Judgment, Supreme Court, New York County (Stephen G. Crane, J.), rendered on or about May [471]*47120, 1985, convicting defendant, after a jury trial, of robbery in the first degree and robbery in the second degree, and sentencing him as a second violent felony offender to concurrent prison terms of 12 Vi to 25 years and 7 V% to 15 years, reversed, on the law, the defendant’s written statement and part of defendant’s oral statement hereinafter described are suppressed, the conviction vacated, and the matter remanded for a new trial.
The defendant was convicted, after a jury trial, of robbery in the first degree and robbery in the second degree, and sentenced as a second violent felony offender to concurrent prison terms of from 12 Vi to 25 years and 7 Vi to 15 years.
The jury’s verdict was amply supported by the evidence at the trial. The principal question on this appeal is raised by defendant’s contention that the court erred in denying his motion to suppress inculpatory oral and written statements made by him, statements that the defendant asserts were elicited following his invocation of his right to counsel and in violation of his right to counsel.
On this appeal, the People properly acknowledge that under established law the defendant had invoked his right to counsel prior to his inculpatory statements, and that accordingly it was error to admit into evidence defendant’s handwritten statement and that part of his oral inculpatory statement that followed a question by the arresting detective. However, the People contend that defendant’s first statement, acknowledging his participation in the robbery for which he was convicted, was spontaneous and therefore admissible, and that under all the circumstances the admission of the latter portion of the oral statement and the defendant’s handwritten confession was harmless error.
We agree that it was error to admit into evidence the defendant’s handwritten statement and the latter part of his oral statement, but we do not agree that the introduction of the defendant’s handwritten confession can be considered harmless error, notwithstanding the undoubted strength of the People’s case. As to whether or not the defendant’s preliminary acknowledgment of culpable participation in the robbery was spontaneous and hence admissible, a more difficult question is presented, a question complicated by a legally relevant divergence in the detective’s trial testimony from that adduced at the hearing.
It is important to a clear understanding of the several issues raised that the evidence adduced at the hearing and the issues [472] arising from that testimony be considered separately from the issues presented by evidence presented at the trial, which, as already noted, differs in one legally relevant respect.
As developed at the hearing, Detective Clinton, assigned to the investigation of a robbery of a token booth that had occurred on April 8, 1984, took defendant into custody at about 3:00 p.m. on April 10, 1984, in a park at 117th Street and Seventh Avenue. Brought to a police van, the defendant was taken to the Transit Police headquarters at 370 Jay Street, Brooklyn. In the van he was handcuffed and the Miranda warnings were read to him from a form. The warnings, which the defendant said he understood, ended with the following question: "Now that I advised you of your rights, are you willing to answer questions without an attorney present?” The defendant said no.
At about 10:25 p.m., in the lineup room at Transit Police headquarters, and just before the defendant was to be viewed in a lineup by a victim of the robbery, the detective asked the defendant if he recalled having been advised of his rights earlier when first taken into custody, and the defendant answered yes. As later developed in the testimony of the detective, he gave this reminder to the defendant to explore whether or not the defendant was willing at that time to answer questions, and the detective concluded that the defendant was not willing. The defendant was then identified by the witness in the lineup. Shortly after the identification, and while the defendant was in the lineup room, the detective informed him that he had been identified, testifying that it was his invariable practice to inform persons in custody of the results of the lineup whether the person had been identified or not.
Several minutes later, estimated at one point as some 10 minutes, the detective, then in another room, was informed by another officer that the defendant wished to speak to him. The detective reentered the lineup room and the defendant told him that he was at the robbery, that he had participated because of financial need, and that he had been told by his accomplice that his role would be that of a lookout. The detective then asked the defendant what he did during the robbery and the defendant stated that when the others took some of the money, he carried away a bag containing money and tokens.
