People v. Robles

• Decision Date: 15 December 1988
• Citation: 533 NE2d 240,536 N.Y.S.2d 401,72 N.Y.2d 689
• Parties: , 533 N.E.2d 240 The PEOPLE of the State of New York, Respondent, v. Juan ROBLES, Appellant. The PEOPLE of the State of New York, Respondent, v. Thomas MURRAY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 401

536 N.Y.S.2d 401

72 N.Y.2d 689, 533 N.E.2d 240

The PEOPLE of the State of New York, Respondent, v. Juan ROBLES, Appellant.

The PEOPLE of the State of New York, Respondent, v. Thomas MURRAY, Appellant.

Court of Appeals of New York.

Dec. 15, 1988.

Harold V. Ferguson, Jr., and Philip L. Weinstein, New York City, for appellant in the first above-entitled action.

Robert M. Morgenthau, Dist. Atty. (Carol Gette and Amyjane Rettew, New York City, of counsel), for respondent in the first above-entitled action.

James B. McCarthy, for appellant in the second above-entitled action.

Robert M. Morgenthau, Dist. Atty. (Norman Barclay and Amyjane Rettew, New York City, of counsel), for respondent in the second above-entitled action.

OPINION OF THE COURT

WACHTLER, Chief Judge.

In each of these unrelated cases, the defendant came under suspicion for murder and other offenses while being prosecuted for less serious, unconnected crimes. Each defendant was represented by counsel in the pending prosecutions. The investigating authorities, knowing that they could not subject the suspects to custodial interrogation in the absence of counsel while the prior charges remained pending (see, People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709; see also, People v. Bertolo, 65 N.Y.2d 111, 116, 490 N.Y.S.2d 475, 480 N.E.2d 61), did not arrest or question the defendants until after disposition of the prior charges. Then, after the required preinterrogation warnings, but in the absence of counsel, each defendant made inculpatory statements.

The common question presented by these appeals is whether those inculpatory statements should be suppressed on the ground that they were obtained in violation of the defendants' right to counsel. We hold that the right to counsel derived from their representation on the prior charges expired with the disposition of those charges and accordingly, that the defendants' suppression motions were properly denied. ^*

I. People v. Robles

Defendant Robles was convicted, upon a guilty plea, of second degree murder and several counts of first and third degree robbery. The murder charge and one of the robbery charges arose out of the stabbing death of a woman in a stairwell of the Waldorf-Astoria Hotel on September 22, 1982. In the victim's handbag the police found a card bearing a bloody fingerprint. For the next two months, the investigation was fruitless, but on November 23, the fingerprint was matched to defendant. A check of police records and further investigation revealed that Robles had a pending indictment in New York County, that he was represented by counsel on that charge, that he was then free on bail and was scheduled to appear in court on November 29.

On the scheduled date, the investigators attended court in order to establish surveillance of defendant, but he did not appear. They learned, however, that his case had been adjourned until December 6 and they observed him as he attended court on that and two consecutive dates. At the third appearance, defendant entered a guilty plea in satisfaction of the pending charges and the case was adjourned until January 11, 1983 for sentencing.

Although defendant remained free on bail, the investigators made no attempt to arrest him on the homicide matter. The detectives acknowledged at the suppression hearing, and the suppression court found, that the decision not to arrest defendant was prompted in part by the investigators' knowledge that they could not question defendant in a custodial setting in the absence of counsel because he was represented by an attorney on the pending charges.

On January 4, the investigators learned of another robbery at the Waldorf-Astoria Hotel committed the day before by a man fitting defendant's description. The detectives soon connected defendant with at least 10 robberies of a similar nature and defendant's photo was selected from an array by a number of the victims. The detectives immediately sought to arrest defendant, but they could not locate him until he appeared for his sentencing on January 11. Because he was remanded into custody at that time, however, they decided not to arrest him in connection with the murder and robberies until he completed his sentence on the prior charges.

When defendant was released from Rikers Island three months later, he was immediately arrested, given Miranda warnings and questioned, without counsel present, about the murder and robberies. Defendant made oral, written and videotaped confessions. His subsequent motion to suppress the statements was denied, he entered a guilty plea, and his conviction was affirmed by a unanimous Appellate Division. 131 A.D.2d 982, 516 N.Y.S.2d 567. A Judge of this court granted defendant's application for leave to appeal.

People v. Murray

Defendant Murray was convicted after a jury trial of second degree murder and first degree robbery. He had participated in the robbery of a man in the victim's Greenwich Village apartment, during which, according to the prosecution theory, defendant's accomplice stabbed the victim to death. The victim was discovered on June 2, 1983, a day or two after his death.

Detectives first connected defendant to the crime several weeks later through information provided by an acquaintance of defendant, Frank Bruno, who was in custody at Rikers Island in connection with unrelated charges. During a July 9 interview, Bruno told the detectives that Murray had told him of his participation in a robbery in the Greenwich Village vicinity that had "gone sour". Murray had told Bruno that the victim had tried to flee, Murray's accomplice had grabbed the victim, and the two had fled the apartment with "blood in the hallway and blood all over the place".

The investigators obtained a set of Murray's fingerprints from police in New Jersey, where defendant lived, but due to the poor quality of the prints were unable to determine if they matched an unidentified print found in the victim's apartment. Several months went by, apparently with few further developments.

On October 26, 1983, defendant was arrested in Manhattan for shoplifting. He was arraigned the following day and a Legal Aid attorney was assigned to represent him. The detectives conducting the homicide investigation learned of this arrest and monitored the progress of the case. Defendant did not appear at the first scheduled date in the shoplifting proceeding but later surrendered on a bench warrant and the case was adjourned to December 6. On December 5, Assistant District Attorney (ADA) Kitsis, who was assigned to the shoplifting case, had a discussion with the ADA in charge of the homicide investigation. Kitsis learned that the police wished to speak to Murray about the homicide and that they could not do so while the shoplifting charge remained pending, although it is not clear from the record that Kitsis knew that Murray was a suspect in the case. In any event, the following day Kitsis successfully moved to dismiss the shoplifting charge, citing "a broad range of factors".

As the defendant left the courtroom, the homicide detectives approached and asked to talk to him at the station house. He complied and when they arrived at the station, defendant was taken to an interview room, read Miranda warnings and questioned. He quickly confessed to his participation in the robbery and was placed under arrest for murder.

Although the suppression court found that the dismissal of the shoplifting charge was for the purpose of permitting the police to question defendant about the homicide without an attorney present, defendant's suppression motion was denied. A divided Appellate Division affirmed and one of the dissenting Justices granted defendant permission to appeal to this court. 129 A.D.2d 319, 517 N.Y.S.2d 515.

II.

Defendants contend and the People concede that during the pendency of the prior charges on which defendants were represented by counsel, and of which the investigating authorities were aware, defendants could not have been questioned while in custody, in the absence of counsel, about any of the charges (see, People v. Rogers, supra). Defendants further claim that this right was somehow violated because the police attempted to avoid the Rogers proscription by awaiting or prompting the disposition of the pending charges before interrogating them.

To the extent that defendants' argument assumes that the Rogers right to counsel survived the disposition of the pending charges, it is foreclosed by People v. Mann, 60 N.Y.2d 792, 469 N.Y.S.2d 681, 457 N.E.2d 788, where we held that uncounseled interrogation on new charges was permissible after the dismissal of prior charges for which the defendant was represented. Similarly, in People v. Colwell, 65 N.Y.2d 883, 493 N.Y.S.2d 298, 482 N.E.2d 1214, we held that, once the pending charge had resulted in a conviction and the defendant was represented only for purposes of an appeal, Rogers did not preclude questioning on unrelated charges.

Defendants claim, however, that these cases must be treated differently than Mann and Colwell because here the police and prosecutors made a conscious decision to refrain from questioning defendants during the period of Rogers protection. This deliberate attempt to "circumvent" Rogers, according to defendants, violated their right to counsel. We disagree.

The right to counsel during pretrial interrogation, one aspect of our State's constitutional right to counsel (N.Y. Const., art. I, § 6), is governed by a core principle: once the right has attached, "the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant's right to counsel" (People v. Arthur, 22 N.Y.2d 325, 329, 292 N.Y.S.2d 663, 239 N.E.2d 537; see also, People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894; People v. Donovan, 13 N.Y.2d 148, 243 N.Y.S.2d 841, 193 N.E.2d 628). Many of our...