People v. Moore

• Decision Date: 13 November 1986
• Citation: 133 Misc.2d 900,509 N.Y.S.2d 259
• Parties: The PEOPLE of the State of New York v. Roman MOORE, Defendant.
• Court: New York Supreme Court

Page 259

509 N.Y.S.2d 259

133 Misc.2d 900

The PEOPLE of the State of New York v. Roman MOORE, Defendant.

Supreme Court, Criminal Term,

Queens County Part J7.

Nov. 13, 1986.

Marvin Kornberg, Kew Gardens, for defendant.

John J. Santucci, Dist. Atty. (Philip Simpson, of counsel), for the People.

MEMORANDUM

LEON A. BEERMAN, Justice.

The main question presented in this case is whether a criminal defendant is denied his State Constitutional right to counsel when he is placed in a holding pen in the courthouse awaiting Criminal Court arraignment Defendant Roman Moore is charged in Indictment Number 4772/85 with three counts of attempted robbery in the second degree. A combined Wade/Huntley hearing was held in this Court on October 3, 1986. At the hearing, the People called to the stand Police Officers Lisa Swinton, Michael Miskell, and William Pepey, as well as Police Detective Frank DeRosalia. The hearing was adjourned until October 9, 1986, for the People to produce Assistant District Attorney Steven Paynter, but the People declined to call him to the stand on that date, and rested. The defense called no witnesses. The Court finds the testimony of the witnesses to be credible, and makes the following findings of fact and conclusions of law.

and then, after a lengthy delay the reason for which is not explained, he is taken out of the pen for interrogation and arraigned only after he has given inculpatory statements to the authorities. This Court answers the question in the affirmative, and accordingly orders the inculpatory statements suppressed.

FINDINGS OF FACT

At approximately 10:50 PM on September 23, 1985, Officer Swinton, on foot patrol, was on the corner of Francis Lewis Boulevard and Merrick Avenue in Queens. The complainant, Andrew DeCosta, drove up in a van and got out, displaying a .22 caliber revolver. He said that he had just been robbed by four men, and that one of them, whom he had shot, was still in the van.

The officer placed DeCosta in custody, took the gun from him, and radioed for assistance. She looked in the van and saw an injured man, who was later determined to be dead and to be named Terrance Cunningham, and a gun on the floor. Officer Miskell arrived, formally arresting DeCosta and handcuffing him.

DeCosta told Miskell that he had been driving a van east on Merrick Avenue, when an unidentified person sitting behind him hit him on the head with a gun. Then three other people in the van jumped on DeCosta, who fell out of the van. He saw a gun laying on the street next to him, picked it up, and fired three shots into the van. Then he got back into the van and drove up to Officer Swinton.

As DeCosta finished relating his story, he pointed to defendant Roman Moore and his two co-defendants, Timothy Cunningham and Eric Leite, ^* who were standing among the crowd that had gathered. DeCosta said that the three had been among those who had assaulted him.

Moore then looked into the van and said that the injured man was his cousin. He explained that he had been in the van with his cousin, and that some unidentified persons had tried to rob the van's passengers and then shot his cousin. Cunningham said that the injured man was his brother, and that DeCosta had abducted his brother and then shot him.

DeCosta was taken to the stationhouse in one police car, and the three defendants in another. Officer Pepey testified that although Moore was not free to leave when he was taken to the precinct, he was not formally arrested until three o'clock the following morning. Pepey spoke to all of the persons involved in the case, and Moore was the second to last person to whom he spoke.

After midnight, but before the 3:00 AM formal arrest, Pepey read Moore the Miranda warnings from a card, and Moore waived his Miranda rights and gave a statement. According to Moore, his two co-defendants, the deceased, and he were taking a van service from Queens to a movie theater in Nassau County. During the trip, the driver stopped the van, ran across Merrick Boulevard to another van headed in the other direction, and then returned to his own van. At the corner of 231st Street and Merrick Boulevard, the According to Officer Pepey's written report, made at 5:30 AM on September 24, Moore was charged with robbery in the first degree. Moore's NYSID sheet was received by the police by 10:29 AM that day.

van contained only the driver, Moore and his three friends, and two other persons whom Moore did not know. These two persons grabbed the driver and demanded his money. A struggle ensued, shots were fired, and Moore saw the deceased lying dead on the van's floor.

The fingerprinting had been done, not at the precinct, but at Central Booking in the courthouse. Afterward, Moore was placed in the holding pens in the courthouse, awaiting arraignment.

By 6:30 PM on September 24, Moore had still not been arraigned. The record is silent as to why.

At 6:30, Detective DeRosalia took Moore out of the cell and placed him in an employee's lunchroom in the courthouse. There, he read Moore the Miranda warnings from a form, Moore waived his Miranda rights, and then gave a statement. According to this new statement, Moore, his two co-defendants, and the deceased had attempted to rob DeCosta pursuant to a preconceived plan, but DeCosta shot the deceased in the struggle and the plan was abandoned.

Between the time Moore gave this second statement at 6:30 PM and midnight, Moore gave a videotaped statement to Assistant District Attorney Steven Paynter in DeRosalia's presence. That third statement was similar in content to the second.

