
    The People of the State of New York, Respondent, v. John Joseph Malloy, Appellant.
    Argued April 16, 1968;
    decided July 2, 1968.
    
      
      Henry R. Barrett for appellant.
    I. All inculpatory statements made by defendant-appellant in the absence of counsel after the filing of an information and the issuing of a warrant for his arrest were inadmissible as s\. matter of law. (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; People v. Bodie, 16 N Y 2d 275; People v. Fleischmann, 43 Misc 2d 200.) JI. Inculpatory statements of defendant-appellant were obtained in violation of his State and Federal constitutional rights. (People v. Robinson, 13 N Y 2d 296; People v. Davis, 13 N Y 2d 690; People v. Donovan, 13 N Y 2d 148; People v. Gunner, 15 N Y 2d 226.) III. There is no credible evidence to support the identification of defendant. (People v. Spinello, 303 N. Y. 193; People v. Williams, 3 A D 2d 967; People v. Knox, 223 App. Div. 123; People v. Gerace, 254 App. Div. 135.) IV. The testimony of Officer McMahon which bolstered the uncertain identification testimony of the complaining witness was inadmissible and its admission into evidence constituted reversible error. (People v. Jung Hing, 212 N. Y. 393; People v. Trowbridge, 305 N. Y. 471; People v. Cioffi, 1 N Y 2d 70; People v. Herrmann, 9 N Y 2d 655; People v. Cender, 25 A D 2d 437.)
    
      Leonard Rubenfeld, District Attorney (James J. Duggan of counsel), for respondent.
    I. The mere finding of an indictment against a defendant does not render his subsequent confession inadmissible. (People v. Meyer, 11 N Y 2d 162; People v. Waterman, 9 N Y 2d 561; People v. Di Biasi, 7 N Y 2d 544; People v. Downs, 8 N Y 2d 860.) II. None of defendant’s rights was violated by the taking of the statements in question or by their subsequent use at the trial. III. Stanley Bruce’s identification of appellant was adequate as a matter of law. IY. While error may have been committed in the police officer’s testimony concerning Bruce’s identification of appellant, that error is not reversible error. (People v. Alexander, 13 A D 2d 520; People v. Herrmann, 9 N Y 2d 665; People v. Trowbridge, 305 N. Y. 471.)
   Breitel, J.

Defendant appeals from a conviction for robbery in the second degree and related crimes and a sentence to State prison for 15 to 20 years. Following a posttrial hearing on the voluntariness of his confessions, obtained in a proceeding brought by defendant in the nature of a writ of error coram nobis, the trial court held that the statements were voluntary. The Appellate Division affirmed the conviction, and also the denial of coram nobis relief on the basis of People v. Bodie (16 N Y 2d 275), holding that while most of the statements were made in the absence of counsel defendant had waived his right to counsel.

On the present appeal defendant contends that there was error in the admission of some 11 inculpatory statements and that there was further error in the admission upon the trial of testimony by a police officer that the complaining witness had previously identified defendant.

The judgment of conviction and the order in the coram nobis proceeding should be reversed and a new trial granted. The 11 inculpatory statements, made by defendant over the course of three weeks (to a Cheyenne, Wyoming, police officer, an agent of the Federal Bureau of Investigation, several Westchester County Parkway police officers, and an assistant district attorney), were obtained in violation of his constitutional rights and should not have been admitted into evidence. Because of the conceded error in permitting testimony by a police officer concerning a pretrial identification of defendant made by the complainant, a reversal is also required.

Serious questions are raised as to the admissibility of his first three statements, given to the Cheyenne police officer and the F. B. I. agent. Even assuming, however, that their admission was not error, defendant’s last eight statements, given to the New York officials after the filing of an information and the issuance of an arrest warrant, were inadmissible under People v. Bodie (16 N Y 2d 275, supra). This error, as well as the erroneous admission of testimony as to the pretrial identification, requires reversal of defendant’s conviction.

Some seven months after the commission of an armed robbery against a Mr. and Mrs. Bruce in Westchester County, defendant appeared at police headquarters in Cheyenne, Wyoming, requesting a pass, as an indigent, for a free night’s lodging with the Salvation Army. When he made a similar request the next night (Sept. 21, 1961), the police radio dispatcher became suspicious. In response to an inquiry, defendant admitted that he “ could be wanted for questioning ”, and he was thereupon arrested by the “ jailer ” for vagrancy. A Captain Smith was called, and defendant admitted that he might be wanted for questioning in New York on a robbery charge.

