People v. Ramos

• Citation: 750 N.Y.S.2d 821,99 N.Y.2d 27,780 N.E.2d 506
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HILBERTO RAMOS, Appellant.
• Decision Date: 22 October 2002
• Court: New York Court of Appeals

99 N.Y.2d 27

780 N.E.2d 506

750 N.Y.S.2d 821

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HILBERTO RAMOS, Appellant.

Court of Appeals of the State of New York.

Argued September 6, 2002.

Decided October 22, 2002.

Legal Aid Society, New York City (Richard Joselson and Andrew C. Fine of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens (Donna Aldea and John M. Castellano of counsel), for respondent.

Chief Judge KAYE and Judges SMITH, LEVINE, CIPARICK, WESLEY and GRAFFEO concur.

OPINION OF THE COURT

ROSENBLATT, J.

In People v Kinchen (60 NY2d 772, 773 [1983]), we held that "a claimed deprivation of the State constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved by having been specifically raised in a suppression motion or at trial." On this appeal, defendant argues that an intentional delay of arraignment for the purpose of obtaining a confession gives rise to a valid State constitutional right to counsel claim which, under Kinchen, may be raised for the first time on appeal. We disagree, and conclude that defendant has not stated a valid right to counsel claim, but rather asserts a violation of the prompt-arraignment statute (CPL 140.20), which must be preserved for appellate review (see CPL 470.05 [2]). Defendant's failure to do so renders his claim unreviewable before this Court.

I.

On the morning of July 18, 1996, Jennifer Yee was found shot to death in the bathtub of her home in Queens. During their investigation that morning, detectives learned that the victim had been romantically involved with defendant. The detectives went to defendant's workplace and interviewed him as to his whereabouts the night before. After noting several inconsistencies in his account, the detectives asked him to accompany them to the precinct for further questioning. He agreed.

Defendant arrived at the precinct at about 7:30 on the evening of July 18. The officers placed him in an interview room, alone. He was not handcuffed and was offered food and water. At about 10:00 P.M., a detective read defendant his Miranda rights using a police department form. Defendant said that he understood his rights and did not want an attorney. He also signed the form, signifying his waiver of the right to counsel.

During the next two hours of questioning, defendant admitted that he had been in the victim's home late the previous night, a fact incompatible with his prior accounts of his whereabouts. He said he found the victim near death, bleeding in the upstairs bathtub, but denied any responsibility for the crime. His current girlfriend, however, told the detectives that defendant had gone to her house early that morning, asking for a change of clothing. Defendant had told her that he "messed up" and that the victim was "gone." Based on this and other information—including the presence of what appeared to be blood on the soles of defendant's shoes—the officers placed him under arrest at 12:20 A.M. on July 19. Defendant spent the night at the precinct.

At about 1:00 P.M. on July 19, Detective Sica, along with another detective, arrived at the precinct to interview defendant. They began by again informing him of his Miranda rights. Defendant again said that he understood the warnings and in writing waived his right to counsel. After initially denying any involvement in the crime, defendant gave a full written confession. The detectives completed the interview at about 3:30 P.M. and then sent defendant to central booking. He was arraigned shortly thereafter. In all, some 15 hours elapsed between defendant's arrest and arraignment.

Following his indictment for second degree murder and related crimes, defendant moved to suppress his confession, claiming that it was the product of police coercion. At no point did he argue that the police officers violated his right to counsel or that any delay in arraignment led to his confession. Supreme Court rejected defendant's claims and concluded that defendant had confessed voluntarily after validly waiving his Miranda rights. A jury found him guilty of second degree murder, first degree burglary and second degree criminal weapon possession.

On his appeal to the Appellate Division, defendant argued for the first time that the detectives delayed his arraignment for the purpose of obtaining a confession and that the delay violated his State constitutional right to counsel. In support of his argument, defendant referred to the trial testimony of Detective Joanne Toole, the arresting officer. On cross-examination, she testified that at about 3:00 A.M. on July 19— roughly two hours and 40 minutes after defendant was placed under arrest—she stopped the booking process because she believed defendant had more information about the crime. Detective Toole stated that she wanted Detective Sica, who was more experienced at conducting interrogations, to interview defendant. Defendant argued at the Appellate Division that Detective Toole's actions in delaying the arraignment solely for the purpose of having Detective Sica conduct a second interview violated his right to counsel.

