People v. Jones ( 1988 )

— Appeals by the defendant from two judgments of the Supreme Court, Queens County (Giaccio, J.), both rendered November 21, 1985, convicting him of robbery in the first degree (three counts), robbery in the second degree (three counts), criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, under indictment No. 3087/84, upon a jury verdict, and attempted robbery in the second degree under indictment No. 3071/84, upon his plea of guilty, and imposing sentences. The appeals bring up for review the denial, after a hearing (Di Tucci, J.), of that branch of the defendant’s omnibus motion under indictment No. 3087/84 which was to suppress identification testimony, statements made by the defendont to law enforcement officials and physical evidence, and that branch of the defendant’s omnibus motion under indictment No. 3071/84 which was to suppress certain identification testimony and physical evidence.

Ordered that the appeals are held in abeyance and the matters are remitted to the Supreme Court, Queens County, to hear and report, after a de nova suppression hearing, on that branch of the defendant’s omnibus motion under indictment No. 3087/84 which was to suppress identification testimony, the defendant’s statements and physical evidence and that branch of the defendant’s omnibus motion under indictment No. 3071/84 which was to suppress identification testimony and physical evidence. The Supreme Court, Queens County, is to file its report with all convenient speed.

The People concede that an error of constitutional dimension was committed by the hearing court when it compelled the defendant to proceed in the absence of his counsel at the suppression hearing (see, People v Hodge, 53 NY2d 313, 320; People v Speller, 133 AD2d 865). The only issue which we need address is the nature of the appropriate corrective action. We are of the opinion that at this juncture reversal of the judgments of conviction is not warranted. There is no per se rule in this State requiring such a remedy when a defendant has been deprived of counsel at a pretrial suppression hearing.

Since no determination is being made as to whether the trial court erred in denying suppression, reversal of the judgments are not required but rather at this stage of the proceedings a de nova suppression hearing will adequately serve to obviate any prejudice to the defendant arising from the error in requiring him to proceed at the hearing without counsel (see, People v Speller, supra; cf., People v Coles, 62 NY2d 908).

The facts of this case are essentially indistinguishable from those of People v Speller (supra). There we found that the defendant was improperly deprived of his right to be afforded "the guiding hand of counsel” (Coleman v Alabama, 399 US 1, 9) when the hearing court refused to adjourn the suppression hearing and proceeded in the absence of counsel. Nevertheless, we held that reversal of the judgment of conviction entered upon the defendant’s plea of guilty was not required because suppression was not being ordered at that juncture. Rather, the appeal was held in abeyance and the case remitted to the Supreme Court for a new suppression hearing. Although the defendant at bar was convicted after a trial under indictment No. 3087/84, we do not find that a meaningful distinction can be drawn between the entry of a guilty plea and a conviction after trial where both were preceded by a suppression hearing at which the defendant was denied the assistance of counsel. Indeed, an action in which a plea of guilty is entered following denial of suppression upon a hearing without counsel presents a more compelling argument for an outright reversal of the conviction because the record is generally silent as to the extent of the plea negotiations, and the influence the denial of suppression had on a defendant’s decision to plead guilty is therefore, difficult to gouge. Accordingly, this court’s decision in People v Speller (supra), that a de nova suppression hearing would adequately compensate the defendant for the deprivation of counsel at the original suppression hearing, compels an identical result in the case at bar. Thompson, J. P., Weinstein and Harwood, JJ., concur.