
    The People of the State of New York, Appellant, v Theodore Pepper, Respondent. The People of the State of New York, Appellant, v Wayne Claude Utter, Respondent. The People of the State of New York, Respondent, v Gumersindo Torres, Also Known as Jose Torres, Appellant.
    Argued May 7, 1981;
    decided June 16, 1981
    
      POINTS OF COUNSEL
    
      Sol Greenberg, District Attorney (George H. Barber of counsel), for appellant in the first above-entitled action.
    I. Under decisions of this court and the United States Supreme Court People v Samuels should not be retroactive. (Simmons v United States, 390 US 377; People v Burd, 18 NY2d 447; People v Droz, 39 NY2d 457; People v Samuels, 49 NY2d 218; Michigan v Tucker, 417 US 433; Gosa v Mayden, 413 US 665; Johnson v New Jersey, 384 US 719; Stovall v Denno, 388 US 293; People v Kaiser, 21 NY2d 86; Linkletter v Walker, 381 US 618.) II. This court has the power under the United States Constitution and the laws of New York to give prospective application only to People v Samuels. (Wainwright v Stone, 414 US 21; Great Northern Ry. v Sunburst Co., 287 US 358; People v Samuels, 49 NY2d 218; People v Settles, 46 NY2d 154.) III. People v Samuels is in contravention of the United States Constitution as interpreted by the United States Supreme Court in Faretta v California and should be overruled. (Faretta v California, 422 US 806; Gannett Co. v De Pasquale, 443 US 368.) IV. People v Samuels violates the Ninth, Tenth and Fourteenth Amendments to the United States Constitution and the inherent right of the People to personal safety and should be overruled. (Voigt v Webb, 47 F Supp 743; United States v Lynch, 94 F Supp 1011, 189 F2d 476, 342 US 831; United States v Grimes, 229 F Supp 289.)
    
      Peter R. Porco and Paul E. Cheeseman for respondent in the first above-entitled action.
    I. The decision of the court below which applied Peaple v Samuels retroactively to the instant case should be affirmed. (People v Settles, 46 NY2d 154; People v Skinner, 52 NY2d 24; People v Samuels, 49 NY2d 218; People v Cunningham, 49 NY2d 203; People v Blake, 35 NY2d 331; People v Di Biasi, 7 NY2d 544; People v Miller, 76 AD2d 576; Linkletter v Walker, 381 US 618; Great Northern Ry. v Sunburst Co., 287 US 358; People v Simone, 48 AD2d 497.)
    
      Colin E. Ingham, District Attorney, for appellant in the second above-entitled action.
    I. To determine whether defendant’s statement, admission or confession is admissible against him at his trial, the totality of the circumstances under which he made the statement, admission or confession must be examined to determine whether he knowingly, intelligently and voluntarily waived his right to counsel, the application of any inflexible per se rule in such circumstances being unconstitutional. (People v Samuels, 49 NY2d 218; People v Settles, 46 NY2d 154; People v Coleman, 43 NY2d 222; People v Huntley, 15 NY2d 72; Faretta v California, 422 US 806; People v Bodie, 16 NY2d 275; North Carolina v Butler, 441 US 369; Johnson v Zerbst, 304 US 458; Fare v Michael C., 442 US 707.) II. The rule enunciated in People v Samuels should not be retroactively applied to any criminal cases commenced prior to the decision dated February 15, 1980. (Stovall v Denno, 388 US 293; De Stef ano v Woods, 392 US 631; Johnson v New Jersey, 384 US 719; People v McQueen, 18 NY2d 337; Escobedo v Illinois, 378 US 478; Miranda v Arizona, 384 US 436; People v Samuels, 49 NY2d 218; People v Arthur, 22 NY2d 325; People v Seaman, 77 AD2d 672; People v Pepper, 76 AD2d 1006; People v Gordon, 77 AD2d 659; People v Parker, 78 AD2d 580.)
    
