People v. Steward

• Decision Date: 11 June 1996
• Citation: 646 N.Y.S.2d 974,670 N.E.2d 214,88 N.Y.2d 496
• Parties: , 670 N.E.2d 214 The PEOPLE of the State of New York, Respondent, v. Thomas G. STEWARD, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 974

646 N.Y.S.2d 974

88 N.Y.2d 496, 670 N.E.2d 214

The PEOPLE of the State of New York, Respondent, v. Thomas G. STEWARD, Appellant.

Court of Appeals of New York.

June 11, 1996.

Kimberly A. Jordan, Syracuse, for appellant.

William J. Fitzpatrick, District Attorney of Onondaga County, Syracuse (Gary T. Kelder and James P. Maxwell, of counsel), for respondent.

Charles J. Hynes, District Attorney of Kings County, Brooklyn, and Steven A. Hovani, Riverhead, for New York State District Attorneys Association, amicus curiae.

OPINION OF THE COURT

BELLACOSA, Judge.

Defendant appeals, by a grant of leave from a Judge of this Court, and raises one issue. The question is whether inculpatory statements relating to the murder indictment involved here, taken by the police from defendant after a waiver of and in the absence of counsel, should be suppressed. Defendant made the statements after arrest on a parole violation, and they were unrelated to a pending misdemeanor case against him as to which counsel had previously been assigned. County Court suppressed the statements; the Appellate Division reversed, denied suppression and remitted for proceedings on the indictment.

We hold that suppression is not required. Defendant-appellant's right to counsel is not violated (People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709) and no derivative right to counsel survives People v. Bing, 76 N.Y.2d 331, 559 N.Y.S.2d 474, 558 N.E.2d 1011. Accordingly, we affirm the order of the Appellate Division.

On March 21, 1993, defendant was arrested and charged with criminal possession of a controlled substance in the seventh degree and resisting arrest, charges not at issue on this appeal. Defendant falsely identified himself and a warrant check on the name given revealed no outstanding warrants. While waiting to be processed on the misdemeanors defendant volunteered information to the police pertaining to an unrelated homicide. Officers interviewed defendant, and he freely gave a statement containing significant information about the homicide.

The following day, defendant was arraigned in Syracuse City Court on the misdemeanors. Because he appeared without counsel, the court entered pleas of not guilty and recorded the assignment of counsel from the Hiscock Legal Aid Society under his alias name. Defendant was then released on his own recognizance.

A few days later, the police learned defendant's true identity and he was arrested on a separate parole violation. After being advised of his Miranda rights, defendant waived his right to counsel and agreed again to discuss the homicide with the police. By this time, the interrogating officers were aware that defendant, under the given alias, had been assigned counsel in the pending misdemeanor case. During this concededly custodial interview--the one at issue on this appeal--defendant contradicted some of his earlier statement to the police about the homicide, but also made inculpatory statements. Based partly on these statements, defendant was then charged with two counts of murder in the second degree and other crimes associated with the homicide. This appeal relates solely to the inculpatory statements made in connection with this homicide indictment.

Following a Huntley hearing, Onondaga County Court granted defendant's motion to suppress his statements based on its conclusion that defendant's right to counsel was violated. The Appellate Division, Fourth Department, reversed and denied suppression, holding that the defendant was not actually represented on any pending charge at the time he made the challenged statements.

The sum and substance of appellant's argument is that People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709, supra, contains a derivative right to counsel rule that is still operative after this Court's holding in People v. Bing, 76 N.Y.2d 331, 350, 559 N.Y.S.2d 474, 558 N.E.2d 1011, supra. While the Rogers holding is surely extant, its nature, scope and interpretation do not include the derivative right defendant advocates here.

