
    The People of the State of New York, Respondent, v. Gustavo Lopez, Appellant.
    Argued December 9, 1970;
    decided February 18, 1971.
    
      
      Joseph D. S. Hinkley and Milton Adler for appellant.
    I. Miranda v. Arizona does not control the validity of an indicted defendant’s waiver of his right to counsel and incriminating statements made by appellant in the absence of counsel after indictment should not have been admitted at trial. (People v. Di Biasi, 7 N Y 2d 544; People v. Waterman, 9 N Y 2d 561; People v. Meyer, 11 N Y 2d 162; Massiah v. United States, 377 U. S. 201; Miranda v. Arizona, 384 U. S. 436; People v. Al-Kanani, 26 N Y 2d 473; People v. Miles, 23 N Y 2d 527; People v. Vella, 21 N Y 2d 249; People v. McKie, 25 N Y 2d 19; People v. Arthur, 22 N Y 2d 325.) II. Appellant’s waiver of his right to counsel was not valid since he was not previously informed that he had been indicted.
    
      Frank S. Hogan, District Attorney (Bennett L. Gershman and
    
      Michael B. Juviler of counsel), for respondent.
    Defendant’s postindictment statement to an agent of the Federal Bureau of Investigation, made after his arrest on a fugitive warrant and his waiver of counsel, was admissible in evidence. (People v. Leonti, 18 N Y 2d 384, 389 U. S. 1007; People v. Yukl, 25 N Y 2d 585; Miranda v. Arizona, 384 U. S. 436; People v. Stockford, 24 N Y 2d 146; People v. Waterman, 9 N Y 2d 561; People v. Meyer, 11 N Y 2d 162; People v. Bodie, 16 N Y 2d 275; Massiah v. United States, 377 U. S. 201; People v. McKie, 25 N Y 2d 19; People v. Higgins, 23 A D 2d 504, 16 N Y 2d 751.)
   Bergan, J.

After defendant’s indictment in New York County for murder he was arrested by Federal officers on a warrant and made a statement to them concerning the crime. Before the statement was made he was advised of his right to counsel and his right to remain silent and that any statements made could be used against him. He expressly waived those rights in a written document which he signed.

The trial court has found, after a hearing on this question, that “ the People have proven beyond a reasonable doubt that the defendant intelligently understood the warnings and knowingly expressed his waiver of his Constitutional rights ”. The evidence in the record supports such a finding.

Defendant does not dispute either the waiver or the sufficiency of the evidence to find that it was intelligently and understandingly made. His argument is, rather, that because he had been indicted when arrested ‘ ‘ his waiver was not valid ’ ’; and, therefore, his admission to the Federal officer was inadmissible.

It has been held that a statement taken after indictment and before arraignment in the absence of counsel is inadmissible. (People v. Waterman, 9 N Y 2d 561.) Decisions broadly consistent with this are Massiah v. United States (377 U. S. 201); McCleod v. Ohio (381 U. S. 356) which applied Massiah to State prosecutions; People v. Gunner (15 N Y 2d 226); People v. Meyer (11 N Y 2d 162); People v. Di Biasi (7 N Y 2d 544); Spano v. New York (360 U. S. 315).

But these cases upholding the rule that after indictment a defendant may not be questioned without counsel do not decide the question whether the right may be knowingly and intelligently waived. Nor does People v. Miles (23 N Y 2d 527) decide the question, for there defendant had been indicted, arraigned, and had counsel, and the holding was that waiver not in the presence of such counsel would not be recognized.

The principle laid down in People v. Bodie (16 N Y 2d 275) seems controlling here. There the criminal prosecution had been instituted by the filing of an information and the issuance of a warrant. The court’s opinion noted that “no valid distinction can be made between a postindictment and a postinformation statement ” (p. 279).

The holding was that the right to counsel could be, and there was, waived. The waiver there deemed sufficient was oral (p. 278).

Indeed, the commencement of a criminal proceeding by information and by indictment are logically indistinguishable as far as waiver of counsel is concerned. The rational distinction is between this and the situation where, after arraignment, counsel has actually appeared. It has been held that right to counsel may be expressly and knowingly waived at the trial itself. (People v. Higgins, 23 A D 2d 504, affd. 16 N Y 2d 751.)