Thereafter, when the detective learned that an Assistant District Attorney would not be available to speak to the [473] defendant, he asked the defendant whether he would be willing to write his statement down on a piece of paper, which the defendant agreed to do. In addition, the detective testified that at some point during the oral statement, apparently after the original inculpatory statement, the defendant asked the detective if he could help him out, and that he responded that all he could do was to tell the District Attorney that the defendant had willingly given the oral and the written admission to him.
In arguing for suppression, the single ground relevant on this appeal urged by defendant’s trial counsel was that defendant’s refusal to answer questions after the Miranda warnings constituted the assertion of his right to silence, and that right was not scrupulously honored in accordance with the applicable rules of law (see, People v Ferro, 63 NY2d 316) when statements were made by him after he was told that he had been identified, and without a repetition of the Miranda warnings. Responding to the issue presented by defense counsel, the trial court concluded that the detective did not violate defendant’s rights when he informed the defendant that he had been identified, that the detective had no obligation thereafter to refuse to hear the defendant’s volunteered statement, and that under the circumstances presented the failure to readminister the Miranda warnings did not require suppression of either the oral or the written statement.
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Judgment, Supreme Court, New York County (Stephen G. Crane, J.), rendered on or about May [471]*47120, 1985, convicting defendant, after a jury trial, of robbery in the first degree and robbery in the second degree, and sentencing him as a second violent felony offender to concurrent prison terms of 12 Vi to 25 years and 7 V% to 15 years, reversed, on the law, the defendant’s written statement and part of defendant’s oral statement hereinafter described are suppressed, the conviction vacated, and the matter remanded for a new trial.
The defendant was convicted, after a jury trial, of robbery in the first degree and robbery in the second degree, and sentenced as a second violent felony offender to concurrent prison terms of from 12 Vi to 25 years and 7 Vi to 15 years.
The jury’s verdict was amply supported by the evidence at the trial. The principal question on this appeal is raised by defendant’s contention that the court erred in denying his motion to suppress inculpatory oral and written statements made by him, statements that the defendant asserts were elicited following his invocation of his right to counsel and in violation of his right to counsel.
On this appeal, the People properly acknowledge that under established law the defendant had invoked his right to counsel prior to his inculpatory statements, and that accordingly it was error to admit into evidence defendant’s handwritten statement and that part of his oral inculpatory statement that followed a question by the arresting detective. However, the People contend that defendant’s first statement, acknowledging his participation in the robbery for which he was convicted, was spontaneous and therefore admissible, and that under all the circumstances the admission of the latter portion of the oral statement and the defendant’s handwritten confession was harmless error.
We agree that it was error to admit into evidence the defendant’s handwritten statement and the latter part of his oral statement, but we do not agree that the introduction of the defendant’s handwritten confession can be considered harmless error, notwithstanding the undoubted strength of the People’s case. As to whether or not the defendant’s preliminary acknowledgment of culpable participation in the robbery was spontaneous and hence admissible, a more difficult question is presented, a question complicated by a legally relevant divergence in the detective’s trial testimony from that adduced at the hearing.
It is important to a clear understanding of the several issues raised that the evidence adduced at the hearing and the issues [472] arising from that testimony be considered separately from the issues presented by evidence presented at the trial, which, as already noted, differs in one legally relevant respect.
As developed at the hearing, Detective Clinton, assigned to the investigation of a robbery of a token booth that had occurred on April 8, 1984, took defendant into custody at about 3:00 p.m. on April 10, 1984, in a park at 117th Street and Seventh Avenue. Brought to a police van, the defendant was taken to the Transit Police headquarters at 370 Jay Street, Brooklyn. In the van he was handcuffed and the Miranda warnings were read to him from a form. The warnings, which the defendant said he understood, ended with the following question: "Now that I advised you of your rights, are you willing to answer questions without an attorney present?” The defendant said no.