      James L. Dowsey, III, for respondent in the second above-entitled action.
    I. This court has established a per se rule of criminal procedure pursuant to People v Samuels, the totality of circumstances test is inapplicable to custodial interrogation in the absence of counsel. (People v Arthur, 22 NY2d 325; Oregon v Hass, 420 US 714.) II. The decision in People v Samuels should be given retroactive effect. (People v Ermo, 47 NY2d 863; People v Cullen, 50 NY2d 168; People v Bell, 50 NY2d 869; People v Parker, 78 AD2d 580.)
    
      Edwin Ira Schulman for appellant in the third above-entitled action.
    The confessions obtained after a felony complaint was filed accusing appellant of homicide and his arrest for said charge should be suppressed because they were obtained in a pending criminal action in the absence of counsel and without counsel’s consent. (People v Samuels, 49 NY2d 218.)
    
      Eugene Gold, District Attorney (Beth S. Lasky of counsel), for respondent in the third above-entitled action.
    The court’s decision in People v Samuels should not be applied retroactively to the instant case, in which the normal appellate process had been completed long before the Samuels decision. (People v Samuels, 49 NY2d 218; People v Muller, 11 NY2d 154, 371 US 850; Mapp v Ohio, 367 US 643; People v Huntley, 15 NY2d 72; Jackson v Denno, 378 US 368; People v Stockford, 24 NY2d 146; People v Malloy, 22 NY2d 559; People v Bodie, 16 NY2d 275; People v Arthur, 22 NY2d 325.)
   OPINION OF THE COURT

Fuchsberg, J.

Crucial to these three appeals, each emanating from a conviction of a felony unrelated to the others, is a common question. It calls upon us to determine what retrospective effect, if any, is to be accorded our decision in People v Samuels (49 NY2d 218), where in essence we held that once an accusatory instrument has been filed a defendant cannot waive his constitutional right to counsel save in the presence of counsel.

The Samuels rationale rested on a fundamental and uncomplicated principle, that once an accusatory instrument is filed, viewed realistically, the defendant is no longer a suspect but an accused, and the People’s role may then be said to have shifted from the more neutral theater of investigation to the far more aggressive one of prosecution. In this posture, unless our adversary system of criminal justice is to flounder on the happenstance of whether, for example, a particular defendant is ignorant or sophisticated, “any discussions relating thereto should be conducted by counsel [for] at that point the parties are in no position to safeguard their rights” (People v Settles, 46 NY2d 154, 164 [criminal proceeding initiated by indictment]).

The relevancy of the retroactivity of this holding to the cases at hand appear in the.following contexts:

In People v Pepper and People v Utter, statements were elicited from the defendants after felony complaints had been filed and arrest warrants had issued. In Pepper, the executing officers took the defendant to the police barracks; in Utter, it was to a police substation. At each location, it is established that, though the custodial warnings commanded by Miranda v Arizona (384 US 436) were given, the defendant voluntarily submitted to the uncounseled interrogation. In both cases, the implicated questioning occurred well before we decided Samuels. When the defendant in each case moved, inter alia, to suppress his statement, the respective County Courts heard and denied the motions. However, on each defendant’s appeal from his ultimate judgment of conviction, the Appellate Division, now acting post-Samuels, reversed the judgment, granted the motion to suppress and remanded the case to the County Court for further proceedings. The People now appeal from the orders of reversal, each by leave of a Judge of this court (CPL 460.20).

