People v. Smith

• Decision Date: 26 February 1981
• Citation: 436 N.Y.S.2d 519,79 A.D.2d 210
• Parties: PEOPLE of the State of New York, Respondent, v. Ronald C. SMITH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 519

436 N.Y.S.2d 519

79 A.D.2d 210

PEOPLE of the State of New York, Respondent, v. Ronald C. SMITH, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Feb. 26, 1981.

Rose H. Sconiers, Buffalo, for appellant (Joseph Shifflett, Buffalo, of counsel).

Edward C. Cosgrove, Dist. Atty., Buffalo, for respondent (Timothy Harvey, Asst. Dist. Atty., Buffalo, of counsel).

Before CARDAMONE, J. P., and SIMONS, HANCOCK, DOERR and MOULE, JJ.

HANCOCK, Justice:

We hold that knowledge by police that a suspect, held on charges under investigation, may be represented by a lawyer on a pending unrelated charge for which he is not in custody, does not, without more, vitiate the suspect's uncounseled express waiver of rights (see Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) and render his incriminating oral statements inadmissible under People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709 (see People v. Bell, 50 N.Y.2d 869, 430 N.Y.S.2d 43, 407 N.E.2d 1340).

Following the discovery of the lifeless body of Deborah Pike in front of an abandoned warehouse in Buffalo at about 5:30 on the morning of July 24, 1979, Buffalo Police learned from witnesses that defendant had left a tavern with the victim at approximately 3:30 that morning. In the early evening of July 30, 1979, Sergeant Gorski and Detective Suszek went to defendant's residence to question him. After receiving his Miranda warnings, defendant expressly waived his constitutional rights. When defendant admitted that on the morning of the murder there had been blood on the seat of the car he had been driving, the officers placed him under arrest. During questioning at the police station, defendant, after presenting various inconsistent exculpatory stories, finally admitted that he had left the bar with the victim and that he "vaguely remember(ed)" hitting her. He said that he did not recall killing her but that he knew that he had done "something wrong."

At the Huntley hearing (People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179) Sergeant Gorski testified that before questioning defendant he had checked the computer printout of his prior criminal record. It showed three arrests, the most recent of which (for a sodomy charge) was on November 27, 1978. The printout did not show the disposition of any of the charges. Although he said that he assumed that defendant had a lawyer on the sodomy charge, Sergeant Gorski stated that he did not know this to be so, nor did he know anything concerning the status of the case. At no time did defendant indicate that the charge was still pending, that he had an attorney for that or any other matter, or that he wanted an attorney. Defendant, who did not testify, introduced no evidence contradicting Sergeant Gorski's testimony. In a Sandoval hearing, (People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) held contemporaneously with the Huntley hearing it appeared that the sodomy charge against defendant was still pending in Erie County.

Trial Term denied defendant's motion to suppress his oral statements, finding that defendant was "intelligent" and "familiar with the criminal justice system," that he had made a knowing express waiver of his constitutional rights, and that "(t)he police were unaware that defendant was represented on a pending unrelated charge and there was no evidence indicating that they could have easily ascertained that fact." The court held that People v. Rogers (supra) "is not controlling in a case where the police neither had knowledge of nor were apprised of the representation." (Accord, People v. Servidio, 77 A.D.2d 191, 433 N.Y.S.2d 169). The court's refusal to suppress these statements, defendant argues, presents an error requiring reversal of his conviction of murder, second degree and manslaughter, first degree. We disagree.

We hold that Sergeant Gorski's awareness of the possible pendency of the unrelated criminal proceeding against defendant, even if accepted as the equivalent of knowledge that defendant was then represented by a lawyer on that matter, would not invalidate defendant's uncounseled waiver of his rights in the matter under investigation. Defendant's argument to the contrary presupposes the existence of a rule that police knowledge of a suspect's representation in an unrelated pending criminal proceeding necessarily gives rise to a nonwaivable right to counsel (see People v. Bell, supra; People v. Rogers, supra; People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894; People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537; People v. Donovan, 13 N.Y.2d 148, 243 N.Y.S.2d 841, 193 N.E.2d 628) in other criminal matters upon which he may later be taken into custody and interrogated. We do not so interpret the law. In view of our holding we do not reach the question of whether Sergeant Gorski had constructive knowledge of the actual pendency of the prior charge and defendant's representation thereon.

