People v. Pinzon

• Decision Date: 09 May 1978
• Citation: 406 N.Y.S.2d 268,377 N.E.2d 721,44 N.Y.2d 458
• Parties: , 377 N.E.2d 721 The PEOPLE of the State of New York, Appellant, v. Cruz PINZON, Jr., also known as Cruz Pinzon Barbosa, Jr., Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 268

406 N.Y.S.2d 268

44 N.Y.2d 458, 377 N.E.2d 721

The PEOPLE of the State of New York, Appellant, v. Cruz PINZON, Jr., also known as Cruz Pinzon Barbosa, Jr., Respondent.

Court of Appeals of New York.

May 9, 1978.

Henry F. O'Brien, Dist. Atty. (Steven Hovani and Kevin J. Crowley, Riverhead, of counsel), for appellant.

Anna M. Perry and John F. Middlemiss, Jr., Hauppauge, for respondent.

OPINION OF THE COURT

WACHTLER, Judge.

A Suffolk County jury found the defendant guilty of criminally negligent homicide. The Appellate Division reversed and dismissed the indictment holding that the defendant's confession should be suppressed because the police questioned him in custody, in the absence of counsel, after an attorney retained to represent him had repeatedly called the police department central switchboard, identified himself, asked to speak with the defendant and requested that the defendant not be questioned until he arrived. Concededly these calls were not put through to the defendant, the interrogating officers or their supervisors. Instead the attorney was erroneously informed that the police did not "have" the defendant. On this appeal by the People the only question raised is whether, under the circumstances, the attorney's repeated calls to the police department central switchboard were sufficient to put the police on notice that an attorney had entered the proceedings to represent the defendant on the criminal charges under investigation.

At the pretrial suppression hearing Detective Franco, from the Suffolk County Police Department's Third Precinct located at Bay Shore, testified that he was summoned to Southside Hospital in Bay Shore on the evening of July 17, 1973. At the hospital he was informed by doctors in the emergency room that defendant's stepson had been admitted with serious, and possibly fatal, injuries to the abdomen which could have been inflicted by blows to the stomach. The officer then returned to the waiting room and questioned the defendant and his wife. Neither however was able to explain how the boy received the injuries although the defendant, after being advised of his rights, admitted that on occasion he had hit the boy to discipline him. The officer later returned to the police station and filed a report to that effect.

The following morning at approximately 10:30 another officer from the third precinct, Detective Wyckoff, was sent to the hospital to question the boy. At the hospital however he was informed that the boy had undergone surgery, was still unconscious and was not expected to live. Detective Wyckoff then called his superior who directed him to bring the defendant down to the third precinct for questioning.

At the station house Wyckoff advised the defendant of his rights and questioned him, but the defendant continued to deny any knowledge as to how the boy had been injured. At approximately 12:20 that afternoon the boy died at the hospital. When Wyckoff was informed of this he stopped questioning the defendant because, as he stated, the matter was now within the jurisdiction of the homicide squad. The defendant remained at the third precinct until he was picked up by members of the homicide squad sometime after 1 o'clock that afternoon.

Shortly before 1 o'clock Leo Otis, an attorney retained by the defendant's family to represent him in the investigation, made three phone calls to the Suffolk County Police Headquarters which is located at Hauppauge. During these conversations Otis identified himself as defendant's attorney, asked to speak with him and requested that the defendant not be questioned until his attorney arrived. The calls were made to the central number for the police department where all incoming calls, except emergencies, are received at a central switchboard operated by three civilian employees who are responsible for directing the calls to the proper party. If the operators are in doubt as to where a call should go they can and apparently have been instructed to refer the call to their supervisor who is the duty officer in charge of the communications center. However none of the calls made by the defendant's attorney were put through to the defendant, the interrogating officers or their superiors nor apparently were they referred to the duty officer. ¹ Instead the defendant's attorney was repeatedly misinformed that the police department did not "have" the defendant.

Within a half hour of Mr. Otis' third call to police headquarters, detectives from the homicide squad transported the defendant from Bay Shore to Hauppauge where the homicide squad offices are located. Once again the defendant was advised of his rights and, after some questioning, finally admitted that he struck his stepson several times with his fists on the evening of July 17, 1973. However when the police began to reduce the statement to writing, the defendant stated that he would not sign anything and would not answer any further questions. Thus the questioning ceased sometime prior to 2:30 p. m. By 3 o'clock the police informed the defendant that he would be charged with homicide.

Approximately an hour later one of the detectives who had obtained the confession from the defendant received a phone call from the defendant's attorney. ² The officer assured Mr. Otis that the defendant had not signed anything; that he had not given any statements and that there would be no further questioning.

At the conclusion of the hearing the court denied the defendant's motion to suppress. The court held that "assertion" of the right to counsel "must be made to a responsible member of the police department either by the defendant or his attorney." And here, it was noted, the "evidence fails to establish that the attorney spoke with anyone other than the civilian switchboard operators" (82 Misc.2d 436, 440-441, 370 N.Y.S.2d 297, 301; emphasis in original).

The Appellate Division reversed on the law. ³ The majority attached no significance to the fact that the attorney had spoken only to civilian switchboard operators. They simply noted that he had "made three phone calls to the Suffolk County Police Department" and that he "identified himself, requested to speak with defendant and asked that defendant not speak with anyone there until he arrived. He was repeatedly informed that defendant was not there". Relying on People v. Donovan (13 N.Y.2d 148, 243 N.Y.S.2d 841, 193 N.E.2d 628) and People v. Arthur (22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537) the Appellate Division held the confession must be suppressed (52 A.D.2d 638, 382 N.Y.S.2d 563).

Subsequent to the Appellate Division determination, the rule announced in Donovan and Arthur was reaffirmed and restated as follows: "Once a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer" (People v. Hobson, 39 N.Y.2d 479, 481, 384 N.Y.S.2d 419, 420, 348 N.E.2d 894, 896). The People recognize that this rule applies on this appeal (see, e. g., People v. Macedonio, 42 N.Y.2d 944, 397 N.Y.S. 1002, 366 N.E.2d 1355; People v. Singer, 44 N.Y.2d 241, 405 N.Y.S.2d 17, 376 N.E.2d 179), but urge that we hold, as the hearing court...