
    The People of the State of New York, Respondent, v. Floyd Bodie, Appellant.
    Argued October 28, 1965;
    decided December 30, 1965.
    
      
      Robert M. Rosen for appellant.
    I. Defendant-appellant’s rights were violated by the State Police in interrogating defendant-appellant and obtaining a statement in the absence of counsel after a criminal prosecution had been commenced. (Spano v. New York, 4 N Y 2d 256, 360 U. S. 315; 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. Donovan, 13 N Y 2d 148; People v. Noble, 9 N Y 2d 571; People v. Santmyer, 20 A D 2d 960; People v. Fleischmann, 43 Misc 2d 200; People v. Wallace, 17 A D 2d 981; People v. Price, 18 A D 2d 739; Matter of Restivo v. Degnan, 191 Misc. 642; Escobedo v. Illinois, 378 U. S. 478.) II. Defendant-appellant was deprived of his constitutional right to a fair trial by prejudicial and improper conduct of the District Attorney. (Malloy v. Hogan, 378 U. S. 1; People v. McLucas, 15 N Y 2d 167; People v. Leavitt, 301 N. Y. 113; People v. Hetenyi, 304 N. Y. 80; People v. Fielding, 158 N. Y. 542; People v. Lovello, 1 N Y 2d 436; People v. Tassiello, 300 N. Y. 425; People v. Keitt, 13 A D 2d 910; Jackson v. Denno, 378 U. S. 368; People v. Huntley, 15 N Y 2d 72; People v. Boatwright, 22 A D 2d 599; People v. Gunner, 15 N Y 2d 226.) III. The People did not prove the voluntariness of the statement taken from defendant-appellant beyond a reasonable doubt. IV. The trial court erred in permitting the People to reopen its case in chief after the People had rested. (People v. Creazzo, 39 Misc 2d 1069.) V. The charge of the trial court was not fair nor in accordance with the law applicable. (People v. Kenda, 3 A D 2d 80; People v. Christie, 16 A D 2d 598; People v. Nicoll, 3 A D 2d 64; People v. McCutcheon, 14 A D 2d 482.) VI. The cumulative effect of the errors assigned could not be cured and deprived defendant-appellant of a fair trial. (People v. Carborano, 301 N. Y. 39.)
    
      Robert C. Williams, District Attorney (David Cohen of counsel), for respondent.
    I. The interrogation of defendant-appellant and the statement obtained from him by the State Police were not in violation of his rights. (People v. Mummiami, 258 N. Y. 394; People v. Scully, 4 N Y 2d 453; People v. Vargas, 7 N Y 2d 555; People v. Spano, 4 N Y 2d 256, 360 U. S. 315; People v. Di Biasi, 7 N Y 2d 544; People v. Waterman, 9 N Y 2d 561; People v. Donovan, 13 N Y 2d 148; People v. Noble, 9 N Y 2d 571; People v. Santmyer, 20 A D 2d 960; People v. Gunner, 15 N Y 2d 226.) II. Defendant was not deprived of a fair trial. (People v. Hetenyi, 304 N. Y. 80; People v. Minkowitz, 220 N. Y. 399; People v. McLucas, 15 N Y 2d 167; People v. Forte, 277 N. Y. 440; People v. Watson, 216 N. Y. 565; People v. Gillette, 191 N. Y. 107; People v. Leavitt, 301 N. Y. 113; People v. Huntley, 15 N Y 2d 72; Jackson v. Denno, 378 U. S. 368.) III. The People proved the voluntariness of the statement taken from defendant-appellant beyond a reasonable doubt. IV. The trial court, in its discretion, properly allowed the People to reopen its case. (People v. Smith, 124 Misc. 65; Stephens v. People, 19 N. Y. 549; People v. Buddensieck, 103 N. Y. 487; People v. Ferrone, 204 N. Y. 551.) V. The trial court properly, fairly and thoroughly charged the jury. (People v. Tunstall, 5 A D 2d 338; People v. Christie, 16 A D 2d 598.) VI. The trial court’s rulings were proper and safeguarded defendant-appellant’s constitutional rights. (People v. Sorge, 301 N. Y. 198; La Beau v. People, 34 N. Y. 223; People v. Alvarez, 4 A D 2d 45; People v. Hanover, 10 A D 2d 871; People v. Taylor, 15 A D 2d 962; People v. De Groat, 5 N Y 2d 947; People v. Castillo, 16 A D 2d 235.)
   Scileppi, J.

