People v. Mandrachio

Carro, J. (dissenting).

As indicated, the rendition of the Miranda warnings by the prosecutor proceeded in part as follows:

“Q. Mr. Mandrachio, what I’m saying is that you have the right to an attorney now or anytime in the future.
“A. Yes.
“Q. If you can’t afford one, one will be given to you free of charge.
“A. I can’t afford one.
“Q. Have you understood everything I have told you?
“A. Yes.
“Q. Having understood everything I told you I would like to ask you about the death of Anthony Edwards.”

*285The implication from defendant’s response that “I can’t afford one” might well be, “therefore give me one free of charge”. At the very least, his intent is ambiguous. The burden of proof as to voluntariness, and therefore as to knowing voluntary waiver, is on the People to establish beyond a reasonable doubt (People v Huntley, 15 NY2d 72, 78). When an ambiguity exists as to the defendant’s state of mind, or as to whether counsel is being requested during the Miranda warnings, it is the obligation of the prosecutor not to ignore or gloss over the possible implications of the defendant’s response and proceed as if nothing had occurred, but to make inquiry to clarify that ambiguity and to specifically advise the defendant at that point that assigned counsel will be provided, if desired, before the questioning proceeds. The burden is not and has never been on the defendant to prove that his request for counsel was “clear and categoric”.

“His statement should have been suppressed even if his request for an attorney be considered an ambiguous one, as the People urge, for whatever ambiguity was created existed because of the prosecutor’s failure to clearly and effectively explain to defendant * * * what the right to counsel consisted of. And if the prosecutor was in doubt as to whether defendant had indeed relinquished his right to counsel it was incumbent upon him not to play fast and loose with that precious right but rather to insure it was protected.” (People v Woodard, 64 AD2d 517, 518.)

“The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent— the person most often subjected to interrogation—the knowledge that he too has a right to have counsel present. As with the warnings of the right to remain silent and of the general right to counsel, only by effective express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it.” (Miranda v Arizona, 384 US 436, 473.)

“No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead.” (Miranda v Arizona, supra, at pp 471-472.)

The District Attorney did not fulfill his obligation and *286has not met his burden. The conviction should be reversed and the matter remanded for a new trial.

Silverman and Bloom, JJ., concur with Lupiano, J.; Fein, J. P. and Carro, J., dissent in an opinion by Carro, J.

Judgment, Supreme Court, Bronx County, affirmed.