People v. Servidio

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before HOPKINS; HOPKINS
• Citation: People v. Servidio, 433 N.Y.S.2d 169, 77 A.D.2d 191 (N.Y. App. Div. 1980)
• Decision Date: 10 November 1980
• Parties: The PEOPLE, etc., Respondent, v. Joseph SERVIDIO, Appellant.

Page 169

433 N.Y.S.2d 169

77 A.D.2d 191

The PEOPLE, etc., Respondent, v. Joseph SERVIDIO, Appellant.

Supreme Court, Appellate Division, Second Department.

Nov. 10, 1980.

John F. Middlemiss, Jr., Hauppauge, (Anna M. Perry, Stony Brook, of counsel), for appellant.

Patrick Henry, Dist. Atty., Riverhead (Maureen S. Hoerger, Riverhead, of counsel), for respondent.

Before HOPKINS, J. P., and MANGANO, O'CONNOR and WEINSTEIN, JJ.

HOPKINS, Justice Presiding.

The defendant challenges his conviction for burglary in the third degree on several grounds. Only one of the grounds demands elaboration.

The defendant urges that his statements to the police in the absence of his attorney representing him on pending unrelated charges should have been suppressed. Because there is no showing that the police officers taking the statements knew that the defendant was represented by counsel on such unrelated charges, we hold that the statements were admissible and were properly not suppressed. Consequently, we affirm the judgment.

I

The defendant and Philip Alston were indicted for burglary in the third degree and grand larceny in the third degree emanating from the forcible entry of a house in Huntington Station, Suffolk County. The defendant moved to suppress statements which were claimed to have been made by him at the time of his arrest.

At the suppression hearing the police officer making the arrest testified that while on motor patrol on November 8, 1977 he received a radio call, broadcasting the descriptions of two men wanted as suspects for a burglary. Ten minutes later he saw two men answering the descriptions-one a bearded white male, the other a black male wearing a red hat. He was able to apprehend the white male, but the black male escaped. The defendant's pockets were found to be filled with coins and jewelry.

After the defendant's apprehension, he was read his rights under Miranda and waived them. The defendant told the police officer that he "ripped the stuff off from a house on the corner of Broadway and Corlett". Later the defendant was interviewed by a detective and said that he and Alston had met at a delicatessen and planned the burglary; he then told the detective that the door to the house had been forced, and that after taking a television set and money, he and Alston had run to the point where they had been apprehended. Some time thereafter the detective obtained a written statement from the defendant, who also initialed a knife found at the scene of the burglary and said that it was a knife carried by Alston during the commission of the crime.

The defendant elicited testimony from an attorney for the Legal Aid Society that at the time of his arrest and questioning he had been represented by the Legal Aid Society on charges of resisting arrest and unauthorized use of a motor vehicle pending in the District Court of Suffolk County. He had pleaded guilty to the charge of unauthorized use of a motor vehicle, and was awaiting sentence scheduled to be imposed on November 14, 1977. ¹

Criminal Term denied the defendant's motion to suppress the statements. Thereafter, in the fall of 1978-before the defendant entered his plea of guilty-he testified at the trial of his codefendant Alston that he had committed the burglary in the company of a black male he named as "John L.", but that Alston had not been present at the burglary. ²

II

The defendant argues that his interrogation by the police in the absence of his counsel representing him on the unrelated charges requires the suppression of his statements and the reversal of the judgment (see People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709; People v. Cunningham, 49 N.Y.2d 203, 424 N.Y.S.2d 421, 400 N.E.2d 360).

In People v. Miller, 76 A.D.2d 576, 430 N.Y.S.2d 865 (2nd Dept., 1980)), Mr. Justice MANGANO reviewed the evolution of the rule governing the right of law enforcement agents to question a suspect represented by counsel in relation to other unrelated charges pending against him. In a thorough and carefully researched opinion he concluded (p. 584, 430 N.Y.S.2d 865):

"Therefore, since Rogers prohibits police questioning, in the absence of counsel, on related or unrelated matters once an attorney has become involved in a pending action, and since the commencement of an action is equivalent to an attorney becoming so involved, then all police questioning, in the absence of counsel, concerning matters related or unrelated to the pending action is unauthorized. Likewise, Rogers ' prohibition against the police obtaining a waiver of a defendant's rights to remain silent and to be assisted by counsel would apply to the same extent ( People v. Rogers, 48 N.Y.2d 167, 173, (422 N.Y.S.2d 18, 397 N.E.2d 709) supra )."

Accepting then, that conclusion as a statement of the present rule, we must now consider whether the absence of a showing that the police at the time of questioning the defendant knew of the existence of the previous unrelated charges against him in which he was represented by counsel creates a material difference rendering the rule inapplicable.

