Opinion
December 5, 1988
Appeal from the County Court, Suffolk County (Weissman, J.).
Ordered that the judgment is affirmed.
The hearing testimony supports the finding that the defendant made an intelligent and voluntary decision to waive his right to the presence of an attorney, and that he expressly communicated his waiver of this, and of his other Miranda rights, to the police prior to any interrogation having begun (see, Miranda v Arizona, 384 U.S. 436; People v Bethea, 67 N.Y.2d 364). Further, the testimony elicited at the hearing establishes that, prior to the commencement of questioning, the defendant had expressly denied that he was represented by an attorney in connection with any pending criminal charges. In short, the defendant denied that he had an attorney, and also denied that he wanted an attorney. The defendant now argues (contrary to his earlier assertion to the police) that since he was in fact represented by counsel in connection with certain unrelated charges, his right to the presence of counsel was an "indelible" one, so that his purported waiver of that right was ineffective under the unique provisions of our State Constitution (People v Bartolomeo, 53 N.Y.2d 225; People v Rogers, 48 N.Y.2d 167). We disagree.
The rule of the Rogers and Bartolomeo cases (supra) has not been extended to require that investigating police officers disbelieve the assertions made by a criminal suspect concerning his representation by counsel. On the contrary, the police may reasonably assume that a suspect who denies that he has an attorney is telling the truth, and, based on that assumption, may obtain a valid waiver of the suspect's right to counsel (see, People v Shavers, 69 N.Y.2d 766; People v Lucarano, 61 N.Y.2d 138; People v Hovanec, 128 A.D.2d 893, 894, lv denied 70 N.Y.2d 712). There is nothing in the present case to suggest that the police acted unreasonably in believing the defendant's statements.
We have examined the defendant's remaining contentions and find them to be without merit. Bracken, J.P., Kunzeman, Weinstein and Kooper, JJ., concur.