| People v Foster |
| 2010 NY Slip Op 03720 [72 AD3d 1652] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michial E.Foster, Appellant. |
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Michial E. Foster, defendant-appellant pro se. Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedNovember 5, 2008. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree.
It is hereby ordered that the judgment so appealed from is reversed on the law, that part ofthe motion seeking to suppress statements made by defendant to a confidential informant afterJuly 17, 1997 is granted and a new trial is granted.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of murder inthe second degree (Penal Law § 125.25 [2]), defendant contends that County Court erredin refusing to suppress certain statements he made to a confidential informant (CI) in connectionwith the murder of his girlfriend. The People stipulate that the CI was acting as an agent of thepolice when defendant made the statements. We agree with defendant that suppression isrequired with respect to certain statements, and we thus reverse the judgment.
According to the evidence presented at the suppression hearing, defendant's girlfriend wasreported missing on May 30, 1996, and the last time that she was seen was on May 29, 1996,entering defendant's van. Despite the efforts of the police to locate the victim, her remains werenot found for more than 11 years after her disappearance, when a passerby discovered them in awooded area. Defendant was thereafter indicted for the murder.
Defendant contends that his indelible right to counsel attached when he agreed to speak tothe police about the victim's disappearance and was accompanied to two interviews by anattorney who represented him in Family Court on pending paternity and custody proceedings inconnection with the victim's two children. Defendant admitted during the second of thoseinterviews that he possessed a sawed-off shotgun, and he was thereafter charged with criminalpossession of a weapon and convicted of that offense. While incarcerated on that conviction, thepolice arranged for the CI in question to be [*2]housed indefendant's cell in order to obtain information concerning the victim's disappearance andprobable murder.
Contrary to the contention of defendant, the suppression court properly determined that hisindelible right to counsel had not attached with respect to the statements that he made to the CIprior to July 17, 1997 inasmuch as, until that date, he did not invoke his right to counsel to thepolice who interviewed him while he was incarcerated. The indelible right to counsel attaches intwo situations: "upon the commencement of formal proceedings, whether or not the defendanthas actually retained or requested a lawyer . . . [, and] where an unchargedindividual has actually retained a lawyer in the matter at issue or, while in custody, has requesteda lawyer in that matter" (People v West, 81 NY2d 370, 373-374 [1993]). Here, the recordestablishes that the attorney representing defendant in the Family Court matters accompaniedhim to the two interviews with the police in order to ensure that he did not say anything thatwould have a negative effect in the Family Court proceedings, and we conclude that she was notretained "in the matter at issue" (id.). With respect to the contention of defendant that hisright to counsel had indelibly attached based upon the representation of his attorney on theweapons possession charge, we conclude that the statements made to the CI prior to July 17,1997 were made after that attorney-client relationship had terminated (see id. at 377;see generally People v Robles, 72 NY2d 689, 698 [1988]). We therefore conclude thatdefendant failed to establish that he was represented by that attorney either in the missing personmatter or the weapons possession charge at the time he made statements to the CI (seegenerally People v Rosa, 65 NY2d 380, 387 [1985]).
We agree with defendant, however, that his indelible right to counsel attached on July 17,1997, when defendant told the police who spoke with him at the correctional facility that hewould not talk to them without an attorney present. The suppression court properly determinedthat the mere fact that defendant was incarcerated does not render the questioning custodial (see People v Carrasquillo, 50 AD3d1547 [2008], lv denied 11 NY3d 735 [2008]). Nevertheless, we conclude in thiscase that the People failed to meet their burden of establishing that defendant knowingly andvoluntarily waived his right to counsel when he divulged the details of the murder and disposalof the body to the CI several days after he had invoked his right to counsel (see People vDavis, 75 NY2d 517, 523 [1990]), particularly in view of the fact that, in determiningwhether the People met that burden, "the courts must indulge every reasonable presumptionagainst waiver" (id.).
