People v. Medina

• Court: New York Supreme Court
• Writing for the Court: ALFRED H. KLEIMAN
• Citation: People v. Medina, 524 N.Y.S.2d 986, 138 Misc.2d 653 (N.Y. Sup. Ct. 1988)
• Decision Date: 27 January 1988
• Parties: The PEOPLE of the State of New York v. Luis MEDINA, Defendant.

Page 986

524 N.Y.S.2d 986

138 Misc.2d 653

The PEOPLE of the State of New York v. Luis MEDINA, Defendant.

Supreme Court, New York County IAS Part 82.

Jan. 27, 1988.

Sol Schwartzberg, New York City, for defendant.

Robert M. Morgenthau, Dist. Atty. (William McGuire, New York City, of counsel), for the People.

ALFRED H. KLEIMAN, Justice:

Defendant Luis Medina was indicted on two counts of murder in the second degree (Penal Law § 125.25) and other related charges. He was tried and convicted by a jury. Defendant was subsequently sentenced to two consecutive terms of twenty-five years to life.

Defendant moved to set aside the verdict pursuant to CPL § 330.30, subd. 1 upon the ground that the court erred as a matter of law in ruling that it would not submit to the jury the issue as to whether or not the defendant's right to counsel had attached.

In this case of apparent first impression, I held that the question of whether or not a defendant's right to counsel had attached under the Rogers-Bartolomeo rule was not a proper subject for a jury's consideration and accordingly denied defendant's motion.

HUNTLEY-BARTOLOMEO HEARING

Following a motion to suppress defendant's statements a pretrial hearing was held before me. Detective William Cutter, an eighteen-year police veteran, testified that on January 14, 1986, at approximately 12:10 A.M., he was assigned to investigate a double homicide which occurred earlier that evening at 364 East 10th Street in New York County. Canvassing the building, Cutter and his team of detectives learned from defendant's wife that the defendant, who lived in Apt. 1A, had recently been released from prison. Detective Cutter subsequently interviewed the defendant in his apartment. Defendant told Cutter that he had been released from jail on January 13, 1986 at about 3:30 P.M. because the complainant in that case "had not shown up four times and he was let go". Detective Cutter further testified that based on his experience, he interpreted the defendant's statement to mean that the case was dismissed "and over with." The defendant then gave Cutter an account of his whereabouts that evening.

Later that morning the detectives brought defendant to the 9th Precinct for further questioning. It was conceded that the defendant was in custody at this time. After having his Miranda rights read to him, defendant gave a full incriminating statement to the police. Cutter then contacted the Manhattan District Attorney's Office. During the conversation with an Assistant District Attorney the subject of whether the defendant had any open case was raised and Detective Cutter informed the Assistant that the defendant had had a case that was dismissed. Arrangements were then made with the Assistant District Attorney to take a video statement from the defendant. Detective Cutter then told the defendant that an Assistant District Attorney was en route to the precinct. It was at this point that defendant said he didn't want to speak to anybody without an attorney present.

Detective Cutter testified that the first time he learned that defendant did have an open case was on January 17th, when this case was presented to the Grand Jury. In fact, the open case on which he was represented by counsel, had been adjourned on January 13th to February 3, 1986.

At no time during the investigation prior to the interrogation of the defendant did any police officer assigned to the case obtain or request a NYSIS sheet or attempt to ascertain the status of the case that Detective Cutter assumed had been dismissed. As stated in People v. Bertolo, 65 N.Y.2d 111, 119, 490 N.Y.S.2d 475, 480 N.E.2d 61 (1985), a progeny of Rogers-Bartolomeo "(a)bsent some actual knowledge, however, of either defendant's representation by counsel or the pendency of prior charges, the police have no affirmative duty to cease their questioning or inquire whether defendant has an attorney".

I found Detective Cutter's testimony to be credible. There was no evidence "that actual knowledge of the pending chargewas deliberately overlooked or avoided by the police" ( Bertolo, supra at p. 118, 490 N.Y.S.2d 475, 480 N.E.2d 61) or any other evidence of bad faith on the part of Detective Cutter. See People v. Fuschino, 59 N.Y.2d 91, 98, 463 N.Y.S.2d 394, 450 N.E.2d 200 (1983). Nor was there any duty to make any further inquiry because the detective believed he had a prior involvement with the criminal justice system. People v. Washington, 111 A.D.2d 418, 489 N.Y.S.2d 380 (2nd Dept.1985). Consequently this court declined to infer knowledge of prior representation. On the contrary, this court was satisfied that it was not unreasonable under the circumstances within his knowledge and based upon his general experience, for the detective to believe the earlier case had been dismissed.

