Defendant Baker is -one of six defendants tried and convicted together of murder in the first degree. The court is unanimous in affirming the convictions of the other five, and also unanimous that this defendant’s guilt was estab
The point as to which difference of opinion arises concerns the confession given the police by the defendant. It appears that defendant’s attorney, Mr. Sena, arranged to surrender defendant to the police. On their arrival at the station house, Mr. Sena told the police that he had informed defendant as to his rights and that he would have no statement to make. Nevertheless,' the police did question defendant, but after each question Mr. Sena advised the defendant, and no answers were given. About two hours later, an Assistant District Attorney arrived at the station house. The same procedure followed briefly. Then the Assistant District Attorney informed Mr. Sena that defendant would be booked and later arraigned that afternoon. Mr. Sena thereupon left the precinct station house. Various detectives thereafter addressed questions to defendant to which he refused to reply.
In the early afternoon a Detective Nicastri went in the room with Baker. Baker looked out of the window and saw a large number of people in the street in front of the station house. He asked Nicastri why they were there. Nicastri told him they were waiting to see him come out of the station house. Nicastri then asked him whether there was anything he would like “ to get off his chest.” Defendant then made a brief statement, which the detective took down, but the defendant refused to sign. Thereupon the Assistant District Attorney questioned him. The defendant answered certain questions and refused to answer others. It is this interrogation, which was admitted, that forms the basis of defendant’s claim of error.
The core of defendant’s argument is that once the defendant’s counsel advised the police that no statement was to be taken, any questioning or statement thereafter taken Avas inadmissible. People v. Gunner (15 N Y 2d 226) is relied on
That is not the situation here. The defendant was repeatedly and continuously advised of his rights. The internal evidence of the statement he gave shows that he knew he could refuse to answer any question if he so chose. He was also well aware that his attorney desired him not to answer.
Nor is there any claim that the failure of the defendant to adhere to his attorney’s advice was attributable to coercion either by way of physical force, threats, trickery, unduly prolonged insistence or any other pressure. So the question is squarely presented whether a statement made by a defendant contrary to the advice of his counsel, known and so understood by him and the police, cannot be received no matter how desirous the defendant may be to make the statement. To hold that such a statement is interdicted requires a holding that, once counsel is retained and advises, the defendant loses all volition and control of the conduct of his defense and is powerless to adopt the course that he believes will best either satisfy his conscience or produce the most desirable outcome. Obviously, this is not the law. The defendant himself is the final arbiter of the conduct of his defense (Carter v. Illinois, 329 U. S. 173, 174). We find no authority for an exception in this one respect.
It would be less than frank to fail to call attention to the fact that on the preliminary hearing the trial court indicated certain tentative views of the evidence which were not reflected in the final decision on the motion to suppress the statement. These views represented inferences to be drawn from the testimony which, apparently on fuller consideration, the court did not adopt. The findings, as expressed in the opinion, are supported by the testimony and form the basis for the conclusions above drawn.
The judgment should be affirmed.