With respect to defendant's conversations with the CI, who as the People have conceded wasacting as an agent of the police, "the full panoply of constitutional provisions and curativemeasures applies" (People v Esposito, 37 NY2d 156, 160 [1975]). After defendant hadinvoked his right to counsel, the police directed the CI to advise him that he would no longerassist him with the plan that defendant had devised to convince the police that the victim wasstill alive, unless defendant "came clean" with the CI with respect to how he had killed thevictim. Defendant then described the murder, admitted that the victim's daughter was present,and described how he allegedly disposed of the body. The police did not believe defendant'sstory with respect to the disposal of the body, however, and they further directed the CI to telldefendant that the story was not credible. At that time, defendant provided the CI with what thepolice believed to be the true version of events, i.e., that defendant disposed of the body in awooded, marshy area that in fact matched the description of the area in which the victim'sremains were eventually discovered. We conclude based on the record of the suppression hearingthat defendant's conduct was not "so unambiguous that a hearing court would be warranted ininferring from the circumstances that the earlier request for counsel had been withdrawn"(Davis, 75 NY2d at 523). Defendant did not initiate further contact with the police afterhe invoked his right to counsel and, by virtue of the fact that he was incarcerated, we concludethat the suppression court erred in determining that the failure of defendant to retain counsel forthe nearly two weeks during which he made [*3]incriminatingstatements to the CI evinced his intent to withdraw his request for counsel (see generallyid.). Because defendant's statements to the CI concerning the murder of the victim and thedisposal of the body corroborate the eyewitness testimony of the victim's daughter and, becausethe statements concerning the cause of death are corroborated by evidence that was found at thesite where the body was discovered, we conclude that there is a "reasonable possibility that theerror [in refusing to suppress those statements] might have contributed to defendant's conviction"and that the error thus was not harmless beyond a reasonable doubt (People v Crimmins,36 NY2d 230, 237 [1975]).
We have reviewed defendant's remaining contentions and conclude that they are withoutmerit.
All concur except Gorski, J., who dissents in part in accordance with the followingmemorandum.
Gorski, J. (dissenting in part). I must respectfully dissent in part. Although I agree with theultimate conclusion of the majority that reversal is required in this case, I conclude, unlike mycolleagues, that defendant's indelible right to counsel attached prior to July 17, 1997. On May31, 1996, defendant agreed to meet with the police at 10:00 a.m. for an interview in connectionwith the disappearance of his girlfriend. At approximately 9:30 a.m. that day, the investigatingofficer received a telephone call from the office of the Public Defender informing him that aspecified attorney would accompany defendant when he met with the police that day, and thatthey would arrive at 11:00 a.m. Defendant and the attorney in fact arrived at the police stationfor the interview shortly after the designated time. In my view, the act of defendant in contactingthe office of the Public Defender, the act of personnel from that office in rescheduling theinterview so that an attorney for defendant could be present, and the act of the attorney from thatoffice in accompanying defendant to the interview "adequately apprised the police that[defendant] had retained an attorney with respect to the matter under investigation and that hewished his attorney to be present during questioning" (People v Ellis, 58 NY2d 748, 750[1982]). Although defendant allegedly told the investigating officer that the attorney "was thereso [defendant] didn't say anything to hurt his Family Court case," I cannot agree with themajority that defendant's alleged statement is sufficient to establish that the attorney had notbeen retained "in the matter at issue" prior to July 17, 1997 (People v West, 81 NY2d370, 373-374 [1993]). Indeed, inasmuch as the Family Court proceedings in question involvedthe two children of defendant and his then-missing girlfriend, it is difficult to conceive how thematters could be construed as unrelated. I note in addition that the attorney also accompanieddefendant to a subsequent polygraph examination conducted in connection with the girlfriend'sdisappearance. I therefore conclude that the suppression court erred in refusing to suppress thestatements made by defendant to the confidential informant (CI) prior to July 17, 1997 andwould grant that part of defendant's omnibus motion seeking to suppress those statements as wellas those made to the CI after that date. Present—Scudder, P.J., Fahey, Carni and Gorski,JJ.