People v. Blasingame , 412 N.Y.S.2d 153 ( 1978 )

OPINION OF THE COURT

Titone, J.

The question presented on appeal is whether the right to counsel after arraignment may be waived by a defendant in police custody where, although no counsel was either retained or assigned at arraignment, a statement was made in open court by defendant’s father that counsel was to be retained imminently. Contrary to the position taken by the trial court, I do not believe defendant made an intelligent and knowing waiver. Therefore, defendant’s motion to suppress his postarraignment inculpatory statement to the police should have been granted.

On December 14, 1976, at about 9:15 p.m., defendant Samuel Blasingame, then 17 years of age, and two other youths, were arrested by Patrolman Donald Sellick of the Peekskill Police Department and brought to police headquarters for questioning about "something that had happened”, namely, a robbery that had taken place earlier that day at a florist shop.

Although Sellick denied questioning defendant about the alleged incident, defendant testified and the trial court made a finding of fact, that upon arriving at headquarters, Sellick first asked defendant what had happened and then advised him of his Miranda rights. Other than indicating that he understood, defendant remained silent. Approximately two hours later defendant was again interviewed, this time by Deputy Police Commissioner Kirkland. Defendant was advised that he was under arrest for armed robbery and was read his Miranda rights a second time. Once again he indicated an understanding of his rights and remained silent.

Testimony was also adduced at the Huntley hearing that defendant’s father, Charles Blasingame, and later both of defendant’s parents, attempted to see him at headquarters. Although initially they were refused access to defendant, the parents were permitted to speak to him after he was processed some three hours after he was taken into custody. While waiting to see his son, Charles Blasingame engaged in a general conversation with Police Lieutenant Nelson. The trial court held that the conversation did not pertain to defendant’s case. The men had known each other for a long time.

After seeing his parents, defendant slept for five and one-half to six hours. When he awoke on the next morning (Dec. 15) he was fed and given coffee. Later that morning, at approximately 10:00 A.M., defendant was arraigned at the Peekskill City Court. During the arraignment the Judge presiding asked defendant’s father if he wanted time to obtain a lawyer. The elder Blasingame answered in the affirmative.

Defendant’s father also testified that after the arraignment he went outside the courtroom and saw Richard Candee, an attorney who was representing his son on another matter. The father told Candee that before he did anything about obtaining an attorney for his son, he had to contact his wife. When contact was made, presumably by telephone, his wife, in response to his remark that a lawyer had to be obtained said, "Yes, get Mr. Candee”. At this point, according to the elder Blasingame, he turned around and said to Candee, "Yes, I want you to represent us”. Candee stipulated for the record that he did not recall the exact time he was retained and did not, prior to 10:30 a.m. on the date of arraignment, inform the Peekskill Police Department that he represented the defendant.

Shortly after arraignment, at about 10:30 a.m., defendant was brought to Lieutenant Nelson’s office. After being given his rights, defendant confessed to the crimes with which he was charged and attempted to exculpate his two friends. There is a conflict in the testimony as to why defendant was taken to Nelson’s office. Nelson, Officer Sellick and Police Sergeant Tumolo all testified that defendant’s father told Sellick that his son wished to speak to either Nelson or Sellick. However, the father denied ever telling any member of the Peekskill Police Department that his son wished to have a conversation with either police officer.

Although the trial court "accepted] as a fact” that defendant’s father had requested counsel for his son upon arraignment, it nevertheless held that defendant made a clear, explicit and intelligent waiver of his right to counsel and that, at the time defendant made his statement to Lieutenant Nelson, he was not as yet represented by counsel. I disagree.

Contrary to the narrow view expressed by the trial court, the law seems settled that once an accused expresses a desire to obtain an attorney, the police are prohibited from any further interrogation until he has been given that opportunity (Miranda v Arizona, 384 US 436, 474; People v Jackson, 41 NY2d 146). If an individual states that he wants an attorney, interrogation must cease until one is present (Miranda v Arizona, supra, p 474). The mere requesting of counsel, or the evincing of an intent to retain counsel, by a defendant is sufficient to render defective any further questioning by police as to the crime with which the defendant is charged. The constitutional and statutory right of a defendant to assistance of counsel at every stage of a criminal case is not limited, inter alia, to the situation where a defendant already has an attorney (People v Waterman, 9 NY2d 561, 565). It also includes a reasonable time to obtain counsel (People v Waterman, supra, p 565; People v Koch, 299 NY 378, 381; People v McLaughlin, 291 NY 480).