This appeal presents us squarely with the question whether one who is in police custody and against whom an information has been filed and an arrest warrant issued may waive his right to counsel with the result that inculpatory statements thereafter made are admissible. We answer that question in the affirmative.

The defendant was convicted of selling heroin to one George Bermudez, an undercover police officer, in violation of subdivision 1 of section 1751 of the Penal Law. On July 24, 1963, in the Montieello bus terminal, the defendant was approached by Bermudez who .offered to buy some heroin. Bermudez, acting on defendant’s instructions, returned later that day and made the actual purchase. The officer then transmitted the substance to the police chemist who determined that heroin was present. Several weeks later, early in the evening of August 8, 1963, Bermudez, accompanied by another officer, appeared before a Magistrate in Montieello and signed a criminal information charging the defendant with selling narcotics. That same evening, an arrest warrant was issued, Bodie was taken into custody by Bermudez who immediately turned him over to another officer, Donald Scherpf. The defendant and Scherpf drove to the Ferndale police barracks where, after a brief period of interrogation, Bodie signed an incriminating statement. He was arraigned at 1:00 a.m., about four hours after the arrest. Three days later, the indictment on which he was tried was returned by the Grand Jury.

Following a Huntley hearing, the Judge specifically found that the statement was voluntary and. hence admissible on the trial. At the trial Scherpf testified that, before taking the defendant to the Ferndale barracks, he identified himself to the defendant, informed him that he was under arrest, and asked whether he cared for counsel. The defendant reportedly answered “No’ ’. The same question and answer were also repeated at the barracks. At the trial the Judge permitted the introduction of the statement which Bodie made to the police to the effect that he admitted ‘ ‘ selling a bag of heroin to a man named or known as 1 Frankie ’ [Bermudez] ”.

. 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 post-indictment and a postinformation statement (People v. Santmyer, 20 A D 2d 960; People v. Fleischmann, 43 Misc 2d 200, 202; see, also, People v. Meyer, 11 N Y 2d 162; People v. Waterman, 9 N Y 2d 561). However, since the right to counsel also imports the right to refuse counsel, we hold that a defendant may effectively waive his right to an attorney (cf. People v. Meyer, 11 N Y 2d 162, 165). Up to this point the minority would agree. However, our paths diverge on the pivotal issue, viz,, whether the police should be held, as a matter of laiv, to be incapable of warning a defendant of his rights. Those Judges who would require the police to inform defendant of this right recognize the capability of the police to advise a defendant of his right to an attorney (see, e.g., People v. Gunner, 15 N Y 2d 226, 233; People v. Dorado, 62 Cal. 2d 338, 347-348). An exclusionary rule of the nature advocated by the minority is unwarranted and unrealistic. Nothing has been brought to our attention to warrant such a conclusion; no complex ritual is required to warn a defendant of his rights. In fact, the appellant does not even advance such a point in his brief. Nothing in Escobedo v. Illinois (378 U. S. 478) indicates that the police may not advise a defendant of his right to counsel. In addition, two recent cases from the United States Court of Appeals for the Second Circuit recognize the possibility that the police may inform a defendant of the right to counsel (United States v. Cone, 354 F. 2d 119, and United States v. Robinson, 354 F. 2d 109, both decided en banc, Nov. 22, 1965).

On the issue of waiver, this court may consider the defendant’s previous experience with the law, e.g., his conviction for possession of a hypodermic needle (brought out at the Huntley hearing) as probative of what he understood the question “ do you care for counsel ” to mean. The fact that he said “ No ”, coupled with the prior conviction, indicates that he understood the full import of the officer’s statement, and that he knowingly waived his right to counsel. It is important to note in this case that it does not involve an ignorant defendant who has not had any previous contact with the law.

In sum, having held that the police are not required to advise the defendant of his right to counsel (People v. Gunner, 15 N Y 2d 226, supra), we now hold (1) that, if the authorities do advise him of said right, it may be waived (cf. People v. Meyer, 11 N Y 2d 162, 165, supra), and (2) that this defendant did waive that right.

Other allegations of error advanced by the defendant were considered and do not require reversal.

Since we hold that defendant’s constitutional rights were not violated, the evidence is admissible and the conviction is affirmed.

Fuld, J. (dissenting).

The defendant before us, it must be borne in mind, had been taken into custody on a warrant of arrest issued by a magistrate after the filing of an information charging him with the commission of crime. Consequently, when questioned by the police, he was not just a suspect in an investigation but an accused in a criminal prosecution held under court process to await trial.

