People v. Marin

215 A.D.2d 267, 627 N.Y.S.2d 16, 1995 N.Y. App. Div. LEXIS 5510

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 1995
• Status: Published

Opinions

Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered December 10, 1992, convicting defendant, upon his plea of guilty, of assault in the first degree and sentencing him, as a persistent violent felony offender, to 8 years to life imprisonment, affirmed.

Defendant contends that the hearing court should have suppressed his incriminating statement made without counsel on August 30, 1991, while in police custody, that he had slashed the complainant’s face with a razor on July 3, because at that time he was represented by counsel in a pending Criminal Court matter concerning an incident that had occurred 3V2 months earlier, on May 15, wherein he was charged with attempted assault in the third degree, harassment and criminal possession of a weapon in the fourth degree. We disagree. Although the two incidents involved the same victim, they were otherwise unrelated, and thus defendant’s representation in connection with the prior pending incident was not a bar to his knowing and voluntary waiver of Miranda rights herein even in the absence of counsel (see, People v Bing, 76 NY2d 331).

The May incident occurred at the Union Square subway station in Manhattan, and led to defendant’s immediate arrest and arraignment in Manhattan Criminal Court. The July incident, which resulted in serious facial injury, occurred in the Bronx, and was reported to the police there. On August 23, defendant again menaced the victim at the Union Square subway station. The victim later told a Transit Police detective that this was the same man who had slashed her in July.

We note that the hearing court specifically credited the testimony of the interrogating detective that he had no knowledge of the May incident when he questioned defendant on August 30, and defendant offers no persuasive evidence to the contrary. The dissent focuses upon the alleged "similarity” of the two crimes. But "similarity” does not satisfy the test of "relatedness”. In fact, the only significant common theme is the identity of the victim. Defendant’s earlier harassment of this victim in the subway does not require a conclusion that the two crimes were "related”, for purpose of assuming continuing representation by counsel, particularly where the first charge was at the misdemeanor level, subject to rapid disposition in Criminal Court, and the second offense was a serious felony committed in another county. Concur—Wallach, Asch, Nardelli and Mazzarelli, JJ.