People v. Miller

• Decision Date: 18 August 1980
• Citation: 76 A.D.2d 576,430 N.Y.S.2d 865
• Parties: The PEOPLE, etc., Respondent, v. Michael MILLER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 865

430 N.Y.S.2d 865

76 A.D.2d 576

The PEOPLE, etc., Respondent, v. Michael MILLER, Appellant.

Supreme Court, Appellate Division, Second Department.

Aug. 18, 1980.

Peter Branti, Jr., New City (Alan Tabakman, New City, of counsel; Deborah Keyes, on the brief), for appellant.

Kenneth Gribetz, Dist. Atty., New City (Thomas C. Yatto, Yorktown Heights, of counsel), for respondent.

Before MOLLEN, P. J., and HOPKINS, TITONE and MANGANO, JJ.

MANGANO, Justice.

We hold today that once a criminal proceeding has been commenced, a defendant who has not made a valid waiver of his right to counsel, may not be subjected to custodial interrogation, in the absence of counsel, concerning crimes unrelated to the pending proceeding, even if an attorney has not as yet appeared for defendant in that proceeding. Under the same circumstances, we also hold that for the purpose of such an interrogation, defendant may not waive counsel in counsel's absence.

On August 24, 1978, sometime before 8:00 A.M., Ms. Ricki Perlowitz reported to the Spring Valley police that she had been raped earlier that morning. She informed the police that the rape had occurred in a 1978 Cadillac Eldorado and gave a partial identification of the license plate number. A check on that plate revealed that the car had been stolen.

At approximately 8:00 A.M. on the same date, Officer John Tallman of the Spring Valley Police Department located the stolen car in a parking lot in Spring Valley and observed the defendant sleeping inside the vehicle. He immediately arrested Miller, advised him of his Miranda rights and brought him to the Spring Valley Police Station.

While the defendant was held in custody pending his arraignment on a charge of criminal possession of stolen property in the first degree (Penal Law, § 165.50), Spring Valley police took a statement from Ms Perlowitz at the police station concerning her alleged rape. Immediately thereafter, another statement was taken from Ms. Perlowitz by a Detective Robert Hewett of the Clarkstown Police Department, after it was learned that the alleged rape may have occurred in the Town of Clarkstown.

The same morning, at approximately 11:00 A.M., at the Spring Valley Police Station, the defendant was arraigned by a Village Justice on a felony complaint charging criminal possession of stolen property in the first degree. Defendant was not represented by an attorney at this arraignment, even though he was advised by the Village Justice of his right to such representation. He apparently never waived that right.

Soon after being arraigned, the defendant was turned over to Detective Hewett of the Clarkstown Police Department. The detective, after advising the defendant of his Miranda rights, began questioning him concerning several different criminal matters. Two hours later, Detective Hewett was joined, at his own request, by Mr. Stephen Lowe, a Rockland County Assistant District Attorney. Mr. Lowe continued the interrogation of the defendant after again advising him of his Miranda rights. The defendant, who stated affirmatively that he understood these rights, did not request an attorney nor ask to remain silent.

During the course of this interrogation, the defendant was questioned with regard to the pending charge of criminal possession of stolen property, as well as the rape of Ms. Perlowitz. He was also questioned concerning another rape that he was suspected of having committed in 1977. The defendant admitted he committed all three crimes, and, later that evening, was arraigned on a felony complaint for the alleged rape of Ricki Perlowitz. ¹

Subsequently, a Grand Jury in Rockland County handed up an indictment accusing the defendant of the rape of Ms. Perlowitz (rape in the first degree, Penal Law, § 130.35, subd. 1) and criminal possession of the stolen Eldorado Cadillac (criminal possession of stolen property in the first degree, Penal Law, § 165.50). In another count of this three count indictment, the defendant was also accused of rape in the first degree (Penal Law, § 130.35, subd. 1) in that:

"Said defendant, in the Town of Clarkstown * * * on or about the 28th day of August, 1977, engaged in sexual intercourse with Jean McEnery, a female, by forcible compulsion, to wit, by threatening her with a knife." ²

The defendant moved to suppress those statements made to the police and the District Attorney on August 24, 1978, subsequent to his arraignment on the charge of criminal possession of stolen property. After the suppression hearing, nisi prius suppressed those statements relating to the charge of criminal possession of stolen property and those relating to the 1978 rape of Ricki Perlowitz. The statements concerning the 1977 rape of Ms. McEnery, however, were found admissible. The court based its decision on the following grounds: (1) that once arraigned on the criminal possession charge the defendant could not be interrogated concerning that charge in the absence of counsel; (2) that since the criminal possession and Perlowitz rape charges were so "interrelated and intertwined", postarraignment questions concerning the latter in the absence of counsel would be equally prohibited; and, (3) that since the arraignment on the criminal possession charge had not been a pretext for holding the defendant for questioning on the McEnery rape, and since the latter was not so "interrelated and intertwined" with the former, as the Perlowitz rape had been, questioning the defendant in the absence of counsel on the McEnery rape was authorized, as postarraignment interrogation concerning unrelated crimes. ³

