People v. Settles

CourtNew York Court of Appeals
Citation46 N.Y.2d 154,385 N.E.2d 612,412 N.Y.S.2d 874
Parties, 385 N.E.2d 612 The PEOPLE of the State of New York, Respondent, v. Martin SETTLES, Appellant.
Decision Date21 December 1978
Russell C. Morea, Rosedale, for appellant

COOKE, Judge.

Following a joint trial with codefendant Osborne (Sonny) Boalds, defendant appeals from his judgment of conviction upon a jury verdict for robbery in the first degree (Penal Law, § 160.15). He was sentenced as a predicate felony offender to a term of imprisonment of not less than 10 nor more than 20 years.

The threshold issue we address is whether the identifications made by witnesses at a postindictment, prearraignment corporeal viewing of the then unrepresented defendant should have been excluded where defendant, in the absence of counsel, orally waived his right to have an attorney present at the lineup.

The order of the Appellate Division affirming the conviction should be reversed. The filing of an indictment constitutes the commencement of a formal judicial action against the defendant and is equated with the entry of an attorney into the proceeding. This being the case, a defendant in a postindictment, prearraignment custodial setting, even though not then represented by an attorney, may not in the absence of counsel waive his right to have counsel appear at a corporeal identification. Hence, any actions taken by the police with respect to an indicted but unarraigned defendant which impinge upon his right to counsel may not be used against him at trial.

The facts are uncomplicated and undisputed. On the night of March 9, 1974, two men robbed a bar, its manager and one of its patrons in Queens County. Responding to a radio call, two police officers arrived at the location just as one of the perpetrators was leaving the scene. In an exchange of gunfire one of the officers was fatally wounded, and his partner, after giving chase, soon lost sight of the suspect. Fortunately, later that night the police were directed to proceed to the apartment of Boalds' common-law wife. After receiving permission to enter and search the premises, they discovered fruits of the earlier robbery, clothes apparently worn by the perpetrators and a gun which later proved to be the weapon which fired the fatal shots. Also in the apartment were Boalds and the defendant. While Boalds was immediately placed under arrest, defendant was merely brought to a police station for further investigation and was released the following morning.

On May 1, 1974, the Queens County Grand Jury returned an indictment charging defendant and Boalds with two counts of murder, two counts of robbery and another of possession of a dangerous weapon arising out of the events of the night of March 9. At that time, however, defendant could not be found and a warrant was issued for his arrest. He was later apprehended and placed in custody in Atlanta, Georgia, and was returned to New York on August 14, 1974. Immediately upon his arrival, defendant was transported to the 113th Precinct in order that he be placed in a lineup. Although not advised that he was under indictment, defendant was given his four-fold Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), whereupon he agreed to appear in the lineup without an attorney present. Of the five individuals who were present in the bar on the night of the crimes and who viewed the lineup, two were able to identify defendant as one of the perpetrators.

In this State, the right of a criminal defendant to interpose an attorney between himself and the sometimes awesome power of the sovereign has long been a cherished principle. As early as 1777 (N.Y.Const. of 1777, art. XXXIV), it had been recognized that even the most intelligent and educated layman lacks the skill and knowledge of the legal system to adequately prepare a defense, no matter how strong it might be (see People ex rel. Burgess v. Risley, 66 How Pr. 67). This need, moreover, has been recognized as all the more vital with respect to the unsophisticated, who are often uneducated in the ways of the criminal justice system and unaware of the role counsel can play in protecting their interests. "There has been no time in the governmental history of this State when the court lacked the power to assign counsel for the defense of indigent persons charged with crime" (People ex rel. Acritelli v. Grout, 87 App.Div. 193, 195-196, 84 N.Y.S. 97, 99, affd. on opn. of App.Div. 177 N.Y. 587, 70 N.E. 1105). When a person charged with a crime has been unable to engage counsel because of financial circumstances, it has long been the duty of the court before whom he is brought to assign counsel (see People v. Thompson, 205 App.Div. 581, 582, 199 N.Y.S. 868, 869). Indeed, the law has provided for free legal representation of the poor in criminal cases (see, generally, County Law, art. 18-A, as enacted by L.1961, ch. 365, § 2, as amd.; see, also, Code Crim.Pro., § 308, as enacted by L.1881, ch. 504, § 308, as amd.) well before Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). In short, we recognize that the assistance of counsel is essential not only to insure the rights of the individual defendant but for the protection and well-being of society as well. The right of any defendant, however serious or trivial his crime, to stand before a court with counsel at his side to safeguard both his substantive and procedural rights is inviolable and fundamental to our form of justice (see People v. Donovan, 13 N.Y.2d 148, 151, 243 N.Y.S.2d 841, 842, 193 N.E.2d 628, 629).

