Opinion
July 21, 1994
Appeal from the County Court of St. Lawrence County (Nicandri, J.).
Defendant, along with codefendant Ronald Durham, was indicted for two counts of murder in the second degree, one count of manslaughter in the second degree and two counts of assault in the first degree. Durham pleaded guilty to manslaughter in the second degree in satisfaction of the indictment and testified for the People. A fellow inmate of defendant, Francis Theroux, also testified for the People concerning admissions allegedly made by defendant during his pretrial incarceration. A statement made by defendant to police officers during interrogation was also admitted into evidence subsequent to a hearing in which County Court had denied defendant's motion to suppress the statement.
On this appeal, defendant raises, inter alia, four grounds for reversal. First, he contends that the hearing held pursuant to Massiah v. United States ( 377 U.S. 201) violated his rights since his attorney was denied the opportunity to adequately cross-examine witnesses and his counsel was ineffective. Second, defendant contends that his statements should have been suppressed. Third, defendant contends that the prosecution failed to disclose promises made to Durham and Theroux which caused those individuals to testify against him. Fourth, defendant contends that the sentence imposed upon him was harsh and excessive.
Contrary to defendant's contentions, the record of the Massiah hearing does not reveal that County Court improperly restricted the scope of the hearing (see, Massiah v. United States, supra; People v. Branshaw, 177 A.D.2d 1028, lv denied 79 N.Y.2d 918). Moreover, as in People v. Branshaw (supra), the record amply supports County Court's determination that the informant was not acting as an agent of the government. Theroux communicated first with his counsel concerning defendant's disclosure. This caused the Public Defender to withdraw from representation of Theroux and new counsel was provided. The record clearly reflects that Theroux acted independently of the prosecution and provided information to the District Attorney on his own initiative (see, People v. Cardona, 41 N.Y.2d 333). Defendant would have us conclude that in accepting information from Theroux, an agency relationship was established by and between the District Attorney's office and Theroux. Such conclusion cannot be drawn from the mere disclosure of information (see, People v. Halstead, 180 A.D.2d 818, lv denied 80 N.Y.2d 904; People v. Blake, 127 A.D.2d 602, lv denied 69 N.Y.2d 1001; People v. Farley, 120 A.D.2d 761).
Defendant's contentions on the issue of suppression are equally unavailing. Defendant contends that his statements to the police should be suppressed because they were obtained in violation of his right to counsel. The testimony of officers who questioned defendant differs considerably from defendant's testimony concerning the conditions of his questioning. All agree, however, that defendant stated that "if the questions get heavy, can I ask for an attorney?" County Court credited the officers' testimony and determined that appropriate Miranda warnings were given and that he was not placed under arrest until after approximately six hours of questioning. We agree with County Court that defendant's inquiry concerning whether he can ask for an attorney during the course of questioning was not sufficient to trigger the right to counsel (see, People v Fridman, 71 N.Y.2d 845; People v. Hicks, 69 N.Y.2d 969; People v Munck, 190 A.D.2d 963, lv denied 81 N.Y.2d 974; People v Lattanzio, 156 A.D.2d 757, lv denied 76 N.Y.2d 860; People v Mathis, 147 A.D.2d 851, lv denied 73 N.Y.2d 1018; People v Kittell, 135 A.D.2d 1021).
Addressing the issue of waiver raised by defendant, when, as here, a defendant is represented by counsel in an unrelated proceeding, it is well settled that the defendant may waive his Miranda rights and make statements in response to police questioning if the questioning is on matters unrelated to the pending charge (People v. Bing, 76 N.Y.2d 331). Accordingly, we find no error relating to the questioning by police.
As to defendant's contention that the prosecution failed to disclose promises made to Durham and Theroux, the record does not reveal any such failure. Rather, the record reflects that as to Durham, defense counsel was present when Durham's plea was entered and the terms of the agreement concerning Durham's testimony were placed on the record. Thus, no Brady violation occurred (see, Brady v. Maryland, 373 U.S. 83; People v. Novoa, 70 N.Y.2d 490; People v. Cwikla, 46 N.Y.2d 434).
With regard to disclosures concerning promises, if any, made to Theroux, the District Attorney's office disclosed that he was offered a misdemeanor in exchange for his cooperation. After accepting a plea to a misdemeanor, research revealed that Theroux had a prior felony conviction and that the misdemeanor plea was improperly accepted. Such plea was therefore vacated prior to the commencement of the instant trial. Hence, Theroux was testifying without any promise of assistance by the District Attorney's office. Subsequent to the trial, the District Attorney communicated with County Court and described Theroux's assistance to the prosecution but vigorously opposed Theroux's motion to dismiss the indictment pending against him. County Court, nonetheless, dismissed the charges against Theroux after considering numerous factors including Theroux's cooperation in the trial against defendant. While County Court considered such testimony in determining the motion to dismiss, there is no evidence of any "agreement * * * which might have induced [Theroux] to testify against * * * defendant. Thus, there was no Brady violation" (People v. Orr, 190 A.D.2d 760, lv denied 81 N.Y.2d 974).
Finally, defendant contends that his sentence was harsh and excessive. In reviewing such sentence we note that County Court determined that defendant deliberately murdered and concealed the victim's body. In finding that the sentence was within statutory guidelines, we decline to disturb it. Moreover, contrary to defendant's contentions, there is no finding of extraordinary circumstances based upon substance abuse (see, People v. Brooks, 182 A.D.2d 910).
After our review of all other issues raised by defendant, we find them to be without merit. Accordingly, for all of the aforementioned reasons, the verdict and sentence shall be affirmed.
Mikoll, J.P., Mercure, Crew III and Yesawich Jr., JJ., concur. Ordered that the judgment is affirmed.