People v. Rogers

• Citation: 397 N.E.2d 709,48 N.Y.2d 167,422 N.Y.S.2d 18
• Parties: , 397 N.E.2d 709 The PEOPLE of the State of New York, Respondent, v. Herbert L. ROGERS, Appellant.
• Decision Date: 23 October 1979
• Court: New York Court of Appeals

Page 18

422 N.Y.S.2d 18

48 N.Y.2d 167, 397 N.E.2d 709

The PEOPLE of the State of New York, Respondent, v. Herbert L. ROGERS, Appellant.

Court of Appeals of New York.

Oct. 23, 1979.

Michael J. Obus, Matthew Muraskin and Barbara M. Rosen, Mineola, for appellant

Denis Dillon, Dist. Atty. (Judith K. Sternberg and William C. Donnino, Mineola, of counsel), for respondent.

OPINION OF THE COURT

COOKE, Chief Judge.

We hold today that once an attorney has entered the proceeding, thereby signifying that the police should cease questioning a defendant in custody may not be further interrogated in the absence of counsel. We may not blithely override the importance of the attorney's entry by permitting interrogation of an accused with respect to matters which some may perceive to be unrelated.

Defendant was convicted, after jury trial, of robbery in the first degree and, upon plea of guilty, of burglary in the third degree. The evidence at trial in part consisted of eyewitness testimony and certain statements made by defendant while in custody and after his attorney had instructed police to cease further questioning. Defendant unsuccessfully sought to suppress this proof and the judgments of conviction were affirmed by the Appellate Division, without opinion. There should be a reversal and a new trial on the robbery indictment.

Defendant was arrested in his home on December 16, 1975 at about 10:15 a. m. as a suspect in a liquor store robbery committed by two youths on February 7, 1975. Defendant was handcuffed, placed in a patrol car and taken to the robbery squad in Mineola. At the time of arrest, and again at police headquarters, Miranda warnings were administered. Defendant informed the police that he had an attorney but that he was willing to speak in the absence of the attorney. After a two-hour period of interrogation in which defendant denied complicity in the crime, the police received a communication from his attorney instructing them to cease further questioning.

Thereafter, the police asked no further questions about the robbery but, under a purported waiver of defendant's rights, continued to question concerning unrelated activities in which he had not participated. These queries continued for approximately four hours after the communication from his attorney. During this entire period, defendant was manacled. After inquiries ceased, the police completed the paper work necessary to process defendant and no further information was sought. Defendant then uttered an inculpatory statement which was overheard by one of the detectives who had been questioning him. His motion to suppress the statement was denied on the ground that the assertion was spontaneously volunteered, and this appeal is based on that ruling. ¹

The genesis of defendant's utterance must be determined to be either as one arising out of sheer spontaneity or as having been induced by illegal police questioning. The threshold issue is whether once a defendant is represented on pending matters, the police may question the defendant on items unrelated to the subject of that representation after the defendant, in the absence of counsel, has waived his rights.

This court has jealously guarded the individual's privilege against self incrimination and right to counsel, demanding that these fundamental rights be accorded the highest degree of respect by those representing the State. Indeed, it has been announced in broad language that "(o)nce an attorney enters the proceeding, 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 * * * There is no requirement that the attorney or the defendant request the police to respect this right of the defendant" (People v. Arthur, 22 N.Y.2d 325, 329, 292 N.Y.S.2d 663, 666, 239 N.E.2d 537, 540; see, also, People v. Settles, 46 N.Y.2d 154, 412 N.Y.S.2d 874, 385 N.E.2d 612; People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894).

The People maintain nonetheless that a waiver in the presence of counsel is necessary only when the defendant is subjected to interrogation concerning the charge on which he is represented. Thus, it is urged that the four-hour interrogation after the attorney had entered the proceeding was proper because it dealt only with unrelated matters. The People's position, however, is untenable, it being at odds with the thrust of recent decisions concerning the scope of the State constitutional right to counsel (N.Y.Const., art. I, § 6).

