People v. Margolies

• Decision Date: 03 October 1984
• Citation: 480 N.Y.S.2d 842,125 Misc.2d 1033
• Parties: The PEOPLE of the State of New York, v. Irwin MARGOLIES, Defendant.
• Court: New York Supreme Court

Page 842

480 N.Y.S.2d 842

125 Misc.2d 1033

The PEOPLE of the State of New York, v. Irwin MARGOLIES, Defendant.

Supreme Court, New York County Part 63.

Oct. 3, 1984.

Robert Morgenthau, Dist. Atty., New York County by Gregory Waples, Asst. Dist. Atty., for the People.

Robert Hill Schwartz, New York City, for defendant.

EVE PREMINGER, Justice:

Do the rights afforded an individual by Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 and People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894 ever expire? The defendant argues that an incarcerated person never loses his right to counsel once it has attached and that admissions made to informants while in prison which link him to a string of contract murders are inadmissible at trial.

FINDINGS OF FACT

On November 2, 1982 the defendant, admitting to schemes and swindles perpetrated against John P. Maguire and Co. and the United States government, pled guilty to mail fraud and tax evasion charges in the United States District Court for the Southern District of New York. These charges stemmed from an investigation into the bankruptcy of Candor Diamond Corporation, the sole shareholders of which were defendant and his wife. Among the accusations was that Candor had defrauded creditors of over five million dollars.

Sentenced to a twenty-eight year prison term, defendant began serving his sentence at the Metropolitan Correctional Center (MCC) on December 10, 1982, where he remained through February, 1984. After conferring with an attorney named Gary Woodfield, who had represented him on the criminal charges in federal court and with Benson Weintraub, who had represented defendant's wife in the same matter, defendant decided not to file a notice of appeal and not to attack his conviction collaterally. He did, however, file an application to reduce his sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure which was denied on May 26, 1983.

Between December 10, 1982 and June 2, 1983 defendant also discussed with the two attorneys the possibility of obtaining habeas corpus relief, his Rule 35 application, and the murder trial of one Donald Nash which was (in April and May of 1983) then taking place in New York State Supreme Court.

Mr. Nash was charged with conspiring to murder two employees of Candor named Jenny Soo Chin and Margaret Barbera, and with the murders on April 12, 1982 of Barbera and three CBS employees who had been nearby when Barbera was shot. These crimes were highly publicized as the "CBS killings," and defendant was labeled in the press as the "mastermind" behind them. The trial of Nash resulted in his conviction on May 24, 1983.

While defendant had not been formally charged with complicity in these crimes, he was aware that law enforcement officials suspected that the execution of Barbera, who was scheduled to testify against him in the federal grand jury, and the abduction and presumed murder of Barbera's close friend Chin, had been upon his command. ^* Indeed, in the hope of garnering evidence of defendant's guilt, federal and state authorities were continuing a joint investigation. Their hopes were realized when the recently incarcerated defendant began to discuss the killings with fellow inmates, three of whom became informers against him.

The first of these, Vincent Calise, was sent to the MCC from another federal facility on December 2, 1983. Calise became acquainted with the defendant shortly after defendant was fortuitously placed on the same floor of the institution. Defendant made statements to Calise concerning the murders of Barbera, Chin, and the three CBS employees almost as soon as he arrived and Calise, who had been an informant in an unrelated case, contacted FBI agent Levinson with whom he had previously worked to reveal what he had learned. Somewhat surprisingly, agent Levinson and his superiors at first neither explicitly nor implicitly encouraged Calise to draw defendant out about the murders. This situation soon changed.

On January 5, 1983 defendant allegedly asked Calise how much it would cost to murder David Blejwas, a lawyer who had been particularly aggressive in ferreting out defendant's assets during the bankruptcy proceeding. Reporting the inquiry to Levinson and Assistant United States Attorney Ira Block, Calise was asked on January 10th to elicit information concerning a plot to murder the attorney. At the government's instruction and up and until May 19th, 1983, Calise repeatedly engaged defendant in conversation about Blejwas, taping some of the discussions. Admissions regarding the CBS murder case were also elicited during this period. The second person in contact with defendant was Harry Adair, who was incarcerated at the MCC from December 28, 1982 until January 24, 1983, when he was paroled to a halfway house in New Jersey. As garrulous with Adair as he was with Calise, defendant allegedly agreed to pay Adair $15,000 to murder Blejwas and made several admissions concerning his role in the deaths of Chin and Barbera.

