| People v Huntsman |
| 2012 NY Slip Op 04477 [96 AD3d 1390] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Craig A.Huntsman, Appellant. (Appeal No. 2.) |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in theFourth Judicial Department, from an order of the Ontario County Court (Craig J. Doran, J.),dated February 24, 2011. The order denied the motion of defendant to vacate his convictionpursuant to CPL 440.10.
It is hereby ordered that the order so appealed from is unanimously reversed on the law,defendant's CPL 440.10 motion is granted, the judgment is modified by vacating the convictionof counts 9 through 12, and a new trial is granted on counts 9 and 10, and counts 11 and 12 asreduced in People v Huntsman (96 AD3d 1387 [2012]), following suppression ofdefendant's statement.
Memorandum: Defendant appeals from an order that denied his CPL article 440 motion tovacate those parts of a judgment convicting him following a jury trial of burglary in the seconddegree (Penal Law § 140.25 [2]), criminal mischief in the fourth degree (§ 145.00[1]), grand larceny in the fourth degree (§ 155.30 [1]) and criminal contempt in the firstdegree (§ 215.51 [d]) under counts 9 through 12 of the indictment. In the direct appealfrom the judgment, we modified the judgment by reducing the conviction of grand larceny in thefourth degree under count 11 of the indictment to petit larceny (§ 155.25), reducing theconviction of criminal contempt in the first degree under count 12 of the indictment to criminalcontempt in the second degree (§ 215.50 [3]), vacating the sentences imposed on thosecounts and remitting the matter to County Court for sentencing on those counts (People vHuntsman, 96 AD3d 1387 [2012]).
While the direct appeal was pending, defendant filed a CPL 440.10 motion, contending thatreversal of the conviction under counts 9 through 12 was required because a statement admittedin evidence at trial was obtained in violation of his indelible right to counsel (see People vSteward, 88 NY2d 496, 501 [1996], rearg denied 88 NY2d 1018 [1996]; People vRogers, 48 NY2d 167, 170-171 [1979]; see also People v Lopez, 16 NY3d 375, 380-382 [2011]). He alsocontended that he was denied effective assistance of counsel based on defense counsel's failure tomove to suppress his statement on that ground. We conclude that County Court erred in denyingthe CPL article 440 motion.[*2]
Following an all-day investigation and interviewconducted jointly by an Ontario County Sheriff's Department (OCSD) investigator and a SenecaCounty Sheriff's Department (SCSD) deputy, defendant was arraigned on charges stemming froman incident in Seneca County. At the arraignment, in the presence of the SCSD deputy, defendantrequested counsel on the Seneca County charges and was remanded into the custody of theSCSD. Defendant was thereafter transported to the Waterloo Police Department where he wasagain questioned by the OCSD investigator on the Ontario County charges. Although defendantpurportedly waived his Miranda rights, it is well established that, "once a defendant incustody on a particular matter is represented by or requests counsel, custodial interrogation aboutany subject, whether related or unrelated to the charge upon which representation is sought orobtained, must cease" (Steward, 88 NY2d at 501; see Rogers, 48 NY2d at170-171; see also Lopez, 16 NY3d at 380-382). Under the circumstances of this case, theOCSD investigator should be charged with the knowledge, actual or constructive, that defendanthad requested counsel on the charges for which he had just been arraigned (see Lopez, 16NY3d at 382; People vBongarzone-Suarrcy, 6 NY3d 787, 789 [2006]; People v Kazmarick, 52 NY2d322, 328-329 [1981]). We therefore conclude that defendant's statement was taken in violation ofhis indelible right to counsel and must be suppressed. The harmless error test for a constitutionalviolation is not met here, because it cannot be said that "there is no reasonable possibility that theerror affected the jury's verdict" (Peoplev Douglas, 4 NY3d 777, 779 [2005]; see People v Crimmins, 36 NY2d 230,240-241 [1975]). The only other direct evidence of defendant's presence at the burglarizedresidence was a palm print on the window that the police deemed to be the point of entry, and theevidence established that defendant had resided in that residence until shortly before the burglarywas committed, thus providing an explanation for the existence of his print on the window.
Contrary to the People's contention, defendant's original suppression motion did not includethis meritorious contention, nor did sufficient facts appear on the record of the appeal from thejudgment to permit adequate review of this contention on the direct appeal from the judgment.Thus, denial of the CPL article 440 motion was not mandatory under CPL 440.10 (2) (a), (b) or(c).
Pursuant to CPL 440.30 (3) (a)-(c), the motion must be granted without a hearing because themoving papers establish a legal basis for the motion; the ground is supported by swornallegations thereof; and the sworn allegations are conclusively substantiated by unquestionabledocumentary proof. We note, however, that the new trial shall be conducted on counts 11 and 12as reduced by our decision in defendant's direct appeal from the judgment (Huntsman 96AD3d at 1390). Present—Scudder, P.J., Centra, Lindley, Sconiers and Martoche, JJ.