People v. Waterman

Citation175 N.E.2d 445,216 N.Y.S.2d 70,9 N.Y.2d 561
Parties, 175 N.E.2d 445, 90 A.L.R.2d 726 PEOPLE of the State of New York, Appellant, v. Rudolph WATERMAN and Albert Devine, Respondents.
Decision Date18 May 1961
CourtNew York Court of Appeals

Isidore Dollinger, Dist. Atty., New York City (Irving Anolik, New York City, of counsel), for appellant.

Paul M. Bernstein, Anthony F. Marra and Charles J. Prentiss, New York City, for Rudolph Waterman, respondent.

Maximilian W. Kempner and Anthony F. Marra, New York City, for Albert Devine, respondent.

FULD, Judge.

Indicted with two others in February of 1959, under the fictitious designations of 'John Doe' and 'Richard Roe', the defendants Waterman and Devine were convicted of the crimes of robbery in the first degree, second degree grand larceny and assault. 1 The Appellate Division, by a divided court, reversed the judgments of conviction against both defendants and ordered a new trial. It was the Appellate Division's view that it was error to receive in evidence incriminatory statements made by the defendant Waterman in which he also implicated his codefendant Devine under questioning by a police officer during the period between the return of the indictment and his arraignment thereon.

The interrogation by the police officer occurred on two separate occasions in June, 1959, the first time being in the Tombs in Manhattan where Waterman was then incarcerated on another charge, the second, in the detention cells of the Bronx County Building. On each occasion, the officer testified, Waterman made a complete confession, admitting that he, Devine and their two accomplices had participated in the robbery in question. And there can be no doubt that the police officer knew that Waterman had been indicted for that crime. As the Appellate Division observed, 12 A.D.2d 84, 208 N.Y.S.2d 596, 597, 'While it is not clear when the substitution of names was made in the indictment, it is clear that at the time of the conversations Waterman was in fact an accused' and that the officer was in possession of information, given him by one of the other participants in the robbery, implicating Waterman.

The Appellate Division majority regarded our decision in People v. Di Biasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, as authority for barring from evidence any admissions obtained from a defendant after indictment under questioning in the absence of counsel. The dissenting Justices, on the other hand, concluded that the decision was to be limited to the special facts there present and was not to be read as prescribing any such flat rule of exclusion.

We are confronted with another facet of the oft-mooted question as to the admissibility of incriminatory statements obtained from an accused as the result of interrogation by police or prosecuting authorities. The problem is that of achieving a balance between the competing interests of society in the protection of cherished individual rights, on the one hand, and in effective law enforcement and investigation of crime, on the other.

In People v. Di Biasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, supra, this court condemned secret interrogation of a defendant by law enforcement authorities after indictment as violative of the defendant's constitutional rights. The decision marked the adoption of the similar view previously expressed by three Judges of this court in dissent in People v. Spano, 4 N.Y.2d 256, 264-267, 173 N.Y.S.2d 793, 799, 802, reversed on other grounds sub nom. Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265. Such questioning, we held, impinged upon the defendant's twofold rights to the assistance of counsel and to freedom from testimonial compulsion. See People v. Di Biasi, 7 N.Y.2d 544, 550-551, 200 N.Y.S.2d 21, 24-25, supra; see, also, People v. Spano, 4 N.Y.2d 256, 266-267, 173 N.Y.S.2d 793, 801-802, supra, per Desmond, J., dissenting. Although Di Biasi and Spano each involved a capital case, in which the defendant was at the time of the interrogation represented by counsel who had arranged for his surrender on the pending indictment, the broad principle there announced did not turn on those particular circumstances.

The constitutional and statutory right of a defendant to the assistance of counsel at every stage of a criminal cause (N.Y.Const. art. I, § 6; Code of Criminal Procedure, §§ 8, 188, 308, 699; see People v. Price, 262 N.Y. 410, 412, 187 N.E. 298, 299; People v. McLaughlin, 291 N.Y. 480, 482, 53 N.E.2d 356, 357) is limited neither to capital cases (see People v. Koch, 299 N.Y. 378, 381, 87 N.E.2d 417, 418; People v. McLaughlin, 291 N.Y. 480, 482-483, 53 N.E.2d 356, 357, supra; People v. Price, 262 N.Y. 410, 413, 187 N.E. 298, 299, supra) nor to the situation where the defendant already has an attorney. The constitutional guarantee 'includes a reasonable time to obtain counsel'. People v. Koch, 299 N.Y. 378, 381, 87 N.E.2d 417, 418, supra; see, also, People v. McLaughlin, 291 N.Y. 480, 53 N.E.2d 356, supra; cf. People v. Marincic, 2 N.Y.2d 181, 158 N.Y.S.2d 569. Indeed, in the Di Biasi case, that the defendant did not 'insist on the presence of his lawyer' was regarded as immaterial (7 N.Y.2d 544, 552, 200 N.Y.S.2d 21, 26, per Fuld, J., concurring).

It was likewise not decisive of the finding of testimonial compulsion inherent in the post-indictment interrogation in Di Biasi that the defendant was charged with a capital crime or that he was represented by counsel. The crucial consideration was rather, that the interrogation to which he was subjected, since it came after indictment, was an impermissible step in the progress of the criminal cause against the defendant.

An indictment is the 'first pleading on the part of the people' (Code Crim.Pro., § 274) and, where there has been no preliminary examination, marks the formal commencement of the criminal action against the defendant. Since the finding of the indictment presumably imports that the People have legally sufficient evidence of the defendant's guilt of the crime charged (Code Crim.Pro., § 251), the necessities of appropriate police investigation 'to solve a crime, or even to absolve a suspect' cannot be urged as justification for any subsequent questioning of the defendant. See Spano v. New York, 360 U.S. 315, 323, 79 S.Ct. 1202, 1207, supra. Any secret interrogation of the defendant, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime.

By way of implementation of the constitutional guarantee of the right to counsel, the Legislature has unequivocally declared that 'In a criminal action the defendant is entitled * * * 2. To be allowed counsel as in civil actions' (Code Crim.Pro., § 8, subd. 2). That right must be recognized and enforced not only by the courts when an accused appears without counsel (Code Crim.Pro., §§ 188, 308, 699), but also by the representatives of the People, at least once the criminal action has been formally instituted. As has been aptly observed, 'Depriving a person, formally charged with a crime, of counsel during the period prior to trial may be more damaging than denial of counsel during the trial itself', and such a deprivation 'after indictment and before trial' may, indeed, be tantamount to the denial of 'effective representation by counsel at the only stage when legal aid and advice would help him'. Spano v. New York, 360 U.S. 315, 325-326, 79 S.Ct. 1202, 1208, supra, per Douglas, J., concurring.

While it has been held that a suspect need not be advised of his rights or privileges when interrogated by the police or prosecuting authorities prior to indictment (see People v. Randazzio, 194 N.Y. 147, 87 N.E. 112; People v. Doran, 246 N.Y. 409, 423, 159 N.E. 379, 384), the initiation of a criminal action against the accused by the finding of an indictment operates to impose certain disabilities upon the People. The People would manifestly not be permitted at the trial to call the defendant to the...

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