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New York County Grand Jury

A Queens Criminal Possession of a Weapon Lawyer said that, appellant, and his codefendant, were indicted for robbery in the first degree for forcibly stealing a sum of money from a cashier in a restaurant in Queens on August 10, 1976, while displaying what appeared to be a pistol, rifle or other firearm. Both men pleaded guilty to robbery in the second degree after a motion to suppress evidence of the gun and confessions which each had made to the police were denied. Codefendant has taken no appeal from the judgment of criminal conviction against him.

On August 10, 1976, at about 10:30 or 11 P.M., appellant and codefendant walked into a Kansas Fried Chicken establishment on Northern Boulevard in Queens and robbed the cashier, of a sum of money. The appellant held a gun on the cashier while he took money from the cash register. An accomplice was waiting for them in an automobile parked outside the store. The accomplice’s mother owned the car. After the robbery appellant and the codefendant went into the accomplice vehicle and rode away. Several hours later, at about 1:45 A.M. on August 11, 1976, Police Officers both in uniform and patrolling in a marked police vehicle, observed codefendant, accomplice and appellant walking along Manhattan Avenue near 117 Street, in what was conceded to be a “high-crime drug area”.

At the suppression hearing the officer testified that among the things which aroused his suspicion was the fact that appellant, when the officers pulled up, “abruptly turned back like he wasn’t a member of the group”. He then saw appellant and his companions enter the Atkins’ automobile at 116 Street. The car proceeded south on Manhattan Avenue. The police vehicle followed it and caused it to stop at 113 Street. The Officer’s explanation was that from a point about a car-length away the officers saw “a lot of action inside the car which aroused their suspicions” and they “saw, I believe, appellant trying to put something under the seat. It appeared at our vantage point like he was trying to hide something.” He also noted that there was “a lot of jostling in the car, a lot of moving.” The driver of the police vehicle flashed the lights of the car at which point the Officer saw what he assumed to be “narcotics being thrown from the window”. These were two envelopes which “appeared to be white in nature, a glassine envelope, containing a white substance.” However, when asked by the criminal court whether he “could see the white substance in the envelope”, the officer answered, “They looked like two white pieces of paper. I took it for granted it was glassine envelopes with alleged heroin.” This ejection took place near 114 Street, but the Atkins’ vehicle did not respond to the flashing police lights until a block later. After it came to a halt, with the police car parked behind it, went up to the occupants “to cover them”, while Officer Quinn went back to the area in which the papers had been tossed. He recovered a glassine envelope filled with a white substance and waved it at, who understood that to mean that it was an envelope containing drugs.

A Queens Criminal Lawyer said that, the officer ordered the occupants out of the car.

Codefendant was in the driver’s seat, Atkins was in the front passenger seat and appellant was alone in the rear seat. The officer testified that when the front left door was opened he saw a pistol in the back seat; he took possession of it and then made the arrests. From the limited record before us relating to the criminal proceedings in New York County (and from statements in the People’s brief as to the official records in the New York County proceedings, which appellant does not contest) it appears that appellant and codefendant were charged with criminal possession a weapon, and heroin and that appellant retained counsel. On August 12, 1976 the drug charge against appellant was adjourned in contemplation of dismissal and, on February 15, 1977, it was dismissed. On December 15, 1976 a felony weapons charge was referred to the New York County Grand Jury but no indictment was returned. On May 20, 1977 the weapons charge was dismissed with prejudice.

A Queens Criminal Gun Crime Lawyer said that, one month after the Manhattan arrests, appellant and codefendant were arrested at their homes in Queens. They were advised of their rights, told that they were charged with robbing the cashier at the Kansas Fried Chicken establishment on Northern Boulevard in Queens during the evening of August 10, 1976 and brought to the 112 Precinct in Queens. There Detective obtained a signed waiver of Miranda rights from each of them and (during a tape-recorded interview) they stated that they were willing to discuss the robbery without an attorney being present. The appellant and codefendant were indicted in Queens for robbery in the first degree. In November, 1976 appellant moved, Inter alia, to suppress both the confession and the gun which had been seized in the course of the Manhattan criminal arrest.

The main issue, then, is whether “there is a reasonable possibility that the error contributed to the plea”.

Appellant asserts that he was represented by counsel in the New York County proceedings which were still pending against him, at least as to the felony weapons charge, at the time of his custodial interrogation in Queens on September 11, 1976. He argues, therefore, that “an incriminating statement obtained from a Defendant After a lawyer has entered the proceedings are inadmissible if procured by custodial interrogation in the absence of criminal counsel. He alleges that since the investigations in the two counties “revolve around the same gun” he was in fact represented by counsel at the time he made the confession.

