87 A.D.2d 761 | N.Y. App. Div. | 1982
Judgment of the Supreme Court, New York County (Blyn, J., at Huntley hearing; George Roberts, J., at plea and sentence), rendered May 19, 1980, convicting defendant after a plea of guilty of attempted robbery in the second degree and sentencing him to one to three years’ imprisonment, reversed, on the law and the facts, the plea of guilty vacated, defendant’s motion to suppress granted, and the action remanded for further proceedings. The owner of the coffee shop who had been robbed at gunpoint gave the police the name of a former employee, the defendant, as the robber. Defendant was arrested in his home after his mother allowed the police officers to enter and search. Detective Gillies, after ordering defendant out of a closet and taking him to the living room, “leaned up” to defendant and asked him where the gun was. The policeman did not give defendant any Miranda warnings before asking this question. Gillies did say that he would obtain a search warrant if defendant did not give him the answer. Defendant responded that the gun, borrowed from a friend, was not in the apartment. The defendant later testified he had given his answer to prevent further harassment of his mother and pregnant sister. Upon being taken to the precinct, the defendant was, for the first time, read his rights. After an interrogation of at least half an hour the defendant told Detective Gillies that he had used a toy gun in the robbery. Several hours later, the defendant was taken to a detention facility but was not arraigned that day. The next morning Detective Gillies went to the New York Criminal Court building. He spoke to an Assistant District Attorney who asked him to bring defendant to the office. After defendant was brought to that office, he was told the interrogation could delay his arraignment. After being advised of his rights, defendant was questioned without an attorney. The questioning took place in the presence of Detective Gillies. When questioned, the defendant initially denied having a weapon during the incident. Gillies admonished defendant to “tell the truth” and not long afterwards, defendant conceded it was “possible” that the complainant had seen him with a toy pistol. After then being admonished by the Assistant District Attorney to tell the truth, defendant stated that he had been carrying a comb which might have looked like a pistol. On November 2, 1979, after a Huntley hearing, the court below suppressed a statement made to Detective Gillies by defendant at the time of his arrest because no Miranda warnings had been read. The court also suppressed the statements made at the precinct after Miranda warning had been given. The court found that the defendant had been subjected to continuous custodial interrogation, so that the warnings given at the precinct house were insufficient to protect his rights. However, the court refused to suppress the statement which the defendant gave to the Assistant District Attorney on the morning following his arrest, holding that this particular statement was not part of a continuous chain of events. The failure to suppress this last statement given to the Assistant District Attorney constituted error. It should be noted that defendant, at the time he made this statement, had been in custody for over 20 hours. This circumstance, in and of itself, may have constituted a violation of defendant’s right to a speedy arraignment (GPL 140.20; see People v De Jesus, 63 AD2d 148,154). In any event, the courthouse interrogation by the Assistant District Attorney under the circumstances of the delay in arraignment, violated defendant’s right to counsel. A defendant is entitled to counsel at all critical stages of criminal proceedings. The right to counsel attaches when the criminal action commences (see People v Blake, 35 NY2d 331,339-340). By statute, a criminal action commences with the filing of