The yellow-back sheet of the Criminal Court papers in this case was prepared for an arraignment on September 24, the day petitioner made his in-custody statements and the day after the incident. However, the felony complaint was not signed or filed with the court until September 25, on which date Moore was arraigned. The record is silent as to the time of these events on the 25th.

CONCLUSIONS OF LAW

Huntley Issues

Generally, when a defendant is arrested in New York City, he is taken to the local stationhouse for investigation, including interrogation. Then he is taken to Central Booking located in the Criminal Court courthouse, fingerprinted, and placed in a holding pen to await his arraignment. People v. Lockwood, 44 N.Y.2d 769, 770, 406 N.Y.S.2d 37, 377 N.E.2d 481 (1978) rev'g on the dissent below, 55 A.D.2d 17, 20-25, 389 N.Y.S.2d 583 (1st Dept.1976); People v. Lindo, 85 A.D.2d 643, 645, 444 N.Y.S.2d 929 (2d Dept.1981); People v. Roucchio, 70 A.D.2d 322, 324, 420 N.Y.S.2d 1006 (1st Dept.1979); People v. Collazo, 98 Misc.2d 58, 60-61, 412 N.Y.S.2d 943 (Sup.Ct., Bronx Co. 1978) (Rosenberg, J.).

Section 140.20, subdivision 1 of the Criminal Procedure Law requires that after a defendant is arrested, the accusatory instrument be filed and the arraignment take place "without unnecessary delay." Usually this statute is observed, with delays in arraignment being justified by such circumstances as that the court is closed, People v. Coleman, 115 A.D.2d 488, 496 N.Y.S.2d 41 (2d Dept.1985), that the defendant must be fingerprinted and photographed, People v. Cooper, 101 A.D.2d 1, 12-13, 475 N.Y.S.2d 660 (4th Dept.1984), that the defendant unexpectedly confesses to two unsolved murders, People v. Hopkins, 58 N.Y.2d 1079, 1081-82, 462 N.Y.S.2d 639, 449 N.E.2d 419 (1983), or that the terms of a Federal grant require a short delay in arraignment, People v. Wilson, 56 N.Y.2d 692, 693-94, 451 N.Y.S.2d 719, 436 N.E.2d 1321 (1982).

Every once in a while, however, the police and/or the District Attorney's office, not being satisfied with the evidence they have thus far obtained against the defendant, decide to delay the filing of the complaint and the arraignment so that they can obtain inculpatory statements from him. In more extreme cases, after the defendant has been processed and placed in the holding pen at the courthouse for arraignment, they hold off on the filing of the complaint and actually pull him out of the pen for interrogation. When, as in the instant case, this is done, the defendant's right to counsel has been violated.

Under our State Constitution, the right to counsel attaches at the commencement of the criminal proceeding. People v. Samuels, 49 N.Y.2d 218, 221, 424 N.Y.S.2d 892, 400 N.E.2d 1344 (1980). The criminal proceeding commences when the case moves from the investigative stage to the accusatory stage. People v. Lockwood, supra, 44 N.Y.2d at 770, 406 N.Y.S.2d 37, 377 N.E.2d 481, rev'g on the dissent below, 55 A.D.2d at 22, 389 N.Y.S.2d 583; People v. Cruz, 72 A.D.2d 549, 549-50, 420 N.Y.S.2d 721 (2d Dept.1979); People v. Richardson, 25 A.D.2d 221, 224, 268 N.Y.S.2d 419 (1st Dept.1966). For example, the accusatory stage, and thus the commencement of the proceeding, is obviously reached when the accusatory instrument--whether it be an indictment, information, or complaint--is filed with the court. Samuels, supra, 49 N.Y.2d at 221, 424 N.Y.S.2d 892, 400 N.E.2d 1344.

But the proceeding can commence even before the filing of the accusatory instrument. For example, the case moves from the investigatory to the accusatory stage when the case is ready to proceed to the latter stage, but the filing of the accusatory instrument is unnecessarily delayed so that a statement can be taken from the defendant in the absence of counsel. People v. Hopkins, supra, 58 N.Y.2d at 1081-82, 462 N.Y.S.2d 639, 449 N.E.2d 419; People v. Wilson, supra, 56 N.Y.2d at 693-94, 451 N.Y.S.2d 719, 436 N.E.2d 1321; People v. Lockwood, supra, 44 N.Y.2d at 770, 406 N.Y.S.2d 37, 377 N.E.2d 481, rev'g on the dissent below, 55 A.D.2d at 20-25, 389 N.Y.S.2d 583; People v. Edgerton, 115 A.D.2d 257, 259-60, 495 N.Y.S.2d 858 (4th Dept.1985); People v. Coleman, supra, 115 A.D.2d at 488, 496 N.Y.S.2d 41; People v. Williams, 112 A.D.2d 259, 260, 491 N.Y.S.2d 706 (2d Dept.1985); People v. Bernacet, 108 A.D.2d 921, 922, 485 N.Y.S.2d...