People v. Ramos (2002)

Defendant's assertion otherwise is merely an attempt to "convert an unpreserved statutory claim [that his arraignment was unnecessarily delayed] into a constitutional right-to-counsel claim — and thus gain appellate review — by merely labeling the claim constitutional" ( People v Ramos , 99 NY2d at 37).

While an undue delay in arraignment is properly considered when assessing the voluntariness of a defendant’s confession, a delay in arraignment alone does not warrant suppression, as it is but one factor in assessing the voluntariness of a confession (see People v Ramos, 99 NY2d 27, 35 [2002]; People v DeCam poamor, 91 AD3d 669, 671 [2012]; People v Williams, 53 AD3d 591, 592 [2008]; see also People v Williams, 297 AD2d 325 [2002]).

While an undue delay in arraignment is properly considered when assessing the voluntariness of a defendant’s confession, a delay in arraignment alone does not warrant suppression, as it is but one factor in assessing the voluntariness of a confession (see People v Ramos, 99 NY2d 27, 35 [2002]; People v DeCam poamor, 91 AD3d 669, 671 [2012]; People v Williams, 53 AD3d 591, 592 [2008]; see also People v Williams, 297 AD2d 325 [2002]).

This argument is unpreserved for appellate review (see People v Ramos, 99 NY2d 27, 37 [2002]).

(See People v Ramos, 99 NY2d 27, 32-33 [2002].) Prior to his conversation with Detectives Polite and Miraglia on June 15, 2004, which was the first occasion on which he spoke with the police concern ing this matter, defendant was advised of his Miranda rights to counsel and silence and serially acknowledged in writing that he understood and waived those rights.

Defendant contends for the first time on appeal that he was denied his right to counsel because police questioning did not immediately stop upon the arrival of his attorney at the police [*3]station ( see People v Grice , 100 NY2d 318, 321-324 [2003]; cf. People v Wade , 164 AD3d 840 , 841 [2d Dept 2018], lv denied 32 NY3d 1116 [2018]). "[T]he rule 'authorizing review of unpreserved constitutional right-to-counsel claims' has been applied 'only when the constitutional violat…

"The State constitutional right to counsel is a 'cherished principle' . . . , worthy of the 'highest degree of [judicial] vigilance' " ( People v Ramos , 99 NY2d 27, 32 [2002]).

Although defendant's contention that his arraignment was intentionally delayed survives his guilty plea and valid appeal waiver ( see People v Thompson , 150 AD3d 1156, 1158 [2017], lv denied 30 NY3d 1023 [2017]), it is unpreserved for this Court's review as he failed to raise this issue before County Court ( see People v Ramos , 99 NY2d 27, 30 [2002]).

Although defendant is correct that, once an uncharged individual requests counsel while in police custody, his or her constitutional right to counsel cannot thereafter be waived without counsel present ( see People v Ramos , 99 NY2d 27, 32-33 [2002]; People v Cunningham , 49 NY2d 203, 208-210 [1980]), the court determined that defendant was not in custody on July 12 ( see generally People v Yukl , 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]).

Defendant’s right to counsel had not attached inasmuch as he had not requested an attorney and formal proceedings had not begun with respect to the charges underlying appeal No. 2 (see People v Ramos, 99 NY2d 27, 34 [2002]), and it is well settled that “a delay in arraignment for the purpose of further police questioning does not establish a deprivation of the State constitutional right to counsel” (id. at 37).

Defendant’s right to counsel had not attached inasmuch as he had not requested an attorney and formal proceedings had not begun with respect to the charges underlying appeal No. 2 (see People v Ramos, 99 NY2d 27, 34 [2002]), and it is well settled that “a delay in arraignment for the purpose of further police questioning does not establish a deprivation of the State constitutional right to counsel” (id. at 37).

While an undue delay in arraignment is properly considered when assessing the voluntariness of a defendant’s confession, a delay in arraignment alone does not warrant suppression, as it is but one factor in assessing voluntariness (see People v Ramos, 99 NY2d 27, 34-35 [2002]; People v DeCampoamor, 91 AD3d 669, 670-671 [2012]).

