People v. Coles , 455 N.Y.S.2d 653 ( 1982 )

Gibbons, J. (dissenting).

Although I agree with the conclusion of the majority that defendant’s second confession, given to Police Officer Tripoli in the courthouse prior to arraignment at a time when he knew that the defendant was represented by counsel, was impermissibly obtained and, therefore, suppressible, I am, however, constrained to vote for reversal on the established authority of People v Ramos (40 NY2d 610) and People v Grant (45 NY2d 366). I can perceive no legal justification for the application of the harmless error rule to sustain the instant judgment of conviction which was based upon defendant’s guilty plea entered after his motion, inter alia, to suppress his confession had been denied and before the trial had begun.

In People v Crimmins (36 NY2d 230, 240), it was held that the application of the harmless error rule entails an evaluation of the quantum and nature of the proof, adduced at a trial, of the defendant’s guilt, excluding the alleged error from such consideration, and the causal effect which such error may have had in producing the guilty verdict.

Since this evaluation requires the existence of an accumulation of trial evidence, upon which the fact finders based their verdict of guilty, in order to measure the prejudicial effect of the error, the rule has, per force, been, in the main, limited to cases involving trial errors.

The Court of Appeals in People v Grant (45 NY2d 366, supra) determined that, in the absence of a trial, this process of evaluation cannot be performed. It held as follows (p 378): “In the typical case of a conviction based on a plea, neither of these factors can be properly evaluated, particularly when the error involves an improper denial of a pretrial motion to suppress. Without a trial there will be little if any evidence in the record, apart from the proof which should have been excluded. And without a verdict, there is no predicate for determining what causal effect the error had or might have had upon the fact finder” (emphasis added).

The opinion in People v Schaeffer (56 NY2d 448), upon which the majority relies, involved a jury verdict after trial and after all the evidence had been received, and, therefore, is distinguishable from the instant matter in which there was neither a trial nor a verdict which could provide a predicate for a judgmental determination concerning the “causal effect the error had or might have had upon the fact finder”, as the same is referred to in People v Grant (supra, p 378), nor do I perceive any language in People v Schaeffer (supra) which evinces an intent to overrule the particular holdings in People v Grant (supra) and People v Ramos (supra), insofar as they exclude consideration of harmful error in cases of guilty pleas entered before trial.

The differing variables which may have induced a defendant to plead guilty relegates an appellate court to mere speculation to ascertain whether and to what degree an erroneously denied motion to suppress may have been instrumental in motivating a defendant to plead guilty, and whether a reasonable possibility existed that the error in the ruling induced the plea. In this connection, the court in the Grant case held as follows (pp 379-380):

“When the conviction is based on a plea — instead of a verdict — the question must at least be reformulated to determine whether there is a reasonable possibility that the error contributed to the plea (cf. People v Ramos, 40 NY2d 610, 618-619, supra).

“This question however is one which an appellate court is rarely equipped to answer without resorting to speculation. Unlike a verdict, which must necessarily be based exclusively on the evidence submitted at trial, a defendant’s decision to plead guilty may be based on any factor inside or outside the record. Thus a conviction based on a plea of guilty simply reflects the fact that for some reason, sufficient to the defendant, he decided to waive his trial rights (see, e.g., North Carolina v Alford, 400 US 25; People v Serrano, 15 NY2d 304, 310) * * *

“[W]hen a conviction is based on a plea of guilty an appellate court will rarely, if ever, be able to determine whether an erroneous denial of a motion to suppress contributed to the defendant’s decision, unless at the time of the plea he states or reveals his reason for pleading guilty. This is especially true when the defendant has unsuccessfully sought to suppress a confession (People v Ramos, supra, pp 618-619)” (emphasis added).

As explained by the court, the rare situation where an appellate court will be able to determine whether an erroneous denial of a suppression motion contributed to the defendant’s intent to plead guilty is when, at the time of his plea, he articulates the reason for his plea. Such revelation is, indeed, rare and is nonexistent in the instant matter. In the absence of any expressed reason motivating defendant’s plea herein, there is no way to ascertain whether he was induced to plead guilty because of the confirmative effect of his second confession upon the first, or whether the defendant would, in any event, have pleaded guilty in the absence of such later confession.

CPL 710.70 (subd 2) affords a defendant appellate review of an order denying a motion to suppress “upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty.” This statute represents a legislative policy which allows a defendant to test, by the appellate process,, the legality of the evidence which he sought to suppress even after conviction by plea. If it be established on appeal that the evidence was illegal and that the motion to suppress was erroneously denied, the effect of such appellate ruling is to eliminate the specific evidence as viable proof in the continued prosecution of the case. The matter may then proceed without such evidence. However, to hold, after the evidence has been found to have been obtained in violation of defendant’s constitutional rights, that even if such illegal evidence were to have been used at a trial, it would, at the worst, have been harmless error, is to frustrate the obvious legislative purpose of the statute, on the one hand, and, on the other, to indulge in conjecture as to what other possible available evidence of guilt would be presented at the ensuing trial and how such evidence would be refuted by the defendant.

In People v Ramos (40 NY2d 610,618-619, supra), where, under similar circumstances, the defendant had pleaded guilty after his motion to suppress two inculpatory statements had been properly denied as to the first and erroneously denied as to the second, which, as here, was also obtained with knowledge that the defendant was then represented by counsel, the Court of Appeals, in vacating the plea and suppressing the later statement, held, in language strikingly applicable to the instant matter, as follows:

“Although there may be cases in which the error of admitting excludable evidence may not require reversal, it cannot be gainsaid that a confession is a most serious matter in the trial of a criminal case. It is enough in this case to note that the confession was a likely factor which might have induced the. plea and might have affected substantially a verdict upon a trial.

“Accordingly, although there is other evidence in support of the defendant’s guilt, the proper disposition would call for restoring the case to its prepleading status (People v Hobson, 39 NY2d 479; cf. CPL 470.55). The order of the Appellate Division should be reversed, the plea vacated, and the defendant’s statement before the Assistant District Attorney suppressed.”

Accordingly, in view of the finding by this court that the second statement was illegally obtained and therefore should have been suppressed, it follows that the judgment should be reversed, on the law, the plea be vacated, and the matter remitted to Criminal Term for further proceedings on the indictment.

Lazer and Mangano, JJ., concur with Damiani, J. P.; Gibbons, J., dissents and votes to reverse the judgment, vacate the plea and grant defendant’s suppression motion to the extent of suppressing defendant’s statement made on October 16, 1979, in an opinion.

Judgment of the Supreme Court, Richmond County, rendered February 20, 1981, affirmed.