At about 10:25 p.m., in the lineup room at Transit Police headquarters, and just before the defendant was to be viewed in a lineup by a victim of the robbery, the detective asked the defendant if he recalled having been advised of his rights earlier when first taken into custody, and the defendant answered yes. As later developed in the testimony of the detective, he gave this reminder to the defendant to explore whether or not the defendant was willing at that time to answer questions, and the detective concluded that the defendant was not willing. The defendant was then identified by the witness in the lineup. Shortly after the identification, and while the defendant was in the lineup room, the detective informed him that he had been identified, testifying that it was his invariable practice to inform persons in custody of the results of the lineup whether the person had been identified or not.
Several minutes later, estimated at one point as some 10 minutes, the detective, then in another room, was informed by another officer that the defendant wished to speak to him. The detective reentered the lineup room and the defendant told him that he was at the robbery, that he had participated because of financial need, and that he had been told by his accomplice that his role would be that of a lookout. The detective then asked the defendant what he did during the robbery and the defendant stated that when the others took some of the money, he carried away a bag containing money and tokens.
Thereafter, when the detective learned that an Assistant District Attorney would not be available to speak to the [473] defendant, he asked the defendant whether he would be willing to write his statement down on a piece of paper, which the defendant agreed to do. In addition, the detective testified that at some point during the oral statement, apparently after the original inculpatory statement, the defendant asked the detective if he could help him out, and that he responded that all he could do was to tell the District Attorney that the defendant had willingly given the oral and the written admission to him.
In arguing for suppression, the single ground relevant on this appeal urged by defendant’s trial counsel was that defendant’s refusal to answer questions after the Miranda warnings constituted the assertion of his right to silence, and that right was not scrupulously honored in accordance with the applicable rules of law (see, People v Ferro, 63 NY2d 316) when statements were made by him after he was told that he had been identified, and without a repetition of the Miranda warnings. Responding to the issue presented by defense counsel, the trial court concluded that the detective did not violate defendant’s rights when he informed the defendant that he had been identified, that the detective had no obligation thereafter to refuse to hear the defendant’s volunteered statement, and that under the circumstances presented the failure to readminister the Miranda warnings did not require suppression of either the oral or the written statement.
On the basis of the hearing minutes, and in terms of the issue presented to the trial court by defendant’s trial counsel, we agree with the trial court that defendant’s right to have his claim of silence scrupulously honored was not violated when the detective informed him of the identification, and that the defendant’s preliminary volunteered statement, not responsive to any question, was properly admissible. A closer question is undoubtedly raised as to whether or not it was appropriate in terms of the issue presented to the trial court for the detective to ask defendant for further details, and to have invited him to write out a written statement without repeating his Miranda rights. In view of the undoubted fact, conceded on this appeal by the People, that defendant’s right to counsel was violated by the admission of statements made in response to questions or requests by the detective, it is unnecessary for us to determine whether or not the trial court was correct in his ruling in terms of the issue that was presented to him.
As already noted, on this appeal the defendant appropriately alleges that his negative answer when asked whether he [474] was "willing to answer questions without an attorney” constituted the assertion of his right to counsel (see, People v Carmine A., 53 NY2d 816). The principle is now well established that "an uncounseled waiver of a constitutional right will not be deemed voluntary if it is made after the right to counsel has been invoked” (People v Cunningham, 49 NY2d 203, 205). From these principles it clearly follows that the oral statements made by the defendant in response to a question or questions by the detective, and the written confession, then made at the detective’s request, were improperly admitted into evidence and must be suppressed.
The single remaining question in terms of the evidence adduced at the hearing is whether or not the defendant’s first statement, apparently not made in response to any question, was spontaneous within the meaning of the single exception to the admissibility of inculpatory statements made after a defendant in custody has invoked the right to counsel. The issue is not free from doubt. The Court of Appeals has emphatically stated that "the spontaneity has to be genuine and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed” (People v Maerling, 46 NY2d 289, 302-303; People v Lucas, 53 NY2d 678; People v Carmine A., supra). Recognizing the stringent nature of this test, we are ’not persuaded that the detective’s statement to the defendant after the lineup that he had been identified, a statement that the detective testified was in accordance with his invariable practice to inform persons in custody of the lineup result, whether the person was identified or not, is correctly evaluated as a form of inducement and encouragement.
