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PEOPLE STATE NEW YORK v. RICHARD SIMONS (07/02/68)

COURT OF APPEALS OF NEW YORK 1968.NY.42470 <http://www.versuslaw.com>; 240 N.E.2d 22; 22 N.Y.2d 533 decided: July 2, 1968. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.RICHARD SIMONS, APPELLANT People v. Simons, 28 A.D.2d 728, affirmed. Counsel George P. Barker, William H. MacArthur and Anthony F. Marra for appellant. Aaron E. Koota, District Attorney (Aaron Nussbaum of counsel), for respondent. Judges Bergen, Breitel and Jasen concur with Judge Scileppi; Judge Keating concurs in a separate opinion; Chief Judge Fuld dissents and votes to reverse in an opinion in which Judge Burke concurs. Author: Scileppi


People v. Simons, 28 A.D.2d 728, affirmed.

Judges Bergen, Breitel and Jasen concur with Judge Scileppi; Judge Keating concurs in a separate opinion; Chief Judge Fuld dissents and votes to reverse in an opinion in which Judge Burke concurs.

Author: Scileppi

 The chief question posed by this appeal is whether, under the particular circumstances of this case, the issuance of a parole warrant commenced a "judicial proceeding" thereby entitling the parole violator (the defendant Simons) to the presence of counsel during any interrogation by law enforcement officials.

On February 13, 1962, three men robbed a supermarket using a toy pistol. Two of the robbers were quickly apprehended and implicated the defendant Simons in the hold-up, asserting that he had been a lookout. Detective Mullen, officially assigned to investigate the robbery, visited Simons' residence twice on the day of the felony. On both occasions the defendant was not at home. Mullen thereafter informed Simons' parole officer that the defendant was suspected of having taken part in a robbery and was not to be found at home. On the basis of this information, a parole warrant was issued. In the meantime, Simons had, without authorization, fled the State, thereby compounding his parole violation. Fourteen months later, he surrendered himself to the parole authorities, who detained him in the Manhattan House of Detention for Men (the Tombs) from April 25, 1963 until April 29, 1963. During this time the police did not know that Simons was in custody and no one questioned him.

On April 29, Simons was removed from the Tombs by a parole officer and taken to the Parole Commission office at 320 Broadway. Detective Mullen was then called and told by Parole Officer Dunigan that the parole authorities would turn Simons over to the police. Mullen and another detective came to the Parole Commission office and the parole authorities turned Simons over to them, along with the parole warrant under which he was being held.

Shortly after he was brought to the 79th Precinct, the defendant made a statement. After several more hours of questioning the District Attorney arrived and completed taking Simons' statement at about 6:00 p.m. At no time during the questioning was the defendant informed of his right to counsel or of his right to remain silent. Of course, under the law as it then existed, the police were under no duty to warn (People v. Gunner, 15 N.Y.2d 226). The following morning Simons was taken before a Magistrate and arraigned on the robbery charge. He was indicted for robbery, first degree; grand larceny, second degree; and assault, second degree.

At the trial before Justice Leibowitz and a jury, the statements which Simons had given to the police were introduced into evidence. He was found guilty on all three counts in the indictment and was sentenced as a second felony offender. On appeal the Appellate Division, Second Department, remitted the case to the trial court for a Huntley hearing to inquire into the voluntariness of the statements made by Simons prior to his arraignment (24 A.D.2d 500). In the interim, the appeal was held in abeyance. The Huntley hearing resulted in a finding of voluntariness and the Appellate Division then, by a split court, affirmed the conviction and the Huntley hearing determination. Justice Hopkins, the sole dissenter, granted leave to appeal to this court.

It is well established in this State that once the "judicial process" has been invoked against an accused, the right to counsel automatically attaches and any statements made in the absence of counsel are inadmissible, unless the right to counsel was effectively waived (People v. Bodie, 16 N.Y.2d 275). The defendant contends that the issuance of the parole warrant commenced a judicial proceeding and, therefore, the statements that he made to the police in the absence of counsel were inadmissible. It is conceded in the defendant's reply brief that a parole violation proceeding is not a judicial proceeding. He argues, however, that the parole warrant in this case was not issued to initiate a parole violation proceeding. "Instead it was issued for the purpose of arresting [the defendant] in connection with the robbery investigation, and it thus initiated a judicial proceeding against the defendant culminating in his trial and conviction on the robbery charge." It seems to us that this contention lacks merit. Indeed, it suggests a Machiavellian conspiracy engaged in by the police and the parole authorities for the express purpose of depriving the defendant of his rights. Such a suggestion is simply not borne out by the record. The Huntley hearing Judge found, among others, the following facts:

"That on February 13, 1962, after having ascertained that the defendant was not at home and that his whereabouts were unknown, the detectives notified the New York State Parole Board, and more particularly the defendant's parole officer, of the defendant's alleged participation in the robbery, and their ascertainment that the defendant Simons had not been home and his whereabouts were unknown.

"That acting on the information supplied by the police, the parole officer obtained a warrant on February 13, 1962, and that said warrant was predicated on the information and belief by the Parole Board that the defendant had or was about to return to his previous criminal activities, and also that he had left home without notification to the Parole Board " (emphasis supplied).

While it is true that a parole officer did not visit Simons' home until February 14, 1962, the day after receiving the information from the police, it is clear that under the law the warrant was properly issued and was not issued merely to aid the police and save them the trouble of obtaining their own arrest warrant. Section 216 of the Correction Law provides: "Violation of parole. If the parole officer having charge of a paroled prisoner or a prisoner received under the uniform act for out-of-state parolee supervision shall have reasonable cause to believe that such prisoner has lapsed, or is probably about to lapse, into criminal ways or company, or has violated the conditions of his parole in an important respect, such parole officer shall report such fact to a member of the board of parole or to any officer of the division of parole designated by such board, who thereupon may issue a warrant for the retaking of such prisoner and for his temporary detention or return to a designated prison" (emphasis supplied). Thus, under this section the information supplied by the police gave the parole authorities reasonable cause to believe that the defendant had violated his parole in two important respects: he had lapsed into criminal ways and had left home without notifying the Parole Board. The warrant was not issued for the purpose of arresting the defendant in connection with the robbery. Having had reasonable cause to believe that the defendant had violated his parole, the parole authorities had the right, indeed the duty, to issue a warrant for his apprehension so that the Parole Board could take appropriate action with respect to Simons' violation of parole.

In sum, since the parole warrant in this case was properly issued, since it was not issued for the purpose of arresting the defendant on the robbery charge, we hold that its issuance did not commence a judicial proceeding.

We note, however, that even if we were to hold that a parole revocation proceeding is judicial in nature and, therefore, the issuance of the parole warrant commenced a judicial proceeding, it would not avail the defendant.

It is manifest under our holding in People v. Stanley (15 N.Y.2d 30) that the police would nevertheless have had the right to question Simons on the robbery charge, in the absence of counsel. Chief (then) Judge Fuld, speaking for the court, said: "However, as the language of the cases makes clear, the mere fact that the defendant has been arraigned or indicted on one charge does not prevent law-enforcement officials from interrogating him, in the absence of an attorney, about another and different crime -- upon which he has been neither arraigned nor indicted -- or render inadmissible a confession or other inculpatory statement obtained as a result of such questioning * * *. The reason is clear. With regard to ...


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