Captain Smith then called in one Harry V. Jones, the resident F. B. I. agent. At about 10 o’clock that night, according to Captain Smith, defendant orally confessed to having committed the robbery, although he refused to sign a statement. (Agent J ones, on the contrary, testified that defendant made no confessions that night, but that defendant stated that if he had commited the crime, he [defendant] would not admit it.)

The next day, the Cheyenne authorities advised the Westchester authorities that defendant had been apprehended, and confirmed that defendant had, indeed, been questioned about the Bruce robbery. That afternoon he was convicted of vagrancy and sentenced to a $50 fine or 50 days, the sentence to be suspended upon completion of investigation on the New York robbery charge.

The interrogation of defendant by Captain Smith and Agent Jones was continued the day after his conviction. Both officers testified that during this questioning, defendant confessed to the robbery.

Defendant testified that prior to the first interrogation session with Agent Jones and Captain Smith, he had requested a lawyer but was told he would have to wait until he got to court. He further testified that he was not given a lawyer during the vagrancy proceedings, and, because of the earlier refusals, did not bother asking for one the second night of interrogation. Captain Smith testified at the posttrial confession hearing that he had offered to supply defendant with a lawyer but defendant had refused to have one. In contrast to his posttrial testimony, at the trial Captain Smith had testified that he had told defendant he could have a lawyer if he paid for one. Agent Jones testified both on the trial and the posttrial hearing that he (not Smith) had advised defendant of his rights and that defendant had made no requests for a lawyer.

Defendant’s claim that he requested a lawyer but was refused is consistent with his later futile attempts to secure his rights. Thus, on September 25, defendant drew up a petition for a writ of habeas corpus, alleging that he was being held on a sham vagrancy charge, that he was being deprived of his rights, and demanding an extradition hearing. He also complained of a stomach illness. Defendant requested that the jailer forward his papers to the Federal District Court in Wyoming. However, the papers remained in the custody of the police, who were unable to explain why they never reached the Federal court.

About a week after ‘ ‘ mailing ’ ’ the petition, defendant sent a letter to Acting G-overnor G-age of Wyoming, this time using a fellow inmate, who was being released, to mail it. In this letter he again requested an extradition hearing. He claimed that he had signed an extradition waiver without the benefit of counsel and while under the influence of compazine, a tranquilizer drug which had been prescribed for him at Laramie County Hospital by a Dr. Klein, who had diagnosed his continuing stomach ailment as an ulcer. He also asserted that he had been told that the extradition-waiver papers were a release of liability for his medical treatment. A reply by the Acting Governor to his letter was received at the jail addressed to defendant. The letter disavowed any circumstances warranting assistance to defendant. It was, however, never received by him personally but remained in the hands of the police authorities.

It is at this time, some two weeks after defendant’s arrest for vagrancy, that the Westchester police came into the picture. Following the communication received from Cheyenne, the Westchester police had continued their investigation. On September 29, Detective Fulgenzi filed an information against defendant and obtained a warrant for his arrest. The detective and Assistant District Attorney Spring arrived in Cheyenne on October 5 and began questioning defendant shortly before noon on October 6. Detective Fulgenzi, who saw defendant alone, testified that at first defendant was very un-co-operative and complained about his stomach ailment and the food he was receiving. He agreed to talk, however, when Detective Fulgenzi promised to get him a roast beef dinner. Defendant then made a full confession to the robbery and told Detective Fulgenzi and Mr. Spring where he had hidden the gun and uniform.

When defendant asked for a lawyer before the interrogation, Detective Fulgenzi answered, “Well, I don’t know any attorneys here, but here is a telephone book. You can look one up.” Defendant responded, “That’s a laugh.” This incident was substantially confirmed by Detective Fulgenzi and Mr. Spring at the trial and by Mr. Spring at the posttrial confession hearing. Defendant also testified to the incident and explained that he said it was a “ laugh” because he had only five cents and could not hire a lawyer. Detective Fulgenzi testified at the posttrial hearing, in partial contradiction of his trial testimony, that he merely asked defendant if he wanted a lawyer, and defendant answered, “ That’s a joke.”

