People v. Babcock

64 A.D.2d 769, 407 N.Y.S.2d 270, 1978 N.Y. App. Div. LEXIS 12616

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 20, 1978
• Status: Published

Opinion

—Appeal from a judgment of the County Court of Albany County, rendered November 15, 1977, which revoked defendant’s probation and imposed sentence upon his earlier conviction of burglary in the third degree. Defendant was arrested on a warrant obtained from a local criminal court upon the filing of a felony complaint. While in custody, prior to arraignment and prior to being represented by counsel, but after Miranda warnings, defendant was interrogated by a police officer and gave an incriminating statement. After a jury trial defendant was convicted of unauthorized use of a motor vehicle and received a sentence of one year in the county jail. He was also found guilty of violation of probation and sentenced to a term of 0 to 4 years. These appeals ensued. The sole issue for consideration is whether the court erred in denying defendant’s motion to suppress the oral statement made to the police officer. It is defendant’s contention that once the information was filed and warrant of arrest issued no further interrogation of him was justified since he could not waive his right to remain silent in the absence of counsel. Consequently, he argues, the instant statement should have been suppressed. We disagree. Defendant’s reliance on People v Hobson (39 NY2d 479) is misplaced. We are of the view that Hobson was restricted to a postindictment statement. Where the accusatory instrument is not an indictment, the point after which the police are prohibited from questioning is the arraignment (People v Stockford, 24 NY2d 146; People v Bodie, 16 NY2d 275). The judgment, therefore, should be affirmed. Judgment affirmed. Mahoney, P. J., Greenblott, Sweeney, Main and Mikoll, JJ., concur.