People v. Tompkins

• Decision Date: 09 May 1977
• Citation: 394 N.Y.S.2d 234,57 A.D.2d 870
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE, etc., Appellant, v. Randolph Peter TOMPKINS, Respondent.

Page 234

394 N.Y.S.2d 234

57 A.D.2d 870

The PEOPLE, etc., Appellant, v. Randolph Peter TOMPKINS, Respondent.

Supreme Court, Appellate Division, Second Department.

May 9, 1977.

David S. Ritter, Dist. Atty., Goshen (Michael Schwartz, Goshen, of counsel), for appellant.

Denis J. McClure, Poughkeepsie, for respondent.

Before GULOTTA, P. J., and LATHAM, SUOZZI, MARGETT and MOLLEN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the County Court, Orange County, dated July 19, 1976, which, after a hearing, granted defendant's motion to suppress certain statements made by him.

Order reversed, on the law, motion denied, and case remanded to the County Court for further proceedings not inconsistent herewith.

On December 19, 1974, at approximately noontime, defendant, in the company of his attorney, his mother and one George Gross, surrendered himself to the State Police in Poughkeepsie for booking on charges relating to a series of burglaries in the Millbrook section of Dutchess County on December 13, 1974. Defendant's attorney advised the police at that time that he did not want his client questioned. The attorney did not limit his representation to any particular charges and desired an expeditious arraignment. Thereafter, over objection from the attorney, defendant and Gross were placed in a lineup which, apparently unbeknownst to the attorney, pertained to a robbery committed at a restaurant in Newburgh in Orange County on November 5, 1974. The lineup was completed at 3:30 P.M., approximately two hours after the attorney had left Police Headquarters and returned to his office. Defendant was thereafter arraigned on the burglary charges and released.

On December 23, 1974, while on bail on the burglary charges, defendant was arrested by the State Police in Fishkill, Dutchess County, for an alleged robbery committed at a Seven-Eleven store in Fishkill. Defendant's arrest on this charge was made on the basis of a written statement obtained from Gross. Defendant was advised of his rights, shown a copy of Gross' statement and allowed to make a phone call to his mother. About 5 to 10 minutes later defendant received a call from his attorney, who advised him not to answer any questions. Defendant notified the police of his attorney's call and his advice, but stated that he wanted to talk to them anyway. Defendant was then questioned and, during the course thereof, implicated himself in the commission of the robbery in Newburgh, the subject of the instant indictment. Defendant's answers to this questioning were reduced to writing. The written confession states, in pertinent part:

"I have been told by * * * the New York State Police, that I do not have to say anything and that anything that I say can and will be used against me in a Court of Law. I have also been told that I have the right to talk to a lawyer and have him present while I am being questioned * * * that if I can not afford to hire a lawyer, a lawyer would be appointed to represent me before any questioning * * * that I can exercise these rights at any time and not answer any questions or make any statements.

"Q. Do you understand each of the rights that I have explained to you?

"A. Yes

"Q. Is it true that you have had the opportunity to talk with your mother previous to saying anything to me?

"A. Yes

"Q. Is it also true that you had an opportunity to talk to your attorney on the telephone?

"A. Yes, that is true.

"Q. Do you still wish to talk with us?

"A. Yes.

"Q. Having these rights in mind do you wish to talk to us now?

"A. Yes."

On December 26, 1974 defendant was taken to State Police Headquarters, where he was arrested and booked for the robbery in Orange County. He was again advised of his rights and made further admissions concerning his participation in the Orange County robbery.

The trial court held that the statements elicited by the police from defendant on December 23 and December 26, 1974, insofar as they pertained to the robbery in Orange County (the subject of the instant indictment), were obtained in violation of defendant's right to counsel, and that his purported waiver of his right to counsel was ineffectual in the absence of his lawyer.

In so holding, the County Court ruled that any purported waiver of the right to counsel had to be measured against the rule stated in People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537 and reaffirmed in People v. Hobson, 39 N.Y.2d 479, 481, 384 N.Y.S.2d 419, 420, 348 N.E.2d 894, 896, i. e.: "Once a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer".

We do not quarrel with, and indeed we recognize, the rule enunciated in Arthur and Hobson. Rather, it is our position that, under the facts of this case, defendant's waiver of his right to counsel was a valid and effective one. In this regard it should be noted that the Court of Appeals stated in Hobson (p. 481, 384 N.Y.S.2d p. 420, 348 N.E.2d p. 896): "Any statements elicited by an agent of the State, however subtly, after a purported 'waiver' obtained without the presence or assistance of counsel, are inadmissible."

In the case at bar, defendant was arrested on the basis of a written statement of an accomplice. He then had the benefit of "assistance" of his attorney through a telephone call from the latter. After conferring with his attorney on the telephone, he chose to waive his right to counsel and decided to confess to the police. Under these facts, it cannot be seriously argued that defendant did not have the benefit of counsel before waiving his right to same.

The constitutional principle enunciated in Arthur and Hobson was clearly meant to prevent the unwary suspect from overbearing intimidation by the police, by insuring that the former's counsel would be available before any questioning could commence. The defendant was well aware of police procedures and practices. He was allowed to speak to his attorney over the telephone and, faced with incriminating evidence against him, freely chose to disregard his attorney's advice and to confess to the police. Under these circumstances, defendant's waiver of his right to counsel was valid, and the motion to suppress should have been denied.

GULOTTA, P. J., and LATHAM and SUOZZI, JJ., concur.

MARGETT, J., dissents and votes to affirm the order, with the following memorandum, in which MOLLEN, J., concurs:

I would affirm the suppression of defendant's confession by the County Court.

The relevant testimony at the Huntley hearing was as follows: Rudolph P. Russo, an attorney, testified that he was retained to represent the defendant on December 18, 1974. The next day, December 19, Russo called the State Police and told them that defendant "understood they were looking for him". He told the police that defendant was in his office and offered to surrender defendant at the Troopers' Barracks in Millbrook. The police agreed to these arrangements and Russo arrived at the barracks just before noon on December 19. In addition to his client, Russo was accompanied by defendant's mother and by a codefendant, George Gross, who was also wanted by the police. Russo did not, however, represent Gross.

According to Russo, he spoke with an investigator named Fairchild, who told him the police were going to take defendant into "the back room" for booking. Russo told Fairchild he wanted to be present, but that was not permitted. Russo then advised the investigator that he did not want any questions asked of his client. Fairchild assented.

Russo inquired about three times during the course of the next hour or so, whether the booking had been completed. Each time the trooper at the desk told Russo that he would "look into it." Finally, at about 1:10 P.M., Investigator Fairchild approached Russo and told him that the defendant and Gross were going to be placed in a lineup. Russo testified that he was not told the purpose of the lineup. He stated that he requested to be present at the lineup, but that his request was denied. Russo then informed defendant's mother of the situation and departed.

Russo "vaguely" recalled speaking to the defendant over the telephone a few days thereafter. His recollection was that he told defendant to be cooperative "but under no circumstances to answer any questions".

On cross-examination Russo stated that he was paid a retainer by defendant's mother on December 19. It was Russo's recollection that he "may have" asked Investigator Fairchild on the 19th whether the lineup "had something to do with a robbery * * * I may have asked him that and he may have told me yes it did." He admitted that he couldn't specifically remember requesting to be present at the lineup.

Investigator Roger Fairchild testified that defendant and Gross were booked on December 19, 1974 in connection with a series of burglaries which had been committed on December 13, 1974 in the Village of Millbrook. Booking took about an hour; shortly thereafter Fairchild received a message that Russo, who was in the waiting room, wanted to speak to him, Fairchild went to the waiting room where he was asked by Russo if there was any delay. Fairchild said he replied that there would be some delay; that the defendants were going to appear in a lineup. Russo then departed. According to Fairchild the lineup was held in connection with the robbery committed at a Carroll's restaurant in New Windsor or Newburgh on November 5, 1974. The defendant and Gross were suspects in this robbery on the basis of information which had been supplied by a third party participant. Subsequent to the lineup, at approximately 5 P.M. that day, defendant was taken before the Town Justice in the Village of Millbrook, arraigned on the burglary charges, and released on bail. No charges were lodged at that time in connection with the alleged robbery at the...