People v. Yut Wai Tom

• Decision Date: 14 May 1981
• Citation: 439 N.Y.S.2d 896,422 N.E.2d 556,53 N.Y.2d 44
• Parties: , 422 N.E.2d 556 The PEOPLE of the State of New York, Respondent, v. YUT WAI TOM, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 896

439 N.Y.S.2d 896

53 N.Y.2d 44, 422 N.E.2d 556

The PEOPLE of the State of New York, Respondent, v. YUT WAI TOM, Appellant.

Court of Appeals of New York.

May 14, 1981.

Burton C. Agata, Mineola, and Michael G. Dowd, Kew Gardens, for appellant

Robert M. Morgenthau, Dist. Atty. (Donna Krone and Jerrold L. Neugarten, New York City, of counsel), for respondent.

OPINION OF THE COURT

MEYER, Judge.

Defendant's right to counsel at a postarraignment lineup conducted in the absence of counsel was waived where defendant's counsel, having arranged with the prosecutor the physical details of the lineup and the questions to be asked and having discussed with defendant his reasons for not remaining for the actual lineup and obtained defendant's consent, advised the prosecutor that the lineup should proceed in his absence, even though defendant did not himself communicate the waiver to the prosecutor and counsel was not in defendant's presence when he did. While the Trial Judge was, therefore, correct in denying suppression of testimony concerning the lineup identifications, there must, nevertheless, be a reversal and a new trial because, by his persistent, excessive and unwarranted participation in the examination of witnesses, the Trial Judge denigrated defendant's right to a fair trial.

I

The factual predicate for the jury's finding defendant to be guilty of second degree murder may be quickly stated. On April 1, 1975, at approximately 8:00 P.M., Fong Yue Yee was shot to death on Eldridge Street in the Chinatown area of Manhattan. He had been walking with Michael Chin toward Chin's residence when he decided to call his girlfriend. Entering a phone booth on the southeast corner of Grand and Eldridge Streets, Fong placed the call while Chin waited. Chin noticed the approach of a beige Nova, which stopped in front of the phone booth, and recognized defendant, Yut Wai Tom, in the passenger seat. Fong interrupted his call and advised Chin not to wait since the call would take some time. As Chin walked down Eldridge Street he again saw the beige Nova and defendant in the passenger seat. The car proceeded to Grand Street and turned left. Chin continued to his apartment at 81 Eldridge Street.

At this point there arrived on the scene several members of the Ortiz family, including Rosabel, who was then 12 years old, and Marivel, then 16. They noticed a beige Nova pull up in front of the phone booth and saw the man in the booth drop the phone and begin to run after looking in the direction of the car.

A gun protruded from the rear window of the car and a shot was fired at Fong, who fell to the ground. The man with the gun emerged from the car, knelt down over the body, raised Fong's chin and shot him in the throat. According to Rosabel and Marivel Ortiz, the shooter returned to the corner and looked around, looking directly at them for several seconds. He then returned to the car which sped away. Shortly thereafter Fong was pronounced dead on arrival at a nearby hospital.

The Appellate Division, one Justice dissenting, having affirmed defendant's conviction, we must determine whether defendant was denied his right to counsel at lineup and whether he was accorded a fair trial.

II

A

The testimony presented at the Wade hearing ¹ shows that the Ortiz girls each separately examined an album of photographs and selected a picture of the defendant as the shooter. Defendant was then arrested and arraigned. At arraignment on April 3, 1975, defendant's then attorney, Joseph Stone, agreed with Assistant District Attorney Sears that a lineup would be held on Saturday, April 9, 1975 at 3:00 P.M. On April 9 Stone arrived at 2:45 P.M. and consulted with his client. Sears then informed Stone that because he had run into difficulty in obtaining Chinese standins there would be some delay. Stone announced that he had a pressing engagement and would have to leave shortly. By 3:40 the standins had been assembled and Sears dispatched detectives to pick up Rosabel and Marivel Ortiz, who lived nearby.

At 3:55, Stone asked why the lineup had not commenced and announced his departure. On inquiry Stone revealed that his "pressing engagement" was a Little League baseball game which he had to umpire because his son was a participant in the game. Sears reproached Stone, pointing out that his client was charged with a serious crime, that a prompt lineup was very important and that he would report Stone to the Appellate Division for disciplinary action if he left. Stone did leave, but returned several minutes later, apparently swayed by Sears' threat.

