People v. Medina

Rosenberger, J.

(dissenting). The issue in this appeal is whether the facts, as known to the investigating detective at the time the defendant was subjected to custodial interrogation, warranted the assumption that a prior charge against him had been dismissed, thereby relieving the detective of the duty to ascertain whether he was represented by counsel on the pending charge. The ghastly nature of the crimes of which the defendant stands accused must not divert us from the task of applying the law objectively to the facts and of ruling in accordance with its mandate, however much we may abhor the outcome.

The defendant was found guilty of the January 13, 1986 murders of Jose Fred and Gilberto Lopez in Lopez’s apartment on East 10th Street in Manhattan. At about 11:30 p.m. on the evening of the murders, Jose Fred’s cousin went to visit him at Lopez’s home. As he approached the second-floor apartment, he noticed blood seeping out from under the door and *352ran home to tell his father. The cousin returned to Lopez’s apartment building about 10 minutes later with his father and two other men. They saw the defendant, who lived on the first floor, walking away from the building very fast, but not running. His hair appeared to be wet.

When the men knocked on Lopez’s door, Lopez, who had been stabbed several times in the neck and was unable to open the door, called out that Fred had been shot and that they should send for the police. Shortly thereafter, the police arrived and, entering the apartment from the fire escape, found Jose Fred dead on the living room sofa from a gun shot wound to the head. Lopez lay directly in front of the apartment door bleeding profusely. In response to questioning while the emergency medical technicians were attending him, Lopez told the police that it was "Luis from the first floor” who had stabbed him and shot Fred. The police went downstairs to the defendant’s apartment and spoke with his wife. She informed them that he was not at home and that he had just been released from jail that afternoon. This information was relayed to Detective William Cutter before he spoke to the defendant upon his return at about 2:45 a.m. on January 14.

At the suppression hearing, Detective Cutter testified that in his initial conversation with the defendant he asked him about his recent release from jail. Defendant told the detective that he had been released from the Supreme Court in Manhattan because the complainant in the case "had not shown up four times and he was let go.” Detective Cutter, who had served in the police department for 18 years, testified that based on his experience he interpreted this to mean that the charges against the defendant had been dismissed. He made no further inquiries of him about the status of his case nor were any official records checked by any of the investigating officers.

At about 11:20 on the evening of January 14, the defendant was brought to the Ninth Precinct for questioning. After being advised of his constitutional rights, the defendant said that he was willing to answer questions without an attorney present. During the interview, he confessed to having committed the crimes. Thereafter, he refused to make further statements without an attorney present. The defendant had, in fact, been paroled (released without bail) on January 13 on a pending charge of first degree assault, and was represented by counsel in that case.

Supreme Court denied the defendant’s motion to suppress *353the statements he had made during the custodial interrogation, finding that his right to counsel had not been violated under the rules enunciated by the Court of Appeals in People v Rogers (48 NY2d 167 [1979]), People v Bartolomeo (53 NY2d 225 [1981]), and in People v Bertolo (65 NY2d 111 [1985]). The court credited Detective Cutter’s testimony and declined to infer knowledge of prior representation, finding, to the contrary, that it was “not unreasonable, under the circumstances within his knowledge and based upon his general experience, for the detective to believe the earlier case had been dismissed” (138 Misc 2d 653, 655 [Sup Ct, NY County 1988]).

I find upon reviewing the suppression hearing transcript, that it does not support the court’s findings. Under cross-examination at the suppression hearing, Detective Cutter stated his understanding of the law was that a suspect’s right to counsel “automatically attaches if he has an open case” and that he cannot be questioned without counsel present. The detective acknowledged that there were no exigent circumstances which prevented him from asking further questions to clarify the status of the defendant’s court case. The court also posed the following questions to the detective:

“the court: What happens, based upon your experience, when a complainant fails to show?
"the witness: The case is dismissed.
“the court: Is that your experience that cases are dismissed or defendants are paroled and released? Have you ever heard of a defendant being paroled?
“the witness: I have heard of defendant’s [sic] being paroled.
"the court: When complainant’s [sic] fail to show up?
"the witness: Yes.
"the court: Did you ever have a case when you learned or had opportunity to find a case dismissed after a complainant didn’t show up?
“the witness: Not after 4 times, no.”

Thus, the detective’s own testimony undermines the bona fides of his assertion that he assumed the prior charges against the defendant had been dismissed because the complainant failed to appear four times. Although the majority assert that the above testimony was the result of some misunderstanding or confusion on the detective’s part, there is nothing in the record to support this speculative claim.