This Court has stated that “an undue delay in arraignment should properly be considered in assessing the voluntariness of a defendant’s *720 confession” (People v Ramos, 99 NY2d 27, 35 [2002]), and may serve as “a significant reason why [a] defendant’s confession could not be considered voluntary” (id. at 35, citing Anderson, 42 NY2d at 39 ; Holland, 48 NY2d at 862-863 [delay in arraignment is “one factor to be considered in assessing the voluntariness of a confession”]).

Inasmuch as the defendant claims that his arraignment was unnecessarily delayed in violation of CPL 140.20, the proper remedy at the time would have been to petition the local criminal court to release the defendant from custody (see People v Ramos, 99 NY2d 27, 36 [2002]).

As defendant requested counsel after being advised of his Miranda rights at the police station, any further police questioning was precluded (see People v Ramos, 99 NY2d 27, 32-33 [2002]; People v West, 81 NY2d 370, 373-374 [1993]; People v Dashnaw, 85 AD3d 1389, 1390-1391 [2011], lv denied 17 NY3d 815 [2011]).

As defendant requested counsel after being advised of his Miranda rights at the police station, any further police questioning was precluded (see People v Ramos, 99 NY2d 27, 32-33 [2002]; People v West, 81 NY2d 370, 373-374 [1993]; People v Dashnaw, 85 AD3d 1389, 1390-1391 [2011], lv denied 17 NY3d 815 [2011]).

As defendant requested counsel after being advised of his Miranda rights at the police station, any further police questioning was precluded (see People v Ramos, 99 NY2d 27, 32-33 [2002]; People v West, 81 NY2d 370, 373-374 [1993]; People v Dashnaw, 85 AD3d 1389, 1390-1391 [2011], lv denied 17 NY3d 815 [2011]).

It is well settled that, under the NY Constitution, the right to counsel indelibly attaches when an accusatory instrument is filed or an individual in custody has retained an attorney in the matter under investigation or requests the assistance of an attorney (see People v Lopez, 16 NY3d 375, 380 [2011]; People v Grice, 100 NY2d 318, 321 [2003]; People v Ramos, 99 NY2d 27, 32-33 [2002]; People v West, 81 NY2d 370, 373-374 [1993]; People v Dashnaw, 85 AD3d 1389, 1390-1391 [20…

It is well settled that, under the NY Constitution, the right to counsel indelibly attaches when an accusatory instrument is filed or an individual in custody has retained an attorney in the matter under investigation or requests the assistance of an attorney (see People v Lopez, 16 NY3d 375, 380 [2011]; People v Grice, 100 NY2d 318, 321 [2003]; People v Ramos, 99 NY2d 27, 32-33 [2002]; People v West, 81 NY2d 370, 373-374 [1993]; People v Dashnaw, 85 AD3d 1389, 1390-1391 [20…

Defendant also contends for the first time on appeal that he was denied his right to counsel because, although he was not in custody on a prior charge, he was represented by counsel on that charge and it was related to the charges for which he was in custody (see People v Vella, 21 NY2d 249, 251 [1967]). “[T]he rule ‘authorizing review of unpreserved constitutional right-to-counsel claims’ has been applied ‘only when the constitutional violation was established on the face o…

Defendant also contends for the first time on appeal that he was denied his right to counsel because, although he was not in custody on a prior charge, he was represented by counsel on that charge and it was related to the charges for which he was in custody (see People v Vella, 21 NY2d 249, 251 [1967]). “[T]he rule ‘authorizing review of unpreserved constitutional right-to-counsel claims’ has been applied ‘only when the constitutional violation was established on the face o…

People v Ramos, 99 NY2d 27, 35 [2002]) or after the right to counsel attaches (see e.g.

We note, as to the claim of arraignment delay, that any such undue delay would merely be one factor in determining whether the defendant’s inculpatory statement was voluntary, and does not trigger the defendant’s indelible right to counsel (see People v Ramos, 99 NY2d 27, 37 [2002]; People v Hopkins, 58 NY2d 1079, 1081 [1983]; People v Holland, 48 NY2d 861 [1979]; People v Dairsaw, 46 NY2d 739 [1978], cert denied 440 US 985 [1979]; People v DeCampoamor, 91 AD3d 669, 670-671 …