It is true that previous decisions of this court, rendered in an era when the Arthur rule was in doubt, excepted from its scope questioning about a charge unrelated to the one on which defendant was represented (see People v. Taylor, 27 N.Y.2d 327, 318 N.Y.S.2d 1, 266 N.E.2d 630; People v. Hetherington, 27 N.Y.2d 242, 317 N.Y.S.2d 1, 265 N.E.2d 530; but see People v. Vella, 21 N.Y.2d 249, 287 N.Y.S.2d 369, 234 N.E.2d 422). And, when the Arthur rule was revitalized in People v. Hobson, 39 N.Y.2d 479, 483, 384 N.Y.S.2d 419, 421, 348 N.E.2d 894, 897, Supra, the exception for unrelated charges was again articulated, although there the court had no need to apply the rule. Since Hobson, however, it has been difficult to define the precise reach of the limitation concerning unrelated charges. Perhaps this is a result of the obvious difficulty encountered in drawing the subtle distinctions necessitated by the interaction of the Hobson and Taylor rules.

Specifically, in People v. Ramos, 40 N.Y.2d 610, 389 N.Y.S.2d 299, 357 N.E.2d 955, where the defendant, who was represented by an attorney on a drug charge, had been advised not to make any statements at the time of his arrest on an unrelated charge, the advice of the attorney was deemed sufficient to trigger the Arthur, rule, and the statements concerning the unrelated charge were suppressed. The ruling was based not on "the mere fortuity that (defendant) was represented by counsel on an unrelated charge, but rather * * * on the attorney's affirmative and direct action relative to the interrogation which was about to be commenced" (Ramos, 40 N.Y.2d, at p. 617, 389 N.Y.S.2d, at p. 304, 357 N.E.2d, at p. 960). The broad Taylor rule was refined and limited to include the situation "where counsel had not entered the proceeding and where no request for counsel had been made, even though the same defendant might, by mere happenstance, be represented by counsel in a totally unrelated proceeding" (Id.).

Last term in People v. Carl, 46 N.Y.2d 806, 807, 413 N.Y.S.2d 916, 917, 386 N.E.2d 828, 829, it was held to be a "technicality of little significance" that defendant was questioned concerning a crime different than the one for which he was in custody. Prior to the interrogation, counsel had instructed the Sheriff not to speak with defendant in the absence of counsel. Notwithstanding that separate crimes were involved, the court determined that the charges were sufficiently related to preclude interrogation in the absence of counsel because the two incidents occurred within approximately one week, both involved burglaries or attempted burglaries at the same location and both were charged in the same indictment.

The Taylor limitation was further refined in People v. Ermo 47 N.Y.2d 863, 419 N.Y.S.2d 65, 392 N.E.2d 1248, where defendant was questioned about both an assault and a homicide, committed seven months apart, in the absence of the attorney who represented him on the assault charge. Although conceding that the police would have been entitled to question defendant on the homicide alone, the court nonetheless held statements concerning the homicide to be inadmissible because "the police exploited concededly impermissible questioning as to the assault for the purpose and with the effect of advancing their interrogation on the homicide charge" (Id., at p. 865, 419 N.Y.S.2d, at p. 66, 392 N.E.2d, at p. 1249). By suppressing these statements, however, the question no longer was whether the defendant was represented on the charge about which he was questioned. Rather, the focus of inquiry was the circumstances of the interrogation and whether its subject included a charge on which defendant had an attorney (see 47 N.Y.2d, at p. 868, 419 N.Y.S.2d, at p. 68, 392 N.E.2d, at p. 1251, Gabrielli, J., dissenting).

Thus following Hobson it has been urged in several cases and under a variety of circumstances that the exception concerning unrelated charges was applicable. In each instance, however, it has been found that the exception could not be applied or expanded consistent with the Hobson rationale. It is evident that in these cases, the Taylor rule was considerably narrowed (but cf. People v. Coleman, 43 N.Y.2d 222, 401 N.Y.S.2d 57, 371 N.E.2d 819; People v. Clark, 41 N.Y.2d 612, 394 N.Y.S.2d 593, 363 N.E.2d 364). The common thread running through these holdings is the simple fact that defendant was represented by an attorney at the time of the interrogation. We today recognize that the Taylor rule is inconsistent with the principles enunciated in Hobson and declare that once a defendant is represented by an attorney, the police may not elicit from him any statements, except those necessary for processing or his physical needs. Nor may they seek a waiver of this right, except in the presence of counsel.

Our acknowledgment of an accused's right to the presence of counsel, even when the interrogation concerns unrelated matters, represents no great quantitative change in the protection we have extended to the individual as a shield against the awesome and sometimes coercive force of the State. An attorney is charged with protecting the rights of his client and it would be to ignore reality to deny the role of counsel when the particular episode of questioning does not concern the pending charge. It cannot be assumed that an attorney would abandon his client merely because the police...