People v. Ringer

• Decision Date: 23 May 1988
• Citation: 528 N.Y.S.2d 674,140 A.D.2d 642
• Parties: The PEOPLE, etc., Respondent, v. Joseph RINGER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 674

528 N.Y.S.2d 674

140 A.D.2d 642

The PEOPLE, etc., Respondent, v. Joseph RINGER, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 23, 1988.

Victoria C. Morgan, New York City, and Steven A. Feldman, Garden City, for appellant.

Joseph Ringer, pro se.

Denis Dillon, Dist. Atty., Mineola (Anthony J. Girese and Lawrence J. Zinn, of counsel), for respondent.

Before THOMPSON, J.P., and LAWRENCE, EIBER and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

Appeals by the defendant from (1) a judgment of the County Court, Nassau County (Goodman, J.), rendered February 16, 1984, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence upon him as a second violent felony offender, and (2) an amended sentence of the same court, imposed December 12, 1986, upon vacatur of the defendant's second violent felony offender status. The appeal from the judgment brings up for review the denial, following a hearing, of that branch of the defendant's omnibus motion which was to suppress statements made by him to the police.

ORDERED that so much of the appeal from the judgment rendered February 16, 1984, as sought review of the sentence is dismissed, as that portion of the judgment was superseded by the amended sentence; and it is further,

ORDERED that the judgment is in all other respects reversed, on the law and the facts, the branch of the defendant's omnibus motion which was to suppress statements made by him to the police is granted; and it is further,

ORDERED that the amended sentence is reversed, on the law and the facts, and a new trial is ordered.

The defendant stands convicted of robbery in the first degree on the basis of evidence consisting primarily of statements made to the police. At a Huntley hearing, the arresting officer testified in pertinent part as follows:

"Q. * * * Officer Vance, did you have any further conversation with the Mr. Ringer?

"A. Yes, I did.

"Q. What, if anything, did you say to him and what did he say to you?

"A. * * * Mr. Ringer told me that he did not wish to make a statement, that he wanted an attorney and he did not wish to make any statement at all.

"Q. All right. Do you recall him specifically saying he wished an attorney or that he did not wish to speak to you? * * * Did he say anything with regard to an attorney? * * *

"A. I don't remember what his exact words were.

"Q. All right. Do you recall whether he said anything in regard to an attorney?

"A. I can't be sure, no. * * *

"THE COURT: Let's get it straight for the record, for the court. My understanding is you said he wanted an attorney after you read him his rights * * * Now did he say he wanted a lawyer or you don't recall what he said in regard to a lawyer?

"THE WITNESS: Well, he's asking me do I remember specifically what he said about stating a lawyer and I do not remember what he said. I remember him saying something about a lawyer".

Based on this testimony, and our obligation "to 'indulge every reasonable presumption against waiver' of fundamental constitutional rights" ( People v. Warren, 97 A.D.2d 486, 488, 467 N.Y.S.2d 837, appeal dismissed 61 N.Y.2d 886, 474 N.Y.S.2d 473, 462 N.E.2d 1191, quoting from Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461), we conclude that the People have failed to meet their burden of proving beyond a reasonable doubt that the statements made by the defendant were voluntarily made after a waiver of the defendant's right to counsel ( see, People v. Holland, 48 N.Y.2d 861, 424 N.Y.S.2d 351, 400 N.E.2d 293; People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179) and thus the statements should have been suppressed (...