People v. Murray

*320OPINION OF THE COURT

Rosenberger, J.

The facts are reasonably set forth in the dissent by Justice Smith.

There was no deprivation of the defendant’s right to counsel by the actions of the police or the District Attorney. It is clear that when a defendant is represented by counsel in a pending case any statement taken from him by law enforcement authorities, in the absence of his attorney, may not be used against him, even in a totally unrelated case in which he is unrepresented by counsel. (People v Bartolomeo, 53 NY2d 225 [1981]; People v Rogers, 48 NY2d 167 [1979].) Since those cases, the Court of Appeals has made clear its concerns which underlie those holdings. In People v Colwell (65 NY2d 883, 885 [1985]), the court stated: "A primary concern underlying Rogers was that a defendant could incriminate himself on the pending charge, on which he is represented, even though the questions ostensibly concern unrelated charges. As this court noted, 'it is the role of [the] defendant’s attorney, not the State, to determine whether a particular matter will or will not touch upon the extant charge’ (People v Rogers, 48 NY2d 167, 173 * * *). This same concern is not present where the defendant already stands convicted and is represented only on an appeal from the conviction. After conviction and sentence, prosecutorial authorities do not have the same motivation to gather evidence incriminating the defendant on charges for which he has already been convicted, and an appellate court generally considers only the issues raised by the record of the judgment of conviction. In most cases, a statement bearing on charges that are already the subject of a conviction would be of little use to the prosecution as a case wends it way—often for years—through the appellate process” (emphasis added).

The instant case presents facts more strongly supporting the admissibility of the defendant’s statement. He was not represented by counsel on any pending case since he was not the subject of any pending case. There was no extant charge upon which his statement could possibly touch. The Colwell case would make a stronger argument for the extension of the right to counsel protections to the defendant there than does the instant case to this defendant. He could no longer be prosecuted. Colwell’s case was on appeal. There existed a genuine possibility that his conviction could be reversed, his case remanded, and a new trial ordered.

*321The defendant argues, in essence, that he had a right to be prosecuted for his shoplifting misdemeanor; he had a right not to have the charges against him dismissed. This argument skews the reasoning upon which both People v Rogers (supra) and People v Bartolomeo (supra) are based. It would change a genuine concern for protecting the rights of a defendant who is the subject of a pending unresolved criminal case to the conferring of a benefit upon such a person. It would, in logical extension, make it potentially desirable to be, at all times, a defendant in a pending misdemeanor prosecution. It would recognize the status of defendant to be a benefit so valuable as to be inalienable, except with the consent of the beneficiary. A person accused of a misdemeanor is not absolutely entitled to a legitimate expectation of prosecution. This plainly was not the intent of the court (People v Colwell, supra).

The reasons for the prosecutor’s moving to dismiss the shoplifting case are immaterial. They are not limited by CPL 170.40. As was observed by the Appellate Division, Third Department, speaking through Justice Weiss in People ex rel. Doe v Beaudoin (102 AD2d 359, 365 [1984]): "It is well established that the District Attorney enjoys broad discretion over who, what and when to prosecute (People v Di Falco [44 NY2d 482], p 486 [1978]; People v Muka, 72 AD2d 649, 650; People v Putland, 102 Misc 2d 517, 523). The responsibilities attendant the position of this duly elected official necessitate 'the exercise of completely impartial judgment and discretion’ (People v Di Falco, supra, p 487). Indeed, respect for the basic separation of powers lodged in the executive, legislative and judicial branches of our government compels this court not to interfere with the prosecutor’s authority (Matter of Hassan v Magistrates’ Ct., 20 Misc 2d 509, app dsmd 10 AD2d 908, mot for lv to app dsmd 8 NY2d 750, cert den 364 US 844).”

The Court of Appeals recognized this prosecutorial discretion in People v Di Falco (44 NY2d 482, 487, supra), when it said: "Indeed the District Attorney may choose not to pursue the matter at all.”

Accordingly, the judgment of Supreme Court, New York County (Fraiman, J.), rendered September 5, 1984, convicting appellant of murder in the second degree and robbery in the first degree and sentencing him to two concurrent indeterminate prison terms of from 15 years to life on the murder count, and from 5 to 15 years on the robbery count, should be affirmed.