The Appellate Division held that defendant's right to counsel claim could be raised on appeal even though it was unpreserved. The Court, however, declined to reach the merits because the record was not sufficient to permit appellate review, and affirmed defendant's conviction (282 AD2d 623 [2001]).

A Judge of this Court granted defendant leave to appeal and we now affirm, but on different grounds. Contrary to the Appellate Division's holding, defendant's claim involves only an asserted violation of CPL 140.20, not the State constitutional right to counsel. Defendant's failure to preserve any argument based on CPL 140.20 compels our affirmance of the Appellate Division order. We now take this opportunity to explain why an undue delay in arraignment does not give rise to a constitutional right to counsel.¹

II.

The State constitutional right to counsel is a "cherished principle" (People v West, 81 NY2d 370, 373 [1993]; People v Harris, 77 NY2d 434, 439 [1991]; People v Settles, 46 NY2d 154, 160-161 [1978]) worthy of the "highest degree of [judicial] vigilance" (People v Cunningham, 49 NY2d 203, 207 [1980]).² Our decisional law has advanced this principle by holding that the State constitutional right to counsel attaches indelibly in two situations. First, it arises when formal judicial proceedings begin, whether or not the defendant has actually retained or requested a lawyer (see People v Di Biasi, 7 NY2d 544 [1960]

; see also Settles, 46 NY2d at 161). Second, the right to counsel attaches when an uncharged individual "has actually retained a lawyer in the matter at issue or, while in custody, has requested a lawyer in that matter" (West, 81 NY2d at 373-374; see also People v Skinner, 52 NY2d 24 [1980]; People v Hobson, 39 NY2d 479, 481 [1976]). Although these principles are similar to those developed under the Fifth and Sixth Amendments to the Federal Constitution (see Miranda v Arizona, 384 US 436 [1966]; Massiah v United States, 377 US 201 [1964]), New York's constitutional right to counsel jurisprudence developed "independent of its Federal counterpart" (Settles, 46 NY2d at 161) and offers broader protections.³

The case before us, however, does not fall into either of the situations in which the right to counsel attaches. When defendant confessed, judicial proceedings had not yet begun, nor had defendant retained or requested an attorney. Indeed, he twice waived his right to counsel and does not claim otherwise. Instead, he argues that his State constitutional right to counsel arose when the officers deliberately delayed his arraignment for the purpose of obtaining an uncounseled confession. In support of this claim, defendant cites People v Wilson (56 NY2d 692 [1982]) and People v Ortlieb (84 NY2d 989 [1994]).⁴

In Wilson, the defendant sought to suppress inculpatory statements he made while in police custody. As here, the defendant argued that even though he had expressly waived his right to counsel and no accusatory instrument had been filed, his right to counsel had attached by virtue of a delay in his arraignment. The Court rejected the defendant's claim, holding that "[w]e cannot agree with defendant's argument that because he was physically in police custody awaiting arraignment his right to counsel had attached, and no decision in our court so holds" (Wilson, 56 NY2d at 694). The Court noted that there was nothing to suggest that the delay in arraignment was calculated to deprive the defendant of his right to counsel. In Ortlieb, the defendant argued that the confession he gave to police approximately five hours after his arrest should have been suppressed because police delayed his arraignment for the purpose of depriving him of the right to counsel. Finding no evidence in the record to support that claim, we concluded that "there was no `unnecessary delay'" under CPL 140.20 (1) (Ortlieb, 84 NY2d at 990).

Contrary to defendant's contentions, we have never held that a deliberate delay of arraignment for the purpose of obtaining a confession triggers the State constitutional right to counsel. Wilson did not fully consider the issue and Ortlieb rested its analysis on CPL 140.20 (1), not the State Constitution.⁵ Indeed, we have explained that a delay in arraignment "does not cause the right to counsel to attach automatically" (People v Hopkins, 58 NY2d 1079, 1081 [1983]). Rather, such a delay bears on the voluntariness of the confession, and is a factor to be considered in that regard (see id.; People v Holland, 48 NY2d 861, 863 [1979]

; People v Dairsaw, 46 NY2d 739, 740 [1978]; People v Anderson, 42 NY2d 35, 38-41 [1977]). We have long held that if law enforcement officials deliberately delay the arraignment to procure a confession, that fact has a substantial bearing on a claim of involuntariness (see People v Alex, 265 NY 192, 195 [19...