People v. Vail

• Decision Date: 22 October 1992
• Citation: 589 N.Y.S.2d 193,182 A.D.2d 331
• Parties: The PEOPLE of the State of New York, Respondent, v. Timothy A. VAIL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 193

589 N.Y.S.2d 193

182 A.D.2d 331

The PEOPLE of the State of New York, Respondent, v. Timothy A. VAIL, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 22, 1992.

Robert M. O'Leary (Kenneth S. Kagan, of counsel), Binghamton, for appellant.

Gerald F. Mollen, Dist. Atty., Binghamton, for respondent.

Before WEISS, P.J., and MIKOLL, YESAWICH, MERCURE and CREW, JJ.

MIKOLL, Justice.

Appeal from a judgment of the County Court of Broome County (Monserrate, J.), rendered November 15, 1989, upon a verdict convicting defendant of the crimes of murder in the second degree (two counts), burglary in the second degree, rape in the first degree, robbery in the first degree and burglary in the third degree.

Defendant seeks a reversal of his convictions based on County Court's denial of his motion to suppress a statement given by him to police implicating him in the crimes of which he was convicted. Defendant contends that the People violated his right to counsel in that at the time the statement was taken, he was represented on other charges by counsel and that the People manipulated the dismissal of the unrelated charges for purposes of avoiding the rules set out in People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709 and People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371.

Subsequent to Rogers and Bartolomeo, the Court of Appeals, in People v. Bing, 76 N.Y.2d 331, 559 N.Y.S.2d 474, 558 N.E.2d 1011, ruled that the right to counsel is not violated where a defendant is questioned by the police solely on matters unrelated to a prior pending charge even if the defendant was represented by counsel on the prior charge. Defendant urges that People v. Bing, supra, is not applicable to him because his interrogation occurred on December 31, 1988, he was indicted on January 19, 1989, convicted after trial on September 28, 1989 and sentenced on November 15, 1989. The Bing case was decided on July 2, 1990. Defendant contends that because Bing is a " 'clear break with the past' " (United States v. Johnson, 457 U.S. 537, 549, 102 S.Ct. 2579, 2587, 73 L.Ed.2d 202, quoting Desist v. United States, 394 U.S. 244, 248, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248) and would severely curtail his constitutional rights, it should not be applied retroactively and, in this instance, on appellate review of his conviction. We disagree. This court has previously applied Bing retroactively (see, People v. Brown, 174 A.D.2d 842, 571 N.Y.S.2d 347) and the same rule has been adopted by other departments (see, People v. Brown, 171 A.D.2d 1038, 1039, 569 N.Y.S.2d 526 [4th Dept.], lv. denied 77 N.Y.2d 992, 571 N.Y.S.2d 918, 575 N.E.2d 404; People v. McEachern, 166 A.D.2d 614, 560 N.Y.S.2d 897 [2d Dept.], lv. denied 77 N.Y.2d 908, 569 N.Y.S.2d 941, 572 N.E.2d 624). It was thus appropriate to apply Bing herein.

Alternatively, defendant urges that his arrest for a parole violation on matters for which he had retained counsel entitles him to the protection of People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709, supra, which Bing held was still good law (People v. Bing, supra, 76 N.Y.2d at 350, 559 N.Y.S.2d 474, 558 N.E.2d 1011), and thus warrants suppression of his statement. We note that defendant was arrested for a parole violation and, as to this matter, he was unrepresented by counsel. Police were thus free to question him regarding the murder for which he was a suspect (see, People v. Kazmarick, 52 N.Y.2d 322, 324, 438 N.Y.S.2d 247, 420 N.E.2d 45). Contrary to defendant's contention, even absent the ruling in Bing, it has been held that police can dismiss charges against a defendant even if done for the purpose of questioning the defendant about another matter (see,...