Opinion
February 4, 1994
Appeal from the Lewis County Court, Merrell, J.
Present — Callahan, J.P., Pine, Lawton, Doerr and Boehm, JJ.
Judgment affirmed. Memorandum: On appeal from a judgment of conviction entered upon his plea of guilty to second degree murder, defendant contends that unnecessary delay in arraignment constituted a violation of his right to counsel, that his confession was in involuntarily obtained, and that the sentence of 25 years to life was excessive.
Generally, prearraignment interrogation does not deprive a defendant of his right to counsel, except where police have caused an "undue" or unreasonable delay in arraigning defendant for the purpose of depriving him of his right to counsel (People v. Jones, 152 A.D.2d 984, 985, lv denied 74 N.Y.2d 812; see, People v. Di Fabio, 134 A.D.2d 918, 918-920, appeal dismissed 72 N.Y.2d 949; see generally, People v. Wilson, 56 N.Y.2d 692; People v. Edgerton, 115 A.D.2d 257, 259, lv denied 67 N.Y.2d 882). We conclude that the 3 1/2 hour delay in arraigning defendant in this case was not unreasonable or undue (see, People v. Jones, supra [delay of at least 6 1/2 hours held not to be unreasonable]; People v. Di Fabio, supra [9 hours]; People v Dobranski, 112 A.D.2d 541, 542, lv denied 66 N.Y.2d 614 [at least 8 hours]; People v. Williams, 112 A.D.2d 259, 260, lv denied 66 N.Y.2d 923 [12 1/2 hours]). The circumstances in this case are far less egregious than in those cases finding a deprivation of defendant's right to counsel based on a lengthy delay in arraignment (see, People v. Mosley, 135 A.D.2d 662, lv denied 71 N.Y.2d 1030 [40 hours]; People v. Cooper, 101 A.D.2d 1 [24 hours]; People v. Jones, 87 A.D.2d 761, 762 [20 hours]). In the circumstances presented here, it was permissible for police to postpone arraignment briefly for the purpose of questioning defendant about the crime (see, People v. Jones, 152 A.D.2d 984, 985, supra; People v. Di Fabio, supra).
Similarly, we reject the contention that defendant's confession was involuntary under the Fifth Amendment. "[A]bsent extraordinary circumstances, a delay in arraignment is but a factor to consider on an issue of underlying involuntariness" (People v. Hopkins, 58 N.Y.2d 1079, 1081). There is no basis on this record for defendant's contention that, under the "`totality of the circumstances'" (People v. Anderson, 42 N.Y.2d 35, 38), defendant's will was overborne. We conclude that the circumstances of defendant's interrogation were not "`inherently coerc[ive]'" (People v. Anderson, supra, at 38).
Defendant's challenge to the severity of the sentence is without merit.
All concur except Callahan, J.P., and Doerr, J., who dissent and vote to reverse in the following Memorandum.
We agree with the contention that there was unnecessary delay in arraigning defendant and that the purpose of the delay was to deprive him of his right to counsel so that the police could obtain an uncounseled confession. Where the police make an arrest without a warrant, they are bound to bring the accused before a local criminal court and file an appropriate accusatory instrument "without unnecessary delay" (CPL 140.20; see, People v. Cooper, 101 A.D.2d 1, 9).
Defendant was apprehended and placed under arrest at approximately 7:00 A.M. on the morning of March 29, 1992. Defendant arrived at the Public Safety Building sometime between 8:00 and 8:30 A.M. He was advised of his Miranda rights at about 9:00 A.M. and agreed to talk with the Deputy Sheriff without an attorney present. Defendant made a written statement that concluded at 12:15 P.M. He was arraigned sometime after 1:00 P.M. On cross-examination at a pretrial Huntley hearing by defendant's attorney the Deputy testified:
"Q. Any particular reason why he wasn't brought for an arraignment prior to that time?
"A. I don't know of none, no.
"Q. Any reason why he wasn't taken for arraignment at 9:30?
"A. No. We wanted to talk to him.
"Q. You wanted to talk to him, yet he was already under arrest for murder, is that correct?
"A. Yes."
The court denied defendant's motion to suppress his statement.
Undue delay in filing an accusatory instrument is "prima facie a suspect circumstance suggesting that the delay may have been for the purpose of depriving the accused of counsel" and the prosecution has "the burden to explain and offer proof * * * why the opportunity to so have counsel * * * was not afforded" (People v. Blake, 35 N.Y.2d 331, 340). Although the 3 1/2 hour delay in arraigning defendant was far short of the 24 hour delay we found to be unreasonable in People v. Cooper (supra), nevertheless, the record establishes that the sole purpose of the delay was because the police "wanted to talk to him". Therefore, we conclude that the court erred in denying defendant's motion to suppress.