People v. Spahalski

• Decision Date: 09 June 2017
• Citation: 57 N.Y.S.3d 291,151 A.D.3d 1716
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert B. SPAHALSKI, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 1716

57 N.Y.S.3d 291

The PEOPLE of the State of New York, Respondent,

v.Robert B. SPAHALSKI, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

June 9, 2017.

Easton Thompson Kasperek Shiffrin LLP, Rochester (Donald M. Thompson of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.

PRESENT: WHALEN, P.J., DeJOSEPH, NEMOYER, AND CURRAN, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of five counts of murder in the second degree ( Penal Law § 125.25 [1], [3] ) arising from his commission of four homicides. One victim was killed in December 1990 on Lake Avenue in Rochester, a second was killed in July 1991 on Emerson Street in Rochester, and a third, Charles Grande, was killed in October 1991 in Webster. The fourth victim was killed in November 2005 at defendant's home in Rochester.

At the time of Grande's murder, defendant was represented by the Monroe County Public Defender's Office on unrelated charges being prosecuted in Rochester City Court and Gates Town Court. When the attorney representing defendant on those charges, Richard Marchese, learned that defendant was being questioned by Rochester police concerning Grande's murder, he ended the interrogation and followed up with separate letters to the Rochester Police Department and the Webster Police Department, advising them that defendant was not to be questioned without Marchese present. Neither letter asserted that Marchese represented defendant on the Grande case, and the charges on which Marchese had represented defendant were dismissed in 1992. A few days after the death of the fourth victim in November 2005, defendant of his own accord traveled to the Monroe County Public Safety Building and confessed to that murder. In the police interviews that followed, defendant confessed to each of the three prior killings.

We reject defendant's contention that he was denied the right to counsel when the police questioned him concerning the Grande murder in 2005. The indelible right to counsel attaches when "(1) a person in custody requests the assistance of an attorney or a lawyer enters the case or (2) a criminal proceeding is commenced against the defendant by the filing of an accusatory instrument" ( People v. Lopez, 16 N.Y.3d 375, 380, 923 N.Y.S.2d 377, 947 N.E.2d 1155 ). Marchese's letter did not establish his entry into the Grande case, however, because it "did not communicate that [he] represented defendant with respect" to that case ( People v. Slocum, 133 A.D.3d 972, 976, 20 N.Y.S.3d 440, lv. dismissed 29 N.Y.3d 954, 51 N.Y.S.3d 485, 73 N.E.3d 841 ; see People v. Cohen, 90 N.Y.2d 632, 638–642, 665 N.Y.S.2d 30, 687 N.E.2d 1313 ). Indeed, at the hearing on this matter, Marchese testified that he never represented defendant with respect to any homicide. Moreover, the indelible right to counsel "disappears" where, as here, the charge or charges on which the defendant is represented are disposed of by dismissal or conviction ( People v. Bing, 76 N.Y.2d 331, 344, 559 N.Y.S.2d 474, 558 N.E.2d 1011, rearg. denied 76 N.Y.2d 890, 561 N.Y.S.2d 551, 562 N.E.2d 876 ; see People v. Koonce, 111 A.D.3d...