Under the circumstances herein, attention should be given to CPL 180.10 (subd 3, par [a]) which provides:

"Proceedings upon felony complaint; arraignment; defendant’s rights, court’s instructions and bail matters * * *

"3. The defendant has a right to the aid of counsel at the arraignment and at every subsequent stage of the action, and, if he appears upon such arraignment without counsel, has the following rights:

"(a) To an adjournment for the purpose of obtaining counsel” (emphasis supplied).

In this case it is evident that at the time of arraignment defendant, through his father sought either to retain counsel or have one assigned. Thus, the People were charged with notice of his intentions in that regard, even though Lieutenant Nelson, an agent of the People, may not have been aware of such fact at the time he obtained defendant’s confession (see People v Ramos, 40 NY2d 610). Arraignment constitutes commencement of a criminal proceeding and therefore police are then not at liberty to elicit statements from a defendant before he has had an opportunity to obtain legal counsel (People v Buxton, 44 NY2d 33; People v Meyer, 11 NY2d 162; People v Dunbar, 62 AD2d 1132). In my opinion if the authorities are either in doubt, or unaware as to whether an attorney has been retained once a criminal action has been commenced, the burden should devolve upon them to insure that the defendant’s right to be represented by counsel is protected. In the instant case, assuming that Nelson knew that defendant was not represented at the arraignment, it was nevertheless his duty to ascertain whether defendant intended either to obtain counsel, or have one assigned (see People v Ramos, supra, pp 617-618).

Moreover, the criteria for "a clear, explicit and intelligent waiver” manifestly did not exist in this case. This seems obvious from the following facts: (1) almost from the outset of the case, Lieutenant Nelson had a personal rapport with defendant and his father stemming from the fact that Nelson’s son and defendant had played football together; (2) at the time of his arrest defendant was only 17 years old; (3) defendant had already been in custody for more than 13 hours when, ostensibly at his request, he was brought to Nelson’s office for further questioning; (4) Nelson was aware that both defendant and his father trusted him and felt he would act in the youth’s best interest; (5) despite the fact that defendant, at his arraignment, indicated through his father that he wanted assistance of counsel, Nelson, approximately one-half hour thereafter, at the instance of Sellick, had defendant brought to his office and elicited a confession from him; and (6) had it not been for the fact that both defendant and his father trusted Nelson and believed he would act in the defendant’s best interest, it is extremely doubtful that defendant would have inculpated himself.

From the foregoing, I conclude that the 17-year-old defendant, in custody at all times, was never afforded the opportunity to confer with counsel and that his waiver of counsel, though perhaps voluntary in a narrow sense, was not made knowingly and intelligently. Nelson, as a police officer sworn to do his duty, could not at the same time be a father confessor to the defendant and should not, under such circumstances, have allowed himself to be considered as such by defendant and his parents. It is not permissible for the police to use a confession, even if it is voluntarily obtained from a 17-year-old defendant, when, in the course of obtaining the confession, they prevented his receiving the assistance of counsel by means of deception and trickery (People v Townsend, 33 NY2d 37). The purported voluntary, unsolicited statement made by the accused to the police officer after arraignment following his arrest, is inadmissible (cf. People v Meyer, 11 NY2d 162, supra).

Questioning a defendant while the obtaining or assignment of counsel is in progress effectively negates the providing of legal assistance to him. He may not voluntarily waive his right to counsel after arraignment unless counsel is present (cf. People v Vella, 21 NY2d 249; People v Dugan, 53 AD2d 507).

Accordingly, the judgment should be reversed, defendant’s motion to suppress his postarraignment statement or confession granted and a new trial ordered.