People v. Rosa

• Decision Date: 06 March 1984
• Citation: 473 N.Y.S.2d 410,99 A.D.2d 963
• Parties: The PEOPLE of the State of New York, Respondent, v. Nicholas ROSA, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 410

473 N.Y.S.2d 410

99 A.D.2d 963

The PEOPLE of the State of New York, Respondent, v. Nicholas ROSA, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

March 6, 1984.

B. Jacobs, R. Bloom, for respondent.

O.G. Suarez, for defendant-appellant.

Before KUPFERMAN, J.P., and SULLIVAN, CARRO, SILVERMAN and LYNCH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County, rendered May 19, 1977 convicting defendant following denial of his Huntley motion, and after a jury trial, of murder in the second degree and sentencing him thereon to an indeterminate term of imprisonment of 20 years to life, is reversed, on the law, the motion to suppress is granted, and the matter remanded for a new trial.

Previous decisions of this Court in this case; see 81 A.D.2d 766, 436 N.Y.S.2d 9; 80 A.D.2d 527, 436 N.Y.S.2d 9.

In our decision at 81 A.D.2d 766, 436 N.Y.S.2d 9 we remanded the matter for a reopened Huntley hearing directed to the issue of whether defendant was represented by counsel on January 26, 1976. The issue was whether the rule of People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709, that representation by counsel even on an unrelated charge bars interrogation in the absence of counsel, applied, or whether, on the other hand, defendant was not actually represented by counsel on the unrelated charge, so that the People v. Rogers rule would not apply under People v. Kazmarick, 52 N.Y.2d 322, 438 N.Y.S.2d 247, 420 N.E.2d 45. Although People v. Rogers was decided 2 1/2 years after the Huntley hearing in this case, the rule in the Rogers case was held to apply retroactively, at least to cases on appeal at the time Rogers was decided. People v. Bell, 50 N.Y.2d 869, 430 N.Y.S.2d 43, 407 N.E.2d 1340.

The hearing which we ordered has now been held. The evidence shows that the defendant was arraigned in Kings County on the charge of kidnapping and on related charges on January 20, 1976. Detective Grant was informed of the defendant's arrest. On January 26, 1976 defendant was taken to the office of the New York County District Attorney where at about noon defendant, after appropriate Miranda warnings, made statements to the officer and to the District Attorney, which while purporting to be exculpatory, placed him at the scene at the time of the homicide. The defendant did not have an attorney present at the time of these statements and no inquiry was made as to whether he had an attorney in any other case. Detective Grant was aware of the arrest, and apparently of the arraignment, and was aware of the practice in the metropolitan areas of assigning counsel to indigent defendants on arraignment.

The hearing court found that in fact Mr. Guarnari of the Legal Aid Society was appointed in the Kings County case to represent defendant for the purpose of arraignment and the preliminary hearing, which followed immediately thereafter. At the conclusion of the hearing, apparently because of a potential conflict of interest between this defendant and a co-defendant, the Legal Aid "counsel requested that new counsel be assigned to represent the defendant Rosa from the 18B panel. This request was granted. There is no evidence one way or the other as to whether Mr. Guarnari believed himself released of the representation of Mr. Rosa at this time or believed that his representation of Mr. Rosa was to continue until the actual filing of a notice of appearance by counsel from the 18B panel."

On January 26, 1976 an attorney appointed pursuant to County Law, Article 18-B filed a notice of appearance with the Clerk of the Supreme Court, Kings County. There is no evidence as to what time of day the notice of appearance was filed. A covering letter enclosing a copy of the notice of appearance was received by the District Attorney of Kings County on January 29, 1976. The hearing court further found "that Detective Grant did not inquire nor was he informed by the defendant that counsel had been assigned to Rosa in the Kings County case, although he was well aware of the substantial probability that counsel had, in fact, been assigned. I further find in the unlikely event that such finding be of significance that Detective Grant had no knowledge of the identity of the 18B counsel assigned on January 20th,1981[sic] to represent Mr. Rosa; whether such counsel had, in fact, materialized corporeally to the extent of at least filing a notice of appearance."

In People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371, the

Court of Appeals held the Rogers rule to be applicable to statements made to police officers where the defendant had been arrested only nine days earlier by members of the same Police Department on an arson charge. The Court of Appeals said (at 231-232, 440 N.Y.S.2d 894, 423 N.E.2d 371):

This follows naturally on the awareness on the part of law enforcement personnel of judicial concern for, and protection of, a criminal defendant's right to the aid of counsel at every critical stage of proceedings against him. Hence,...