In People v Torres, two statements, one an oral confession made to a police detective and the other a stenographically recorded statement made to an Assistant District Attorney, were obtained from the defendant under circumstances sufficiently similar for the People to concede that Samuels is factually apposite. But, for present purposes, this case is distinguished from Pepper and Utter in the important respect that, after the trial court, here the Supreme Court sitting in Kings County, had denied suppression, the Appellate Division, before whom the appeal arrived before rather than after we ruled in Samuels, affirmed. To be precise, though sentence had been pronounced on Torres on March 3, 1976 and the Appellate Division affirmed his conviction on June 26, 1978, it was not until more than a year and a half later, January 15, 1980, that we decided Samuels. Long before then, on August 15, 1978, a Judge of this court had denied Torres’ application for leave to appeal (45 NY2d 831). The ultimate grant that presently brings up the defendant’s appeal was on an application for reconsideration presented post-Samuels (50 NY2d 1064).

The position of each party on the pivotal prospective versus retrospective issue is pointed. In all three cases, emphasizing, among a miscellany of considerations, that “Samuels established wholly new law in New York”, that it does not relate to the integrity of the fact-finding process, that law enforcement authorities have placed justifiable reliance on the “pre-Samuels” rule and that the impact of retrospective application on the administration of justice would be both adverse and “monumental”, the People ask that it be applied prospectively only to those cases tried after Samuels. However, against the contingency that we find Samuels applicable to cases still in the appellate process at the time we announced that decision, they urge, in the alternative, that in Torres’ case we treat the date when his initial application for leave to appeal to this court was denied as the end of his appellate road. As to the defendants, not surprisingly, Torres insists that his case is still not finally determined, and all three seek full retroactivity. For the reasons which follow, we believe the Appellate Division’s decision was correct in two of the cases and we do not reach the third because it was no longer in the appellate process.

None of the arguments submitted to aid us in fixing the most appropriate date for putting the overruling in question into effect is new. All have figured in the extensive attention the subject has received from jurists and commentators who in the last half century have searched for ways in which principled mitigation of the hardships that at times may accompany abrupt changes in decisional law can be achieved (see Overruling Decision — Application, Ann., 10 ALR3d 1371; Fairchild, Limitation of New Judge-Made Law to Prospective Effect Only, 51 Marq L Rev 254; Cardozo, Address Before the New York State Bar Association, 1932 NYSBA Report 263, 296-298).

As a result, over the years, in some instances the historic common-law rule, that all cases on direct appeal must be decided in accordance with any newly declared but conceptually always existent principle, has been tempered where there was significant reliance on a now overruled and, therefore, in theory, erroneously stated precedent (see People v Morales, 37 NY2d 262, 267-268, and authorities cited thereat; Snyder, Retroactive Operation of Overruling Decisions, 35 Ill L Rev 121; Schaefer, Control of “Sunbursts”: Techniques of Prospective Overruling, 42 NYU L Rev 631). However, notwithstanding such departures and the underlying tensions they display, overall much of the vitality of the traditional rule has survived the debate. This steadfastness is consonant with the fact that in any event most decisional law acts on past events. The retro-activity principle is also symbolic of the credo that our government is one of laws and not of men, a concept which depends heavily on a sense of continuity. (See Montague v Vinzant, 643 F2d 657, 659-660; Mishkin, The High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv L Rev 56, 62-67.)

The conflict between these opposing forces has not left the area of criminal procedure untouched. In a series of opinions, both this court and the United States Supreme Court have addressed the subject, both in cases pending on direct appeal and, if the appellate process has been exhausted, where relief is sought in collateral proceedings (see, e.g., United States v Peltier, 422 US 531; People v Morales, 37 NY2d 262, 268-269, supra, and cases cited thereat).

This is not to say that definitive standards have evolved. But neither is the field untracked. As we noted in Morales (37 NY2d 262, 269, supra), useful, if general, guideline, are available. In judging whether it is more appropriate to adhere to rather than deviate from the common-law convention, be it to grant full retroactive application (permitting a collateral attack on a conviction no longer in normal appellate channels) or to limit relief to prospective police conduct or trials, in Desist v United States (394 US 244, 249), the Supreme Court stressed, and in Morales we had occasion to weigh, three factors: “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards”. In this formulation, the extent of the reliance and the nature of the burden on the administration of justice are of substantial significance only when the answer to the retroactivity question is not to be found in the purpose of the new rule itself (Desist v United States, supra, p 249).

