79 A.D.2d 518 | N.Y. App. Div. | 1980
Lead Opinion
Upon remittitur from the Court of Appeals, judgment, Supreme Court, New York County, rendered July 6,1977, upon a verdict convicting defendant of receiving unlawful gratuities, affirmed for the reasons stated in the dissenting opinion on appeal herein (65 AD2d 443, 451-454). This court reversed defendant’s conviction, and the Court of Appeals reversed and remitted the case for determination of the facts with respect to the suppression of defendant’s statements (49 NY2d 928). Based upon our determination of those facts, and for the reasons set forth in the original dissenting opinion, we affirm. Contrary to the view in the present dissent of Justice Lupiano, we find no procedural obstacle to this court’s review of the facts, de novo. It is clear that the admonition by the previous majority that it “would reverse and direct a new trial in view of the deprivation of a fair trial” (People v Palumbo, 65 AD2d 443, 449) is dictum, and thus not binding since it was not necessary to the decision. (See Matter of Buehler v Board of Supervisors of Rensselaer County, 260 NY 268; also 343 E. 77th St. Corp. v Bloom, 45 Misc 2d 545.) Inasmuch as the previous determination by this court was to reverse and dismiss the indictment, the observation tliat it would direct a new trial in any event because of trial errors
Dissenting Opinion
The instant case reflects an element of “chance” or “fate” somewhat at variance with my judicial philosophy, which is predicated on the search for objective truth and a minimizing of the subjective element in the decision-making process. Without engaging in an appraisal of the imaginative, as compared or contrasted with the purely rational basis underlying the processes by which appellate courts resolve the questions and issues brought before them, it suffices to briefly delineate the procedural history of this matter. Defendant was convicted, after a jury trial, of receiving unlawful gratuities. The defendant’s subsequent appeal was heard by a four-man Bench, with the result that the majority of three concluded on this record that the interrogation of defendant at the time he made an inculpatory statement was custodial, as a matter of law, and that the failure of the authorities to give the required Miranda warnings rendered such statement inadmissible. Accordingly, the court concluded that the judgment convicting defendant should be reversed, on the law, and the indictment dismissed. The court also stated: “In any event, if we were not reversing and dismissing the indictment, we would reverse and direct a new trial in view of the deprivation of a fair trial” (People v Palumbo, 65 AD2d 443, 449). Upon the People’s subsequent appeal to the Court of Appeals, that court declared: “We cannot agree that this interrogation was custodial as a matter of law, i.e., that under no view of the evidence in the record could it be found to be noncustodial. Accordingly, we hold that the determination of the Appellate Division in this regard was error. The case must, therefore, be remitted to the Appellate Division for determination of the facts under CPU 470.40 (subd 2, par [b]). The other error on which the Appellate Division would have reversed
. “(I)t frequently is applied as a matter of judicial discretion or out of respect for the judgment of fellow judges at the same level of the judiciary” (5 Weinstein-Korn-Miller, NY Civ Prac, par 5011.09).
. It is noteworthy that the law of the case is being applied in this criminal matter not against, but for, the defendant’s entitlement to a fair jury trial.
. It is noted that defense counsel did object during the course of trial to the use the prosecutor was making of the taped conversations of defendant.
. Of course, the law of the case does not apply to pure questions of fact, and it is recognized that the new majority are not encumbered by our prior holding respecting the issue of custodial interrogation, however unseemly the result in the “eyes" of the dissent. Insofar as the issue of deprivation of a fair trial is concerned, the new majority’s exercise of power to refuse to follow the law of the case (and even apart from invocation of that doctrine), constitutes an abuse of power, as a matter of law, because it is based on no exceptional or unusual justifying circumstances, ignores the reality of the record and serves to frustrate the fundamental and cherished right of a defendant to obtain a fair trial.
Dissenting Opinion
I concur only in the alternative result ' suggested in Justice Lupiano’s dissent: defendant-appellant should have a new trial, having been deprived of a fair one by reason of admission into evidence of an inculpatory statement, taken without appropriate Miranda warnings while he was in custody. This conclusion is derived from the facts alone. The appellant was virtually arrested by police at a railroad station as he was about to board a train to go to work, and continued to be under close surveillance thereafter while being conducted to the place of examination, there held until the questioning was completed without being permitted even to go to the bathroom alone. All that was lacking to convert this into a full-blown arrest was the use of handcuffs. In these circumstances, it cannot be fairly claimed that the questioning was not custodial. Nor is it a relevant factor that he had theretofore voluntarily appeared for questioning. It is significant that only in the presence of the described coercion did appellant say anything which inculpated him. As to the matter of misuse of appellant’s taped conversations, we could have properly reviewed this error by exercise of discretion in the interest of justice. We did not, however, record such a basis for taking up this point, as is shown by a reading of the pertinent portion of our last decision (65 AD2d 443, 446-467), and it is now beyond reach.
"The other error on which the Appellate Division would have reversed (and granted a new trial) — namely, misuse of the taped conversations of defendant — was not preserved for appellate review, no timely protest on this theory having been registered. Accordingly, that issue is beyond the scope of our review (People v. Johnson, 47 NY2d 124).” (49 NY2d 928, 930.)