In People v. Rogers, 48 N.Y.2d 167, 170, 422 N.Y.S.2d 18, 397 N.E.2d 709, supra, the defendant had informed the police that he had an attorney. In People v. Cunningham, 49 N.Y.2d 203, 206, 424 N.Y.S.2d 421, 400 N.E.2d 360, supra, the defendant told the police that he wished to consult with an attorney. In People v. Marrero, 51 N.Y.2d 56, 431 N.Y.S.2d 508, 409 N.E.2d 980, one of the latest expressions of the Court of Appeals dealing with the rule, the court said (p. 59, 431 N.Y.S.2d 508, 409 N.E.2d 980):

"The important factor in these cases was the police awareness of an attorney's appearance on the defendant's behalf, rather than the precise terms of the retainer or appointment. Here, of course, the police were made aware, in the most demonstrable way, of the fact that the defendant was represented by counsel at the time of his arrest. Because of the limited and unusual arrangement the attorney had made with the defendant, that representation may actually have terminated prior to the questioning. But there was no finding that the police were aware of that peculiar arrangement. All they knew was that the defendant had sought the assistance of counsel in connection with the charge they were investigating. If the defendant had verbally expressed a desire to be assisted by counsel during the interrogation, the police would have been precluded from questioning him in the absence of counsel (People v. Cunningham, 49 N.Y.2d 203, (424 N.Y.S.2d 421, 400 N.E.2d 360)). We see no significant distinction between a verbal request for counsel and the defendant's conduct in this case. By consulting a lawyer to contact the police, and then surrendering in the attorney's office with counsel present, the defendant had manifested ' "his own view that he is not competent to deal with the authorities without legal advice" (Michigan v. Mosely, 423 U.S. 96, 110, n. 2 (96 S.Ct. 321, 329 n. 2, 46 L.Ed.2d 313). (WHITE, J. concurring)).' ( People v. Cunningham, supra, (49 N.Y.2d) p. 209 (424 N.Y.S.2d 421, 400 N.E.2d 360).)"

Other cases prior to Rogers had recognized as a significant factor the awareness of the police that counsel already represented the defendant (see, e. g., People v. Ermo, 47 N.Y.2d 863, 865, 419 N.Y.S.2d 65, 392 N.E.2d 1248; People v. Carl, 46 N.Y.2d 806, 807, 413 N.Y.S.2d 916, 386 N.E.2d 828). Cases following Rogers have similarly recognized the knowledge of the police as a decisive factor (see, e. g., People v. Russell, 73 A.D.2d 791, 792, 423 N.Y.S.2d 709; People v. Hardy, 73 A.D.2d 830, 831, 423 N.Y.S.2d 772).

III

The defendant acknowledges that the record does not establish that at the time of interrogation the police were aware of the charges pending against him and that he had been assigned counsel in connection with those charges. Nevertheless, he contends that knowledge must be constructively implied, since the prior charges were pending in the same county and, presumably, within the same police department. Lack of communication within law enforcement agencies, it is said, cannot impair the defendant's rights (People v. Pinzon, 44 N.Y.2d 458, 406 N.Y.S.2d 268, 377 N.E.2d 721; People v. McLaurin, 38 N.Y.2d 123, 378 N.Y.S.2d 692, 341 N.E.2d 250).

The principle on which the defendant relies was defined in People v. McLaurin, supra, p. 126, 378 N.Y.S.2d 692, 341 N.E.2d 250, a case involving the right of a defendant to a speedy trial:

"It is thus incumbent upon the People to show that the defendant has not been brought to trial for 'good cause' (People v. White, 32 N.Y.2d 393, 397 (345 N.Y.S.2d 513, 298 N.E.2d 659); People v. Wallace, (26 N.Y.2d 371, 310 N.Y.S.2d 484, 258 N.E.2d 904) supra; People v. Winfrey, (20 N.Y.2d 138, 281 N.Y.S.2d 823, 228 N.E.2d 808) supra; People v. Bryant, 12 N.Y.2d 719 (233 N.Y.S.2d 771, 186 N.E.2d 127); see, also, former Code Crim.Pro., § 667). Prefatorily, of course, knowledge of the defendant's whereabouts by law enforcement authorities must be established. Knowledge on the part of the police department would, of course, be imputed to the District Attorney's office. A defendant ought not be penalized because of any inadequacy of internal communication within the law enforcement establishment (cf. Santobello v. New York, 404 U.S. 257, 259-260 (92 S.Ct. 495, 497, 30 L.Ed.2d 427))."

Later, in People v. Pinzon, supra, 44 N.Y.2d pp. 463-464, 406 N.Y.S.2d 268, 377 N.E.2d 721, a case in which it appeared that an attorney had sought to obtain access to the accused, had requested that no questioning occur until the attorney was present, and had been misinformed by the police as to the whereabouts of the accused, the court said:

"In People v. Arthur (22 N.Y.2d 325, 329, 292 N.Y.S.2d 663, 239 N.E.2d 537, supra ) we held that the right attaches 'once the police know or have been apprised of the fact that the defendant is represented by counsel or that an attorney...