Opinion
May 22, 1967
Judgment of the County Court, Suffolk County, rendered March 18, 1966, affirmed. Shortly after midnight on April 16, 1965 defendant and another man were observed by a New York City police officer walking down Madison Avenue near 73rd Street in New York City in such a manner as to arouse his suspicion. Defendant was carrying a box that contained silverware (which, later, at the trial was shown to have been stolen from a house in the Westhampton Beach area of Long Island). They were placed under arrest and charged with vagrancy and criminally receiving stolen property. They were detained overnight and on the following morning were arraigned before a Judge of the Criminal Court of the City of New York. An attorney of the Legal Aid Society of the City of New York was assigned to represent them. Bail was fixed in the sum of $500 each, and the matter adjourned to April 29. During the arraignment two investigators from the New York State Police appeared on the scene. After a conference with the court, bail was exonerated and the prisoners were turned over to the investigators who placed them under arrest on charges of burglary and larceny allegedly committed by them at Westhampton Beach on April 10, 1965. They both were taken that same afternoon to the State Police Barracks in Riverhead, Long Island, where they were interrogated. Shortly thereafter the defendant gave an inculpatory statement amounting to a complete confession to a State Police officer, which was reduced to writing around 4:00 P.M. At approximately 5:30 P.M. he was arraigned before the Police Justice of the Incorporated Village of Westhampton Beach. After a motion was made to suppress the statement, a pretrial hearing was held on the issue thus raised as to the admissibility of the statement. The interrogating officer, Simbari, at the hearing, testified that he first saw defendant in the early afternoon of April 16; that he advised defendant that he had a right to contact a lawyer; that he did not have to make any statements; and that any statements that he did make could be used against him. He then proceeded to ask defendant questions which defendant readily answered. The statement was thereafter reduced to a writing which defendant signed. Defendant, on the hearing, testified that upon his arrest by the State Police in New York City he asked to speak to the attorney who had been assigned to him and that twice thereafter, before his interrogation, he requested an attorney but each request was refused. After the hearing the Trial Judge, obviously disbelieving defendant's story, found that at no time while he was in the custody of the State Police did defendant request an attorney and that, upon being advised of his right to counsel, defendant expressly stated that he did not want an attorney. The Trial Judge ruled the statement voluntary and admissible on the trial. At the trial Simbari gave substantially the same testimony and on cross-examination he testified further to the effect that defendant, prior to the questioning, had said, "I do not want an attorney at this time and I wish to make this statement". The question of the waiver of counsel thus was tested at the pretrial hearing and later by the jury on the trial. The factual finding in both instances was that defendant effectively and knowingly waived counsel. To reject these findings would require that we hold that a defendant may not refuse the services of counsel. This we cannot do ( People v. Bodie, 16 N.Y.2d 275). It is asserted that the interrogation of defendant was conducted in the absence of counsel already assigned after the criminal proceeding had begun. The dissenting memorandum stresses the relationship between the charge of criminally receiving stolen goods made against defendant in New York City and the burglary and larceny in Suffolk County. The crimes, however, are mutually exclusive. The thief cannot be also the receiver of the same stolen goods ( People v. Spivak, 237 N.Y. 460). Representation by counsel on the first charge does not necessarily mean representation by the same attorney on the subsequent charges which were not a part of the same criminal proceeding and were in a different and nonadjacent county. Hence, in respect to the crimes of burglary and larceny, at the time of the Suffolk County interrogation, defendant was not represented by counsel. As to those crimes, even though he was advised of his right to counsel, he effectively waived that right ( People v. Bodie, supra). Christ, Acting P.J., Brennan, Benjamin and Munder, JJ., concur; Hopkins, J. dissents and votes to reverse the judgment and to direct a new trial, with the following memorandum: An interrogation of an accused in the absence of counsel after a criminal proceeding has been commenced is forbidden and an inculpatory statement obtained as an outcome of the interrogation may not be received in evidence against the accused ( People v. Meyer, 11 N.Y.2d 162, 164; People v. Rodriguez, 11 N.Y.2d 279, 284). However, the right to counsel may be waived ( People v. Bodie, 16 N.Y.2d 275, 279). In addition, an incriminating statement made after the commencement of one criminal proceeding may be used in the prosecution of a second criminal proceeding not then begun ( People v. Stanley, 15 N.Y.2d 30, 32-33), providing that the first proceeding was not a device for holding the defendant in the investigation leading to the second proceeding ( People v. Robinson, 13 N.Y.2d 296, 301; People v. Davis, 13 N.Y.2d 690). It is against these rules that the facts here must be viewed. Though the crimes of burglary and criminally receiving stolen goods are distinct ( People v. Vitolo, 271 App. Div. 959; People v. Negrin, 24 Misc.2d 181), yet they are related, and the crime of criminally receiving stolen goods is "but a variation of the crime of larceny" ( People v. Le Brantz, 272 App. Div. 730, 732). Here, it is beyond dispute that the charge in the City of New York and the charge in Suffolk County arose from the same act; the statement obtained from defendant could consequently be used in either prosecution, depending on whether its contents implicated him as a burglar or as a receiver. The effective assistance of counsel is a constitutional right of an accused; and that right was violated when defendant was questioned in the absence of counsel under the circumstances of this case. The statement was admitted after a finding by the court that defendant, prior to interrogation, had been asked whether he wished counsel and had answered that he did not. But at the time the interrogation began, the investigators knew that he was represented by counsel, for they had been present in court when counsel had been assigned to him. To question him thereafter in the absence of counsel was impermissible; the prosecution may not extract damaging admissions from one represented by counsel without notice to counsel that the interrogation will proceed ( Massiah v. United States, 377 U.S. 201, 205; People v. Friedlander, 16 N.Y.2d 248, 251; People v. Di Biasi, 7 N.Y.2d 544, 550-551, 552; People v. Swanson, 18 A.D.2d 832). It stands as a contradiction to say that defendant had waived counsel, when at the same time the authorities who assert the right to use a statement on the ground of such a waiver were fully aware that defendant had previously asked for and received the aid of counsel. The actions of the authorities in obtaining the statement take on the aspect of a contrivance or pretext for further investigation under these circumstances; I see no material difference between the occurrences here and the facts in the cases where the pretext was said not to sanction the use of a subsequent statement ( People v. Robinson, 13 N.Y.2d 296, 301, supra; People v. Davis, 13 N.Y.2d 690, supra). In my opinion, the statement could not be used against defendant at the trial for these reasons and the judgment should be reversed and a new trial directed.