People v. Tindal
| Decision Date | 27 January 1984 |
| Citation | 472 N.Y.S.2d 236,99 A.D.2d 661 |
| Parties | PEOPLE of the State of New York, Respondent, v. Curtis TINDAL, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Edward J. Nowak by Peter Braun, Rochester, for appellant.
Howard R. Relin by Kenneth Fisher, Rochester, for respondent.
Before HANCOCK, J.P., and CALLAHAN, DOERR, DENMAN and MOULE, JJ.
On appeal from his conviction of rape first degree, defendant argues that the court erred in its ruling after a hearing on remand (see People v. Tindal, 92 A.D.2d 717, 461 N.Y.S.2d 107; appeal after remand, 69 A.D.2d 58, 418 N.Y.S.2d 815) that statements made by him to police without the assistance of counsel on June 9, 1978 were admissible. We agree. At the time defendant gave the statements, other charges were pending with respect to which the police knew defendant was represented by counsel. Thus defendant could not effectively waive his right to counsel and his interrogation in the absence of his attorney was not permissible (see, People v. Smith, 54 N.Y.2d 954, 445 N.Y.S.2d 145, 429 N.E.2d 823; People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371). The interrogating officer's testimony that on June 7, 1978, two days before he obtained the admissions, he had been informed by an assistant district attorney that the grand jury had voted to dismiss the charges pending against defendant, does not change the result; the grand jury did not file its report with the empaneling judge until June 16, 1978 and thus, until that time, the charges were still pending (see, CPL 190.75, subdivision 1; cf. People v. Tinelli, App.Div., 472 N.Y.S.2d 48 [decided January 27, 1984]; see generally, People v. Stecker, 141 Misc. 417, 418, 252 N.Y.S. 187, cited in People v. Groh, 57 A.D.2d 389, 393, 395 N.Y.S.2d 212).
Judgment unanimously reversed on the law, motion to suppress granted and a new trial granted.
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