*354In People v Bertolo (supra) and most recently in People v Robles and its companion case People v Murray (72 NY2d 689), the Court of Appeals set forth the current state of the RogersBartolomeo doctrine as delineated and refined by subsequent cases. (See, People v Colwell, 65 NY2d 883 [1985]; People v Lucarano, 61 NY2d 138 [1984]; People v Fuschino, 59 NY2d 91 [1983]; People v Servidio, 54 NY2d 951 [1981]; People v Smith, 54 NY2d 954 [1981].) The line of cases most relevant to the issue herein holds that once the accused has invoked his State constitutional right to counsel, even before commencement of formal adversary proceedings against him, he may not be subjected to custodial interrogation unless his attorney is present, and any uncounseled waiver of the accused’s constitutional rights is invalid. (People v Donovan, 13 NY2d 148 [1963]; People v Arthur, 22 NY2d 325 [1968]; People v Cunningham, 49 NY2d 203 [1980].)

Although this prohibition was originally deemed to be case specific, precluding interrogation only as to those matters in which the accused was represented by counsel, but not as to "unrelated” charges (People v Stanley, 15 NY2d 30 [1964]; People v Taylor, 27 NY2d 327 [1971]), it was broadened when the Court of Appeals, in People v Rogers (48 NY2d 167, supra), adopted the "bright-line rule precluding custodial questioning on any matter in the absence of counsel once a defendant is represented by an attorney” (People v Robles, 72 NY2d, at 697, supra; People v Miller, 76 AD2d 576, 581-585 [2d Dept 1980, Mangano, J.], affd 54 NY2d 616 [1981]).

Subsequent cases raised the issue of how tautly this bright line would be drawn. Thus, in People v Bartolomeo, the court held that actual knowledge of an unrelated, outstanding charge against the defendant placed the interrogating detectives "under an obligation to inquire whether defendant was represented by an attorney on that charge” and, failing such inquiry, "the officers were chargeable with what such an inquiry would have disclosed” (53 NY2d, at 232, supra). Where, however, the defendant is not represented by counsel on the prior charge (People v Kazmarick, 52 NY2d 322 [1981]), or the prior charge is no longer pending because terminated by guilty plea (People v Robles, supra), conviction (People v Colwell, 65 NY2d 883, supra), other final disposition (People v Mann, 60 NY2d 792 [1983]; People v Murray, supra), the bright line is lifted and no such bar to custodial interrogation exists. This, as the court explained in People v Robles and People v Murray, is so because the Rogers rule "established a derivative *355and accordingly limited right with respect to unrelated charges in order to protect the direct and full-fledged right to counsel in the pending proceeding” (72 NY2d, at 698, supra). But where, as here, the direct and full-fledged right to counsel exists because the defendant is in fact represented on an extant charge and the police have knowledge, actual or constructive, thereof, the Rogers-Bartolomeo doctrine applies with full force.

The majority misconstrue the significance of the language in People v Robles (supra) regarding the limited nature of this derivative right under the Rogers-Bartolomeo doctrine and would read it as heralding a return to the case specific test of People v Taylor (supra) or, at least, as requiring a showing of prejudice to the defendant’s full-fledged right to counsel on the prior charge.

I cannot agree with the suggestion that application of the rule is now conditional upon whether the statement to be suppressed might conceivably have an adverse impact on the case pending against the defendant at the time of the interrogation and in which he is represented by counsel. Such a limiting test has not been utilized in any of the cases in which the rule has been applied (see, e.g., People v Smith, 54 NY2d 954, supra; People v Bartolomeo, 53 NY2d 225, supra; People v Bell, 50 NY2d 869 [1980]; People v Leonard, 113 AD2d 258 [2d Dept 1985]; People v Redman, 107 AD2d 1008 [4th Dept 1985]). Moreover, the Court of Appeals has given no indication of retreat from the bright line drawn in People v Rogers (supra) to protect the attorney-client relationship which exists with regard to the pending charge. In People v Robles, the court stressed the fundamental difficulty in applying Taylor (supra) and reiterated the rationale underpinning the rule in Rogers: that " 'it is the role of defendant’s attorney, not the State, to determine whether a particular matter will or will not touch upon the extant charge’ ” (72 NY2d, at 697, supra, citing People v Rogers, supra, at 173).

In the case now before us, there is no question that the defendant was represented by counsel on an outstanding charge and, therefore, that the derivative right under Rogers (supra) applies in this context. The issue here, however, is whether the police may be charged with knowledge of the defendant’s right under the rule of Bartolomeo (supra) and subsequent cases.

Absent actual knowledge of "either defendant’s representa*356tion by counsel or the pendency of prior charges” the police have no affirmative duty to inquire whether the defendant has an attorney before questioning him (People v Bertolo, 65 NY2d, at 119, supra). However, the Court of Appeals has consistently admonished that this "does not mean that the police may act by subterfuge to conceal such knowledge, or to overlook the obvious” (People v Servidio, 54 NY2d, at 954, supra), nor should the courts "condone a deliberate and concerted effort on the part of the police to insulate themselves from the knowledge that the defendant was represented by counsel” (People v Fuschino, 59 NY2d, at 99, supra).

