People v. Murray
| Decision Date | 26 May 1987 |
| Citation | 130 A.D.2d 773,515 N.Y.S.2d 847 |
| Parties | The PEOPLE, etc., Respondent, v. John MURRAY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Marilyn A. Kneeland, of counsel), for appellant.
John Murray, pro se.
John J. Santucci, Dist. Atty., Kew Gardens (Gary Fidel, of counsel), for respondent.
Before MANGANO, J.P., and BRACKEN, LAWRENCE and KOOPER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from two judgments of the Supreme Court, Queens County (Browne, J.), both rendered May 19, 1978, convicting him of murder in the second degree, robbery in the first degree and criminal possession of a weapon in the second degree under Indictment No. 167/77, and murder in the second degree, robbery in the first degree (two counts), and criminal possession of a weapon in the second degree under Indictment No. 305/77, upon jury verdicts, and imposing sentences. The appeals bring up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress statements made by him to the police. By order dated January 12, 1981, this court remitted the matter to Criminal Term to hear and report, after a reopened suppression hearing, and held the appeals in abeyance in the interim (see, People v. Murray, 79 A.D.2d 993, 434 N.Y.S.2d 720). Criminal Term has complied.
Justice Mangano has been substituted for former Justice Titone; Justice Bracken has been substituted for the late Justice Gibbons; Justice Lawrence has been substituted for former Justice Margett; and Justice Kooper has been substituted for former Justice O'Connor (see, 22 NYCRR 670.2[c] ).
ORDERED that the judgment on Indictment No. 305/77 is affirmed; and it is further,
ORDERED that the judgment on Indictment No. 167/77 is reversed, on the law, and a new trial is ordered on that indictment. The facts have been considered and are determined to be established.
Pursuant to our prior order, Criminal Term reopened the Huntley hearing in December 1981 and gave the defendant the opportunity to produce witnesses in support of his claim that his prearrest statements were the product of police coercion. Despite numerous adjournments and a substitution of counsel at the defendant's request, no such witnesses appeared. We find no support in this record for the defendant's claim that the lapse of time between the initial hearing and the reopened hearing caused the unavailability of any of his witnesses. Rather, defense counsel's investigation failed to uncover the existence of any such witnesses despite diligent efforts.
Also at the reopened hearing, the People adduced testimony which established that no arrest warrant for the defendant had ever been issued in connection with either of the two cases at bar. Therefore, the defendant's custodial statements were not obtained in violation of any right to counsel (cf. People v. Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400 N.E.2d 1344). In view of the evidence presented at the reopened hearing, Criminal Term properly adhered to its original determination denying the defendant's motion to suppress statements.
Despite the lack of error in Criminal Term's pretrial determination to admit the defendant's statement in evidence in each case, we nevertheless find that reversible error occurred with respect to Indictment No. 167/77 when Criminal Term gave an erroneous and prejudicial charge to the jury on the issue of whether the statements were the product of coercion. CPL 710.70(3) provides that a defendant who has...
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