People v. Schiavi

• Decision Date: 18 December 1984
• Citation: 64 N.Y.2d 704,485 N.Y.S.2d 750,475 N.E.2d 121
• Parties: , 475 N.E.2d 121 The PEOPLE of the State of New York, Respondent, v. Neil T. SCHIAVI, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 750

485 N.Y.S.2d 750

64 N.Y.2d 704, 475 N.E.2d 121

The PEOPLE of the State of New York, Respondent, v. Neil T. SCHIAVI, Appellant.

Court of Appeals of New York.

Dec. 18, 1984.

Order affirmed for the reasons stated in the memorandum of the Appellate Division (99 A.D.2d 665, 471 N.Y.S.2d 929). Absent timely protest we do not address defendant's constitutional contention based on People v. Ricco, 56 N.Y.2d 320, 452 N.Y.S.2d 340, 437 N.E.2d 1097.

JASEN, JONES, WACHTLER, SIMONS and KAYE, JJ., concur.

MEYER, J., dissents and votes to reverse in an opinion in which COOKE, C.J., concurs.

MEYER, Judge (dissenting).

Respectfully, I dissent. I have no difficulty in concluding that defendant's statement to his father that, "I know what is going to happen, I am going to jail" was both spontaneous and relevant on the question whether defendant, who claimed a disassociative disorder, was malingering. But the affirmed finding of the Trial Judge that, "Throughout this incident, the defendant knew who he was and what he was doing" rested on both the statement to his father and his earlier statement to Investigator Allen that "he already had an attorney representing him on another matter and he didn't want to talk to us." In light of that fact, and of the facts that the Trial Judge's finding rested in part on the presumption of sanity and that the People presented no psychiatric proof, the error, if error there was in the admission of Allen's testimony, cannot be regarded as harmless (People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

That admission of defendant's statement to Investigator Allen on the malingering issue was error is the holding of both People v. Ricco, 56 N.Y.2d 320, 452 N.Y.S.2d 340, 437 N.E.2d 1097 and of People v. Hoover, 57 N.Y.2d 908, 456 N.Y.S.2d 756, 442 N.E.2d 1267. Affirmance is possible, therefore, only if by failing to object to introduction of the statement defendant forfeited his right to raise the constitutional question. In Ricco, it is true, there was an objection, although not one that focused on the right to counsel. We, nevertheless, held the issue reviewable because the effect of the trial court's ruling was to foreclose further protest. But as we noted, just a year ago, in People v. Kinchen, 60 N.Y.2d 772, 773, 469 N.Y.S.2d 680, 457 N.E.2d 786, "a claimed deprivation of the State constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved by having been specifically raised in a suppression motion or at trial" provided only that there is a factual record sufficient to permit review. Given such a record, therefore, neither People v. Sanders, 56 N.Y.2d 51, 66, 451 N.Y.S.2d 30, 436 N.E.2d 480 requirement of a motion to suppress nor a trial objection is a condition of our review of the constitutional...