In People v. Rogers (supra, 48 N.Y.2d p. 170, 422 N.Y.S.2d 18, 397 N.E.2d 709) the court, noting that it had "jealously guarded the individual's privilege against self-incrimination and right to counsel" and had demanded "that these fundamental rights be accorded the highest degree of respect by those representing the State," extended the protection against self-incrimination afforded by the Donovan-Arthur-Hobson rule to cover unrelated matters as well as those under investigation for which the accused has counsel. The court confirmed that People v. Taylor, 27 N.Y.2d 327, 318 N.Y.S.2d 1, 266 N.E.2d 630 was no longer the law and held (People v. Rogers, supra, 48 N.Y.2d p. 169, 422 N.Y.S.2d 18, 397 N.E.2d 709): "(O)nce an attorney has entered the proceeding, thereby signifying that the police should cease questioning, a defendant in custody may not be further interrogated in the absence of counsel. We may not blithely override the importance of the attorney's entry by permitting interrogation of an accused with respect to matters which some may perceive to be unrelated" (emphasis added). In Rogers, while the accused was in custody and represented by a lawyer on the matter under investigation, the police questioned him and obtained a statement in violation of his privilege against self-incrimination with respect to an unrelated matter. The court's holding that the statement was inadmissible was predicated on the fact that the attorney had already entered the proceeding concerning the matter under investigation and for which the suspect was being held. In Rogers, the police knew that the accused had retained counsel to protect his constitutional right against self-incrimination in the face of "the awesome and sometimes coercive force of the State" (People v. Rogers, supra, p. 173, 422 N.Y.S.2d 18, 397 N.E.2d 709); when so apprised, the court held, the police should not be permitted to exploit the suspect's manifested inability to deal with the authorities and, therefore, all questions must cease, even on unrelated matters. It is clear that in Rogers as in People v. Cunningham, 49 N.Y.2d 203, 424 N.Y.S.2d 421, 400 N.E.2d 360, People v. Grant, 45 N.Y.2d 366, 408 N.Y.S.2d 429, 380 N.E.2d 257 and People v. Buxton, 44 N.Y.2d 33, 403 N.Y.S.2d 487, 374 N.E.2d 384, it is the importance of the lawyer in safeguarding the suspect's privilege against self-incrimination that is at the root of the holdings that the right to counsel of a suspect in custody who has retained or requested a lawyer is "indelible" or nonwaivable.

The Rogers extension of the Donovan-Arthur-Hobson rule serves to prevent the police from abusing their legal custody over the defendant for matters they are investigating by questioning him not about those matters but about other matters on which they might not have probable cause to hold him or have an opportunity to interrogate him. (See, e. g., People v. Strever, App.Div., 434 N.Y.S.2d 561, decided December 23, 1980, where police sought improperly as in Rogers to exploit their custody over and to obtain incriminating statements from a defendant, who was in jail on a pending charge for which counsel had been assigned, by questioning him in the absence of the attorney not about the pending case but on unrelated matters; see People v. Carl, 46 N.Y.2d 806, 413 N.Y.S.2d 916, 386 N.E.2d 828.)

In contrast, in the case before us the defendant while being questioned in custody never manifested his need for assistance in safeguarding his right against self-incrimination in the face of the "coercive influence of the State" (People v. Rogers, supra, 48 N.Y.2d p. 173, 422 N.Y.S.2d 18, 397 N.E.2d 709) by requesting or even mentioning counsel. No attorney had "entered the proceeding" under investigation as in Rogers. On the contrary, the defendant, by expressly waiving his right to counsel, unequivocally represented to police that he neither needed nor wanted an attorney to protect him from self-incrimination in the matters upon which he was being questioned. All that can be said is that the defendant had a lawyer in an unrelated matter, a fact which he apparently did not consider sufficiently important to bring to the attention of the police. Defendant now, after the fact, seeks to use the unrelated and unmentioned representation to rule out his admissions. We do not think that Rogers supports defendant's argument.

It must be noted that defendant's right to counsel which would have attached in the unrelated sodomy charge (and which he now seeks to use as protection in the totally separate matter under investigation) would not have arisen from defendant's manifested need for protection against self-incrimination (U.S.Const., 5th Amdt.; N.Y.Const. art. I, § 6) but from his right (U.S.Const., 6th Amdt.; N.Y.Const. art. I, § 6) to be represented in pending criminal proceedings (see Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411; People v. Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400...