
    The People of the State of New York, Respondent, v Vincent J. Bevilacqua, Jr., Appellant.
    Argued September 19, 1978;
    decided November 2, 1978
    
      POINTS OF COUNSEL
    
      Joseph J. Buderwitz, Jr. and Alfred E. Page, Jr., for appellant.
    I. The oral incriminating statements made by defendant should have been suppressed; it was reversible error to allow in evidence Sergeant Purdy’s notes and Sergeant Purdy’s testimony with respect to oral incriminating statements made to him by defendant. (Miranda v Arizona, 384 US 436; People v Townsend, 33 NY2d 37; People v Hocking, 15 NY2d 973; People v Taylor, 16 NY2d 1038; People v Donovan, 13 NY2d 148; People v Gunner, 15 NY2d 226; People v Arthur, 22 NY2d 325.) II. It was reversible error for the Trial Judge to repeatedly emphasize, during his charge to the jury, that the defense of duress was not available to this defendant if he had intentionally or recklessly placed himself in the situation in which he found himself; this overemphasis on the negative aspects of this defense was highly prejudicial and denied defendant a fair and impartial trial. (People v Bai, 7 NY2d 152; People v Velleman, 247 App Div 172; Chapman v California, 386 US 18; People v Easton, 307 NY 336; People v Herman, 255 App Div 314.) III. The New York statutory scheme which places the burden on an accused to prove by a preponderance of the evidence the defense of duress is violative of an accused’s constitutional right to due process of law. (Matter of Winship, 397 US 358; Mullaney v Wilbur, 421 US 684; People v Patterson, 39 NY2d 288; Speiser v Randall, 357 US 513; People v Balogun, 82 Misc 2d 907; People v Woods, 84 Misc 2d 301; People v Davis, 49 AD2d 437; People v Hawkins, 84 Misc 2d 201; People v Brown, 50 AD2d 1078.) IV. Defendant did not possess the requisite culpable mental state to sustain any of the counts of the indictment; the defense of duress was overwhelmingly established: it was reversible error for the trial court to deny, at the close of the evidence, defendant’s motions (1) for a trial order of dismissal as to each and every count of the indictment as a matter of law, on the ground that the trial evidence was not legally sufficient to establish any of the offenses charged therein against this defendant, or any lesser included offense, and (2) for a directed verdict of acquittal on the ground that defendant had established the defense of duress.
    
      Carl A. Vergari, District Attorney (Ronald J. Bavero of counsel), for respondent.
    I. The voluntariness of the oral confession given by defendant was established by the People beyond a reasonable doubt. (People v Stephen J. B., 23 NY2d 611; Matter of Kevin R., 42 AD2d 541; People v Carbonaro, 21 NY2d 271; People v Hocking, 18 NY2d 832; People v Taylor, 16 NY2d 1038; People v Hocking, 15 NY2d 973; People v Caruso, 45 AD2d 804; People v Anderson, 42 NY2d 35.) II. The court’s charge to the jury on the affirmative defense of duress was fair and impartial. III. Section 40.00 of the Penal Law which places the burden of proving duress by a mere preponderance of the evidence upon defendant, does not violate the due process protections of the Federal and State Constitutions. (Mullaney v Wilbur, 421 US 684; Davis v United States, 160 US 469; Leland v Oregon, 343 US 790; Rivera v Delaware, 429 US 877; People v Bornholdt, 33 NY2d 75; People v Utica Daw’s Drug Co., 16 AD2d 12; Victory v New York, 416 US 905; People v Laietta, 30 NY2d 68, 407 US 923.) IV. Defendant’s guilt was established by overwhelming evidence. (People v Eisenberg, 22 NY2d 99; People v Leonti, 18 NY2d 384, 389 US 1007; People v De Tore, 34 NY2d 199, 419 US 1025.)
   OPINION OF THE COURT

Chief Judge Breitel.

Defendant appeals from the Appellate Division’s unanimous affirmance of his conviction, after jury trial, on two counts of murder and various lesser offenses in connection with the robbery and shooting death of a liquor store owner.