On October 9, Detective Fulgenzi, Assistant District Attorney Spring, Lieutenant McMahon (who had flown to Cheyenne the day before) and defendant boarded a train for the return trip to New York. On the train defendant confessed two more times, and assisted Detective Fnlgenzi in drawing a sketch of the scene of the crime and the location of the hidden gun and uniform. Detective Fnlgenzi testified at the hearing that prior to each interrogation defendant had said he was not interested in having a lawyer.

When they arrived at Harmon station in Westchester County, at about 9:00 a.m. on October 11, defendant was not taken to court because the officers were told there was no Judge available. He was instead driven to various places connected with the robbery, but the officers were unable to find the gun and uniform where defendant had said they had been hidden eight months before. During the drive defendant confessed five more times. He was then arraigned in the White Plains City Court.

The admissibility of the earlier statements, especially of the last of the three, made by defendant to the Wyoming authorities is gravely doubtful. There can be no question that the vagrancy arrest and . conviction were a manipulated pretext (although not a sham) to enable custodial interrogation of defendant concerning the New York robbery charge. Indeed, the punishment given defendant was to be suspended on completion of the investigation of the New York robbery charge. Thus, under People v. Robinson (13 N Y 2d 296, 301) and People v. Davis (13 N Y 2d 690), the vagrancy arraignment was in effect the commencement of criminal proceedings on the robbery charge and no questioning could be conducted concerning the robbery in the absence of counsel, unless waived.

The eight statements made to the New York officers are inadmissible, for more patent reasons, since they were obtained in the absence of counsel after an information was filed in New York and an arrest warrant obtained there, unless it can be said that defendant waived his right to counsel (People v. Bodie, 16 N Y 2d 275, 278-279, supra). Thus in the Bodie case, it was said, “If this case merely contained an inculpatory statement made in the absence of counsel after an information had been filed, we would be compelled to hold that the statement is inadmissible, because no valid distinction may be made between a postindictment and a postinformation statement [citing cases] ” (pp. 278-279).

The dissent raises a question about the retroactivity of the rules applicable to statements made by a nonwaiving, uncounselled defendant after information or indictment and issuance of a warrant. The basic rule excluding certain postindictment statements because formal criminal proceedings had been begun was propounded in the cases of People v. Di Biasi (7 NY 2d 544) and People v. Waterman (9 N Y 2d 561) decided April 1, 1960 and May 18, 1961, respectively. Defendant in this case was arrested in Cheyenne on September 21, 1961, and the New York robbery warrant was issued on September 29, 1961. Hence, there is no issue of retroactivity as to the rule in those cases. People v. Bodie (16 N Y 2d 275, supra), characterized by the dissent as an “ extension ’ ’ of the Di Biasi rule, was decided after the arrest, but is hardly more than an application of the principle already settled, and involved neither an extension of the reasoning nor of the principle, as a mere reading of that opinion establishes. And for that matter, this court had in People v. Meyer (11 N Y 2d 162) excluded a postarraignment, preindictment statement on the basis of the principle in the Di Biasi case (supra), on the ground that an arraignment after arrest must be deemed the first stage of a criminal proceeding. Hence, the Meyer case, decided April 5, 1962, involving inevitably the application of the Di Biasi rule to a preindictment statement, was handed down long before the statements of this defendant were used upon his trial which began in September, 1962. It, therefore, controls and the issue of retroactivity is obviated on this further ground.

Consequently, the issue of waiver of the right to counsel is presented.

The right to counsel before defendant is questioned, after information and warrant proceedings but before arraignment, as here, is not waived where the indigent defendant, an adjudicated vagrant, has only the alternatives of proceeding without counsel or retaining a lawyer from a telephone book in a strange city. That defendant attempted, during his imprisonment in Cheyenne, to obtain assistance from the Federal District Court and the Governor of Wyoming undermines completely a finding that he willingly waived his right to counsel. Thus, before the New York authorities arrived and questioned him, and thereafter, according to their testimony as well as his, he asked repeatedly for a lawyer. The defendant’s “ waiver ” was, therefore, nonexistent. Hence, the eight later statements obtained by the Westchester authorities were inadmissible.

There was also error occasioned by the police officer’s testimony that defendant had previously been identified by the complainant (Code Crim. Pro., § 393-b; People v. Trowbridge, 305 N. Y. 471). Such bolstering testimony is not prejudicial only where the evidence of identity is so strong there is no substantial issue on the point or where an identification has been attacked as a recent fabrication (People v. Caserta, 19 N Y 2d 18, 21-22; People v. Milburn, 19 N Y 2d 910, 911).