Defendant was not advised that he had been indicted when the waiver was executed. If this were a willful concealment it might be considered as undermining the validity of a waiver. But there is no suggestion of that here, and although the Federal officer knew at the time of the interview that defendant had been indicted, he did not recall whether or not he had advised defendant of this.

No prejudice is shown. Defendant certainly knew he was being prosecuted for the murder because he was taken into custody. Whether the prosecution had started with an arrest on probable cause, or on an information, or on an indictment, it was certain to go forward and the right to counsel was just as important to a defendant thus arrested whether of not he had been indicted as far as waiver on interrogation was concerned. There has been no finding of misrepresentation as to the origin of the prosecution.

As for the rest, the record fully supports the conviction of murder in the second degree on testimony by a witness who saw defendant deliberately shoot Michael Descartes to death.

The judgment should be affirmed.

Breitel, J. (dissenting).

This case is another in which the court backtracks on its principle to the effect that a defendant in a pending criminal action is entitled to the advice of a lawyer and that the right may not be waived except ih the presence and with the acquiescence of counsel. To be distinguished is the investigative interrogation of a suspect before a criminal action is instituted with respect to which the Supreme Court imposed its mandate (Miranda v. Arizona, 384 U. S. 436).

The right to a lawyer in a criminal action is as esteemed and valued a constitutional right as the privilege against self-incrimination (People v. Donovan, 13 N Y 2d 148, 151). Progressively, this court, well in advance of the United States Supreme Court, defined the stage at which a criminal action incepted with the right to counsel, again as distinguished from the investigation which precedes the criminal action (People v. Di Biasi, 7 N Y 2d 544, 549-551 [upon surrender by lawyer after indictment]; People v. Waterman, 9 N Y 2d 561, 564—566 [after indictment without more, in which it was observed that it was not necessary for defendant to insist upon his lawyer’s presence]; People v. Meyer, 11 N Y 2d 162, 164-165 [after arraignment before indictment]; People v. Rodriguez, 11 N Y 2d 279, 284 [before adjourned arraignment after information filed]; People v. Bodie, 16 N Y 2d 275 [after warrant issued, but holding counsel could be waived]). The rules were not sparingly but generously applied to protect defendants in full-fledged criminal actions (People v. Malloy, 22 N Y 2d 559, 566-567 [after information but before indictment with purported “waiver ” of counsel rejected]; People v. Gunner, 15 N Y 2d 226, 231-232 [prior to arraignment but after information filed and lawyer retained]; People v. Friedlander, 16 N Y 2d 248, 250 [after arraignment in absence of counsel]; People v. Robinson, 13 N Y 2d 296, 301 [excluding statements in the absence of counsel made after a sham vagrancy arraignment]; cf. People v. Paulin, 25 N Y 2d 445, 450). A quite different rule has been applied, understandably, where unrelated criminal charges are involved and counsel has not been retained or a criminal action begun in the matter in relation to which the statements were obtained (People v. Simons, 22 N Y 2d 533, 539; People v. Stanley, 15 N Y 2d 30, 32-33).

In due order the court in a preindictment but postarrest situation, held that where a lawyer “ enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant’s right to counsel” (People v. Arthur, 22 N Y 2d 325, 329). Even the failure to object to the admissions being used in evidence was held immaterial because there was involved a ‘ ‘ deprivation of a fundamental constitutional right ” (id.). Indeed, a short time before, the court had held that a defendant could not “ waive ” his right to counsel when questioned about a crime related to that on which he had been arraigned and had counsel (People v. Vella, 21 N Y 2d 249, 251; contra, People v. Bodie, supra, thus constituting the first time that the Bodie case was qualified, see infra). A unanimous court, except for the Chief Judge who concurred in result only, accepted a plain and unqualified restatement of these principles (People v. Miles, 23 N Y 2d 527, 542; cf. People v. Stephen J. B., 23 N Y 2d 611, 616). Strangely, in the light of other developments to be described shortly, the court again agreed quite recently upon a restatement of these principles (People v. Hetherington, 27 N Y 2d 242, 244-245).

