People v. Washington

• Decision Date: 20 May 1976
• Citation: 383 N.Y.S.2d 422,52 A.D.2d 984
• Parties: The PEOPLE of the State of New York, Respondent, v. William WASHINGTON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 422

383 N.Y.S.2d 422

52 A.D.2d 984

The PEOPLE of the State of New York, Respondent, v. William WASHINGTON, Appellant.

Supreme Court, Appellate Division, Third Department.

May 20, 1976.

Douglas P. Rutnik, Public Defender, Albany County (Joseph M. Brennan, Albany, of counsel), for appellant.

Sol Greenberg, Albany County Dist. Atty., Albany (Dennis M. Acton, Albany, of counsel), for respondent.

Before KOREMAN, P.J., and MAHONEY, MAIN, LARKIN and HERLIHY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of the County of Albany, rendered May 6, 1975, upon a verdict convicting defendant of the crimes of felony murder and robbery in the first degree.

On August 7, 1974, a white male, one William Bogdanowicz, was found face down on the stairwell of the ninth floor of a public housing project located at No. 20 Rensselaer Street in the City of Albany. He was dead. About five hours later two Albany detectives went to defendant's home and he, along with his sister, willingly accompanied the officers to the Arbor Hill Neighborhood Police Office. Prior to any questioning, the defendant, then 16 years old, was given the Miranda warnings and waived them. Because preliminary questioning disclosed that defendant's story failed in certain essentials to agree with a statement given previously by a codefendant, he was removed to the Division Two Police Facility at about 11:30 P.M. where he was again advised of his rights, including the right to have counsel present at any interrogation, and he again waived such rights. After extensive questioning the defendant agreed, at about 1:30 A.M. on August 8, 1974, to give a statement. The statement was typed, given to the defendant and several police officers who were present, and after one officer read the statement aloud, the defendant signed it. The total time in custody before the signing was about four hours. Thereupon, the defendant was charged with the murder and robbery of William Bogdanowicz. One Dale Berkeley was similarly charged. An Albany attorney, Daniel Dwyer, was assigned to represent Berkeley. During pretrial procedures Dwyer and defendant's counsel conferred together and discussed trial strategies. Thereafter, the two cases were severed for trial and Berkeley, represented by Dwyer, was tried first and convicted of only the first degree robbery count. Prior to defendant's trial, Attorney Dwyer was appointed Assistant District Attorney of Albany County.

On this appeal the defendant assigns as reversible error the following: (1) Defendant's motion to appoint a special District Attorney should have been granted; (2) defendant's oral and written statements should have been suppressed; (3) defendant's motion for dismissal at the close of the People's case and at the close of the whole case should have been granted; and (4) defendant's motion for a mistrial after the jury reported it was unable to reach a unanimous verdict on the charge of murder should have been granted.

The trial court did not err in refusing to appoint a special District Attorney. Mr. Dwyer did not represent Washington, the defendant herein, but his codefendant. There was no reason to disbelieve the averments contained in Dwyer's affidavit in opposition to the motion, to the effect that he would not discuss the case with any member of the District Attorney's staff. There was no showing that the District Attorney's staff was prejudicially infected, and it would have been injudicious to disqualify the whole staff (People v. Loewinger, 37 A.D.2d 675, 676, 323 N.Y.S.2d 98, 100, affd. 30 N.Y.2d 587, 330 N.Y.S.2d 801, 281 N.E.2d 847).

Next, the oral and written statements made by the defendant were properly admitted into evidence. The defendant does not deny that he and his sister voluntarily accompanied the detectives to the Arbor Hill Station, nor does he deny that he was twice given the appropriate Miranda warnings, once before each of two sessions of interrogation, and that on each occasion he waived them. The defendant never requested the presence of his sister nor the assistance of an attorney while being interrogated. The whole process took only four hours. There is nothing in the record showing inquisitorial tactics or undue duress exercised by the police. No testimony was offered by the defendant at the suppression hearing. Defendant's only contention is that his age, lack of education and homosexual persuasion made him singularly vulnerable to oppression and, A fortiori, he must have been coerced into making the inculpatory statements. In the absence of any proof of how the factors of age, education and homosexuality, singly or by interreaction, did in fact result in constitutionally impermissible questioning, this contention must be rejected. It is the totality of the circumstances that control (People v. Carbonaro, 21 N.Y.2d 271, 287 N.Y.S.2d 385, 234 N.E.2d 433), and...