The issues raised by these facts are whether the commencement of a criminal proceeding will operate to prohibit custodial interrogation of a defendant, in the absence of counsel, concerning crimes unrelated to the action already commenced, even if an attorney has not appeared in that action, and whether, in the face of such an interrogation, a defendant can waive, in the absence of counsel, both the right to remain silent and the right to be assisted by an attorney. Recent decisions of the Court of Appeals, though not addressing these precise issues, have, in resolving related issues, settled questions of law elemental to a decision in this case. A review and synthesis of these recent opinions are necessary to demonstrate the firm precedential basis of our holding today.

Our analysis must begin by stating a general principle that has been affirmed and reaffirmed by our highest court.

"(F)irmly rooted in our State's constitutional and statutory guarantees of due process of law, are the privilege against self incrimination and the right to the assistance of counsel (see People v. Rogers, 48 N.Y.2d 167 (422 N.Y.S.2d 18, 397 N.E.2d 709); People v. Settles, 46 N.Y.2d 154 (412 N.Y.S.2d 874, 385 N.E.2d 612); People v. Hobson, 39 N.Y.2d 479 (384 N.Y.S.2d 419, 348 N.E.2d 894); People v. Arthur, 22 N.Y.2d 325 (292 N.Y.S.2d 663, 239 N.E.2d 537); People v. Donovan, 13 N.Y.2d 148 (243 N.Y.S.2d 841, 193 N.E.2d 628)). This court (the Court of Appeals) has consistently exercised the highest degree of vigilance in safeguarding the right of an accused to have the assistance of an attorney at every stage of the legal proceedings against him (e. g., People v. Blake, 35 N.Y.2d 331, (361 N.Y.S.2d 881, 320 N.E.2d 625); People v. Di Biasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825). Our special solicitude for this fundamental right is based upon our belief that the presence of an attorney is the most effective means we have of minimizing the disadvantage at which an accused is placed when he is directly confronted with the awesome law enforcement machinery possessed by the State" (People v. Cunningham, 49 N.Y.2d 203, 207, 424 N.Y.S.2d 421, 423, 400 N.E.2d 360, 363).

Significantly, this guiding principle of law and policy has found expression in two distinct, but parallel, lines of cases (People v. Cunningham, supra, p. 208, 424 N.Y.S.2d 421, 400 N.E.2d 360). In the first, the right to counsel depends solely upon whether formal adversary proceedings have been commenced (People v. Settles, 46 N.Y.2d 154, 412 N.Y.S.2d 874 385 N.E.2d 612; People v. Di Biasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825; cf. People v. Coleman, 43 N.Y.2d 222, 401 N.Y.S.2d 57, 371 N.E.2d 819). In the second, the controlling factor is whether a defendant has already retained or been assigned counsel (People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709; People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894; People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537; People v. Donovan, 13 N.Y.2d 148, 243 N.Y.S.2d 841, 193 N.E.2d 628). ⁴

In the first line of cases, People v. Settles, supra, 46 N.Y.2d p. 160, 412 N.Y.S.2d 874, 877, 385 N.E.2d 612, 614, traces what it denominates "the right of a criminal defendant (in this State) to interpose an attorney between himself and the sometimes awesome power of the sovereign." Settles, holds that "(o)nce a matter is the subject of a legal controversy any discussions relating thereto should be conducted by counsel: at that point the parties are in no position to safeguard their rights" (see, also, People v. Blake, 35 N.Y.2d 331, 361 N.Y.S.2d 881, 320 N.E.2d 625; People v. Meyer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103; People v. Rodriguez, 11 N.Y.2d 279, 229 N.Y.S.2d 353, 183 N.E.2d 51). A very recent case, People v. Samuels, 49 N.Y.2d 218, 221, 424 N.Y.S.2d 892, 894, 400 N.E.2d 1344, 1346, accords with Settles, but refines its holding to render it consistent with the present statutory law.

"By statute a criminal action now commences with the filing of an accusatory instrument (CPL 1.20, subd. 17), which includes a felony complaint (CPL 1.20, subds. 1, 8). Thus in this case the defendant's right to counsel attached when the felony complaint was filed and the arrest warrant issued (cf., People v. Blake, 35 N.Y.2d 331, 339 (361 N.Y.S.2d 881, 320 N.E.2d 625), s...