Stone then viewed the standins, commenting that they were generally fair. Noticing that some of them wore jackets, Stone asked that their jackets be removed since his client was without one. The request was granted. Upon request, Sears also agreed to place defendant in the number three position in the first lineup and the number five position in the second lineup. Stone examined the lineup room and the one-way mirror and obtained assurances from Sears that the two witnesses would view the lineup separately. Finally, he and Sears agreed on the wording of the question to be posed to the two witnesses.

At 4:30 P.M. Sears informed Stone that the witnesses were in his office and left the room to get them. When he returned, Stone was not there. Unable to believe that Stone had left at such a crucial stage of the proceedings, Sears searched the building for him. At 5:00 P.M. Sears decided to proceed with the lineup notwithstanding Stone's absence, but before he was able to do so he received a telephone call in the lineup room from Stone. Stone instructed Sears to proceed with the lineup, saying that he was satisfied that the lineup would be fair. Sears offered to let Stone speak to the defendant and he did so.

The lineup was then held. Rosabel first viewed the group and stated that she thought that the killer was number three (defendant), but she was not sure. When Marivel viewed the lineup she stated that the killer was number five (again, the defendant), commenting, however, that his hair was different.

At the Wade hearing defendant, now represented by an attorney other than Stone, moved to suppress the lineup identifications on the ground that defendant had been denied his right to counsel. Having heard from the detective, the Ortiz girls and Assistant District Attorney the above stated facts concerning the lineup, the Trial Judge called Joseph Stone as the court's witness.

Stone admitted that initially he intended to leave in order to attend the Little League game but remained because of the insistence of Sears. Further questioning by the court elicited the statement that Stone subsequently left only because he was satisfied that he had done all he could to insure a fair lineup and was convinced that Sears would run the lineup fairly and in accordance with their arrangements. Unprompted by the court was Stone's casual remark that there was also "another reason" for his departure, which follow-up questions disclosed was that he felt that it was important that he not actually see the witnesses. Asked whether he had discussed his reason with defendant, Stone replied that he had and that defendant had agreed that his not being present would be all right. ²

A question having been raised by Stone concerning attorney-client privilege, defendant, after conference with his new counsel, waived privilege with respect to Stone's reason for leaving. Stone then indicated that the reason had occurred to him in part because of Sears' insistence upon a prompt lineup, the reason for which was that in Sears' experience Chinese defendants rarely went to trial because the witnesses were "reached". Sears informed Stone that he intended to move with dispatch, before the Ortiz sisters were threatened or harmed. ³ It then occurred to him, Stone testified, that if he didn't know the identity of the witnesses, about which he had been asked even before the lineup, his client could not be blamed if they were threatened or harmed.

The Judge ruled, and defendant does not now challenge the ruling, that the lineup was fair. He concluded also that defendant had knowingly and intelligently waived his right to counsel's presence at the moment of identification and that up to that point counsel had effectively acted to insure that the lineup procedure was fair. The affirmance by the Appellate Division carries with it an affirmance of the fact findings on which the hearing court's conclusions were based.

B

There can be no dispute that defendant was effectively represented by counsel at the lineup, up to the point of Stone's departure. Although defense counsel initially displayed an unprofessional lack of concern for his client's welfare, the District Attorney's threat apparently made him realize his error. Counsel then affirmatively requested a change in the dress of the standins, arranged for the placement of his client in different positions in the two lineups, discussed the wording of the question to be put to the lineup witnesses and obtained assurances that they would view the lineup separately. Finally, he advised his client to assume a pose similar to that of the standins and not to allow himself to be made conspicuous in any way. In a proceeding in which counsel's role is essentially a passive one (see People v. Settles, 46 N.Y.2d 154, 165, 412 N.Y.S.2d 874, 385 N.E.2d 612), Stone acted to assure that the lineup was a fair one.

Nor can we conclude that defendant was denied his right to have counsel present at the actual viewing. It is settled that a defendant is entitled to the assistance of counsel at any critical stage of the criminal proceeding and that a postarraignment lineup is such a stage (Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411; People v. Blake, 35 N.Y.2d 331, 337, 361 N.Y.S.2d 881, 320 N.E.2d 625). The absence of counsel at the viewing would, therefore, mandate suppression of the...