On February 1, 1983, the FBI, who knew nothing of Adair's conversations with defendant until they were informed of them by Calise, approached Adair. He told them that defendant had hired him to kill Blejwas and that he had already been paid on advance on the $15,000 agreed upon price. Adair also agreed to cooperate with the investigation into defendant's previous criminal activities including the murders of Chin and Barbera. To this end Adair visited the defendant at the MCC on February 10, March 17 and March 23, 1983 and recorded conversations with him.

The last of the three informants arrayed against defendant was Eugene Peetz, who was incarcerated at the MCC from April 2, 1982 until August 30, 1983. Unlike Calise and Adair, Peetz was specifically instructed to milk admissions from defendant concerning the CBS case from the very beginning and attempted to do so from defendant's first few days in the institution. Ironically, although he had spoken freely with Adair and Calise, defendant refused to discuss the CBS case with Peetz. Peetz was, however, twice able to overhear defendant comment to other inmates that if Donald Nash were convicted, he would be in "big trouble." Peetz did not initiate or participate in the conversations in which these statements were made.

In July of 1983, Peetz had discussions with defendant and his attorneys regarding Harry Adair. Defendant, outside the presence of these attorneys, solicited Peetz to discredit Adair at any trial by offering perjurious testimony concerning Adair.

All of these contacts with defendant were made known to the New York State authorities, who were continuing their investigation of defendant's role in the murders.

On June 2, 1983, the defendant was arrested and charged in a federal complaint with hiring Adair to murder Blejwas. This was the first charge brought or to be pending against defendant since December 10, 1982, when he was sentenced in federal court. At the time of his arraignment, defendant informed the United States magistrate that he was not represented by counsel, and an attorney was appointed for him.

On July 15, 1983 a New York County Grand Jury voted the instant indictment, which charged defendant with the murders of Barbera and Chin, and with conspiring to murder Barbera, Chin, and Blejwas. The indictment was based in part on the admissions made by defendant to the three inmates.

CONCLUSIONS OF LAW

The People seek to introduce defendant's statements to the three inmates as part of their direct case. Defendant argues that these disclosures were obtained in violation of his right to counsel and has moved to suppress.

The practice of enlisting a defendant's cellmates to pump him for information is a constitutionally precarious one. Massiah v. United States, supra, established that the government may not use undercover agents or informants whose role is unknown to the defendant to elicit incriminating statements from an indicted defendant. To do so violates the Sixth Amendment because defendant is entitled to the presence of counsel during any questioning. See also United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115.

Within the last few years New York has markedly broadened the reach of the Sixth Amendment. Its protection from questioning in the absence of counsel now extends to defendants who are not in custody, People v. Skinner, 52 N.Y.2d 24, 436 N.Y.S.2d 207, 417 N.E.2d 501, as well as to those who are, People v. Hobson, supra, to those who have counsel on other matters, People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709, and to some who are yet to retain counsel, People v. Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400 N.E.2d 1344; People v. Settles, 46 N.Y.2d 154, 412 N.Y.S.2d 874, 385 N.E.2d 612.

While the right to counsel is extremely broad, it is far from infinite, even in New York. One of the few remaining limitations pertains to on-going or future crimes. The right not to be questioned in the absence of an attorney does not extend to situations in which a criminal enterprise is being planned or executed, People v Ferrara, 54 N.Y.2d 498, 505-506, 446 N.Y.S.2d 222, 430 N.E.2d 1275 and the use of undercover agents or informants to investigate a crime prior to its commission does not violate constitutional guarantees,United States v. Henry, 447 U.S. at 272, 100 S.Ct. at 2188. Thus, where defendant solicits kickbacks, People v. Ferrara, supra, offers a bribe, People v. Middleton, 54 N.Y.2d 474, 446 N.Y.S.2d 211, 430 N.E.2d 1264 or attempts to suborn perjury, People v. Mealer, 57 N.Y.2d 214, 455 N.Y.S.2d 562, 441 N.E.2d 1080, the statements he makes to the police or their agents are admissible against him as long as the statements were made 'in response to inquiry legitimately related' to the new crime, People v. Middleton, supra, 54 N.Y.2d at 428, 446 N.Y.S.2d 211, 430 N.E.2d 1264.

It is for this reason that those of defendant's...