People v. Moore

• Decision Date: 01 December 1980
• Citation: 79 A.D.2d 619,433 N.Y.S.2d 473
• Parties: The PEOPLE, etc., Respondent, v. Ernest MOORE, a/k/a Godlah Allah, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 473

433 N.Y.S.2d 473

79 A.D.2d 619

The PEOPLE, etc., Respondent, v. Ernest MOORE, a/k/a Godlah Allah, Appellant.

Supreme Court, Appellate Division, Second Department.

Dec. 1, 1980.

Michael F. Mullen, Huntington, for appellant.

Patrick Henry, Dist. Atty., Riverhead (John J. Ribeiro, Asst. Dist. Atty., Hauppauge, of counsel), for respondent.

Before MANGANO, J. P., and GIBBONS, GULOTTA and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Suffolk County, rendered September 6, 1978, convicting him of robbery in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of defendant's motions to suppress statements and identification testimony.

Judgment reversed, on the law, plea vacated, and case remitted to Criminal Term for further proceedings consistent herewith.

Defendant, a suspect in a robbery at a gas station in Suffolk County, was in his parole officer's office in New York City for a scheduled visit when his parole officer asked him to remain in the office so that two Suffolk County detectives could question him concerning the robbery. The defendant asked his parole officer for an attorney, but was informed that the Division of Parole could not supply him with one. When the detectives arrived, the parole officer left the room and never told the detectives of defendant's request for a lawyer.

The defendant was questioned by the detectives at the parole office. Thereafter, he returned with them to Suffolk County to stand in a lineup, wherein he was identified by the owner of the gas station as the perpetrator of the robbery. Both before and after the lineup, defendant made incriminating statements to the detectives. Defendant was not afforded the assistance of counsel during the lineup or police interrogation.

At a subsequent Huntley/Wade hearing, the detectives testified that the defendant had been given his Miranda warnings on more than one occasion and had waived his right to an attorney.

Defendant's sister-in-law, who accompanied him from the parole office to her home in Brooklyn in the detectives' car, testified that he had repeatedly requested that he be afforded his rights and that an attorney be provided. Defendant's suppression motions were denied and, subsequently, he withdrew his plea of not guilty and pleaded guilty to robbery in the second degree.

Criminal Term erred in not suppressing the incriminating statements and the lineup identification, since they were obtained in violation of defendant's right to counsel. Once a suspect in a custodial situation requests the assistance of an attorney, he may not be questioned further in the absence of counsel (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; People v. Marrero, 51 N.Y.2d 56, 59, 431 N.Y.S.2d 508, 409 N.E.2d 980; People v. Cunningham, 49 N.Y.2d 203, 424 N.Y.S.2d 421, 400 N.E.2d 360). Furthermore, defendant should not have been forced to participate in a lineup in the absence of counsel, once an attorney had been requested (cf. People v. Blake, 35 N.Y.2d 331, 361 N.Y.S.2d 881, 320 N.E.2d 625).

In New York, the test used to determine whether a defendant was in custody is " 'what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position' " (see Matter of Kwok T., 43 N.Y.2d 213, 220, 401 N.Y.S.2d 52, 371 N.E.2d 814; People v. Korsing, 71 A.D.2d 628, 419 N.Y.S.2d 76). At bar, a...