So valued is the right to counsel in this State (N.Y.Const., art. I, § 6), it has developed independent of its Federal counterpart (U.S.Const., 6th Amdt.). Thus, we have extended the protections afforded by our State Constitution beyond those of the Federal well before certain Federal rights were recognized (e. g., Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246). For example, in People v. Di Biasi, 7 N.Y.2d 544, 549-551, 200 N.Y.S.2d 21, 24-26, 166 N.E.2d 825, 827-829, we held inadmissible statements made by an indicted defendant in a capital case who had previously retained counsel, but who when questioned neither objected to such inquiries, asked to call his lawyer or requested his lawyer to be present (see, generally, 61 Colum.L.Rev. 744; 51 Cornell L.Q. 356). People v. Waterman, 9 N.Y.2d 561, 564-566, 216 N.Y.S.2d 70, 73-75, 175 N.E.2d 445, 446-448, extended the rule of Di Biasi to all postindictment interrogation in the absence of counsel regardless of the nature of the offense and irrespective of whether the defendant had actually retained counsel at the time of the interrogation. The genesis of the rule was completed after the decisions in People v. Meyer, 11 N.Y.2d 162, 164-165, 227 N.Y.S.2d 427, 428-429, 182 N.E.2d 103, 104-105 and People v. Rodriguez, 11 N.Y.2d 279, 284, 229 N.Y.S.2d 353, 355, 183 N.E.2d 651, 652, wherein it was made clear that the right to counsel attaches after indictment or arraignment and that a formal request for counsel is unnecessary for that right to attach (see, also, People v. Robinson, 13 N.Y.2d 296, 301, 246 N.Y.S.2d 623, 625, 196 N.E.2d 261, 262; People v. Gunner, 15 N.Y.2d 226, 231-232, 257 N.Y.S.2d 924, 927-929, 205 N.E.2d 852, 854-855; People v. Friedlander, 16 N.Y.2d 248, 250, 265 N.Y.S.2d 97, 98, 212 N.E.2d 533 (application of the general rule to varying factual situations); cf. People v. Blake, 35 N.Y.2d 331, 339-340, 361 N.Y.S.2d 881, 890-891, 320 N.E.2d 625, 631-632 (right to counsel attaches upon the filing of an accusatory instrument)).

In addition to their right to counsel aspect, these decisions vindicated an indicted or arraigned defendant's privilege against compulsory self incrimination. Absent the advice of an attorney, the average person, unschooled in legal intricacies, might very well unwittingly surrender this right when confronted with the coercive power of the State and its agents (see People v. Hobson, 39 N.Y.2d 479, 485, 384 N.Y.S.2d 419, 423, 348 N.E.2d 894, 898).

However laudable the results of these cases may have been, the rules they enunciated operated in a rather haphazard fashion. For while they insisted that some formal procedure in addition to arrest be initiated, whether by indictment or arraignment, there was no remedy for purposely delayed arraignment and, consequently, there were no remedies to combat abuses in connection with prearraignment, preindictment interrogation (see Rothblatt & Rothblatt, Police Interrogation: Right to Counsel and Prompt Arraignment, 27 Brooklyn L.Rev. 24, 36-38). This problem was ameliorated by People v. Donovan, 13 N.Y.2d 148, 151-152, 243 N.Y.S.2d 841, 842-844, 193 N.E.2d 628, 629-630, Supra, and People v. Arthur, 22 N.Y.2d 325, 329, 292 N.Y.S.2d 663, 666, 239 N.E.2d 537, 539 which require suppression of any statements elicited from a criminal defendant represented by counsel unless the defendant has first waived his rights in the presence of his attorney (see, also, People v. Hobson, supra; People v. Townes, 41 N.Y.2d 97, 102-103, 390 N.Y.S.2d 893, 897-898, 359 N.E.2d 402, 405-407). Additionally, inasmuch as Di Biasi and its progeny arose prior to Escobedo, supra; Massiah, supra and Miranda, supra, they contained no discussion of the circumstances in which an indicted defendant could waive counsel.

The initial responses to this problem were inconclusive and somewhat contradictory (compare People v. Bodie, 16 N.Y.2d 275, 279, 266 N.Y.S.2d 104, 107, 213 N.E.2d 441, 443, with People v. Vella, 21 N.Y.2d 249, 251, 287 N.Y.S.2d 369, 234 N.E.2d 422; cf. State v. Green, 46 N.J. 192, 200-201, 215 A.2d 546; Commonwealth v. Frongillo, 359 Mass. 132, 268 N.E.2d 341). Later, a closely...

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