We note, as to the claim of arraignment delay, that any such undue delay would merely be one factor in determining whether the defendant’s inculpatory statement was voluntary, and does not trigger the defendant’s indelible right to counsel (see People v Ramos, 99 NY2d 27, 37 [2002]; People v Hopkins, 58 NY2d 1079, 1081 [1983]; People v Holland, 48 NY2d 861 [1979]; People v Dairsaw, 46 NY2d 739 [1978], cert denied 440 US 985 [1979]; People v DeCampoamor, 91 AD3d 669, 670-671 …

Further, contrary to defendant’s contention, it was not necessary to determine whether Abelove had acted as his attorney, as the right to counsel had not yet attached at the time of the telephone conversation (see People v Ramos, 99 NY2d 27, 32-33 [2002]; People v Caruso, 34 AD3d 860 , 861-862 [2006], lv denied 8 NY3d 879 [2007]).

Further, contrary to defendant’s contention, it was not necessary to determine whether Abelove had acted as his attorney, as the right to counsel had not yet attached at the time of the telephone conversation (see People v Ramos, 99 NY2d 27, 32-33 [2002]; People v Caruso, 34 AD3d 860 , 861-862 [2006], lv denied 8 NY3d 879 [2007]).

Although the defendant now contends that the police unnecessarily delayed in arraigning him for the purpose of obtaining his statements in violation of CPL 140.20 (1), which bears on the issue of voluntariness, the defendant failed to preserve this contention for appellate review, thereby depriving the People of an opportunity to put forth other reasons for the alleged delay in arraignment (see People v Ramos, 99 NY2d 27, 37 [2002]; People v Hayward, 48 AD3d 209, 210 [2008];…

Under the circumstances here, County Court appropriately determined that defendant’s statements were voluntarily made (see People v Ramos, 99 NY2d 27, 35 [2002]; People v Gause, 38 AD3d 999, 1000 [2007], lv denied 9 NY3d 865 [2007]).

The indelible right to counsel, prohibiting interrogation unless the right is waived in the presence of counsel, attaches, inter alia, when a criminal action is formally commenced by the filing of an accusatory instrument (see People v Grice, 100 NY2d 318, 320-321 [2003]; People v Ramos, 99 NY2d 27, 32-33 [2002]).

Even assuming, arguendo, that defendant’s indelible right to counsel had attached when he made the disputed statements (see generally People v Ramos, 99 NY2d 27, 32-33 [2002]; People v Casey, 37 AD3d 1113, 1115 [2007], lv denied 8 NY3d 983 [2007]), we conclude that the statements were spontaneous inasmuch as “they were in no way the product of an interrogation environment [or] the result of express questioning or its functional equivalent” (People v Harris, 57 NY2d 335, 342 …

As is relevant to this appeal, the right to counsel indelibly attaches “when an uncharged individual ‘has actually retained a lawyer in the matter at issue or, while in custody, has requested a lawyer in that matter’ ” (People v Ramos, 99 NY2d 27, 32-33 [2002] [emphasis added], quoting People v West, 81 NY2d 370, 373-374 [1993]).

Although the right to counsel under the New York State Constitution is broader than that under the Federal Constitution (see People v Ramos, 99 NY2d 27, 33 [2002]), New York jurisprudence parallels federal law with respect to the scope of Fifth Amendment protection (see Hawkins, 55 NY2d at 482 ).

Notably, defendant does not directly contend that he was denied the right to counsel, a contention that of course does not require preservation (see People v Ramos, 99 NY2d 27, 30 [2002]).

The circumstances were not unduly coercive, and the delay in defendant’s arraignment was satisfactorily explained, was not excessive, and did not render the confession involuntary (see People v Ramos, 99 NY2d 27, 35 [2002]; People v Irons, 285 AD2d 383 [2001], lv denied 97 NY2d 641 [2001]).

A delay in an arraignment does not automatically cause the right to counsel to attach but, instead, “such a delay bears on the voluntariness of the confession, and is a factor to be considered in that regard” (People v Ramos, 99 NY2d 27, 34 [2002]).

“Contrary to defendant’s contentions, [the Court of Appeals has] never held that a deliberate delay of arraignment for the purpose of obtaining a confession triggers the State constitutional right to counsel” (People v Ramos, 99 NY2d 27, 34 [2002]).

In addition, the defendant’s contention that an unnecessary delay in his arraignment (see CPL 140.20) deprived him of the right to counsel is without merit as a “delay in arraignment ‘does not cause the right to counsel to attach automatically’ ” (People v Ramos, 99 NY2d 27, 34 [2002], quoting People v Hopkins, 58 NY2d 1079, 1081 [1983]; see People v Santiago, 289 AD2d 421 [2001]).

