People v. Rosa

• Decision Date: 11 July 1985
• Citation: 65 N.Y.2d 380,492 N.Y.S.2d 542,482 N.E.2d 21
• Parties: , 482 N.E.2d 21 The PEOPLE of the State of New York, Appellant, v. Nicholas ROSA, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 542

492 N.Y.S.2d 542

65 N.Y.2d 380, 482 N.E.2d 21

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

Court of Appeals of New York.

July 11, 1985.

Robert M. Morgenthau, Dist. Atty., New York City (Beth D. Jacob and Robert M. Pitler, New York City, of counsel), for appellant.

Oscar Gonzalez-Suarez, New York City, for respondent.

OPINION OF THE COURT

TITONE, Judge.

Defendant has been convicted of murder in the second degree, following a jury trial, in Supreme Court, New York County. On appeal, the Appellate Division, First Department, reversed the judgment of conviction, on the law, granted defendant's motion to suppress certain statements and remanded the matter for a new trial. The People appeal. We conclude that suppression of the statements was not warranted and reverse the order of the Appellate Division and remit for a review of the facts (CPL 470.25 470.40).

On November 7, 1974, Louis Pucci, a 20-year-old college student, warned his neighborhood grocer of an impending robbery by a youth gang. In retaliation, Pucci was shot to death by two gang members, defendant Nicholas Rosa, and Eduardo Matos. Armed with a loaded rifle, Matos had pursued Pucci into the Manhattan grocery store, followed closely by the defendant. Pucci ran to the back of the store, and after defendant told Matos, "Shoot him, shoot him", Matos fired one shot in Pucci's direction. Defendant then took the rifle from Matos, aimed it at Pucci and fired the second shot. Louis Pucci later died as a result of a bullet wound in his neck.

Matos surrendered to the police within hours, but the defendant avoided apprehension, until he was arrested on an unrelated charge of kidnapping in Brooklyn in January 1976. On January 26, 1976, after the arraignment and preliminary hearing on the kidnapping charge, the defendant was brought to the New York County District Attorney's office for questioning with respect to the present case. After waiving his Miranda rights, he first made an oral statement to Detective Allen Grant and then a tape-recorded statement to an Assistant District Attorney wherein he admitted being with Matos at the time of the shooting, but denied firing a shot.

A Grand Jury charged Rosa with murder in the second degree (Penal Law § 125.25). Prior to trial, a hearing was held upon defendant's motion to suppress the statements that he had made to the detective and the Assistant District Attorney. At the hearing, the defendant claimed that, at the time of the police questioning in this case, he had been represented by counsel on a Brooklyn case for which he had received youthful offender treatment. He said that he informed the detective that he was represented by counsel in Brooklyn. Detective Grant testified, inter alia, that after Rosa had been arrested in Brooklyn, he was brought to New York County where he made certain statements after having waived his Miranda rights. Contrary to defendant's contention at the hearing, the detective said that at the time Rosa was questioned, he did not claim to be represented by an attorney in that Brooklyn case. He further stated that he did not know if Rosa was represented by counsel, but presumed that he was. The detective had made no efforts to ascertain whether the defendant was represented by counsel. In denying the motion to suppress, the trial court credited the testimony of Detective Grant, and rejected that of the defendant.

At trial, witnesses testified that "Coco" (Matos) had fired the first shot at Pucci. A second man, whom they described but did not identify by name, had fired the second shot. The only evidence offered to place Nicholas Rosa at the scene of the murder was his statements to the detective and the Assistant District Attorney. Convicted of murder in the second degree, Rosa was sentenced to an indeterminate prison term of 20 years to life.

The Appellate Division reversed, granted the motion to suppress the statements and ordered a new trial. Citing People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709, it held that since it did not appear that defendant's claim that he was represented by counsel on the unrelated case at the time of questioning "was or can be controverted" suppression was required (People v. Rosa, 80 A.D.2d 527, 528, 436 N.Y.S.2d 9).

Following our decision in People v. Kazmarick, 52 N.Y.2d 322, 438 N.Y.S.2d 247, 420 N.E.2d 45, the People sought reargument on the ground that the record of the Huntley hearing did not show whether defendant was in fact represented by counsel at the time that he was questioned and made statements concerning the present case. Upon reargument, the matter was remanded for a reopened Huntley hearing to resolve whether defendant was actually represented on January 26, 1976 (People v. Rosa, 81 A.D.2d 766, 436 N.Y.S.2d 9).

