People v. Mealer

• Decision Date: 14 October 1982
• Citation: 455 N.Y.S.2d 562,57 N.Y.2d 214,441 N.E.2d 1080
• Parties: , 441 N.E.2d 1080 The PEOPLE of the State of New York, Respondent, v. Thomas MEALER, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 562

455 N.Y.S.2d 562

57 N.Y.2d 214, 441 N.E.2d 1080

The PEOPLE of the State of New York, Respondent, v. Thomas MEALER, Appellant.

Court of Appeals of New York.

Oct. 14, 1982.

Shirley Werner Kornrich and William E. Hellerstein, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. (Bruce Allen and Amyjane Rettew, New York City, of counsel), for respondent.

OPINION OF THE COURT

COOKE, Chief Judge.

A suspect whose right to counsel has attached with respect to a past crime may be subjected to questioning outside the presence of counsel by police who are investigating a new crime in progress, so long as the questioning is legitimately related to the new crime. Evidence thereby obtained, if not otherwise violative of the suspect's rights, may be presented to prove the suspect's guilt of the past crime.

Just before 2:00 a.m., on March 24, 1974, defendant was involved in an altercation with Robert Davis at a Manhattan bar. Defendant felled Davis and, as Davis lay semiconscious, shot him in the head from one foot away. Police soon arrived and began interviewing the six witnesses to the homicide. The bartender identified the assailant as "Tommy", who had been known to live in the nearby Alexandria Hotel and who had frequented the bar in the past. Other witnesses confirmed the bartender's description of the assailant as a 6-foot 3-inch black male wearing a red-checked jacket. A police officer assigned to the neighborhood recalled that a man named "Nealer", who had been arrested one month before, fit the description. At 8:00 a.m., a detective checked the local precinct's arrest records and found that defendant had recently been arrested for possession of a gun and had given two addresses, including the Alexandria Hotel, as his residence. Early that afternoon, police proceeded without a warrant to the hotel, knocked on the door of defendant's room, and entered when the door was opened by an unidentified woman. Defendant was arrested, and a red-checked jacket and bullets of the same caliber used in the crime were seized.

Defendant was indicted for murder in the second degree and incarcerated while awaiting trial. During this period, defendant's wife approached a witness to the shooting and stated that defendant wanted to see him and would be willing to "help him out" if he would contradict his earlier statements to the police. The witness informed the police and was instructed to visit defendant in prison and to "play along" if offered a bribe. On visiting defendant, the witness was offered $300 to perjure himself.

After a jury trial, defendant was convicted of second degree murder. The Appellate Division, 84 A.D.2d 690, 445 N.Y.S.2d 349, upheld the conviction. This court now affirms.

Defendant claims that his right to counsel was violated when the witness discussed the bribe offer with him while he was awaiting trial. Defendant reasons that, inasmuch as his right to counsel had indelibly attached upon indictment, he could not be interrogated in the absence of counsel. Defendant argues that the witness, when visiting defendant in prison, operated as a police agent, and, therefore, the uncounseled statements defendant made to the witness should have been suppressed.

There is no question that defendant's right to counsel had attached with respect to the murder charge (see People v. Settles, 46 N.Y.2d 154, 166, 412 N.Y.S.2d 874, 385 N.E.2d 612). Nor can it reasonably be controverted that the witness was acting as a police agent when he met with defendant with the knowledge and encouragement of the police (see United States v. Henry, 447 U.S. 264, 270, 100 S.Ct. 2183, 2186, 65 L.Ed.2d 115). Defendant's right to counsel nevertheless was not violated. Here, the witness acted on behalf of the police to investigate defendant's attempt to suborn perjury, a new crime independent of the pending murder charge. The right to counsel may not be used as ...