Thus, where otherwise there could be a complete miscarriage of justice, current constitutional standards that go to the heart of a reliable determination of guilt or innocence have been substituted for those in effect at the time of trial (Stovall v Denno, 388 US 293, 297 [right to counsel decisions “at stages of the prosecution where denial of the right must almost invariably deny a fair trial”] ; Holloway v McElroy, 632 F2d 605 [appellate review of sufficiency of evidence]). So too, at the other end of the spectrum, decisions which are only collateral to or relatively far removed from the fact-finding process at trial have been applied prospectively (e.g., United States v Peltier, 422 US 531, supra [exclusionary rule in search and seizure cases, the intended deterrent effect of the ruling having no necessary relationship to the reliability of the admitted proof]).

In contrast to the extremes described in these Federal cases, as our own decisions have made clear, a defendant’s right to counsel in pretrial encounters falls within a middle ground. So, while we have found retroactivity in order in such cases, its application has been limited to those still on direct review at the time the change in law occurred (e.g., People v Albro, 52 NY2d 619, 624; People v Bell, 50 NY2d 869; People v Singer, 44 NY2d 241, 251; People v Macedonio, 42 NY2d 944). In counterpoint, we have denied retroactive application where that process has been exhausted (People v Wooden, 46 NY2d 938; People v Robles, 42 NY2d 1051; People v Rivera, 16 NY2d 879).

We see no reason to depart from that course here. While we cannot say that uncounseled station house interrogations necessarily go to the ultimate issue of guilt or innocence, they are not insignificant events. Aside from the avoidance of incriminating statements, the benefits of introduction of counsel at that stage, with its concomitant advantages of early advice and investigation, are not to be ignored.

In addition, in balancing the importance of the right Samuels guarantees against its effect on other pending cases, we cannot lose sight of the fact that the relatively early terminal point of retroactivity limited to cases young enough to still be on direct appeal militates against the likelihood of prejudicial mildewing of witnesses’ memories.

The People’s reliance argument is even less impressive. For one thing, our decision need not have taken the People by surprise. Given the broad philosophical language of People v Hobson (39 NY2d 479, 484), which, in turn, had been more than foreshadowed by People v Arthur (22 NY2d 325) and the still earlier cases cited therein, it was hardly unanticipated. Indeed, since, as Justice Jackson put it realistically, “any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances” (Watts v Indiana, 338 US 49, 59), it is difficult to perceive how they could have ended up in a different position from the one in which suppression leaves them, i.e., without the statement.

Appellant Torres, however, is not entitled to benefit from the change in law. The normal appellate process came to an end for him upon the original unconditional denial of his application for leave to appeal to this court (People v Muller, 11 NY2d 154, 156, cert den 371 US 850). Thereafter, only complete retroactivity could make Samuels applicable. And that, impermissibly, would mean that every defendant to whose case it was relevant, no matter how remote in time and merit, would become its beneficiary. Absent “manifest injustice”, no exception was available to Torres (People v Robles, 42 NY2d 1051, supra).

Accordingly, each of the orders appealed from should be affirmed.

Gabrielli, J.

(concurring). I concur in the results reached by the majority in these appeals, but would base my conclusion on somewhat narrower grounds.

The question presented by these appeals is whether the rule enunciated in People v Samuels (49 NY2d 218) should be applied retroactively to cases on appeal at the time the decision was announced. In Samuels, we held that the “indelible” right to counsel attaches upon the filing of a felony complaint. Once a felony complaint is filed, the criminal action is formally commenced and the accused cannot thereafter validly waive his constitutional rights in the absence of counsel.

