People v. Servidio

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: GABRIELLI; COOKE; JASEN; GABRIELLI, J., concurs in a concurring opinion in which WACHTLER
• Citation: People v. Servidio, 445 N.Y.S.2d 143, 54 N.Y.2d 951, 429 N.E.2d 821 (N.Y. 1981)
• Decision Date: 22 October 1981
• Parties: , 429 N.E.2d 821 The PEOPLE of the State of New York, Respondent, v. Joseph SERVIDIO, Appellant.

Page 143

445 N.Y.S.2d 143

54 N.Y.2d 951, 429 N.E.2d 821

The PEOPLE of the State of New York, Respondent, v. Joseph SERVIDIO, Appellant.

Court of Appeals of New York.

Oct. 22, 1981.

Anna M. Perry, Stony Brook, and John F. Middlemiss, Jr., Hauppauge, for appellant.

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

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 77 A.D.2d 191, 433 N.Y.S.2d 169, should be affirmed.

The defendant acknowledges that the officer who questioned defendant was not aware of the unrelated charge then pending against him and on which he was represented by counsel. Unlike the situation in People v. Smith, 54 N.Y.2d 954, 445 N.Y.S.2d 145, 429 N.E.2d 823, there was, therefore, no basis for inferring knowledge of the prior representation from knowledge that there were unrelated charges pending. Nor in view of the minor nature of the charge (unauthorized use of a motor vehicle and resisting arrest) can it be said that the police deliberately overlooked the obvious or insulated the interrogating officers from actual knowledge of the pending unrelated charges, even though they were pending within the same county and presumably the same department, and were but two and one-half months old (cf. People v. Kazmarick, 52 N.Y.2d 322, 438 N.Y.S.2d 247, 420 N.E.2d 45; see People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371).

GABRIELLI, Judge (concurring).

I, too, am to affirm the order of the Appellate Division sustaining the defendant's conviction on his plea of guilty, and I do so for all the reasons stated by Justice JAMES D. HOPKINS at the Appellate Division.

Additionally, I would note that we are presented with an affirmed finding of fact that the interrogating officer was not aware of the existence of any unrelated charges against the defendant. Indeed, as stated by the majority, "defendant acknowledges that the officer who questioned the defendant was not aware of the unrelated charge then pending against him and on which he was represented by counsel". By itself, it is sufficient to mandate an affirmance, and reference to what is termed inferred knowledge (which is but another way of saying "constructive knowledge") is unnecessary.

I would but add that any reference to the inferred or constructive knowledge theory mentioned by the majority runs counter to the position taken by the dissenters in People v. Smith, 54 N.Y.2d 954, 445 N.Y.S.2d 145, 429 N.E.2d 823. Indeed,...