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April 30, 1992

ANGEL CLAUDIO, Petitioner,
CHARLES SCULLY, Superintendent, Greenhaven Correctional Facility, et. al., Respondent.

The opinion of the court was delivered by: EDWARD R. KORMAN

 Korman, J.

 In the early morning hours of May 15, 1980, Steven Zweikert was returning home from a high school prom. As he emerged from the subway in Queens at about 4:00 a.m., he was followed and accosted by four youths. Among them was the petitioner, Angel Claudio, who brandished a gun. When one of the boys demanded money, Steven tried to wrest the gun from Claudio and in the struggle was fatally shot. Claudio and his cohorts fled the scene.

 On May 21, 1980, the police were advised that individual named Andrew Boyle had information about the murder. In response to police questioning, Boyle told the police that on May 14, 1980, between 6:00 and 8:00 p.m., he was in a "green mustang" with some other boys, one of whom had a gun. Boyle was then shown several photos. He identified Angel Claudio as the one with the gun. Claudio had previously been picked up for questioning by the police about the murder. After denying any involvement in the

 As a result of this encounter with the police, Claudio consulted the yellow pages and called attorney Mark Heller on May 21, 1990. Claudio met with Heller the next day and retained him as his attorney. After a discussion with Heller, Claudio agreed to turn himself in to the Queens District Attorney, John J. Santucci. Although some conflict existed as to the advice Heller gave to Claudio, the trial court found that Heller did not advise him of the seriousness of the charges he faced or his available defenses. Rather, he urged Claudio to surrender, explaining that Claudio might be able to obtain probation if he did so. When they arrived at the District Attorney's Office later that afternoon, however, Santucci informed Heller that there would be no plea bargain. Heller did not relay this information to his client. Instead, he advised Claudio to make a statement.

 In the presence of his attorney, and after Miranda warnings were given, Claudio indicated that he wanted to confess because he was so troubled by what had happened that he was unable to eat or sleep. Claudio gave the following account of the events of May 15, 1980. He and his friends were in a car when they saw Steven Zweikert exiting the subway. One of Claudio's friends asked him to retrieve a gun that had been placed under the seat. The group then got out of the car and followed Steven down the street. Claudio pointed the gun at Steven while another demanded money. When Steven tried to grab the gun from Claudio, it accidentally discharged, fatally striking Steven in the chest. Claudio and his friends fled empty-handed.

 Before trial, a newly appointed attorney moved to suppress the confession on the ground that Claudio had been denied effective assistance of counsel. Although the motion was granted by the trial judge, the Appellate Division held that Claudio's Sixth Amendment right to counsel had not attached at the time of his confession. Accordingly, the confession could not be excluded even if it was the result of Heller's foolish advice. In addition, although the issue had not been raised by the parties, the Appellate Division determined that Heller's conduct did not violate Claudio's right to counsel under the New York State Constitution. People v. Claudio, 85 A.D.2d 245, 447 N.Y.S.2d 972 (2d Dept. 1982). The New York Court of Appeals affirmed the Appellate Division's holding that the Sixth Amendment had not been violated and that Claudio's confession should not have been suppressed. People v. Claudio, 59 N.Y.2d 556, 466 N.Y.S.2d 271, 453 N.E.2d 500 (1983). Because Claudio failed to raise the issue in either the Court of Appeals, the Appellate Division or in his suppression motion, the Court of Appeals declared that it had "no occasion consider the application of the state constitution to defendant's situation." 59 N.Y.2d at 560 n.1.

 Claudio was tried and convicted of the crimes of murder, attempted robbery and possession of a weapon. The Appellate Division affirmed the conviction, although it held that the trial court erred in imposing consecutive rather than concurrent sentences. Accordingly, it modified petitioner's sentence to 25 years to life. People v. Claudio, 130 A.D.2d 759, 515 N.Y.S.2d 845 (2d Dep't 1987). Judge Hancock denied Claudio's application for leave to appeal to the Court of Appeals. People v. Claudio, 70 N.Y.2d 873, 523 N.Y.S.2d 501, 518 N.E.2d 12 (1987).