At the conclusion of the reopened Huntley hearing, the court made the following findings of fact: defendant had been arraigned in Kings County on January 20, 1976 on the charge of kidnapping and other related charges; Detective Grant knew that the defendant had been arraigned and was aware that in the metropolitan area of New York indigent defendants are assigned counsel upon arraignment; a Legal Aid Society attorney had been appointed to represent defendant for the purpose of arraignment and the preliminary hearing which immediately followed; at the conclusion of the preliminary hearing, defendant's counsel had requested that new counsel be assigned under County Law article 18-B to represent defendant because there was a conflict of interest between Rosa and a codefendant; that request was granted; there was no evidence presented as to whether the Legal Aid Society attorney believed that he was relieved from representing defendant or whether he believed that his representation continued until notice of appearance was filed by assigned counsel; Edward Malz filed a notice of appearance in the clerk's office of the Supreme Court, Kings County, on January 26, 1976; there was no evidence of the time of day that the notice was filed; a copy of that notice of appearance was received by the Kings County District Attorney's office on January 29, 1981 Detective Grant did not inquire, nor was he informed by the defendant that counsel had been assigned to the defendant on the Brooklyn case; he was aware of the substantial probability that counsel had, in fact, been assigned; Detective Grant did not know the identity of the assigned counsel, nor whether assigned counsel had filed a notice of appearance.

After reviewing the findings of fact the Appellate Division again reversed defendant's conviction. The majority of the court held that "the absence of clear evidence that the earlier representation by Legal Aid was definitively terminated", the Legal Aid Society's representation of Rosa continued until the new attorney appeared. The court noted as supportive of its finding of continued representation the fact that the Legal Aid attorney had requested the court to " 'appoint an 18B attorney for Mr. Rosa' " but did not literally ask to be " 'relieved' " (People v. Rosa, 99 A.D.2d 963-965, 473 N.Y.S.2d 410).

We disagree, in two respects, with the Appellate Division's holding that the defendant continued to be represented by Legal Aid Society counsel on the pending unrelated charge when he was questioned concerning the Pucci homicide. First, insofar as the Appellate Division's decision is based on an absence of evidence to indicate that defendant's earlier representation had terminated, it improperly placed the burden of disproving the fact of the earlier representation on the People. Second, that the Legal Aid Society attorney had not asked to be relieved, but only to have an attorney appointed pursuant to County Law article 18-B, does not demonstrate that the defendant was represented by Legal Aid Society counsel or any counsel on the unrelated charge during the questioning on the instant case. Since the defendant failed to prove that he was represented by any counsel on the pending unrelated charge when he made statements to the detective and the Assistant District Attorney herein, the Appellate Division improperly suppressed those statements.

Well established in this State is the primary rule that all questioning of a suspect in custody must cease once an attorney enters the proceeding to represent the suspect on the charges under investigation (People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894; People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537). Under these circumstances, an uncounseled waiver will be ineffective (People v. Tompkins, 45 N.Y.2d 748, 408 N.Y.S.2d 485, 380 N.E.2d 311, cert. denied 440 U.S. 939, 99 S.Ct. 1288, 59 L.Ed.2d 499). The application of this rule has been extended to circumstances wherein the legal authorities have knowledge that the defendant is represented by an attorney on an unrelated pending charge (People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709, supra ). In that instance as well, we have required questioning to cease and held any subsequent waiver made in the absence of counsel to be ineffective.

In People v. Kazmarick, 52 N.Y.2d 322, 438 N.Y.S.2d 247, 420 N.E.2d 45, supra, we were asked to further extend this rule to a case wherein the police had knowledge of an unrelated charge pending against the defendant on which his right to counsel had attached, even though the defendant was not represented by counsel on that charge. We declined to so hold. Rather, we recognized that "the right to counsel and representation by counsel are not the same thing" (People v. Kazmarick, 52 N.Y.2d 322, 328, 438 N.Y.S.2d 247, 420 N.E.2d 45, supra ), and to otherwise hold would be an unnecessary and unrealistic limit on police interrogation procedures in that it would charge "law enforcement officials anywhere with knowledge of accusatory instruments on unrelated charges everywhere". (Ibid.)

Then, in People...