Summary
representing defendant and no-billed testifying co-conspirator
Summary of this case from Frazier v. KellyOpinion
February 5, 1993
Appeal from the Supreme Court, Monroe County, Mark, J.
Present — Callahan, J.P., Boomer, Balio, Fallon and Doerr, JJ.
Judgment unanimously modified on the law and as modified affirmed and new trial granted on counts one and two of the indictment in accordance with the following Memorandum: Defendant was convicted of four counts of criminal possession of a weapon in the third degree. Counts one and two arose on May 28, 1989, when a vehicle driven by Lorenzo Rhynes, in which defendant was a passenger, was stopped by police. The police had a report that the occupants of a vehicle fitting that description had been involved in a street altercation. Defendant was ordered from the vehicle, placed against a police car and pat-frisked. Officer Smith observed a loaded Ruger Blackhawk .44 caliber revolver under the seat where defendant had been sitting. Defendant was questioned by Officer Smith on the scene without the benefit of Miranda warnings (see, Miranda v Arizona, 384 U.S. 436) and made incriminating statements. Defendant was transported to the police station, where, after being given Miranda warnings, he gave oral and written statements wherein he admitted that the gun was his. The suppression court suppressed defendant's on-the-scene statements as being the product of custodial interrogation without the benefit of Miranda warnings. The suppression court held defendant's later statements to be admissible.
Defendant's oral and written statements at the stationhouse should also have been suppressed, because there was not "such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning" (People v Chapple, 38 N.Y.2d 112, 115; see also, People v Bethea, 67 N.Y.2d 364, 367-368; People v Graves, 158 A.D.2d 916, lv denied 76 N.Y.2d 735). Defendant made his unwarned admissions at about 1:00 A.M. He was transported by police vehicle at 1:05 A.M., arriving at the police station at 1:15 A.M. During the ride, Officer Smith told Officer Corbelli about defendant's on-the-scene admissions. Defendant was placed in an interview room at 1:15 A.M. At 1:42 A.M., Officer Corbelli entered and took pedigree information. At 1:55 A.M., Officer Corbelli gave defendant Miranda warnings and defendant's oral and written statements immediately followed. At most, 55 minutes separated the interrogations and there was an interval of only 27 minutes when defendant was not in the presence of a police officer. Defendant was in continuous police custody (see, People v DeGelleke, 144 A.D.2d 978, 979, lv denied 73 N.Y.2d 920), and one of the arresting officers, who was aware of defendant's prior admissions, conducted the second interrogation (see, People v Astor, 116 A.D.2d 776, affd 68 N.Y.2d 879). Because the admission of defendant's oral and written statements cannot be deemed harmless, the conviction on counts one and two of the indictment must be reversed, the sentences imposed thereon vacated and a new trial granted on those counts. The remainder of defendant's conviction, which relates to an entirely separate incident, was not affected by the admission of the statements and is affirmed. We modify the judgment, however, by vacating the direction that the sentences on the conviction under counts three and four run consecutively to the sentences imposed on counts one and two.
The trial court should have conducted a Gomberg inquiry (see, People v Gomberg, 38 N.Y.2d 307) when it became aware that defense counsel had represented codefendant Lorenzo Rhynes on the charges arising from the same incident until the Grand Jury issued a no-bill as to him. Defendant was not denied effective assistance of counsel by counsel's representation of Rhynes because defendant failed to show that the potential conflict "`operated on'" or affected the conduct of his defense (People v Ortiz, 76 N.Y.2d 652, 657; see, People v Recupero, 73 N.Y.2d 877, 879; People v McDonald, 68 N.Y.2d 1, 9, rearg dismissed 69 N.Y.2d 724; People v Alicea, 61 N.Y.2d 23; People v Martinez [appeal No. 2], 187 A.D.2d 992). Rhynes was called as a witness for the defense, not the prosecution, so defense counsel was not called upon to "attack" his former client (cf., People v Liuzzo, 167 A.D.2d 963, appeal dismissed 77 N.Y.2d 866; People v Price, 163 A.D.2d 915). We have examined defendant's remaining arguments and find them to be lacking in merit.