People v. Mann

• Decision Date: 25 October 1983
• Citation: 469 N.Y.S.2d 681,457 N.E.2d 788,60 N.Y.2d 792
• Parties: , 457 N.E.2d 788 The PEOPLE of the State of New York, Respondent, v. Sam MANN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 681

469 N.Y.S.2d 681

60 N.Y.2d 792, 457 N.E.2d 788

The PEOPLE of the State of New York, Respondent, v. Sam MANN, Appellant.

Court of Appeals of New York.

Oct. 25, 1983.

Marilyn A. Kneeland and William E. Hellerstein, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty., New York City (Curtis E. Hall and Mark Dwyer, Asst. Dist. Attys., New York City, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 88 A.D.2d 1112, 452 N.Y.S.2d 972, should be affirmed.

Defendant's principal argument on this appeal is that his statements to the police, made before any charges were brought against him and after he had waived his right to counsel, should have been suppressed. The facts relating to defendant's two separate encounters with the police are as follows: Shortly after midnight on June 29, 1978, police officers investigating a report that four men in an automobile were selling drugs approached the automobile in which defendant and three others were sitting. After the driver attempted to flee, and failed to produce a license or registration, the police ordered the occupants out of the automobile. One officer noticed a bulge in defendant's pocket, which a subsequent search revealed was a derringer. Defendant was arrested and charged with possession of the derringer, which was seized. Defendant was represented by counsel at his arraignment on June 30, 1978, at which time the People moved to dismiss the charge because the prosecutor believed the derringer had been unlawfully seized. The court granted the People's motion and the case was dismissed that day.

Seven days later, on July 7, 1978, defendant was questioned by a homicide detective investigating the murder of Steven Pettigrew. Defendant waived his right to counsel and, although he refused to discuss Pettigrew's murder, he did make inculpatory statements to the effect that he had participated with Pettigrew in a burglary of a gun shop in New Jersey and had taken several guns, including the derringer previously seized. Defendant was thereafter arrested on charges of criminal possession of weapons and conspiracy to possess firearms and ammunition, and his statements to the homicide detective were admitted into evidence at trial.

Defendant claims that his inculpatory statements should have been suppressed because his right to counsel in this case attached on June 30, 1978, when he was represented by counsel at his arraignment on the derringer possession charge, and his waiver on July 7 therefore was ineffective in the absence of counsel.

A suspect may not be questioned on a criminal matter in the absence of counsel once criminal proceedings have commenced against him in the very case about which the questions are to be asked (People v. Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400 N.E.2d 1344), or once the suspect is actually represented by an attorney in a pending criminal proceeding. (People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894.) When, however, no criminal proceedings have commenced, and the suspect is not in fact represented by an attorney in any criminal proceeding or on the matter as to which he is being interrogated, he may waive his right to counsel without the presence of an attorney. (People v. Kazmarick, 52 N.Y.2d 322, 328-329, 438 N.Y.S.2d 247, 420 N.E.2d 45.)

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