 After exhausting his post-conviction appeals, Claudio filed this petition for a writ of habeas corpus. Subsequently, while proceedings on this petition were in abeyance, Claudio sought a writ of error corum nobis from the New York Court of Appeals on the ground that he had been denied effective assistance of counsel by his appellate attorney's failure to argue to the Court of Appeals that the suppression of his confession was mandated by the New York State Constitution. The petition was dismissed on the ground that there was "no authority for initiating such a writ in the Court of Appeals." People v. Claudio, 77 N.Y.2d 988, 571 N.Y.S.2d 899, 575 N.E.2d 385 (1991). After this unsuccessful effort to obtain relief from the Court of Appeals, Claudio again pressed his petition here. The petition, which raises four separate issues, is denied for the reasons that follow.


 Petitioner argues that his confession should have been suppressed because it was the result of his attorney's ineffective advice. This claim must be rejected because the Supreme Court has held that a defendant cannot claim that he was denied the effective assistance of counsel in a proceeding in which he is not entitled to counsel under the Sixth Amendment. Coleman v. Thompson, 115 L. Ed. 2d 640, 111 S. Ct. 2546, 2566 (1991); Wainwright v. Coleman v. Thompson, 115 L. Ed. 2d 640, 111 S. Ct. 2546, 2566 (1991); Wainwright v. Torna, 455 U.S. 586, 71 L. Ed. 2d 475, 102 S. Ct. 1300 (1982). The Sixth Amendment right to counsel "attaches only at or after the time that adversary judicial proceedings have been initiated. . . . " Kirby v. Illinois, 406 U.S. 682, 688, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972). No such proceeding had been commenced when petitioner confessed.

 Commonwealth v. Moreau, 30 Mass. App. Ct. 677, 572 N.E.2d 1382 (Mass. App. Ct. 1991), cert. denied, 116 L. Ed. 2d 815, 112 S. Ct. 915 (1992), upon which petitioner relies, does not provide a sound basis for a contrary holding. The Appeals Court there held that a defendant who was subject to post-arrest custodial interrogation did not enjoy a right to counsel under the Sixth Amendment. The Appeals Court, however, held that the defendant was "entitled to the aid of counsel to protect his Fifth Amendment privilege against self-incrimination under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966); United States v. Gouveia, 467 U.S. 180, 188, 81 L. Ed. 2d 146, 104 S. Ct. 2292 n.5 (1984)." Moreau, 572 N.E.2d at 1384. Accordingly, it concluded that the defendant was entitled to a hearing on his claim that his lawyer was ineffective because he advised him to make a post-arrest confession. Id. at 1386.

 Unlike the defendant in Moreau, it is hardly clear that petitioner was subject to the kind of custodial interrogation that would entitle him to the assistance of counsel under Miranda v. Arizona. See Oregon v. Mathiason, 429 U.S. 492, 50 L. Ed. 2d 714, 97 S. Ct. 711 (1977); California v. Beheler, 463 U.S. 1121, 77 L. Ed. 2d 1275, 103 S. Ct. 3517 (1983). *fn1" There is a more compelling reason, however, for rejecting petitioner's argument that he was denied the effective assistance of counsel to which he claims he was entitled. While Miranda v. Arizona holds that a suspect who is subject to custodial interrogation is entitled to counsel "to protect the Fifth Amendment privilege against self- incrimination rather than to vindicate the Sixth Amendment right to counsel," United States v. Gouveia, 467 U.S. at 188 n.5, "the sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion." Colorado v. Connelly, 479 U.S. 157, 170, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986). Accordingly, an attorney who ensures that his client has not been compelled to speak effectively performs the role that the Supreme Court envisioned for him in Miranda.

 Particularly apposite here is the discussion in Miranda concerning the advice an attorney would give a suspect and the role he would play during an ensuing interrogation. Chief Justice Warren observed that, if a suspect asked to speak to an attorney before submitting to a custodial interrogation, the "attorney may advise [him] not to talk to police until he has had an opportunity to investigate the ...

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