Having also found that the People had proven beyond a reasonable doubt that Miranda warnings were given and understood and that the right to counsel had not been invoked until after the interrogation by Detective Cutter, the motion to suppress the statements was denied. ¹

THE ISSUE

During the trial a motion in limine was made addressed to the issue as to whether or not the court would submit the Bartolomeo issue to the jury. Essentially defendant argued that pursuant to CPL 60.45, subd. 2 a statement is involuntarily made when it is obtained "by a public servant ... in violation of such rights as the defendant may derive from the constitution of this state or of the United States" and that a violation of the right to counsel is such a constitutional right. Accordingly, counsel argued that pursuant to CPL 710.70 (subd. 3) the court "must submit such issue to the jury under instructions to disregard such evidence upon a finding that the statement was involuntarily made" (emphasis mine). ² Put another way defendant sought a ruling that the issue as to whether or not Detective Cutter knew, believed or had reason to believe that the defendant was represented by counsel in another pending case be submitted to the jury. (Defendant did not request that the Miranda issue be submitted to the jury). This court ruled that this issue would not be submitted to the jury and based upon this determination evidence relating to the alleged then pending case was not introduced. Defendant contends that this ruling was contrary to the holding of People v. Graham, 55 N.Y.2d 144, 447 N.Y.S.2d 918, 432 N.E.2d 790 (1982).

In People v. Graham, supra, the Court of Appeals expanded the concept of involuntariness from the then traditional sense (i.e., duress, coercion, physical abuse, etc.) to statements deemed involuntary when taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) as issues which must be submitted to the jury. Thus the sole issue decided in Graham was that the trial court was required to submit to a jury any question as to whether defendant's confession was obtained in violation of his rights under Miranda.

Judge Bellacosa in his Practice Commentary to CPL § 710.70 states: "Essentially it holds that this section, with CPL 60.45, gives defendants two bites at either kind of involuntariness apple in that both the traditional involuntariness claim of extracted statements and the modern technical Miranda variety are vulnerable to pretrial suppression attack as well as trial jury resolution." (Bellacosa, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 11A CPL 710.70, p. 181.) Even this narrow expansion of the definition of involuntariness was found troublesome by three of the six judges participating in the Graham decision. (See concurring opinion of Judge Wachtler at p. 153.)

The Graham decision is therefore not dispositive of the issue that was presented to this court, to wit, are statements taken in violation of the right to counsel "involuntarily made within the meaning of section 60.45." This court was and continues to be frank to state that a literal reading of the two statutes and language (but not the rationale) of the opinion of Judge Fuchsberg in Graham would mandate a conclusion contrary to that reached by this court.

In the first place, however, the legislative history of CPL section 60.45 indicates that it was the legislature's intent to expand the concept of "involuntarily made" statements beyond the traditional due process standard only to Miranda, the Fifth Amendment standard. ( See Graham, supra, 55 N.Y.2d at pp. 149-150, 447 N.Y.S.2d 918, 432 N.E.2d 790). In fact the original draft of what is now section 60.45 limited its application to either traditional involuntariness or to Miranda.

In 1967 the Temporary Commission on Revision of the Penal Law and Criminal Code proposed to amend section 395 of the Code of Criminal Procedure by replacing it with section 30.80. Subdivision (2)(f) of that section read "Without first advising the defendant of such rights as he may derive from the constitution of this state or of the United States with respect to the making of a statement". (McKinney's Proposed Crim Procedure '67 Pamph. p. 75.) The staff comment to that section noted that "Paragraph (f) is chiefly designed to outlaw admissibility of any statement obtained in the absence of the kind of warnings declared by the Supreme Court of the United States to be essential to valid use thereof against the defendant pursuant to the Federal Constitution". (Id at p. 76.)

Although the language of that proposal was not enacted, the 1969 proposal, CPL section 60.45 in its current form, was enacted as part of the new CPL which went into effect in 1971. While there is no staff comment accompanying the 1969 bill (see McKinney's Proposed Crim. Procedure '69 Pamph. pp. 48-49), Richard Denzer, who served as Executive Director of the Temporary Commission, in his original practice commentary to CPL section 60.45 stated that subd. (2)(b)(ii) "is designed to accommodate the artificial constitutional requirement of 'voluntariness' set forth in recent...