People v. Pepper

• Citation: 53 N.Y.2d 213,423 N.E.2d 366,440 N.Y.S.2d 889
• Parties: , 423 N.E.2d 366 The PEOPLE of the State of New York, Appellant, v. Theodore PEPPER, Respondent. The PEOPLE of the State of New York, Appellant, v. Wayne Claude UTTER, Respondent. The PEOPLE of the State of New York, Respondent, v. Gumersindo TORRES, Also Known as Jose Torres, Appellant.
• Decision Date: 16 June 1981
• Court: New York Court of Appeals

Page 889

440 N.Y.S.2d 889

53 N.Y.2d 213, 423 N.E.2d 366

The PEOPLE of the State of New York, Appellant, v. Theodore PEPPER, Respondent.

The PEOPLE of the State of New York, Appellant, v. Wayne Claude UTTER, Respondent.

The PEOPLE of the State of New York, Respondent, v. Gumersindo TORRES, Also Known as Jose Torres, Appellant.

Court of Appeals of New York.

June 16, 1981.

Sol Greenberg, Dist. Atty. (George H. Barber, Albany, of counsel), for appellant in the first above-entitled action.

Peter R. Porco and Paul E. Cheeseman, Albany, for respondent in the first above-entitled action.

Colin E. Ingham, Dist. Atty., for appellant in the second above-entitled action.

James L. Dowsey, III, Mineola, for respondent in the second above-entitled action.

Edwin Ira Schulman, Brooklyn, for appellant in the third above-entitled action.

Eugene Gold, Dist. Atty. (Beth S. Lasky, Asst. Dist. Atty., of counsel), for respondent in the third above-entitled action.

OPINION OF THE COURT

FUCHSBERG, Judge.

Crucial to these three appeals, 76 A.D.2d 1006, 429 N.Y.S.2d 490; 76 A.D.2d 1013, 429 N.Y.S.2d 492; 63 A.D.2d 1033, 406 N.Y.S.2d 500, each emanating from a conviction of a felony unrelated to the others, is a common question. It calls upon us to determine what retrospective effect, if any, is to be accorded our decision in People v. Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400 N.E.2d 1344, where in essence we held that once an accusatory instrument has been filed a defendant cannot waive his constitutional right to counsel save in the presence of counsel.

The Samuels rationale rested on a fundamental and uncomplicated principle, that once an accusatory instrument is filed, viewed realistically, the defendant is no longer a suspect but an accused, and the People's role may then be said to have shifted from the more neutral theater of investigation to the far more aggressive one of prosecution. In this posture, unless our adversary system of criminal justice is to flounder on the happenstance of whether, for example, a particular defendant is ignorant or sophisticated, "any discussions relating thereto should be conducted by counsel at that point the parties are in no position to safeguard their rights" (People v. Settles, 46 N.Y.2d 154, 164, 412 N.Y.S.2d 874, 385 N.E.2d 612 [criminal proceeding initiated by indictment]).

The relevancy of the retroactivity of this holding to the cases at hand appear in the following contexts:

In People v. Pepper and People v. Utter, statements were elicited from the defendants after felony complaints had been filed and arrest warrants had issued. In Pepper, the executing officers took the defendant to the police barracks; in Utter, it was to a police substation. At each location, it is established that, though the custodial warnings commanded by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, were given, the defendant voluntarily submitted to the uncounseled interrogation. In both cases, the implicated questioning occurred well before we decided Samuels. When the defendant in each case moved, inter alia, to suppress his statement, the respective County Courts heard and denied the motions. However, on each defendant's appeal from his ultimate judgment of conviction, the Appellate Division, now acting post-Samuels, reversed the judgment, granted the motion to suppress and remanded the case to the County Court for further proceedings. The People now appeal from the orders of reversal, each by leave of a Judge of this court (CPL 460.20).