The issue is whether, viewed as a whole, improper police behavior requires suppression of defendant’s oral confession. The questionable behavior falls into two categories. First, despite requests by defendant, who was 18 years old, the police did not, until after the confession, notify defendant’s mother of his arrest. Second, defendant was moved from one police station to another, and when his lawyer finally arrived, after the defendant had already given his oral confession, defendant’s location was concealed from the lawyer.

The order of the Appellate Division should be reversed and a new trial ordered. The police conduct isolated defendant from two of his most likely avenues of assistance, his mother and his lawyer. The net effect was to preclude the possibility, even likelihood, that defendant would procure legal advice before submitting to police questioning and, ultimately, confessing to the crime. Under these circumstances, defendant was denied his constitutionally guaranteed right to counsel. His confession should have been suppressed, and his conviction must, therefore, be reversed.

On June 3, 1974, in the Town of Greenburgh, Ruggiero, a liquor store owner who lived across the street from defendant Bevilacqua, was shot through the back of the head, to be found dead in his automobile two days later. The evidence at trial indicates, overwhelmingly, that defendant, together with Michael and Robert Gardella and Richard Harris, had plotted to rob Ruggiero of a briefcase they believed contained a large amount of money. Ultimately, the victim Ruggiero was coaxed into driving defendant and Michael Gardella home. When the victim took the wheel with Bevilacqua beside him, Gardella, sitting in the back seat, shot and killed him.

The salient facts described below are based on the thorough and detailed opinion and formal findings of fact of the Judge who conducted the pretrial suppression hearing.

Defendant was not arrested until 11 days later, when Town of Greenburgh and City of White Plains police apprehended him in White Plains. The Gardella brothers were arrested the same evening, presumably also by the Greenburgh and White Plains police. Yet, none of the defendants was taken directly to the Greenburgh police station. Instead, Bevilacqua was taken to the Elmsford station, and the Gardella brothers were taken to Tarrytown, allegedly because of the lack of "processing” facilities in Greenburgh. Only much later were the suspects transported to Greenburgh.

On the way to Elmsford, following his arrest at 7:15 p.m., Bevilacqua was advised of his constitutional preinterrogation rights. He did not insist on having a lawyer present, but did ask to see his mother. At 8:30 p.m., having been at the police station for nearly an hour, defendant again asked the police to telephone his mother. The request was apparently ignored. Instead, the police began questioning defendant, perhaps waving purported inculpatory statements by other witnesses and perhaps, according to defendant, threatening the use of physical force. It is conceded that no physical force was actually used. By 9:30 p.m., defendant began to give the police an oral confession, which was completed between 10:00 and 10:15 p.m. Later, a written statement was prepared, and defendant signed it at 11:15 p.m. After this statement had been signed and verified before a notary, defendant’s parents were finally telephoned. At around midnight, defendant was taken to Greenburgh police headquarters.

Meanwhile, at around 7:00 p.m., the lawyers representing the Gardella brothers were notified of their arrest. For the next two hours there was shuttling between the White Plains and Greenburgh police headquarters in an effort to locate the clients. After they were eventually located at the Greenburgh station, one of the lawyers called Michael Russo, Bevilacqua’s lawyer in other matters, to apprise him of Bevilacqua’s arrest. Russo received the message, and between 10:15 and 10:30 left instructions at the Greenburgh station that Bevilacqua was not to be interrogated until he arrived. Upon Russo’s arrival at the Greenburgh station at 11:00, the lawyer was told that Bevilacqua was being processed, and that he would have to wait. He was not informed that Bevilacqua had not yet arrived at Greenburgh, but was still in Elmsford. Despite repeated requests, not until 12:37 a.m. was Russo finally permitted to consult with his client.

