85 A.D.2d 698 | N.Y. App. Div. | 1981
Lead Opinion
Appeal by defendant from a judgment of the County Court, Nassau County (Delin, J., at the trial and sentence; Lockman, J., at the suppression hearing), rendered November 8, 1979, convicting him of two counts of murder in the second degree, and one count of robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of defendant’s motion to suppress certain statements. By order of this court dated February 9, 1981, the case was remitted to the County Court to report on whether the police at the time of questioning the defendant, knew that he was represented by counsel as to
Dissenting Opinion
and votes to affirm the judgment, with the following memorandum: Defendant was arrested in Brooklyn, New York, by officers of the New York City Police Department, for the armed robbery of a luncheonette in Nassau County. Having been advised of his Miranda rights in the station house, he engaged in a “personal conversation” with Detective Dale, with whom he was acquainted. He informed Dale that he committed the robbery because he needed money to pay a lawyer in connection with a previous case, but Dale did not follow up on this comment. Subsequently, defendant was remanded to the custody of Nassau County Detective Leahy, who readvised him of his Miranda rights, and then took an oral and written confession from him. An Assistant District Attorney took a further statement from him. Leahy was aware that defendant had been arrested 16 days earlier on an unrelated charge in Brooklyn, but knew nothing else about that case. Defendant then moved for suppression of his statements to Dale, to Leahy, and to the Assistant District Attorney. People v Bartolomeo (53 NY2d 225), in extending the rule of People v Rogers (48 NY2d 167), held that where a suspect being interrogated in custody had recently been arrested by the same law enforcement agency on an unrelated charge, and the fact of this arrest was known to the interrogating officer, the interrogating officer would be foreclosed from interrogating the suspect if he was represented by counsel on the prior charge (absent a waiver of counsel in counsel’s presence) regardless of the interrogating officer’s actual knowledge of the presence of counsel. The majority rightly holds that the defendant’s statements to Dale need not be suppressed under Bartolomeo, because defendant’s off-hand comment to Dale was not such as would alert Dale to the fact that defendant had recently been arrested. The remark that defendant needed money to pay a lawyer in connection with a previous case does not necessarily imply that the previous case was a criminal prosecution; it certainly was insufficient to alert Dale to the fact of defendant’s arrest by the same law enforcement agency as that which employed Dale. Consequently, the statements made to Dale need not be suppressed. Insofar as the majority has voted to suppress the confession and statements made to Leahy and the Assistant District Attorney, however, I must vigorously dissent. To begin with, defendant’s prior arrest was by the New York City Police Department, whereas Leahy was a Nassau County detective. The decision in Bartolomeo is limited to a situation in which the prior and current arrests are made by the same law enforcement agency; the court explicitly left open the question as to what consequences would follow were the prior arrest effected by a different agency (see People v Bartolomeo, supra, p 229, n 1; see, also, People v Smith, 54 NY2d 954). And although Leahy was admittedly aware of the prior arrest in Brooklyn, he had no knowledge that the defendant was represented by counsel in connection therewith, so as to invoke the rule of People v Rogers (supra). To hold that Leahy was obliged to inquire as to defendant’s representation on the prior charge would be almost identical to a ruling in which the Court of Appeals has already said would “unnecessarily and unrealistically limit police interrogation procedures” (People v Kazmarick, 52 NY2d 322, 328; see People v Servidio, 77 AD2d 191, affd 54 NY2d 951). What the majority has done, then, is to expand Bartolomeo to reach even those cases where the prior and instant arrests are by different law enforcement agencies, but where the officer handling the current investigation has some awareness of the prior arrest.