Since this issue was not raised at the suppression hearing, it was not preserved for review. But, even if it had been preserved, there is no evidence in the record: (1) that appellant was indeed represented by counsel at the time he made the confession in Queens; (2) that Detective was told or knew that appellant had counsel relating to a felony weapons charge in another county; or (3) that Detective was not pursuing a separate, good faith investigation into the robbery in Queens.

Appellant’s contention, in effect, is that a suspect cannot validly waive his right to have counsel present during custodial interrogation if there exists, Anywhere, a pending criminal proceeding against him, the only common feature of which is the possession of the same gun. Under the facts of this case we hold that the two proceedings were unrelated and directed towards different criminal activity. In New York County it was for Possession of a gun, as well as of drugs, and here is no indication that the police in New York County knew of the Use of a gun in a robbery attempt in Queens a few hours earlier. Even if it were a fact that the Queens police, in the course of their investigation, may have learned of the Manhattan arrests of a month earlier, such knowledge would not make the two incidents so interwoven as to preclude questioning by the Queens police of the facts with respect to the Queens robbery.

A motion to suppress “must be in writing and upon reasonable notice to the people and with opportunity to be heard. The motion papers must state the ground or grounds of the motion and must contain sworn allegations of fact supporting such grounds”. Here, the only ground contained in the moving papers was that appellant “was not properly advised of his constitutional rights prior to his making any statement.” The People met their burden on this contention by demonstrating, in their direct case at the hearing, a voluntary waiver of Miranda rights and appellant made no attack upon that evidence. Here, as in the issue relating to representation by counsel discussed above, the first attack on this ground is made upon the appeal. Nevertheless, we address ourselves to the merits of that contention.

At the suppression hearing both appellant and codefendant testified to the assault upon him, and this was borne out by the testimony of the police officer. The testimony as to the alleged beating of appellant is far sketchier and, at most, indicates that a police officer was “Trying to hit appellant in his head.” But even assuming that appellant suffered some form of physical abuse that was a month earlier in another county by other police officers. We may not assume that in every criminal arrest to which appellant would thereafter be subjected, no matter how, when or where, any confession would be the product of fear and intimidation. At most it might cause appellant to be wary of accusing a police officer, in the inner sanctum of a police precinct, of planting incriminatory evidence upon him.

A rational argument may be made that there is an important distinction between the improper introduction of a confession and the submission, as an exhibit, of an unfired gun allegedly used in a robbery. A confession has a devastating effect and it is extremely unlikely that a jury would find the defendant not guilty under such circumstances, especially where the confession was tape recorded. So devastating and so ” ‘high in the scale of incriminating evidence’ is a confession that it is unlikely a jury would have been swayed by the slight make-weight evidence of the fact that appellant was found to be in the criminal possession of an unfired gun several hours after the robbery. Thus, it may be argued that Grant is based on the overwhelming significance of a Confession, and that the essence of its holding supports the People’s contention that the gun could play no significant role but was as unimportant as a feather attached to a pile driver. But we are not dealing with objective logic when we seek to determine the workings of a defendant’s mind in deciding whether or not to plead guilty. It may well be that the appellant realized that the admission of his confession, when added to the identification testimony of an eyewitness plus other possible proof, such as the license plate number of the get-away car, foredoomed any possible defense so that whether the gun could be physically introduced as an exhibit at the trial would be of scant consequence. However, a decision to plead guilty is one of the most solemn and personal rights that a person has and, rationally or irrationally, it is his decision, and his alone to make. Thus, following as we must, that “when a conviction is based on a plea of guilty an appellate court will rarely, if ever, be able to determine whether an erroneous denial of a motion to suppress contributed to the defendant’s decision”, the judgment should be reversed, and the motion to suppress should be granted insofar as it related to possession of the gun.

Accordingly, the court held that the judgment of the Supreme Court, Queens County rendered June 30, 1977, reversed, on the law and facts, motion to suppress granted to the extent that the weapon is suppressed, and the case is remitted to Criminal Term for further proceedings consistent herewith.

Gun Crime is serious offense, if you are charged of the said crime, seek the representation of a Queens Gun Crime Attorney and Queens Possession of a Weapon Attorney at Stephen Bilkis and Associates.

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