Argued June 2, 1970
Decided September 24, 1970
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, IRWIN D. DAVIDSON, J.
Jack S. Hoffinger, Arthur C. Muhlstock and Robert Z. Dobrish for appellant.
Frank S. Hogan, District Attorney ( Michael R. Juviler and Bennett L. Gershman of counsel), for respondent.
Defendant appeals from a judgment of the Appellate Division, First Department, which affirmed a judgment of the Supreme Court, New York County, convicting him of two counts of murder in the first degree and sentencing him to life imprisonment on each count.
On this appeal, the courts below have found as a fact that the statements of defendant to the police were voluntary and not the product of custodial interrogation. Since the record supports this affirmed finding of fact, it is binding on this court ( People v. Leonti, 18 N.Y.2d 384, 389, 390; People v. Yukl, 25 N.Y.2d 585). Therefore, only defendant's contention as to the deprivation of his right to counsel merits discussion. On the day of his arrest, defendant was questioned at length without effect before being taken to the police precinct. When he arrived at the precinct he was placed in a detention pen and was not questioned. When his attorney appeared the defendant was brought to a clerical office and was left alone with the attorney for about 20 minutes. At the end of this 20-minute period, defendant's attorney came to the door of the office and asked the detective stationed there to "watch" the defendant. The detective entered the room and sat down on a desk facing the defendant. A second detective entered and gave the defendant a sandwich and coffee. The defendant spit his first bite of the sandwich into a wastebasket. The first detective, who had known the defendant prior to this occasion, after an inquiry regarding the refusal to eat said "Rick, did you ever think it would wind up like this?" The defendant replied in the words of the detective that "he thought it would, from what he read in the newspapers, that he thought someday he would be arrested for killing those two girls." The detective commented that defendant had made a mess of his life and concluded by remarking "Just what really happened?" The defendant then said "I don't know * * * I went to pull a lousy burglary and I wound up killing two girls."
After blurting out the damning fact of the perpetration of the murder the defendant proceeded to recount the details of the crime with the detective interjecting a series of questions in the form "Then what happened, Ricky?" In this manner, the particular circumstances testified to at a trial were given to the detective and to two other officers who entered the room. In addition, later that same evening, the defendant made incriminating admissions to one of the officers while his attorney was in the same room, some 18 feet away.
Defendant, relying upon our recent decision in People v. Arthur ( 22 N.Y.2d 325) contends that the admissions he made at the station house were inadmissible because they were obtained by means of interrogation in the absence of counsel. We conclude, however, that the statements were legally obtained and that Arthur does not render them inadmissible. The assertion that once an attorney appears there can be no effective waiver unless made "in the presence of the attorney" is merely a theoretical statement of the rule. This dogmatic claim is not the New York law ( People v. Kaye, 25 N.Y.2d 139; People v. McKie, 25 N.Y.2d 19). These cases hold that even though the defendant was in custody ( People v. Kaye, supra) and was represented by counsel ( People v. Kaye, supra; People v. McKie, supra) an admission given to the police may be admissible. The settled principle is that not every conversation between police and accused is unlawful. In People v. Rodney P. ( Anonymous) ( 21 N.Y.2d 1) this court declared that an admission is inadmissible only "when the questioning takes place under circumstances which are likely to affect substantially the individual's `will to resist and compel him to speak when he would not otherwise do so freely.'" Since that is the standard for suspects without counsel, it follows that representation by counsel should not give a suspect a special privilege to speak unreservedly to the police with unlimited exemption from responsibility for voluntary statements. Instead, the particular circumstances of each case should determine whether the general proposition is apposite. For instance, it was pertinent in People v. Vella ( 21 N.Y.2d 249) as the actions of the police in obtaining a statement from the defendant denied defendant effective assistance of counsel. In any case, therefore, the rule of Arthur is not applicable unless there is evidence of conduct as there was in Vella which would indicate an intention to victimize a defendant or outwit his attorney in order to carry on an inquiry. In this case in contrast to the record in Arthur the initial statement made to the detective placed in the room by the defendant's lawyer was not the result of "inquisitorial" process. The outburst to the detective which exposed Robles' involvement was not the simple negative response which was all the remark called for, but an impetuous unbosoming of his implication in the crime ( People v. Kaye, supra; People v. McKie, supra). Robles was not questioned at all in the station house prior to the arrival of his lawyer; in Arthur, the interrogation was already in progress when the defendant's attorney arrived. Here, defendant's lawyer was given prompt access to him and allowed to confer with him in private; in Arthur the attorney's access to his client was delayed until the police had finished their questioning in clear violation of the rule in People v. Donovan ( 13 N.Y.2d 148). And most significantly, this attorney placed a police officer in a position where defendant's admissions could be heard. At all relevant times, this attorney was physically present and available to him, to advise him or otherwise assist. The People are not to be charged with violating a defendant's right to counsel when the opportunity to exercise that right has been fully and effectively extended to a defendant who then chooses to speak rather than remain silent. Clearly, therefore, this defendant was not denied "the protection that comes from the advice of counsel" ( People v. Mummiani, 258 N.Y. 394, 400) nor was he subjected to the "continued incommunicado interrogation" which we condemned in People v. Donovan ( 13 N.Y.2d 148, 153, supra).
