People v. LubanskiPeople v. Lubanski
Lead Opinion
Judgmеnt reversed on the law, plea vacated, defendant’s motion to suppress granted and defendant remanded tо Livingston County Court for further proceedings on the indictment. Memorandum: Defendant’s written statement should have been supprеssed because it was obtained in violation of his constitutional right to counsel. Defendant was convicted of first degree sodomy upon his guilty plea following denial of his suppression motion. A Deputy Sheriff in charge of the juvenile aid bureаu and a social services worker went to defendant’s house in response to a complaint that he had sexually abused a juvenile male. The Deputy informed defendant of the nature of the investigation and read him the Miranda warnings. Defendant denied the charge. Three days later the Deputy returned to defendant’s house and transported defendant to thе Sheriff’s office where he again was read his Miranda warnings from a printed card. Defendant then stated that he had discussed the case with three lawyers and that he could not afford the $1,000 retainer fee the third attorney had requested. Shortly thereаfter defendant signed a written statement in which he confessed to masturbating a male juvenile on several occasions. The suppression court refused to suppress the statement finding that defendant was not in custody and, even if he was, that he did not make an explicit and unequivocal request for the assistance of counsel. We cannot agreе.
The critical question is whether defendant in fact asserted his right to counsel. It is well established that if a suspect "indicatеs in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning” (Miranda v Arizona,
Although the suppression court found that the defendant was not in custody, we need not address this issue since it is not determinative (see, People v Skinner,
All concur except Boomer, J., who dissents and votes tо affirm in the following memorandum.
Dissenting Opinion
(dissenting). I respectfully dissent. On the record before us I see no reason to disturb the findings of the suppression court that defendant’s testimony was not credible, that he was not in custody when he made his statement to the pоlice, and that he did not unequivocally request the assistance of an attorney.
The record shows that a Deputy Sheriff, accompanied by a caseworker from the Department of Social Services, went to defendant’s hоuse to investigate a complaint that defendant had sexually abused a young boy. There, after the Deputy read dеfendant his Miranda warnings, defendant denied the accusation and agreed to take a lie detector test.
Two days later, the Deputy returned to defendant’s house
Upon arrival at the Sheriffs office, Major York read defendant his Miranda warnings. Defendant indicated that he understood his rights and agreed to speak to the Deputies. He then told Major York that he had talked to a third attorney and could not afford the $1,000 retainer fee. Major York told him that it was up to him if he wanted to discuss it now, but that was solely his choice. Defendant replied that he wanted to talk about it and get it straightened out.
The statement of defendant, after he had twice been given his Miranda warnings, thаt he had previously spoken to an attorney and could not afford the retainer fee, "was not an unequivocаl assertion that [he] was requesting the assistance of counsel” (People v Johnson,