While the Court of Appeals in Bertolo refused to impute constructive knowledge to the police that the accused was already represented by counsel because the police did not actually know that prior charges were pending against him, the court also stated that this result would not obtain where there was evidence of "some measure of bad faith” or malfeasance on their part (65 NY2d, at 120, supra). The facts in Bertolo led the court to conclude that although the investigating officers knew that the defendant had been arrested several months before on minor charges, it was entirely reasonable for them to believe that those charges were no longer pending.

The good or bad faith of the investigating officers raises a question of fact which must be objectively answered. When determining whether a police officer’s belief that a prior charge has been disposed of is justified, the prime factors to be considered are the seriousness of the charge and its remoteness in time (People v Bertolo, 65 NY2d, at 119, supra; see also, People v Fuschino, 59 NY2d, at 98, supra [reasonable and well-founded belief that two-year-old charges against the defendant had been dismissed relieved State police of obligation to inquire]; cf., People v Smith, 54 NY2d, at 955-956, supra [officer under an obligation to inquire where he had actual notice of the defendant’s arrest on sodomy charge eight months earlier]). In this case the charge was not a minor one, but a class B felony, and the defendant had been released from custody only the day before his arrest for the murders herein.

Detective Cutter lacked sufficient information on which to make a reasonable, good-faith assumption as to the pendency of the charge against the defendant. He made no inquiry regarding the nature of the charge or when it arose. Nor did he inquire whether the defendant was required to return to court; whether he had been paroled or released on bail— *357possible dispositions of which, the detective testified, he was aware. It is also significant, and troubling, that the detective could not recall if he specifically asked the defendant whether the case had been dismissed.

In People v Colquit (— AD2d — [4th Dept, Mar. 10, 1989]), the Fourth Department recently rejected the claim that an investigating officer acted in good faith when he assumed that an eight-month-old menacing charge against the defendant, who had just been arrested for a homicide, had been dismissed. The police records reviewed by the investigator prior to his interrogation of the defendant showed that the defendant had been arrested for harassment and menacing, and that the harassment charge had been dismissed. However, no disposition was given for the other charge and the defendant was not asked whether he was represented on any outstanding charges. Moreover, the lieutenant supervising the homicide investigation was found to have had actual knowledge that the defendant was represented on the menacing charge, and this knowledge was imputed to the investigator working under him.

To argue, as does the majority, that a detective is free, under the circumstances presented here and in Colquit (supra), to assume that a serious charge has been dismissed is to sanction what may be a calculated decision by the police to insulate themselves from information that is readily available and which triggers the bright-line rule intended to protect a full-fledged constitutional right. Although the Court of Appeals decisions interpreting the Rogers-Bartolomeo doctrine "with their emphasis upon the knowledge available to the police, implicitly recognize that there are practical limitations to the obligations that can be imposed upon the investigating authorities,” those decisions also reflect a concern "that a right known to exist or the existence of which could easily be ascertained not be ignored.” (People v Lucarano, 61 NY2d, at 147, supra.) Further, the court has made clear that the value of the individual’s right to counsel "far exceeds the inconvenience caused by requiring that the police make a simple inquiry of defendant.” (Supra, at 147.)

Inasmuch as the detective in this case lacked sufficient information on which to base a good-faith assumption that prior charges against the defendant were no longer pending, which information could have been easily obtained by a simple inquiry of defendant, or other readily available official files, I find, under the rule in People v Bartolomeo that the *358police were chargeable with whatever information that inquiry would have disclosed (53 NY2d, at 232, supra). It would have revealed that the charge was pending and that the defendant was represented by counsel. Thus, the waiver of the defendant’s Sixth Amendment right to counsel during the custodial interrogation without counsel present was ineffective and his statement should have been suppressed.

Even if I did not think the defendant’s statements suppressible as a matter of law, a new trial would, in any event, be warranted. The question of whether these statements were "involuntarily made” because they were obtained in violation of the defendant’s constitutional right to counsel (CPL 60.45 [2] [b] [ii]), was one which should have been submitted to the jury (CPL 710.70; People v Graham, 55 NY2d 144, 149-151 [1982]). (See, Sobel, The "Second-Bite” Role of the Jury in the Admissibility of Confessions in New York, 48 Brooklyn L Rev 1, 17-24 [1981]). Although the court did instruct the jury to consider the voluntariness of the defendant’s statements insofar as his Fifth Amendment rights under Miranda v Arizona (384 US 436 [1966]) were concerned, this instruction did not encompass his Sixth Amendment rights under the RogersBartolomeo rule. The issue is preserved by defense counsel’s motion in limine, made during trial, for an instruction to the jury on this specific question.

Accordingly, I would reverse the judgment of the Supreme Court, grant the motion to suppress defendant’s custodial statements, and remand the matter for a new trial.

Ross and Kassal, JJ., concur with Asch, J.; Murphy, P. J., and Rosenberger, J., dissent in an opinion by Rosenberger, J.

Judgment, Supreme Court, New York County, rendered on January 5, 1987, affirmed.