At the pretrial suppression hearing, defendant’s written confession was suppressed because it had been given after the police had deliberately concealed defendant’s location from his lawyer and refused the lawyer access to his client (see People v Donovan, 13 NY2d 148, 151). The oral confession, however, was not suppressed. At his trial, which had been severed from those of the other perpetrators, defendant was convicted on all counts. He was sentenced from 25 years to life imprisonment on the two murder counts, and to lesser terms on the other counts. The Appellate Division unanimously affirmed.

It is true, of course, that the right to counsel, like most other constitutional rights, may be waived. But unless the right is "waived” under circumstances evincing a conscious and voluntary act, it will not be effective, since laymen, even laymen with experience in the criminal law, are not likely to know precisely what rights are being waived (see People v Hobson, 39 NY2d 479, 484-485). Hence, the courts must be careful in evaluating purported waivers of the right to counsel before a lawyer enters the proceeding.

It was found as a fact at the pretrial hearing that when Bevilacqua was first apprehended, he waived his right to a lawyer, but asked to see his mother. As previously noted, defendant was 18 years old at the time. It was only natural that he should regard his mother, rather than a lawyer, as a primary source of help and advice. He might have expected his mother to call his lawyer; he might not have. The point is that by not telephoning his mother, despite an at least once repeated request, until after Bevilacqua had been interrogated and had confessed, the police foreclosed the possibility, and even the likelihood, that he would receive adequate counsel before responding to police questioning.

In this respect, the case is not unlike People v Townsend (33 NY2d 37). There, the mother of a 17-year-old defendant tried repeatedly to reach her son while he was in custody. Each of her telephone calls, however, was met with police denials that the boy was in custody, while, in fact, he was not only in custody, but confessing to the crime. This deception and trickery was condemned by this court in reversing the conviction (id., pp 39-42).

The analogy to the Townsend case is not, of course, perfect. In Townsend, the defendant was a legal minor; in this case, he is not. In Townsend, the police deliberately lied to the mother; in this case their wrong was one of omission in ignoring defendant’s requests to speak with his mother. In the Townsend case, defendant was never properly given preinterrogation warnings; in this case the warnings were given and Bevilacqua waived his right to counsel. These distinctions might, in another case, require or permit a different result, but in this case other police misconduct, seemingly planned and deliberate, compounded the error of not promptly telephoning defendant’s mother.

When defendant’s lawyer, Russo, first learned of defendant’s arrest and telephoned the Greenburgh police station, his instructions not to interrogate defendant were ignored by the police. When he arrived at the station, he was told he could not see the defendant. The police chose to conceal defendant’s location at another police station. Moreover, they continued to interrogate defendant in Elmsford and even to extract a written confession from him after his lawyer had entered the proceeding and requested a consultation with his client.

Once a lawyer telephones police headquarters with a request that interrogation of his client be stopped, concealment of defendant’s whereabouts and failure of intra-police communication, does not permit the police to continue questioning defendant as if no lawyer had entered the proceedings (see People v Pinzon, 44 NY2d 458, 464-465). Thus, suppression of the written confession secured in this case after the lawyer had telephoned was necessary and proper (id.). But, in addition, the continuous, unusual, and deliberate isolation of defendant from potential avenues of assistance required suppression of the earlier oral confession as well as the later written one.

When a seemingly conscious scheme like the one used by the police in this case is involved, nice distinctions separating the first confession from the second lose much of their validity. True it is that defendant’s lawyer did not enter the proceedings until after the oral confession had been given. But it is also true that had defendant’s initial, or even later, request to see his mother been honored, the lawyer would undoubtedly have become involved much earlier. Crucial is the continuing effort by the police to prevent defendant from establishing contact with anyone who might be able to provide him with assistance or advice. Encompassed in this scheme are the isolation of Bevilacqua, his transportation to a police station different from that to which the other perpetrators had been taken, failure to honor defendant’s requests to see his mother, and refusal to allow the lawyer Russo to see his client. The scheme succeeded in depriving defendant of his right to counsel. It requires reversal of his conviction.

Reversal, of course, is unfortunate because of the gravity of the offenses charged and the overwhelming evidence of defendant’s guilt. But even those considerations do not permit the courts to overlook the casual overriding by the police of defendant’s constitutional rights.