Accordingly, on the basis of the evidence adduced at the hearing, we are satisfied that the preliminary statement of the defendant described above was properly admitted in evidence.
A separate, and quite difficult, issue with regard to the spontaneous character of the defendant’s first inculpatory statement is raised by the arresting detective’s trial testimony. He testified that when he entered the lineup room to speak to the defendant after being told that the defendant wanted to say something to him, the following conversation occurred: "I asked him, I said do you want to say something to me? He said that if he cooperated with me, could I help him out. At that time I told him it all depends on what he was saying, and I could speak to the District Attorney in his behalf.” He then testified to the defendant making essentially the same preliminary inculpatory statements that he testified [475] to at the hearing. In short, Detective Clinton’s trial testimony is explicit that the defendant’s inquiry as to whether the detective could help him if he cooperated, and the detective’s response, occurred prior to the defendant’s first inculpatory statement, whereas his hearing testimony strongly communicated that the exchange occurred thereafter.
Preliminarily, we agree with the People that this change in testimony does not affect the trial court’s ruling after the pretrial hearing on the basis of the testimony then presented to the Trial Judge, at least in the absence of any application to the court by defendant’s trial counsel to reopen the hearing or to reconsider his finding in the light of this change in testimony. However, this does not eliminate as an issue for appellate consideration the legal question raised by the detective’s trial testimony. Defendant’s several inculpatory statements were in fact admitted at the trial, and the issue as to whether those statements were in accord with defendant’s constitutional rights was submitted by the trial court to the jury for its consideration. Although defense counsel did not identify the changed testimony as giving rise to a new issue as to whether the defendant’s right to counsel had been violated, the principle is of course firmly established that a violation of the right to counsel may be reviewed in the absence of an objection. (See, People v Carmine A., supra, at 818; People v Ermo, 47 NY2d 863, 865.)
Addressing the issue raised by the trial testimony on the merits, as already observed, the Court of Appeals has carefully defined "spontaneous” in the relevant constitutional context as "genuine and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed”. In the light of this controlling definition, it may no doubt be argued with some logic that the defendant’s inquiry with regard to help in the event of his cooperation should have alerted the detective, if he had been familiar with the relevant appellate authorities in this area, that the defendant was considering making an uncounseled waiver of his right to counsel, and that the detective’s response, although truthful and neutrally phrased, could have encouraged the defendant to make such an unpermitted waiver.
Although apparently logical, this approach does not seem to us to be required by the controlling authorities, nor do we think that it represents a sensible response to the realities of the situation. The defendant clearly had a legitimate interest in learning what benefits might accrue to him if he were to cooperate. We see no persuasive reason why the detective [476] could not respond to this appropriate inquiry, so long as the response was truthful and neutrally phrased, as it was in this case, and so long as it did not give rise to a further colloquy that would justify the implication that the detective was engaged in a form of disguised interrogation.
Although there is language in some cases that provides arguable support for a contrary view, we believe that the admissibility of the first inculpatory statement by the defendant is consistent with the approach set forth in the most immediately relevant decisions of the Court of Appeals, and that it represents the sounder approach to the undeniably difficult issue that is here presented (see, People v Lynes, 49 NY2d 286; People v Huffman, 61 NY2d 795).
We do not understand the word "spontaneous” as used by the Court of Appeals to be limited to a sudden, unexpected statement by the defendant, or to exclude a statement that is obviously the product of some thought by the defendant. We think that the definition of spontaneous set forth in the several decisions on the question is complied with by a statement that is truly voluntary and that is "not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed.” Concur—Sullivan and Kassal, JJ. Sandler, J. P., concurs in the majority writing for the court and concurs separately in a memorandum and Milonas, J., dissents in part in a memorandum, both as follows: