Opinion
October 11, 1988
Appeal from the Supreme Court, Queens County (Friedmann, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The defendant twice invoked his right to counsel, once when he was read his Miranda rights at the scene of his arrest and again when he was read his Miranda rights upon his arrival at the station house. Nevertheless, the defendant was briefly interrogated without the presence of an attorney soon after he had arrived at the station. Two hours later, at approximately 2:00 A.M. and again without an attorney being present, the defendant was questioned after being read his Miranda rights for a third time. During the course of this 30-minute interrogation, which proceeded after the defendant had changed his mind and decided to answer questions without the presence of an attorney, he made inculpatory statements which were admitted into evidence upon the determination of the hearing court. This was error.
As recently confirmed by the Court of Appeals in People v Gamble ( 70 N.Y.2d 885, 886, quoting People v Carmine A., 53 N.Y.2d 816, 818), an individual invokes his right to counsel by his negative response when asked whether he was "`willing to answer questions without an attorney present'". Once invoked, the police become "duty bound not to question [the] defendant without first scrupulously honoring his right to counsel" (People v Dean, 47 N.Y.2d 967, 968). "[O]nce a defendant in custody invokes his right to counsel, all of the guarantees implicit in that right are brought into play, and a subsequent waiver of rights outside the presence of counsel cannot be given legal effect" (People v Cunningham, 49 N.Y.2d 203, 210). In People v Cunningham (supra, at 205), the Court of Appeals expressly held that "once a suspect in custody requests the assistance of counsel, he may not be questioned further in the absence of an attorney", intending "to make it clear that an uncounseled waiver of a constitutional right will not be deemed voluntary if it is made after the right to counsel has been invoked".
The introduction of the statements at trial in the case at bar cannot be regarded as harmless beyond a reasonable doubt (cf., People v Flecha, 60 N.Y.2d 766).
It was also error, as conceded by the People, for the trial court to allow an officer to give testimony that bolstered a witness's out-of-court identification of the defendant (see, People v Trowbridge, 305 N.Y. 471). Accordingly, a new trial is required. Kooper, J.P., Sullivan, Harwood and Balletta, JJ., concur.