This appeal’s case involves a murder and drug crime that had occurred in the Bronx and Manhattan respectively. On April 19, 2007, one male victim was shot to death while the other victim, also male, was shot in the buttocks and wounded outside an abandoned building. The defendant, also male, was charged for intentional second degree murder under Penal Law § 125.25[1], second degree assault under Penal Law § 120.05[2] and two counts of second degree weapon possession under Penal Law § 265.03[1][b]; [3]. The defendant appealed and requested that the inculpatory statements he had made be withdrawn because they had been obtained in the absence of a lawyer. The criminal defendant alleged that his right to counsel had been violated.
The arresting detective had been able to identify the defendant as a suspect due to evidence he had received from two witnesses. On May 17, 2007, the detective had learned that the defendant had been arrested for a drug crime in Manhattan. The detective drove to Manhattan and had the defendant remanded into his custody. Shortly after returning to the Bronx, Miranda warnings had been issued to the defendant, and then two separate lineups were conducted for the two eyewitnesses. The defendant had stated that he had no knowledge of the shootings, but both eyewitnesses had identified the defendant during the lineups. The defendant was then charged with homicide. Afterwards, the detective, along with another detective, escorted the defendant back to Manhattan for the arraignment on the drug crime. It is stated in the appellate opinion, that the first detective may have told the defendant that he had been identified by the two eyewitnesses. Robbery was not a part of the crime.
The first detective requested that the defendant be placed in his custody (release on his own recognizance) at the end of the hearing. The defendant met with his assigned attorney while sitting nearby the two detectives in the courtroom. According to the first detective’s testimony, the attorney had introduced himself as the defendant’s attorney on the drug case. He then provided his business card to the first detective and asked to speak to his client in private. The detectives then proceeded to move to other rows in the court house. The first detective testified that he had heard the attorney state to the defendant, after the hearing ended, that he would not be crossing the bridge to represent him, and that he would have another attorney representing him for the homicide case. The second detective verified this account during his testimony.
According to the attorney’s testimony, he had not interviewed the defendant. He had read out the felony complaint and asked the defendant if he had understood the charges. Bail was not discussed because the defendant was going to be released on his own recognizance, as agreed upon with the two detectives. The attorney also testified that he had never told the defendant that he would not “cross over the Brooklyn Bridge.” He did concede that he had never indicated to the defendant that he might consider defending him in the other case. He may have told the defendant that he “would be happy” to represent him. The attorney also recollected warning the detectives that the defendant was being represented by an attorney and had advised the defendant not to speak to the detectives about any legal matters in regards to the case. The types of drugs were not addressed in the opinion. Also, the severity of the charges (e.g. was it a misdemeanor) for the drug crime was not addressed.
On the ride back to Manhattan, the first detective tried to get the defendant to talk about the homicide case. He admitted, in his testimony, that he wanted the defendant to tell them what happened during the shooting incident. On May 18, 2007, the defendant stated that he had wanted to tell the two detectives what had happened. The detective then contacted the assistant district attorney who directed the detective to make sure that he didn’t have a right to counsel, and that the counsel on the drug case was not attached to the homicide case. The first detective stated that he had a right to talk with the defendant because the defendant did not have counsel in the homicide case.
The detectives met with the defendant and reminded him that the Miranda warnings were still in place. During the interview, the defendant had admitted to shooting towards the front door of the building where the victims had been standing; first with a shotgun and then a handgun. The defendant had stated that he had just wanted to scare them. He had learned the following day that someone had died. The defendant then repeated his statement on videotape in the presence of the assistant district attorney. At the beginning of the videotaped statement, the defendant had waived his Miranda rights. At the end of the videotaped statement, the defendant had stated that he was not represented by an attorney.
A May 30, 2008 decision and order denied the defendant’s motion to suppress the statements. In the decision, the judge stated that it had been established that the defendant was not represented by the same attorney on the drug case. The defendant had a jury trial where the two eyewitnesses testified, the transcripts of the defendant’s statements were read out in court, and the jury had watched the videotape. The attorney from the drug case had testified for the defense in regards to representation.
The defendant was acquitted of intentional murder, but was convicted on the weapon charge. The judge imposed a sentence of 15 years, which was to be followed by five years of post-release supervision. On appeal, the defendant had requested that the case be sent back to the hearing court so that a judge could determine if the drug case attorney had told the detectives that he would represent him in both cases. The court had affirmed the order noting that the attorney had not been attached to the homicide case.
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