have an attorney present at the interrogation. This claim is without merit, as the warning given by the police was an adequate notification to defendant of his right to counsel (See, People v. Thomas, 69 A.D.2d 792 (1st Dept. 1979)). It is clear that defendant volunteered his first statement after receiving the Miranda warnings and indicating complete awareness of his rights and after the private conversation with his friend.
Defendant's second claim regarding his first statement is that it is inadmissible because the police failed to honor his decision not to speak, but continued the interrogation (as distinct from a subsequent request made otherwise than in the course of a continued interrogation for reconsideration of an earlier decision to make no statement, which request is accompanied by a reiteration of the requisite Miranda warnings (See, People v. Gary, 31 N.Y.2d 68, 324 N.Y.S.2d 883, 286 N.E.2d 263 (1972))). The transcript of the Huntley hearing discloses that the police ceased questioning when defendant replied "Do you think I'm ... crazy or what?" Instead, they permitted defendant to confer in private with his friend "Duke." There is no proof that "Duke" was a police agent who then persuaded defendant to speak. It is clear that the exculpatory version of the incident then given by defendant after his private conversation with "Duke" was the product of a voluntary decision by defendant who was well aware of his rights. Parenthetically, defendant, who chose to testify at the Huntley hearing, specifically admitted that, by virtue of being convicted on prior occasions of crimes, he was He further unequivocally admitted that he "was familiar with them" (the rights delineated by the Miranda warnings) at the time of his arrest, subsequent interrogations, and the events related thereto. Indeed, defendant admitted at the Huntley hearing that he volunteered his statements The common sense perception of the record herein as unequivocally demonstrating a voluntary uncoerced decision by a well-informed and knowledgeable defendant to waive his right to remain silent is further reinforced by the subsequent volunteering of a second statement by this defendant.
Shortly after making his first statement, defendant was taken before an Assistant District Attorney who reiterated the full Miranda warnings. Defendant acknowledged separately after each Miranda warning that he understood such admonition upon being questioned by the Assistant District Attorney as to whether he understood that particular warning. The transcript of the Assistant District Attorney's taking of defendant's second statement in pertinent part is as follows:
"Q. You have the right to remain silent, do you understand that.
A. Yes.
Q. Anything you say to me can be used against you in a court of law.
A. Yes.
Q. You have the right to an attorney now or in the future, do you understand that.
A. An attorney wasn't there when it happened.
Q. Mr. Mandrachio, what I'm saying is that you have the right to an attorney now or in the future.
A. Yes.
(Defendant did not at this point request an attorney, but merely acknowledged that he understood the admonition.)
Q. If you can't afford one, one will be given to you, free of charge.
A. I can't afford one.
Q. Have you understood everything I have told you?
A. Yes.
Q. Having understood everything I told you I would like to ask you about the death of Anthony Edwards.
A. Who?
Q. Tony Edwards. I'd like to ask you some questions about his death and Jesus Santiago, will you answer those questions?
A. I'll answer them. Santiago was drunk at the time."
Defendant's statements that an attorney was not present at the time the crimes were being committed and that he could not afford an attorney do not amount to a "clear and categoric" request for counsel (Cf., People v. Woodard, 64 A.D.2d 517, 518, 406 N.Y.S.2d 790 (1st Dept. 1978)). *
Defendant's plaint on appeal that he did not receive adequate Miranda warnings, that his initial refusal to make a statement was not honored, and his free will was overborne by continued questioning so that he did not voluntarily waive any of his rights, may be characterized in the same fashion as defendant originally described the Miranda admonitions when he was arrested. I have on a prior occasion acknowledged
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