People v. Scott

• Decision Date: 18 October 1993
• Citation: 602 N.Y.S.2d 681,197 A.D.2d 644
• Parties: The PEOPLE, etc., Respondent, v. Todd SCOTT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 681

602 N.Y.S.2d 681

197 A.D.2d 644

The PEOPLE, etc., Respondent, v. Todd SCOTT, Appellant.

Supreme Court, Appellate Division Second Department.

Oct. 18, 1993.

Judah Maltz, Forest Hills, for appellant.

Richard A. Brown, Dist. Atty., Kew Gardens (Barry A. Schwartz and Aprilanne Agostino, of counsel), for respondent.

Before THOMPSON, J.P., and RITTER, SANTUCCI and JOY, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Demakos, J.), rendered June 6, 1989, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress statements made by him to law enforcement officials.

ORDERED that the judgment is affirmed.

We disagree with the defendant's contention that the hearing court should have suppressed his statements because the police knew that he had a pending case and that he actually had counsel on that case. In People v. Bing, 76 N.Y.2d 331, 559 N.Y.S.2d 474, 558 N.E.2d 1011, the Court of Appeals overruled the decision in People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371 and held that a defendant's representation by counsel on a prior, pending charge is not a bar to the waiver of his rights, in the absence of counsel, with regard to new, unrelated charges (see also, People v. Middleton, 180 A.D.2d 761, 581 N.Y.S.2d 597; People v. McEachern, 166 A.D.2d 614, 560 N.Y.S.2d 897). Accordingly, the hearing court properly denied suppression of the statements of the defendant who, after being read his Miranda warnings, failed to invoke his right to counsel. In any event, although the record indicates that the police had knowledge that the defendant was possibly involved in other matters, the defendant told them that any other police matters he had been involved in had ended long ago. Therefore, there was no duty for the police to make further inquiry. They had a right to rely on the defendant's statement that he was not represented by counsel (see, People v. Lucarano, 61 N.Y.2d 138, 472 N.Y.S.2d 894, 460 N.E.2d 1328; People v. Daniels, 159 A.D.2d 513, 552 N.Y.S.2d 382).

The defendant also contends that the jury selection process was unfair since the court improperly denied several of the codefendant's challenges for cause. That codefendant was tried jointly with this defendant, and his appeal is decided herewith (see, People v. Copeland, 197 A.D.2d 629, 602 N.Y.S.2d 683). This issue is unpreserved for appellate review at least with respect to two of the prospective jurors whom the defendant now claims the court erroneously failed to dismiss, since at the voir dire, the defendant's counsel failed to challenge them for cause (see, CPL 270.15[4]; People v. Foster, 100 A.D.2d 200, 207, 473 N.Y.S.2d 978, modified on other grounds 64 N.Y.2d 1144, 490 N.Y.S.2d 726, 480 N.E.2d 340, cert. denied 474 U.S. 857, 106 S.Ct. 166, 88 L.Ed.2d 137). As to the other two prospective jurors, we find that, although initially a question was raised regarding each prospective juror's ability to render an impartial verdict, subsequently each...