Accordingly, the order of the Appellate Division should be reversed, and a new trial ordered.

Jasen, J.

(dissenting). I cannot agree with the majority in the reversal of defendant’s convictions of murder, robbery, grand larceny, possession of a weapon and conspiracy in the first degree.

The question squarely presented on this appeal is whether an 18-year-old adult, arrested on six previous occasions and not a novice to the criminal justice system, was fully capable of voluntarily and intelligently waiving his right to counsel, without prior notification to his mother.

Here, the trial court found, and the Appellate Division affirmed, that defendant’s oral admissions were voluntarily made after "he intelligently and knowingly waived his right to counsel on each of the occasions that his Miranda rights were given to him”. Whether the oral admissions were or were not voluntary is a question of fact and we may not disturb these findings except where such findings are premised on clearly insufficient evidence. (NY Const, art VI, § 3; People v De Tore, 34 NY2d 199, 206, cert den 419 US 1025; People v Eisenberg, 22 NY2d 99, 101; People v Leonti, 18 NY2d 384, 389, cert den 389 US 1007; Cohen and Karger, Powers of the New York Court of Appeals, p 742.)

Nevertheless, despite the affirmed finding of fact that the oral confession was voluntarily made, the majority hold that "improper police behavior requires suppression of defendant’s oral confession.” Failure of the police to notify defendant’s mother of his arrest and moving the defendant "from one police station to another” during the course of the investigation are characterized as constituting questionable police behavior, requiring reversal of the convictions.

Turning first to the conduct of the police in failing to contact defendant’s mother, I would point out that the suppression court considered, as a question of fact, this circumstance in determining whether the defendant intelligently and knowingly waived his right to counsel. After weighing the evidence, drawing the necessary inferences from the evidence and passing on the credibility of the witnesses at the suppression hearing, the court found, as a matter of fact, that the defendant waived his right to counsel before making the incriminating admissions. Defendant’s request to see his mother was only one factor of many considered by the suppression hearing court. In considering this factor, the court assessed all of the relevant circumstances, including defendant’s age, criminal justice experience and intelligence in determining the issue of waiver and voluntariness.

When one considers the specific circumstances present here, it should be abundantly clear why the suppression court found that the oral statements of the defendant, made prior to the appearance of an attorney, were voluntary. First, the defendant had been promptly informed of his constitutional rights on two separate occasions prior to the making of the incriminating oral statement. There is no claim, and indeed there can be none, that the warnings were deficient in any manner or that the defendant did not understand his rights. Moreover, it is important to remember that the defendant was not a novice to the criminal justice system, having been arrested on six previous occasions, receiving on each such occasion his constitutional rights. Indeed, the defendant had the presence of mind to ask Investigator Keating during the ride to Elmsford if he had an arrest warrant. Certainly, the defendant’s extensive prior experience with the criminal justice system was an important factor for the suppression court Judge to consider in determining whether he voluntarily waived his right to counsel even though he requested the police to call his mother. As this court cogently observed in People v Carbonaro (21 NY2d 271, 278): "[I]t is important to remember that the defendant in this case was not a young, inexperienced first offender * * * This, of course, does not mean that he may not have had a right to speak to his family; rather, it is relevant in considering the effect upon him of the denial of that right.” (Emphasis added.)

Clearly, it was for the suppression court to pass on the question as to what effect should be accorded to the officers’ failure to contact the defendant’s mother in determining whether the defendant knowingly and intelligently waived his right to counsel and voluntarily confessed the crimes of which he was convicted. Even where there are conflicting inferences to be drawn as to the effect the failure of the police to contact defendant’s mother had upon the defendant, the choice of inferences is for the trier of the facts. And that choice should be accepted by this court, unless unsupported, as a matter of law. Hence, where we have, as we do here, a knowledgeable and criminally experienced defendant, it is reasonable to conclude, as the courts below did, that the officers’ failure to immediately call his mother did not have any effect on his voluntary admission.

