D E C I S I O N

Findings of Fact

On November 10, 2012, a home invasion and armed robbery occurred in the Town of Randolph. Investigator Brandon Walters was the on-call investigator for the Sheriff's [*2]Department and received the report of the robbery. He and two other detectives met at the scene, after which Walters went to interview one of the victims. Detective Root went to the hospital to interview another victim, and Detective Welling remained to process the scene.

One or more cell phones were stolen during the robbery and by "pinging" them, the officers were able to trace the location of the phones to Newland Avenue in Jamestown. They went to Jamestown and, assisted by members of the Chautauqua County Sheriff's Department and Jamestown Police Department, attempted to more precisely locate the phones. The Jamestown Police Department had an active warrant for a person at a residence on Newland and the officers went to that residence. While there, a phone laying on the couch began to ring in response to the ping. Defendant Derrick Williams was present and was taken into custody.

At the Jamestown Police Department, Investigator Welling advised Williams of his Miranda rights, which he waived. Williams then gave a statement which implicated all the defendants in the robbery. The statement was completed at about 1:28 a.m. on November 11th.

That afternoon, D'Allyn Washington and Cameron Rives were located on Myrtle Street and brought in. Washington was advised of his rights by Walters, waived them, and gave a statement. Rives was Mirandized by Root, waived his rights, and also provided a statement. Washington was then re-interviewed and gave another statement.

On November 14, 2011, defendant Samuel Rodriguez, went to the Jamestown Police Department after he learned the police were looking for him. Cattaraugus County officers were contacted and went to the station. Welling advised Rodriguez of his Miranda rights, Rodriguez waived them, and gave a statement that was apparently exculpatory since the People did not notice the statement pursuant to CPL 710.30. After that statement was completed, the officers

continued to question him until Rodriguez said he wanted to talk to his lawyer and all questioning ceased.

Rodriguez was then arrested and placed in a room where Root was filling out some paperwork. Rodriguez said he wanted to talk to Root but Root said he knew Rodriguez had requested an attorney and he could not speak to him. Rodriguez again said he wanted to talk to Root so Root consulted his partners and returned, re-advised defendant of his Miranda rights, after which Rodriguez made a statement.

Conclusions of Law

The motions of Williams, Washington and Rives are denied. All were advised of their

Miranda rights and waived them before making statements. No physical force or coercion was utilized and the statements were all made voluntarily.

More difficult is the statement made by Rodriguez after he invoked the right to counsel. Rodriguez was clearly in custody when he made the later statement to Root since Walters testified that after Rodriguez invoked his right to counsel, he was arrested.

There is a distinction between a suspect who invokes the right to remain silent and one who invokes the right to counsel. The right to remain silent must be "scrupulously honored", and once invoked, the suspect may not within a short period and without a fresh set of Miranda warnings, be asked to speak about the same crime (People v. Ferro, 63 NY2d 316, 482 NYS2d 237 [1984]). However, after the passage of sufficient time and with a new set of Miranda [*3]warnings, renewed questioning is permissible (Michigan v. Mosley, 423 US 96 [1975]; People v. Gary, 31 NY2d 68, 334 NYS2d 883 [1972]; People v. Taylor, 24 AD3d 1269, 806 NYS2d 822

[4th Dept 2005], lv denied 6 NY3d 818, 812 NYS2d 458 [2006]; People v. Curry, 287 AD2d 252, 731 NYS2d 1 [1st Dept 2001], lv denied 97 NY2d 680, 738 NYS2d 295 [2001]).

This case, however, concerns the right to counsel, not the right to remain silent. In People v. Cunningham (49 NY2d 203, 205, 424 NYS2d 421 [1980]), the court held that "once a suspect in custody requests the assistance of counsel he may not be questioned further in the absence of an attorney." That principle has remained well-entrenched since Cunningham was decided. In People v. West (81 NY2d 370, 373, 599 NYS2d 584 [1993]), the court noted that New York's indelible right to counsel attached when an individual "while in custody, [emphasis supplied], has requested a lawyer in that matter" (see also People v. Ramos, 99 NY2d 27, 750 NYS2d 821 [2002]).

Here, however, defendant Rodriguez was not in custody when he was initially questioned. He had voluntarily gone to the police station because he heard the police were looking for him and was not in custody when he was first questioned (see People v. Smielecki, 77 AD3d 1420, 908 NYS2d 485 [4th Department 2010], lv denied 15 NY3d 956, 917 NYS2d 115 [2010]; People v. Scott, 288 AD2d 846, 732 NYS2d 502 [4th Dept 2001], lv denied 97 NY2d 761, 742 NYS2d 622 [2002]; People v. Kollar, 286 AD2d 630, 730 NYS2d 320 [1st Dept 2001], lv denied 97 NY2d 730, 740 NYS2d 703 [2002]; People v. Yukl, 25 NY2d 585, 307 NYS2d 857 [1969]). Once defendant said he wanted an attorney, the police immediately stopped questioning him and placed him under arrest.

If a defendant is not in custody when he invokes his right to counsel, he is free to subsequently withdraw that request and waive his right to counsel (People v. Davis, 75 NY2d 517, 554 NYS2d 460 [1990]; People v. Wilson, 93 AD3d 483, 939 NYS2d 463 [1st Dept 2012]; People v. Casey, 37 AD3d 1113, 829 NYS2d 309 [4th Dept 2007], lv denied 8 NY3d 983, 838NYS2d 486 [2007]; People v. White, 27 AD3d 884, 811 NYS2d 473 [3d Dept 2006], lv denied 7 NY3d 764, 819 NYS2d 890 [2006]). However, in such a case, the court "must indulge every reasonable presumption against waiver" (Davis at 523; see also Oregon v. Brewster, 430 US 387 [1977]). Under these circumstances, "it is always desirable — and maybe necessary — for the authorities to remind defendant of the earlier request for counsel and obtain an express withdrawal and present a waiver of the request for legal assistance" (Davis at 523.). Factors which can support an inference that the earlier request for counsel has been withdrawn include "whether defendant was fully advised of his or her constitutional rights before invoking the right to counsel and subsequently waiving it, whether the defendant who has requested assistance [of counsel] earlier has initiated the further communication or conversation with the police [citations omitted], and whether there has been a break in the interrogation after the defendant has asserted the need for counsel with a reasonable opportunity during the break for the suspect to contact an attorney" (Id.).

Examining the facts here establishes that suppression should be denied. Defendant asserted his right to counsel at a time when he was not in custody. He had come to the station voluntarily because he had heard that the police were looking for him. Despite the non-custodial setting, defendant was Mirandized and gave an apparently exculpatory statement before invoking [*4]the right to counsel, which was scrupulously honored. He was then arrested and was clearly in custody.

Defendant then asked at least twice to give his side of the story, a factor that Davis holds weighs in favor of admissibility of the statement. Defendant was Mirandized again and reminded that he had asked for an attorney earlier, another factor that, according to Davis, supports the admissibility of the statement. The only Davis factor that would arguable support suppression was that there was not a lengthy break between defendant invoking his right to counsel and thereafter asking to speak with the police. However, weighing all these factors together, and even indulging every reasonable presumption against waiver (see Davis at 523), the court finds that defendant waived his previous, non-custodial invocation of the right to counsel, the statement was voluntarily made, and the motion to suppress Rodriguez's statement is also denied.

Dated: Little Valley, New York

June 4, 2012

_________________________

HON. LARRY M. HIMELEIN