Opinion
May 23, 1988
Appeal from the County Court, Nassau County (Goodman, J.).
Ordered that so much of the appeal from the judgment rendered February 16, 1984 as sought review of the sentence is dismissed, as that portion of the judgment was superseded by the amended sentence; and it is further,
Ordered that the judgment is in all other respects reversed, on the law and the facts, the branch of the defendant's omnibus motion which was to suppress statements made by him to the police is granted; and it is further,
Ordered that the amended sentence is reversed, on the law and the facts, and a new trial is ordered.
The defendant stands convicted of robbery in the first degree on the basis of evidence consisting primarily of statements made to the police. At a Huntley hearing, the arresting officer testified in pertinent part as follows:
"Q. * * * Officer Vance, did you have any further conversation with the Mr. Ringer?
"A. Yes, I did.
"Q. What, if anything, did you say to him and what did he say to you?
"A. * * * Mr. Ringer told me that he did not wish to make a statement, that he wanted an attorney and he did not wish to make any statement at all.
"Q. All right. Do you recall him specifically saying he wished an attorney or that he did not wish to speak to you * * * Did he say anything with regard to an attorney * * *
"A. I don't remember what his exact words were.
"Q. All right. Do you recall whether he said anything in regard to an attorney?
"A. I can't be sure, no * * *
"THE COURT: Let's get it straight for the record, for the court. My understanding is you said he wanted an attorney after you read him his rights * * * Now did he say he wanted a lawyer or you don't recall what he said in regard to a lawyer?
"THE WITNESS: Well, he's asking me do I remember specifically what he said about stating a lawyer and I do not remember what he said. I remember him saying something about a lawyer".
Based on this testimony, and our obligation "to `"indulge every reasonable presumption against waiver" of fundamental constitutional rights'" (People v Warren, 97 A.D.2d 486, 488, appeal dismissed 61 N.Y.2d 886, quoting from Johnson v Zerbst, 304 U.S. 458, 464), we conclude that the People have failed to meet their burden of proving beyond a reasonable doubt that the statements made by the defendant were voluntarily made after a waiver of the defendant's right to counsel (see, People v Holland, 48 N.Y.2d 861; People v Huntley, 15 N.Y.2d 72) and thus the statements should have been suppressed (CPL 60.45).
Statements made after a suspect has asked for counsel cannot be made voluntarily unless the defendant has made an informed waiver upon the advice of counsel (People v Cunningham, 49 N.Y.2d 203, 207). The record reveals no subsequent presence of counsel prior to the defendant's inculpatory statements to the police. Hence, given the strong possibility that the defendant invoked his right to counsel, and the fact that the People concede the statements were made while he was continuously in custody after his arrest (see, People v Jackson, 41 N.Y.2d 146), we must reverse the decision of the hearing court and order the defendant's statements to the police suppressed (see, People v Pugh, 70 A.D.2d 664).
Since the vast majority of the evidence presented against the defendant emanated from these statements, we cannot find the hearing court committed harmless error (People v Crimmins, 36 N.Y.2d 230) and thus a new trial is ordered (People v Goodman, 54 N.Y.2d 451; People v Felder, 47 N.Y.2d 287). Thompson, J.P., Lawrence, Eiber and Balletta, JJ., concur.