People v. Patterson ( 1981 )

Appeal by defendant from a judgment of the County Court, Nassau County (Delin, J., at the trial and sentence; Lockman, J., at the suppression hearing), rendered November 8, 1979, convicting him of two counts of murder in the second degree, and one count of robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of defendant’s motion to suppress certain statements. By order of this court dated February 9, 1981, the case was remitted to the County Court to report on whether the police at the time of questioning the defendant, knew that he was represented by counsel as to other pending crimes. The appeal was held in abeyance in the interim (People v Patterson, 80 AD2d 591). The report of the County Court has been received. Judgment reversed, on the law, motion to suppress granted as to the statements made to Detective Leahy and the Assistant District Attorney and new trial ordered. On January 26, 1979 defendant was arrested in Brooklyn, New York, for the armed robbery of a luncheonette in Freeport, Long Island, which had occurred on January 21, 1979. The arrest was the result of an investigation involving both Nassau County and Kings County police. Upon being brought to the 81st Precinct in Brooklyn and after being given his Miranda warnings, defendant asked to speak to Detective Dale, the arresting officer, with whom he had been acquainted for a number of years. During the course of what the detective called a “personal conversation”, defendant responded that he committed the robbery because he “needed money for a lawyer on another case”, or “on a case prior to this incident.” Dale characterized the statement as a “fast remark”, and did not pursue the issue; the conversation continued, with defendant asking, inter alia, what would happen to him and his family. Defendant was subsequently introduced to Detective Leahy, the Nassau County officer in charge of the investigation. Defendant was readvised of his rights and eventually made an oral confession, which was reduced to writing and signed by defendant. Defendant also gave a question and answer statement to an Assistant District Attorney. Detective Leahy testified at the Huntley hearing that during the course of the investigation he learned that the defendant had been arrested on January 10, 1979 at the 79th Precinct in Brooklyn. He went to the precinct to find out the status of the case, but was unable to find out anything other than the existence of the arrest. He also obtained a polaroid snapshot of defendant which noted on the back that he was “[a]rrested 1/10/79 for robbery.” The evidence at the hearing showed that defendant was in fact arrested on that day in Kings County for robbery and on January 11,1979 was represented by Legal Aid on that charge, such representation continuing until April 11, 1980. The testimony at the hearing also indicated that Detective Dale had no knowledge of any kind of the January 10 arrest. The case of People v Bartolomeo (53 NY2d 225) requires suppression of all statements made to Detective Leahy and the Assistant District Attorney. In a situation almost identical to that at bar, the court held (p 229) that “[w]here to the knowledge of the interrogating officer a suspect being questioned had been arrested by the same law enforcement agency nine days previously on an unrelated charge, statements obtained in consequence of the interrogation must be suppressed if in fact the suspect is represented by an attorney with respect to the unrelated charge even though the fact of such representation is unknown to the officer”. The court stated that the detectives, with knowledge of the outstanding charge, were under an obligation to inquire whether defendant was represented by an attorney on that charge. “Having failed to make such inquiry, the officers were chargeable with what such an inquiry would have disclosed — namely, that defendant did have an attorney acting on his behalf. With such knowledge they were foreclosed either from questioning defendant or from accepting his waiver of counsel’s assistance unless his attorney was then present” (p 232). Thus, at bar, where Leahy knew of the arrest 16 days earlier and failed to inquire if defendant was represented by counsel, all statements made to Leahy and the Nassau County Assistant District Attorney should have beep suppressed. We find, however, that the comment by defendant made to Detective Dale as to his need for money for a lawyer on another case does not require suppression of subsequent statements made to Dale. The statement itself cannot be said to constitute knowledge of a prior pending charge, nor the existence of an attorney on such a charge. Furthermore, under the circumstances of the conversation between Dale and defendant, we do not find that the comment triggered the duty to inquire further as to whether defendant had an attorney on a prior pending case. We have considered defendant’s remaining contentions and find them to be without merit. Hopkins, J. P., Titone and Rabin, JJ., concur.