The robbery followed the taking on of a hitchhiker by the victim, Mr. Bruce. On a foggy, rainy night, at 11:30, Mr. Bruce stopped his automobile to give a ride to man standing in the road. The man was wearing an Air Force cap pulled low over his face and his Air Force uniform collar- was turned up. The man approached the car from the rear and entered the back seat, so that Mr. Bruce obtained only a glimpse of him. During the robbery Mr. Bruce’s back was turned to the robber in the back seat. After the robbery, when the man left the car, Mr. Bruce had only a second fleeting glimpse of the side of the man’s face. His identification of defendant was, therefore, based on momentary and partial views of the robber.

The subsequent identification in issue was made seven months later and, concededly, defendant’s Boston accent was a persuasive factor in the identification by the victim. (There had also been some police photographs shown to Mr. Bruce, shortly after the robbery, but there is no indication whether defendant’s photograph was among them.) Moreover, Mr. Bruce admitted at trial that he was not sure defendant was the man who robbed him. Nor was there any attempt to attack Bruce’s “ identification ” as a recent fabrication. Thus the improper admission of the officer’s testimony also requires reversal of the conviction.

Moreover, if the inculpatory statements are excluded, as they should be, the identification issue becomes crucial, and the erroneous admission highly prejudicial.

In sum, the findings below that defendant- did not ask for a lawyer or that he waived his right to a lawyer are not supported by the testimony in which defendant and the authorities largely agreed. And, upon the trial, there was gross and prejudicial error in the admission of the identification testimony. ¡Hence, as a matter of law, there must be a reversal of the conviction.

Accordingly, the judgment of conviction and the order entered in the coram nobis proceeding should be reversed and a new trial ordered.

Scileppi, J. (dissenting).

I dissent and vote to affirm. In my opinion, the inculpatory statements made by the defendant were not obtained in violation of his right to counsel and, therefore, they were properly admitted against him. As I view this case each and every statement made by the defendant was made prior to the time that his right to counsel had attached and, therefore, the question of waiver need not be reached.

In People v. Bodie (16 N Y 2d 275) we extended the rule of People v. Di Biasi (7 N Y 2d 544), People v. Waterman (9 N Y 2d 561) and People v. Meyer (11 N Y 2d 162) and held that the right to counsel attached after an information had been filed. In People v. De Renzzio (19 N Y 2d 45) we specifically refused to apply Bi Biasi, Waterman and Meyer retroactively. Since Bodie was an extension of the above-named cases, I see no reason why it should be given retroactive effect. In the absence of retroactive application of Bodie, the admissibility of the postinformation statement in the case at bar is governed by the rule of Crooker v. California (357 U. S. 433).

In Crooker (supra) the defendant asked for and was denied the opportunity to consult with a lawyer. In the Supreme Court of the United States, defendant argued that his confession should be excluded since the “ denial of a request to contact counsel [is] an infringement of the constitutional right [to counsel] without regard to the circumstances of the case ” (Crooker v. California, supra, p. 440). The Supreme Court refused to fashion such a broad rule. It held that the State’s refusal of a request to engage counsel at the pretrial proceedings violates due process only if the defendant is so prejudiced thereby “as to infect his subsequent trial with an absence of 1 that fundamental fairness essential to the very concept of justice ’ ” (id., p. 439). Whether or not the defendant is prejudiced depends upon all the circumstances of the case (id., p. 440). The Supreme Court concluded that the defendant was not prejudiced since he had had some law school training and was obviously cognizant of the ways of the law.

In the case at bar, the defendant was not so prejudiced by the denial of access to counsel (if access was in fact denied) as to require the exclusion of the postinformation statements made to the Westchester County Parkway Police. The defendant was obviously experienced in the ways of the law and was cognizant of his constitutional rights. He had been previously convicted of impersonating an airman. He had also been previously interrogated by the Westchester County Parkway Police shortly after the occurrence of the armed robbery. Moreover, the defendant had attempted to file a writ of habeas corpus in the Federal District Court alleging that his constitutional rights had been violated and he had sent a letter to the Governor of Wyoming making the same allegations.