I start with the hypothesis that, once a criminal proceeding has been instituted against an accused by the filing of an indictment or an information, be has the right to the aid of counsel (U. S. Const., 6th Amdt.; N. Y. Const., art. I, § 6; Code Crim. Pro., §§ 8, 188, 308, 699) and, if he thereafter makes an incriminating statement to the police or other law enforcement officials in the absence of counsel, that statement may not be used against him. (See, e.g., 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. Santmyer, 20 A D 2d 960; People v. Wallace, 17 A D 2d 981; see, also, Escobedo v. Illinois, 378 U. S. 478, 490-491; Massiah v. United States, 377 U. S. 201.) The majority does not dispute this but concludes that in the present case the defendant waived his right to counsel. With this I cannot agree. As noted above, an accused is entitled to the assistance of an attorney before being.called upon to plot his course of action and, consequently, he should not be asked to surrender any rights he possesses, including his right to counsel, until he has been arraigned in court and there advised as to what his rights are or until he has, at least, consulted with a lawyer.

The question posed is not whether the police officer acts in good faith—I assume he does—when he asks the accused if he wants a lawyer but, rather, whether the police are privileged to interrogate the accused or seek to have him make an incriminatory statement in the absence or without the consent of counsel and prior to appearance before a judicial officer empowered to appoint counsel. Where a person is taken into custody without a warrant, such questioning may well be justified as necessary for determining whether or not to charge him with crime. But, once an indictment or information is filed, and a warrant of arrest issued, further interrogation of the defendant is no longer justified by that purpose.

It may not be denied that, when the police interrogate him in pursuit of a confession or other inculpatory statement, they become, in a very real sense, his “ adversaries ”, allied with the prosecution, in an effort to support the charge already laid against him. Under these circumstances, a relinquishment of the right to counsel is tantamount to an appearance pro se in an adversary proceeding, a course of action long regarded as so inimical to a defendant’s interests that the courts have consistently required the strictest safeguards against his having embarked upon it through ignorance, fear or mistake. (See People v. Witenski, 15 N Y 2d 392; People v. Banner, 5 N Y 2d 109; see, also, White v. Maryland, 373 U. S. 59; Carnley v. Cochran, 369 U. S. 506; Johnson v. Zerbst, 304 U. S. 458, 463.)

The risk that notice of the right to counsel in a case such as this will be ineffective may be minimized without impairing any legitimate interests of the law enforcement authorities by insulating a person against whom an indictment or information has been filed from the dangers of acting as his own attorney until after he has first been brought before a judicial officer. Indeed, the Legislature' has not been unmindful of the need to protect an accused from the consequences of an inadvertent waiver of counsel after a criminal prosecution has been commenced. Among the duties of a magistrate, defined in section 188 of the Code of Criminal Procedure, it is wisely provided (subds. 3, 6) that, “If [the accused] does not desire the aid of counsel, the magistrate must determine that he waived counsel having knowledge of the significance of his act” and that, even though he declines legal assistance, ‘ ‘ the magistrate must assign counsel ” if he is “ not satisfied that [the accused] knows the significance of his act in waiving counsel (See, also, People v. Witenski, 15 N Y 2d 392, supra; People v. Banner, 5 N Y 2d 109, supra.) Only this procedure will furnish the requisite assurance that notice of the right to counsel is effective, as well as adequate, and that waiver of the right is both knowledgeable and deliberate.

It is my conclusion, therefore, that, once a person has actually had an indictment or information filed against him, his consent alone should not be deemed sufficient to authorize interrogation by the police prior to his appearance before a magistrate or other judicial officer with its attendant protections. The defendant’s confession should not have been received in evidence and, accordingly, I would reverse and grant a new trial.

Chief Judge Desmond and Judges Dye, Burke and Bergan concur with Judge Scileppi; Judge Fuld dissents in an opinion in which Judge Van Voorhis concurs.

Judgment affirmed. 
      
      . The Appellate Division (22 A D 2d 978) reversed this defendant’s first conviction for the crime charged here on grounds not relevant to the discussion of alleged errors raised after his conviction at the second trial from which he now appeals.
     
      
      . For these purposes, we draw no distinction between an arrest with a warrant and one on probable cause (without a warrant).
     
      
      . In the present case, the police were actually his accusers since it was they who had signed the information.
     