In People v. Rogers (supra ), this Court held that "once 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" (supra, at 169, 422 N.Y.S.2d 18, 397 N.E.2d 709). People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371, built a different and significantly expanded right to counsel rule atop Rogers' holding. After Bartolomeo, and until Bing, a duty to inquire was imputed to the police when a defendant was in custody and being questioned, and was represented by counsel on a prior, separate, unrelated charge. This legal fiction and consequent duty produced an across-the-board suppression as to all statements derived from questioning of a defendant in the absence of counsel in connection with any criminal conduct (id., at 231, 440 N.Y.S.2d 894, 423 N.E.2d 371). Simply put, waiver of counsel in the absence of counsel could almost never be effective. People v. Bing, 76 N.Y.2d 331, 559 N.Y.S.2d 474, 558 N.E.2d 1011, supra, put an end to that extreme restriction by overruling Bartolomeo.

The Bartolomeo right to counsel was properly characterized as "derivative" because the right piggy-backed solely on a defendant's prior representation in unrelated proceedings; it did not hinge on or relate to the matter for which a defendant was then in custody and being questioned (see, People v. West, 81 N.Y.2d 370, 378, 599 N.Y.S.2d 484, 615 N.E.2d 968; People v. Bing, 76 N.Y.2d 331, 342, 559 N.Y.S.2d 474, 558 N.E.2d 1011, supra ). Under Bartolomeo, the police were charged with an affirmative duty to inquire whether a defendant was represented in any unrelated criminal matter of which they had knowledge and were chargeable with the knowledge of what such an inquiry would have revealed. Thus, even though the interrogating officers in Bartolomeo had no knowledge that the defendant was actually represented by counsel and the defendant had voluntarily waived the right to counsel, this Court held that testimony concerning the defendant's statements had to be suppressed nonetheless (People v. Bartolomeo, supra, 53 N.Y.2d, at 231, 440 N.Y.S.2d 894, 423 N.E.2d 371). The rationale was that the officers were aware that the defendant had been arrested earlier on an unrelated charge and were deemed to have knowledge of the defendant's representation upon that charge (id.).

Soon after the promulgation of the Bartolomeo extension, this Court found it necessary to start reining it in (see, e.g., People v. Bertolo, 65 N.Y.2d 111, 118-119, 490 N.Y.S.2d 475, 480 N.E.2d 61; People v. Fuschino, 59 N.Y.2d 91, 98, 463 N.Y.S.2d 394, 450 N.E.2d 200; and People v. Servidio, 54 N.Y.2d 951, 952-953, 445 N.Y.S.2d 143, 429 N.E.2d 821 [police must have actual knowledge of defendant's representation on prior charge for right to counsel to be violated]; People v. Rosa, 65 N.Y.2d 380, 387, 492 N.Y.S.2d 542, 482 N.E.2d 21 [defendant has burden of showing representation on pending charge]; People v. Lucarano, 61 N.Y.2d 138, 148, 472 N.Y.S.2d 894, 460 N.E.2d 1328 [police authorized to reasonably accept defendant's disclaimer of prior representation]; see also, People v. Robles, 72 N.Y.2d 689, 699, 536 N.Y.S.2d 401, 533 N.E.2d 240; and People v. Mann, 60 N.Y.2d 792, 794, 469 N.Y.S.2d 681, 457 N.E.2d 788 [no derivative right to counsel exists where prior charges have been dismissed]. After eight years of experience, this Court determined that the Bartolomeo rule lacked any "principled basis which justifies its social cost" (People v. Bing, 76 N.Y.2d 331, 349, 559 N.Y.S.2d 474, 558 N.E.2d 1011, supra).

In People v. Bing (three separate cases decided under one rubric) as in Bartolomeo, the defendants sought suppression of their otherwise voluntarily offered statements given after they had received Miranda warnings and waived their right to counsel in the absence of counsel. We held that the unworkability and lack of doctrinal justification for the Bartolomeo rule proved the need for its abandonment (People v. Bing, 76 N.Y.2d 331, 338, 559 N.Y.S.2d 474, 558 N.E.2d 1011, supra). The Court explained that Bartolomeo lacked justification for expanding the scope and nature of the prior Rogers holding "to protect a suspect against self-incrimination on the new crime unrelated to the matter upon which defendant actually obtained representation" (People v. Bing, supra, at 341, 559 N.Y.S.2d 474, 558 N.E.2d 1011). To be...