With respect to the inculpatory statement made by the defendant to the Cheyenne authorities, the defendant contends that they are inadmissible under People v. Robinson (13 N Y 2d 296) and People v. Davis (13 N Y 2d 690). Those cases refined the rule laid down in People v. Meyer (supra) that the right to counsel attaches at arraignment. In Robinson and Davis the defendants had been booked and arraigned on the charge of vagrancy for the sole purpose of allowing the police to continue questioning them about other crimes. Subsequent to these arraignments, the defendants made inculpatory statements with respect to other crimes. We held that the police could not circumvent the rule of People v. Meyer (supra) by a sham arraignment and consequently all statements taken subsequent to the arraignment were inadmissible.

In the case at bar only one of the three statements made to the Cheyenne authorities was obtained subsequent to the arraignment on the vagrancy charge. Thus, if Robinson and Davis are applicable, they would only be applicable to the last of the three statements. The first two statements are clearly admissible under the rule laid down in Crooker v. California (supra).

In my opinion Robinson and Davis are not controlling. In those cases the defendants were booked and arraigned on sham charges by New York authorities for the purpose of questioning them on other crimes for which they could be prosecuted in New York. In the case sub judice, although it is manifest that the vagrancy charge was merely a pretext used by the Cheyenne authorities to assure the detention of the defendant while they continued interrogating him in order to determine if he was wanted in New York, and if he was extradictable, they were not holding Malloy for the purpose of obtaining inculpatory statements from him with respect to a crime for which he could be prosecuted. In other words, as far as the Cheyenne authorities were concerned, the defendant was not the target of an investigation of an armed robbery charge and no judicial proceeding had yet commenced with respect to the New York prosecution. Consequently, with respect to this prosecution the defendant’s right to counsel had not yet attached, and, therefore, his statement was admissible (cf. People v. Stanley, 15 N Y 2d 30).

After the defendant had been returned to New York, a lineup was arranged by the police at 'which the defendant was placed on a lighted stage among four other prisoners. Each wore a Parkway Police uniform cap with the cap device removed to simulate an Air Force uniform cap. Each man was substantially comparable to the defendant in physical characteristics. Of this group, Stanley Bruce, the victim, selected the defendant as being familiar to him and resembling the man who held him up. He also predicated his identification on the way the defendant spoke. At the trial, Bruce testified that the defendant resembled the man who held him up, but he admitted upon cross-examination that he was not sure of his visual identification. The People produced a police officer who had witnessed the victim’s prior identification of the defendant. He testified that the victim had viewed a line-up and had picked the defendant out of the line-up and stated that, he resembled the man who held him up.

The admission of the evidence of this bolstering testimony was clearly erroneous (People v. Trowbridge, 305 N. Y. 471; People v. Herrmann, 9 N Y 2d 665). However, in light of the numerous confessions of the defendant’s guilt, the error was not prejudicial (People v. Alexander, 13 A D 2d 520; Code Crim. Pro., § 542).

To conclude, it is my opinion that the inculpatory statements made by the defendant were not obtained in violation of his right to counsel and that the erroneous admission of bolstering identification evidence was nonprejudicial.

Accordingly, the judgment and order appealed from should be affirmed.

Chief Judge Fuld and Judges Burke and Keating concur with Judge Breitel; Judge Scileppi dissents and votes to affirm in a separate opinion in which Judges Bergan and Jasen concur.

Judgment reversed and a new trial ordered. Order reversed and matter remitted to the County Court for further proceedings in accordance with the opinion herein. 
      
       This statement was, according to defendant, based on the fact that shortly after Mr. and Mrs. Bruce had been robbed, he had been questioned by the Westchester authorities. The robbery had been committed by a hitchhiker wearing an Air Force uniform and defendant had a previous conviction for wearing an Air Force uniform without authority. Hence, the occasion for his being questioned, but he was not detained.
     
      
      
        Crooker v. California (supra) was overruled by Escobedo v. Illinois (378 U. S. 478). The Supreme Court, however, held in Johnson v. New Jersey (384 U. S. 719) that Escobedo need not be applied retroactively. We decided in People v. McQueen (18 N Y 2d 337) that Escobedo would not be applied retroactively in New York. Thus to the extent that the rule in Grooher is applied to trials commencing prior to June 22, 1964, it is still good law in the absence of any New York rule to the contrary. At the time the defendant was tried, the rule in New York was that the right to counsel attached at arraignment (People v. Meyer, supra).
      
     