People v. Torres
| Decision Date | 26 June 1978 |
| Citation | 63 A.D.2d 1033,406 N.Y.S.2d 500 |
| Parties | The PEOPLE, etc., Respondent, v. Gumersindo TORRES, a/k/a Jose Torres, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Edwin Ira Schulman, Brooklyn, for appellant.
Eugene Gold, Dist. Atty., Brooklyn (Jay M. Cohen, Asst. Dist. Atty., of counsel), for respondent.
Before TITONE, J. P., and SUOZZI, MARGETT and HAWKINS, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 26, 1976, convicting him of murder, upon his plea of guilty, and imposing sentence.
Judgment affirmed.
Although there can be no postindictment or postarraignment waiver of the right to counsel in the absence of counsel (see People v. Townes, 41 N.Y.2d 97, 102-103, 390 N.Y.S.2d 893, 897-898, 359 N.E.2d 402, 405-407; see, also, People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894; People v. Colon, App.Div., 405 N.Y.S.2d 735 ), no court in this jurisdiction has ever extended this rule to an interrogation after the filing of a felony complaint where counsel has not been retained. There is a significant difference, insofar as the protection of Fifth and Sixth Amendment rights is concerned, between the filing of a felony complaint and an indictment. Notwithstanding the fact that a felony complaint is an "accusatory instrument" (CPL 1.20, subd. 1), the filing of which constitutes the "commencement of (a) criminal action" (CPL 1.20, subd. 17), such a filing simply indicates, as the People claim, that there is probable cause to believe that a suspect has committed a crime. An indictment, on the other hand, "imports that the People have legally sufficient evidence of the defendant's guilt" (People v. Waterman, 9 N.Y.2d 561, 565, 216 N.Y.S.2d 70, 74, 175 N.E.2d 445, 447). It is possible that an indictment may never be returned despite the fact that a felony complaint has been filed and, unlike interrogation after indictment, the defendant is not "the all but irrevocable target"; nor has "the preparation for his trial * * * begun" (cf. People v. Lopez, 28 N.Y.2d 23, 29, 319 N.Y.S.2d 825, 829, 268 N.E.2d 628, 631 (dissenting opn)).
Since an accusatory instrument, such as a felony complaint, is a prerequisite to the issuance of an arrest warrant, the extension of law proposed by defendant would be tantamount to barring waivers in the absence of counsel whenever an arrest warrant had issued. The result would be to "draw an...
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...N.Y.S.2d 988. A grand jury may not return an indictment unless it has legally sufficient evidence of defendants' guilt. People v. Torres, 63 A.D.2d 1033, 406 N.Y.S.2d 500 aff'd., 53 N.Y.2d 213, 440 N.Y.S.2d 889, 423 N.E.2d 366, cert. den. 454 U.S. 967, 102 S.Ct. 510, 70 L.Ed.2d 383; Jan. 19......
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...been pronounced on Torres on March 3, 1976. His conviction was affirmed by the Appellate Division, Second Department, on June 26, 1978 (63 A.D.2d 1033, 406 N.Y.S.2d 500). On August 15, 1978 leave to appeal to the Court of Appeals was denied (45 N.Y.2d 831). On January 15, 1980 the Court of ......
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...in the absence of counsel and that he may not waive the right to counsel in the absence of counsel (see, e. g., People v. Torres, 63 A.D.2d 1033, 406 N.Y.S.2d 500). It is both reasonable and proper to extend this rule to a situation where a defendant is in the process of obtaining counsel a......