Our holding in Samuels was based upon People v Hobson (39 NY2d 479), which was routinely applied to cases that were in the appellate process at the time that decision was handed down (see, e.g., People v Macedonio, 42 NY2d 944). Indeed, each time there has been a new development in the line of cases based upon Hobson, the new rule has been applied in a similar retroactive manner (see, e.g., People v Albro, 52 NY2d 619; and People v Bell, 50 NY2d 869 [applying People v Rogers (48 NY2d 167) retroactively] ; People v Lucas, 53 NY2d 678; People v Prince, 50 NY2d 883 [applying People v Cunningham (49 NY2d 203) retroactively]). There is simply no logical justification for treating the Samuels rule differently.

In fact, the arguments in favor of according Samuels retroactive effect are particularly compelling, since the holding in that case was foreshadowed and even perhaps mandated by prior case law. In People v Settles (46 NY2d 154) we held that once an indictment is filed the “indelible” right to counsel attaches and the accused can no longer effect a valid waiver of his rights unless his attorney is present (see People v Hobson, supra [overruling People v Lopez (28 NY2d 23, cert den 404 US 840)]; 51 St John’s L Rev 216, 220-222; see, also, People v Blake, 35 NY2d 331). Although Settles involved an indicted defendant, the holding in that case was predicated upon the broader notion that a suspect is entitled to the full panoply of protections inherent in the State constitutional right to counsel when “the character of the police function shifts from investigative to accustory” (46 NY2d, at p 163). Settles thus made it perfectly clear that the formal commencement of a criminal action is sufficient to trigger the Hobson right to counsel. From Settles it required but a simple mechanical application of logic to conclude that the right to counsel would also attach upon the filing of a felony complaint, which, like the filing of an indictment, represents the formal commencement of a criminal action (CPL 1.20, subds 1, 8,17). Hence, far from representing an unexpected departure from precedent, Samuels was actually no more than a predictable elaboration of a well-settled and widely understood principle of law.

In light of the history of the Samuels rule, it is evident that the decisions of the Appellate Division in the Pepper and Utter cases should be affirmed. In each case, the Appellate Division, relying upon Samuels, reversed the conviction and ordered the inculpatory statement in question suppressed. Since the rights of both defendants were indisputably violated under our holding in Samuels and since Samuels is clearly applicable to cases such as these, which were in the appellate process at the time that decision was announced, there is no legal basis for upsetting the rulings made below.

A different analysis must be applied, however, in the case of defendant Torres, whose application for leave to appeal to this court was denied some 17 months before Samuels was handed down. Unlike defendants Pepper and Utter, the defendant in the Torres case had already exhausted his appellate remedies by the time Samuels was decided (see People v Muller, 11 NY2d 154, cert den 371 US 850), and, as our prior decisions indicate, he is therefore not entitled to have his conviction reopened on the basis of the Samuels rule (see People v Wooden, 46 NY2d 938; People v Robles, 42 NY2d 1051).

Judges Jones, Wachtler and Meyer concur with Judge Fuchsberg; Judge Gabrielli concurs in a separate opinion in which Chief Judge Cooke and Judge Jasen concur.

In each case: Order affirmed. 
      
      
        . As required by People v Welcome (37 NY2d 811), the application for reconsideration was made to the Judge who initially denied leave to appeal. (See, also, 22 NYCRR 500.8 [b].)
     
      
      . We note that, while a Judge of this court has discretion to reconsider a prior denial of an application for leave to appeal, that discretion is exercised rarely (see People v Welcome, 37 NY2d 811, supra). All the more is this so in light of the availability of a proceeding to vacate a judgment pursuant to GPL article 440 in circumstances in which a decisional law must be given complete retroactivity (see People v Pohl, 23 NY2d 290).
     
      
       Indeed, we have already applied the holding in Samuels to cases which arose before that decision was announced (People v Lucas, 53 NY2d 678; People v Cullen, 50 NY2d 168, 174). In my view, these cases alone are sufficient to dispose of the issues presented in the Pepper and Utter appeals.
     