Having marched up the mountain, the direction has been reversed and the march is now evidently downhill. In People v. Stockford (24 N Y 2d 146), in omen of the shift, it was said that: ‘1 This court has held the issuance of a warrant is the commencement of a criminal proceeding (People v. Bodie, 16 N Y 2d 275; People v. Malloy, 22 N Y 2d 559) but this stage of the proceeding has not yet been fully equated to that which would exist where, after arraignment and the appearance of counsel in a court, the police attempted to question a defendant not in the presence of that counsel. (See, e.g., People v. Di Biasi, 7 N Y 2d 544, where after indictment defendant had been surrendered by counsel who appeared for him; Spano v. New York, 360 U. S. 315, revg. 4 N Y 2d 256; and People v. Gunner, 15 N Y 2d 226, where the indictment was regarded as part of a formally instituted criminal action.) Nor may an information used to obtain an arrest warrant be regarded as the equivalent of the formal triable document which initiates a misdemeanor prosecution. (See, e.g., People v. Jeffries, 19 N Y 2d 564, 566-567.) To this extent we qualify our holding in People v. Bodie (supra, pp. 278-279).” (p. 148). Then, of course, came People v. Robles (27 N Y 2d 155,159-160) in which the attenuated theory of waiver is strained further and the rule in the Arthur case (supra) is emaciated beyond recognition. Now, there is this case, based on waiver, with resurrection of the much-qualified Bodie case (supra).

Whatever vitality a waiver rule might have under the Miranda doctrine, other considerations require a contrary rule in the area of postarraignment and postindictment interrogation. After criminal action is begun, it is no longer a general inquiry into an unsolved crime but rather a form of pretrial discovery; it is no longer a suspect who is being interrogated but the accused; the interest in affording the police an opportunity to carry on investigatory interrogation for purposes of reaching a decision to charge and in what degree is diminished. In short, the defendant is the all but irrevocable target and the preparation for his trial has begun.

In permitting a theory of waiver of counsel by an uncounselled defendant held incommunicado to be imported into this stage of the proceedings, not only is the right to counsel debased or negated, but, perhaps even worse, the self-restraining and wise self-discipline of stare decisis is trod under by distinctions of gossamer thinness and transparency.

Putting aside jurisprudential principles, the practical effect is unfortunate. It seems elementary that in the protection of individuals (even in civil matters, let alone in criminal matters) waivers obtained in a pending action in the absence of counsel are, in truth, a denial of the right to counsel in that action. The denial is the more egregious where counsel is already retained or assigned, but the frustration of the right may be as grave if the waiver comes on the very eve of the inevitable retainer or assignment of counsel as is now the case in criminal actions. Lip service is paid to the right, to be sure, and counsel will be provided, but not until persons, already defendants in criminal actions, have first confessed under the most transparently manipulated ‘ ‘ voluntary ’ ’ waivers of 1 ‘ known rights. ’ ’ Surely, if Mr. Justice Jackson was right that no lawyer worth his salt would advise a suspect to talk without counsel present, no lawyer would permit his client in a criminal action to confess in the lawyer’s absence.

It is difficult to perceive what public policy is served by such mercurial shifts in the interpretation of constitutional principles, or what benefit there is to the protection of the public or the individuals of which it is composed. Even legislative policy is more stable than that. Stable rules of law protect all even if at different times they would seem to deny ‘ ‘ rights ’ ’ to defendants or “ protection” to the public.

Accordingly, I dissent and vote to reverse the judgment of conviction and to order a new trial on the ground that the confession obtained after indictment was not admissible because obtained in a pending criminal action in the absence of counsel and without counsel’s consent.

Judges Soileppi, Jasen and Gibson concur with Judge Bergan ; Judge Breitel dissents and votes to reverse in a separate opinion in which Chief Judge Fuld and Judge Burke concur.

Judgment affirmed. 
      
       See, also, to similar effect: People v. Ressler (17 N Y 2d 174, 178); People v. Failla, (14 N Y 2d 178, 180-182), a particularly spirited defense of the right to counsel, but compare concurring opinion as to waiver at page 183.
     
      
      
         Watts v. Indiana (338 U. S. 49, 59).
     