People v. Pellicano , 338 N.Y.S.2d 831 ( 1972 )

Del Vecchio, J. P.

Defendant has been convicted of burglary in the third degree and grand larceny in the third degree. The issue presented on this appeal involves the admissibility of defendant’s confession made during custodial interrogation.

We are unable to agree with the dissenting Justice that the confession was inadmissible as a matter of law, because in our opinion defendant waived his right to have counsel present when he made his confession.

At the Huntley hearing a detective testified that while defendant was in custody on another charge he twice talked to defendant about the burglary, once at 11:30 a.m. and again at 4:00 p.m., each time advising him of his Miranda rights. The first time defendant did not want to discuss the matter; the second time he said that he would like to talk to his attorney. His attorney was called, came to the Sheriff’s office and consulted with the defendant in private in the deputies ’ room. After this conference the attorney left the room, had a conversation with the detective, and left the building. As a result of that conversation the detective immediately entered the room and talked to defendant. He asked him if he had discussed the matter and his rights with his attorney. Defendant said that he had. He then asked what he had decided. Defendant replied that he had decided that he wanted to talk to him. Defendant then stated that he and another person broke into the United Church building and stole $800. The detective also testified that defendant was over 21 years of age, had been previously involved in other crimes and had prior court experience; that no force, threat, or promise was made to induce defendant to answer his questions.

On cross-examination three yellow sheets, Exhibits 1, la and lb, were marked for identification. These contained the notes made by the detective of his conversations with the defendant and his attorney. They were requested by and given to defense counsel, but they were not offered in evidence; and the conversation between the detective and the attorney was not referred to on cross-examination and does not appear in the record. Since it was not had in the presence of defendant, the prosecutor did not ask for that conversation. However, a reasonable inference from all the proof is that the attorney told him that he had discussed the matter with defendant, had advised him of his rights and that defendant was willing to talk to the detective in the absence of counsel,

Defendant did not testify and offered no proof at the hearing to rehut such inference.

Upon this record the court found that defendant had been fully and completely advised of his rights, that he made a knowing and intelligent waiver of his rights, that the admissions were freely and voluntarily given and that they were admissible at the trial.

The record amply supports the factual findings that defendant knowingly and intelligently waived his constitutional rights. The dissent would reverse on the ground that there was no affirmative waiver, in the presence of the attorney, of defendant’s right to counsel. For a waiver to be effective it must be established that there was “ an intentional relinquishment or abandonment of a known right or privilege ” (Johnson v. Zerbst, 304 U. S. 458, 464). Upon examination of the facts shown in the record it appears that while in custody defendant was given a full and effective warning of his rights. He was aware of his right to consult an attorney before being interrogated. He was given an opportunity to confer with his attorney and to have him present during the questioning. He did consult with his attorney and, immediately after his attorney had left him, was willing to be questioned in his absence. He was also aware of his right to remain silent and that anything he said could be used against him. In these circumstances, his express statement that he had decided to talk to the detective after he had been advised of his rights by his attorney, followed closely by the making of the confession, constituted an affirmative waiver of his right to have counsel present at that time. The constitutional safeguards laid down by Miranda v. Arizona (384 U. S. 436) during a period of custodial interrogation have been effectively met.

In People v. Robles (27 N Y 2d 155, cert. den. 401 U. S. 945), wherein the defendant’s admissions may be regarded as prompted to a greater degree by statements and inquiries of a detective than were those in the present ease, the Court of Appeals refused to hold such statements inadmissible. In that case, in response to an inquiry by a detective as to ‘ ‘ Just what really happened? ”, defendant blurted out the damning fact of the perpetration of the murder. His recital of the details of the crime proceeded with the detective interjecting a series of questions in the form, “ Then what happened, Ricky? ” Nevertheless, since defendant had just concluded a 20-minute consultation with his attorney, the court declined to hold inadmissible the statements made in the absence of counsel, which it characterized as “ voluntary admissions of guilt ” stating, “ The People are not to be charged with violating a defendant’s right to counsel when the opportunity to exercise that right has been fully and effectively extended to a defendant who then chooses to speak rather than remain silent. ’ ’ (p. 159).

People v. Arthur (22 N Y 2d 325), relied on by the dissent, is clearly distinguishable. There the police, with knowledge that defendant’s attorney was at the police station, obtained one statement from defendant before he was given an opportunity to talk to his attorney, thus denying him assistance of counsel, and a second statement after the attorney had advised the police not to talk to defendant anymore, thus denying him the privilege to remain silent. Upon these facts the court held that since the police knew that defendant was represented by counsel, they could not question him in the absence of counsel.

In this case, defendant was not questioned before he talked •to his attorney. It was after defendant had been given an opportunity to consult with his attorney privately, was advised hy him of his rights, and chose to speak rather than to remain silent, that he made his admissions to the detective. There is no proof that the attorney wished defendant to make no statement or that he wished to be present during the questioning of defendant. In fact, the inference is to the contrary, or, defendant, immediately after consultation with counsel, made an informed, voluntary election to speak in the absence of counsel. Clearly, the right to assistance of counsel, which was denied to the defendant in Arthur, had been extended to the present defendant by the detective before obtaining the confession.

Furthermore, “ Arthur did no.t lay down a rule that, whenever a suspect is represented by counsel, the police may not question him except in the presence of counsel. Indeed no case either in this State or in the Federal jurisdiction has gone so far ” (People v. McKie, 25 N Y 2d 19, 26-27). “ The assertion that once an attorney appears there can be no effective waiver unless made ‘ in the presence of the attorney ’ is merely a theoretical statement of .the rule. This dogmatic claim is not the New York law” (People v. Robles, supra, p. 158). “ Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without compelling influences is, of course, admissible in evidence ” (Miranda v. Arizona, supra, p. 478). A person in custody may waive his constitutional right to be represented by counsel and make a statement .to the police. Upon the undisputed facts in this case it would be unreasonable and unrealistic to hold that defendant’s voluntary confession was inadmissible because made in the “ absence” of counsel.

In our view, defendant knowingly, intelligently and voluntarily waived his right to be questioned in the presence of his attorney; the statements were legally obtained and therefore admissible in evidence.

Finally, at the trial the detective gave, without objection, substantially the same testimony that he had given at the Huntley hearing. In addition, the People called a private person who testified that she was in defendant’s apartment after the burglary and heard defendant say that ‘1 they broke into ’ ’ the United Church; that in her presence “ they counted ” $800; and that defendant said he got it from the United Church. These admissions were properly received in evidence over objection (People v. Horman, 22 N Y 2d 378; People v. Parler, 30 A D 2d 681).

Defendant rested at the close of the People’s case.

In its charge the court instructed the jury that before they could use the confession or admissions made to the detective against the defendant they must find that his statements were given freely and voluntarily, that defendant had been warned of his Miranda rights, and that he knowingly and intelligently waived these rights and agreed to make a statement. There was no exception or request.

We conclude that defendant’s guilt was established beyond a reasonable doubt and that there were no errors of law requiring a reversal.

Accordingly, the judgment should be affirmed.