Similarly, courts have consistently held that a long period of prearraignment delay is also a primary consideration in determining the voluntariness of a confession (People v Ramos, 99 NY2d 27, 35 [2002]; People v Holland, 48 NY2d 861 [1979]).

Moreover, there is nothing in the record to indicate that the police delayed the defendant’s arraignment to deprive him of his right to counsel or to continue to question him without the presence of an attorney (see People v Ramos, 99 NY2d 27, 34-36 [2002]; People v Blackmon, supra).

In the analogous context of CPL 140.20, the Court of Appeals has held that delay in arraignment does not implicate the state constitutional right to counsel, but is relevant in evaluating the voluntariness of the confession (People v Ramos, 99 NY2d 27, 35 [2002]).

While a deliberate delay in arraignment for the purpose of obtaining a confession bears on the voluntariness of a confession, such an argument must be raised before the trial court to be preserved for appellate review (see People v Ramos, 99 NY2d 27, 34, 37 [2002]; People v Seeber, 4 AD3d 620, 622 [2004], affd 4 NY3d 780 [2005]).

Since respondent’s right to counsel (see, In re Gault, 387 US 1, 34-42 [1967]; Matter of Lawrence S., 29 NY2d 206, 209 [1971]; Family Ct Act §§ 241, 249 [a]; § 320.2 [2]) has indelibly attached with respect to the criminal acts allegedly committed on August 6, 2006 by virtue of the presentment agency’s application to this court for his temporary release from detention to the custody of the police for their investigation of the August 6, 2006 incident (see, Kirby v Illinois, …

Since respondent's right to counsel ( see , In re Gault , 387 US 1, 34-42 [1967]; Matter of Lawrence S. , 29 NY2d 206, 209 [1971]; Family Ct Act §§ 241, 249 [a]; § 320.2 [2]) has indelibly attached with respect to the criminal acts allegedly committed on August 6, 2006 by virtue of the presentment agency's application to this court for his temporary release from detention to the custody of the police for their investigation of the August 6, 2006 incident ( see , Kirby v Illi…

The contention of defendant that he was deprived of his right to counsel under New York law is properly before us (see generally People v Ramos, 99 NY2d 27, 30 [2002]; People v Kinchen, 60 NY2d 772, 773-774 [1983]) but is lacking in merit.

“First, it arises when formal judicial proceedings begin, whether or not the defendant has actually retained or requested a lawyer [and] [s]econd . . . when an uncharged individual ‘has actually retained a lawyer in the matter at issue or, while in custody, has requested a lawyer in that matter’ ” (People v Ramos, 99 NY2d 27, 32-33 [2002], quoting People v West, 81 NY2d 370, 373-374 [1993] [internal citations omitted]).

Moreover, although defendant argues that the statements should have been suppressed because her arraignment was unnecessarily delayed, we note that an unwarranted period of prearraignment delay is only one factor to be considered in assessing whether a confession or admission was voluntary (see People v Ramos, 99 NY2d 27, 34 [2002]; People v Holland, 48 NY2d 861, 862-863 [1979]).

Once an uncharged individual requests counsel while in police custody, his or her constitutional rights cannot thereafter be waived without counsel present (see People v Ramos, 99 NY2d 27, 32-33 [2002]; People v Cunningham, 49 NY2d 203, 208-210 [1980]).

The delay in Smith’s arraignment, which was attributable to the ongoing investigation, did not affect the voluntariness of his statement (see People v Ramos, 99 NY2d 27, 35 [2002]).

The remaining arguments raised by the defendant in his supplemental pro se brief are unpreserved for appellate review (see People v Ross, 21 NY2d 258, 262 [1967]; People v Delosanto, 307 AD2d 298 [2003]) and, in any event, are without merit (see People v Ramos, 99 NY2d 27, 32-33 [2002]; People v Bertolo, 65 NY2d 111 , 116 [1985]; People v Sears, 9 AD3d 472 [2004]; People v Feneque, 133 AD2d 646 [1987]).

Under these circumstances, defendant’s indelible right to counsel had not attached (see People v Ramos, 99 NY2d 27, 32-33 [2002]).