In People v. Torres, two statements, one an oral confession made to a police detective and the other a stenographically recorded statement made to an Assistant District Attorney, were obtained from the defendant under circumstances sufficiently similar for the People to concede that Samuels is factually apposite. But, for present purposes, this case is distinguished from Pepper and Utter in the important respect that, after the trial court, here the Supreme Court sitting in Kings County, had denied suppression, the Appellate Division, before whom the appeal arrived before rather than after we ruled in Samuels, affirmed. To be precise, though sentence had been pronounced on Torres on March 3, 1976 and the Appellate Division affirmed his conviction on June 26, 1978, it was not until more than a year and a half later, January 15, 1980, that we decided Samuels. Long before then, on August 15, 1978, a Judge of this court had denied Torres' application for leave to appeal (45 N.Y.2d 831, 409 N.Y.S.2d 1056, 381 N.E.2d 627). The ultimate grant that presently brings up the defendant's appeal was on an application for reconsideration presented post-Samuels (50 N.Y.2d 1064, 431 N.Y.S.2d 1050, 410 N.E.2d 759). ¹

The position of each party on the pivotal prospective versus retrospective issue is pointed. In all three cases, emphasizing, among a miscellany of considerations, that "Samuels established wholly new law in New York", that it does not relate to the integrity of the fact-finding process, that law enforcement authorities have placed justifiable reliance on the "pre-Samuels " rule and that the impact of retrospective application on the administration of justice would be both adverse and "monumental", the People ask it be applied prospectively only to those cases tried after Samuels. However, against the contingency that we find Samuels applicable to cases still in the appellate process at the time we announced that decision, they urge, in the alternative, that in Torres' case we treat the date when his initial application for leave to appeal to this court was denied as the end of his appellate road. As to the defendants, not surprisingly, Torres insists that his case is still not finally determined, and all three seek full retroactivity. For the reasons which follow, we believe the Appellate Division's decision was correct in two of the cases and we do not reach the third because it was no longer in the appellate process.

None of the arguments submitted to aid us in fixing the most appropriate date for putting the overruling in question into effect is new. All have figured in the extensive attention the subject has received from jurists and commentators who in the last half century have searched for ways in which principled mitigation of the hardships that at times may accompany abrupt changes in decisional law can be achieved (see Overruling Decision--Application, Ann., 10 A.L.R.3d 1371; Fairchild, Limitation of New Judge-Made Law to Prospective Effect Only, 51 Marq.L.Rev. 254; Cardozo, Address Before the New York State Bar Association, 1932 NYSBA Report 263, 296-298).

As a result, over the years, in some instances the historic common-law rule, that all cases on direct appeal must be decided in accordance with any newly declared but conceptually always existent principle, has been tempered where there was significant reliance on a now overruled and, therefore, in theory, erroneously stated precedent (see People v. Morales, 37 N.Y.2d 262, 267-268, 372 N.Y.S.2d 25, 333 N.E.2d 339 and authorities cited thereat; Snyder, Retroactive Operation of Overruling Decisions, 35 Ill.L.Rev. 121; Schaefer, Control of "Sunbursts"s Techniques of Prospective Overruling, 42 N.Y.U.L.Rev. 631). However, notwithstanding such departures and the underlying tensions they display, overall much of the vitality of the traditional rule has survived the debate. This steadfastness is consonant with the fact that in any event most decisional law acts on past events. The retroactivity principle is also symbolic of the credo that our government is one of laws and not of men, a concept which depends heavily on a sense of continuity. (See Montague v. Vinzant, 9 Cir., 643 F.2d 657, 659-660; Mishkin, The High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv.L.Rev. 56, 62-67.)

The conflict between these opposing forces has not left the area of criminal procedure untouched. In a series of opinions, both this court and the United States Supreme Court have addressed the subject, both in cases pending on direct appeal and, if the appellate process has been exhausted, where relief is sought in collateral proceedings (see, e. g., United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374; People v. Morales, 37 N.Y.2d 262, 268-269, 372 N.Y.S.2d 25, 333 N.E.2d 339, supra, and cases cited thereat).

This is not to say that definitive standards have evolved. But neither is the field untracked. As we noted in Morales, 37 N.Y.2d 262, 269, 372 N.Y.S.2d 25, 333 N.E.2d 339, supra, useful, if general, guidelines, are available. In judging whether it is more appropriate to adhere to rather than deviate from the common-law convention, be it to grant full retroactive application (permitting a collateral attack on a conviction no longer in normal appellate channels) or to limit relief to prospective police conduct or trials, in Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248, the Supreme Court stressed, and in Morales we had occasion to weigh, three factors: "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards". In this formulation, the extent of the reliance and the nature of the burden on the administration of justice are of substantial significance only when the answer to the retroactivity question is not to be found in the purpose of the new rule itself (Desist v. United States, supra, p. 249, 89 S.Ct., p. 1033).

Thus, where otherwise there could be a complete miscarriage of justice, current constitutional standards that go to the heart of a reliable determination of guilt or innocence have been substituted for those in effect at the time of trial (Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 Holloway v. McElroy, 5 Cir., 632...