The other conduct of the police characterized as questionable by the majority was the movement of the defendant "from one station to another”. The record discloses that throughout his questioning, defendant was only detained at one police station — the Elmsford police headquarters. He arrived there on June 14, 1974 at 7:35 p.m. and made the oral admissions in question prior to Attorney Russo’s call to the Greenburgh police headquarters at about 10:15 p.m. While it is true that the defendant, in addition to making the oral admission, also signed a written confession at 11:15 p.m., the written confession was properly suppressed by the court below and is not now before us. All that is before us is the oral admission made by the defendant before his attorney entered the case. Throughout the interrogation, the defendant was only at one police station and there was no movement of the defendant "from one station to another”. It should be pointed out that all four defendants involved in the crime were arrested on the same evening. They were taken to different police stations. The defendant was sent to the Elmsford station. There is credible testimony in the record that the Greenburgh station did not have the facilities to process multiple defendants. While it is argued by defendant that the actions of the police in taking him to Elmsford and in not contacting his mother effectively "sealed” him off from counsel, I would only say that the defendant, a knowledgeable and criminally experienced person, had it within his power to effectively cease all questioning merely by requesting the presence of counsel.

Indeed, Michael Russo, defendant’s attorney, testified at the suppression hearing that "prior to June 14, 1974 [he] had represented the defendant and his family on many occasions.” This is not, therefore, a case in which an unsuspecting defendant was thrust into an unfamiliar and oppressive environment not knowing where to turn. Rather, the record supports a conclusion that defendant, apprised of his constitutional rights and schooled in criminal proceedings, knew that by requesting his attorney, an individual who had represented him on numerous prior occasions, all questioning would cease. Under these circumstances, the fact that defendant was detained at the Elmsford police headquarters is hardly probative of the voluntariness of defendant’s oral statements.

Nor does our holding in People v Townsend (33 NY2d 37) require a different result. That decision is predicated upon disapproval of police misconduct so extreme as to offend established notions of fundamental fairness. Indeed, in Townsend we noted that the question of whether the mother of the defendant would have retained an attorney had she been apprised of her son’s predicament "is beside the point”. (33 NY2d, at p 41.) In Townsend, the police repeatedly and deliberately lied to the defendant’s mother as to her 17-year-old son’s whereabouts in order to prevent her from seeing him and possibly obtaining counsel for him. The mother repeatedly telephoned the police, even prior to the interrogation, and was told the defendant was not being held. Here, there is no evidence of an affirmative effort to prevent the defendant’s mother from contacting him.

Moreover, the conduct of the police in Townsend was far more overbearing than that which occurred here. For example, in addition to lying to the defendant’s mother, the police secured the critical confession only after long hours of interrogation and after three oral confessions, inadmissible because of a failure to advise defendant of his rights, had been extracted from the defendant. Furthermore, the defendant in Townsend was not as criminally experienced as the present defendant. Viewed in its entirety, the courts below could have found, as they did, that the conduct of the police herein did not offend established notions of fundamental fairness.

Accordingly, I would affirm.

Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur with Chief Judge Breitel; Judge Jasen dissents and votes to affirm in a separate opinion.

Order reversed, etc. 
      
      . The codefendants in this cold-blooded murder and robbery, Michael and Robert Gardella and Richard Harris, were similarly convicted after separate trials. The judgments of conviction were affirmed by the Appellate Division and leave to appeal denied by this court to Robert Gardella and Richard Harris (42 NY2d 828).
     
      
      . The suppression court Judge made this observation of the defendant: "This court had the opportunity to observe the defendant testify under fairly intensive direct and cross-examination. He was obviously completely aware of what was going on, and gave lucid and detailed answers, indicating considerable expertise as to his rights, consistent with that of an intelligent young man who had been arrested and been given his constitutional rights six times before the evening in question. The court believes that he intelligently and knowingly waived his right to counsel on each of the occasions that his Miranda rights were given to him and that the admissions made, before counsel appeared on the scene, therefore, are not subject to being suppressed.”
     