NEW YORK COURT OF APPEALS
People v. Rogers
48 NY2d 167(1979)
Cooke, Chief Judge.
We hold today that once an attorney has entered the proceeding, thereby signifying that the police should cease questioning a defendant in custody may not be further interrogated in the absence of counsel. We may not blithely override the importance of the attorney’s entry by permitting interrogation of an accused with respect to matters which some may perceive to be unrelated.
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Defendant was arrested in his home on December 16, 1975 at about 10:15 a.m. as a suspect in a liquor store robbery committed by two youths on February 7, 1975. Defendant was handcuffed, placed in a patrol car and taken to the robbery squad in Mineola. At the time of arrest, and again at police headquarters, Miranda warnings were administered. Defendant informed the police that he had an attorney but that he was willing to speak in the absence of the attorney. After a two-hour period of interrogation in which defendant denied complicity in the crime, the police received a communication from his attorney instructing them to cease further questioning.
Thereafter, the police asked no further questions about the robbery, but under a purported waiver of defendant’s rights, continued to question concerning unrelated activities in which he had not participated. These queries continued for approximately four hours after the communication from his attorney. During this entire period, defendant was manacled. After inquiries ceased, the police completed the paper work necessary to process defendant and no further information was sought. Defendant then uttered an inculpatory statement which was overheard by one of the detectives who had been questioning him. His motion to suppress the statement was denied on the ground that the assertion was spontaneously volunteered, and this appeal is based on that ruling.
The genesis of defendant’s utterance must be determined to be either as one arising out of sheer spontaneity or as having been induced by illegal police questioning. The threshold issue is whether once a defendant is represented on pending matters, the police may question the defendant on items unrelated to the subject of that representation after the defendant, in the absence of counsel, has waived his rights.
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We today recognize that the Taylor rule is inconsistent with the principles enunciated in Hobson and declare that once a defendant is represented by an attorney, the police may not elicit form him any statements, except those necessary for processing or his physical needs. Nor may they seek a waiver of this right, except in the presence of counsel.
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Having determined that the police interrogation was improper, we turn then to the question whether the inculpatory statement was admissible as a “spontaneously volunteered statement” (People v. Hobson, 39 N.Y.2d, at p. 483, 384 N.Y.S.2d, at p. 421, 348 N.E.2d, at p. 897, supra). To fit within this narrow exception, the “spontaneity has to be genuine and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed” (People v. Maerling, 46 N.Y.2d 289, 302-303, 413 N.Y.S.2d 316, 324, 385 N.E.2d 1245, 1253). Given the unique circumstances here, there can be no conclusion other than that defendant’s statement did not fall within the exception. Defendant, a youth of limited education, was vigorously questioned by two experienced detectives. Although no physical force was employed, the interrogation covered an extensive period- approximately six hours- and during this entire time defendant was manacled to furniture. A coercive atmosphere had been affirmatively created by the continuous interrogation and the significant restriction on defendant’s freedom of movement. The statement was made in the interrogation room when defendant was still handcuffed and while the police processed the paper work in his presence.
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The introduction of defendant’s inculpatory statement was error, which cannot be termed “harmless beyond a reasonable doubt” (People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 217, 326 N.E.2d 787, 790), and requires a new trial. Since defendant’s plea of guilty to burglary in satisfaction of another indictment was entered upon an agreement that the sentence imposed would run concurrently with the sentence imposed on the robbery conviction, the plea should be vacated (People v. Clark, 45 N.Y.2d 432, 408 N.Y.S.2d 463, 380 N.E.2d 290).
The order of the Appellate Division should be reversed, judgments and plea of guilty vacated, statement suppressed and case remitted to Nassau County Court for a new trial on the robbery indictment and further proceedings on the burglary indictment in accordance with this opinion.
Jasen, Judge (dissenting).
I simply cannot accept the theory, espoused by the majority of this court, that a defendant represented by counsel in a pending criminal proceeding may not be questioned by law enforcement officers even about concededly unrelated matters in the absence of that counsel. To reach such a result, the majority not only misperceives the right of an accused to be represented by counsel, but, also, blindly elevates that right above the compelling interest of the State to investigate and prosecute criminal conduct.
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Nor does the rule of law, which authorizes the questioning of a defendant as to matters unrelated to the proceeding in which he is represented by an attorney to impinge upon the right of an accused to be assisted by counsel. With respect to these unrelated matters, there has yet to be any formal commencement of a criminal proceeding against the defendant to which the right to counsel would attach.
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In my opinion, implementation of the majority’s holding-purportedly predicted on right to counsel principles-will serve only to impede effective law enforcement by depriving police officers of valuable sources of information. For example, pursuant to the majority’s position, law enforcement officers will be precluded from questioning a defendant charged with driving a motor vehicle while intoxicated about a brutal murder unless they first contact the defendant’s attorney representing him on the driving while intoxicated charge and secure his presence at the questioning. This is so even if the defendant was an innocent bystander who witnessed the murder and voluntarily agreed to co-operate with the police. Surely, the right to counsel was never intended to prevent a defendant from voluntarily co-operating with the police concerning matters unrelated to the crime for which he is charged. To hold to the contrary defies both constitutional principles and common sense.
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Here, County Court, after considering all the facts and circumstances present, determined that defendant’s inculpatory statement was spontaneous. This finding of spontaneity, being affirmed by the Appellate Division, is beyond our review if there exists any factual support in the record for such determination.
