People v. Washington

• Decision Date: 28 May 1985
• Citation: 489 N.Y.S.2d 380,111 A.D.2d 418
• Parties: The PEOPLE, etc., Respondent, v. Timothy WASHINGTON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 380

489 N.Y.S.2d 380

111 A.D.2d 418

The PEOPLE, etc., Respondent, v. Timothy WASHINGTON, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 28, 1985.

Simpson Thacher & Bartlett, New York City (Marea M. Suozzi, New York City, of counsel), and William E. Hellerstein, New York City, for appellant (one brief filed).

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood and Roseann B. MacKechnie, of counsel; Ann Bordley, Brooklyn, on brief), for respondent.

Before THOMPSON, J.P., and BROWN, NIEHOFF and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered January 6, 1982, convicting him of rape in the first degree, sodomy in the first degree, sexual abuse in the first degree, and endangering the welfare of a child (two counts), upon a jury verdict, and imposing sentence.

Judgment affirmed.

Although the defendant may raise a right to counsel claim pursuant to People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371 for the first time on appeal, despite his failure, as in the case at bar, to assert such a claim at the suppression hearing (see, e.g., People v. Cullen, 50 N.Y.2d 168, 428 N.Y.S.2d 456, 405 N.E.2d 1021; People v. Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400 N.E.2d 1344; People v. Donovon, 107 A.D.2d 433, 487 N.Y.S.2d 345), a sufficient factual record must be developed in order for such a claim to be reviewed on appeal. The defendant cannot succeed on his Bartolomeo claim if the record before the appellate court fails to disclose facts sufficient to establish a deprivation of his right to counsel (see People v. Kinchen, 60 N.Y.2d 772, 469 N.Y.S.2d 680, 457 N.E.2d 786; People v. Donovon, supra ). On this record, there is no evidence whatsoever that the law enforcement officials who took statements from defendant after he waived his rights had knowledge of his recent prior arrest in Kings County. Moreover, defendant was not deprived of his right to counsel during questioning since the police were under no duty to make any further inquiry as to whether defendant was represented by counsel merely because he had prior involvements with the criminal justice system (see, e.g., People v. Sepe, 108 A.D.2d 941, 485 N.Y.S.2d 833; People v. Lucarano, 61 N.Y.2d 138, 145-146, 472 N.Y.S.2d 894, 460 N.E.2d 1328; People v. Servidio, 54 N.Y.2d 951, 445 N.Y.S.2d 143, 429 N.E.2d 821; People v. Beverly, 104 A.D.2d 996, 480 N.Y.S.2d 908; People v. Bertolo, 102 A.D.2d 193, 216, 478 N.Y.S.2d 19 affd. 65 N.Y.2d 111, 490 N.Y.S.2d 475, 480 N.E.2d 61 People v. Brownlee, 119 Misc.2d 996, 999, 465 N.Y.S.2d 422). Therefore, defendant has failed to make a factual showing sufficient for appellate review of his right to counsel claim.

The identification testimony of the complaining witness was not tainted by any suggestive identification procedures; in any event, because the complaining witness was able to see defendant's face for a 10-second period before she entered the elevator in which she was eventually raped, she thus had an independent basis for making her identification (see, e.g., People v. Ballott, 20 N.Y.2d 600, 286 N.Y.S.2d 1, 233 N.E.2d 103; People v. Coleman, 98...