It would be unreasonable and unrealistic, where the defendant's lawyer is physically present in the very building and on the very floor (and, at one point, in the very room) where defendant is being held and where he has conferred with and presumably advised the defendant of his rights, to hold that the defendant's voluntary admissions of guilt are inadmissible because made in the "absence" of counsel. Indeed, in no prior case where the defendant's attorney was physically present in the immediate vicinity of his client and had had prompt access to his client have we held that admissions made by a defendant during such time are inadmissible.
Accordingly, the admissions were properly received in evidence and, there being no error of law requiring reversal on this record, the judgment of conviction should be affirmed.
The judgment of conviction should be reversed and a new trial directed. An important part of the People's case consisted of detailed admissions made by the defendant while in custody in the station house, after it was known to the questioning detectives that defendant was represented by a lawyer. Moreover, these detailed admissions were extracted by systematic questioning following an initial sympathetic comment designed to invite an outpouring of guilt-ridden confession. Almost all of these admissions were made in the absence of defendant's lawyer, who was, however, present elsewhere in the station house. Nor is any issue of fact involved on which findings of fact might preclude this court's review. The facts are undisputed. Such questioning violates the rule laid down in People v. Arthur ( 22 N.Y.2d 325, 329): "Once an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant's right to counsel ( People v. Vella, 21 N.Y.2d 249). There is no requirement that the attorney or the defendant request the police to respect this right of the defendant."
The rule laid down so plainly in the Arthur case was not novel. It was, indeed, the articulation and culmination of a distinct development in the court based on fundamental due process grounds ( People v. Gunner, 15 N.Y.2d 226, 231; People v. Failla, 14 N.Y.2d 178, 182-183; People v. Donovan, 13 N.Y.2d 148, 151-152). Moreover, the rule was recently restated and characterized as being entitled to retroactive effect ( People v. Miles, 23 N.Y.2d 527, 542).
Nor does the Arthur case lay down merely a theoretical statement of its rule. It has been firmly accepted and applied. Neither the Kaye case ( People v. Kaye, 25 N.Y.2d 139) nor the McKie case ( People v. McKie, 25 N.Y.2d 19) represents a departure from the plainly stated rule in the Arthur case and the rule followed since. Indeed, this court in People v. Paulin ( 25 N.Y.2d 445, 450), applying the Arthur rule, pointed out that in the McKie case there was neither custody nor interrogation of a lawyer-represented suspect, and that in the Kaye case, although the defendant was in custody and represented by a lawyer, there was not a single question asked and the defendant without solicitation volunteered his self-inculpating story. Significantly, in the Paulin case, there was barely-disguised devious questioning of a suspect as in this case, and the hearing court, the Appellate Division, and this court made short shrift of the argument that there was no interrogation and that the statements had been volunteered.
Perhaps most important of all, the majority, while emphasizing an accused's protection against involuntary self incrimination, downgrades the right to counsel. Thus, the reliance on People v. Rodney P. ( Anonymous) ( 21 N.Y.2d 1) involving an uncounselled accused and the ensuing analysis with reference to "representation by counsel", in the context of this case, seems to prefer the protection against self incrimination over the right to counsel, an equally significant constitutional protection ( People v. Donovan, 13 N.Y.2d 148, 151, supra).
Moreover, the fact that defendant's lawyer was readily available elsewhere in the station house may indicate that defendant had chosen to answer questions without him, but mere availability of counsel is no substitute for the explicit procedures required before a defendant may be questioned in the absence of counsel. Nor is defendant's choice valid if made without the advice of counsel, once counsel is retained or assigned.
The admissions should have been suppressed.
Accordingly, I dissent and vote to reverse and order a new trial.
In my view, too, law enforcement officials must desist from questioning a person in custody once they learn that he is represented by an attorney unless both he and his lawyer affirmatively waive his right to counsel. Were we dealing with a civil case, no matter how trivial, it would be unthinkable for the lawyer for one party to speak to the other party in the absence of the latter's attorney. Indeed, our canons of ethics explicitly condemn and forbid such conduct (American Bar Assn. Code of Professional Responsibility, Canon 7, Disciplinary Rules 7-104, [A], ). Certainly, no less is to be expected or demanded when defendants in criminal cases are involved. Accordingly, I thoroughly agree with Judge BREITEL'S opinion for reversal.
Judges SCILEPPI, BERGAN, JASEN and GIBSON concur with Judge BURKE; Judge BREITEL dissents and votes to reverse and order a new trial in an opinion in which Chief Judge FULD concurs in a separate opinion.
Judgment of conviction affirmed.