AD4 order dated June 7, 2013, affirming judgment of

conviction. Decision below: 107 AD3d 1421, 967 NYS2d

315. Lippman, Ch. J., granted leave May 28, 2014.

ISSUE PRESENTED: The admissibility of statements taken

from defendant during a custodial interrogation without

Miranda warnings; whether the police could infer from

defendant’s conduct and his attorney’s assurances that the

waiver was made on the advice of counsel. (Assigned counsel:

Philip Rothschild, Frank H. Hiscock Legal Aid Society, 351

South Warren Street, Syracuse, NY 13202.)

Factual Background: Graham was arrested for passing counterfeit bills and Miranda warnings were given.  Graham did not provide consistent answers and the interview ended.  Three weeks later his defense attorney contacted detectives and brought Graham in for another interview at which counsel was present before leaving.  At this second interview Miranda warnings were not given again.  

 

Graham represented himself at the suppression hearing and argued the police lacked probable cause to arrest him.  The suppression court then found that Graham had waived his right to counsel in counsel’s presence. 

 

The Appellate Division, reaching the merits,  held that it was permissible for officers to infer from counsel’s assurances and Graham’s conduct that his Miranda waiver was still in effect. 

 

Court of Appeals held the issue was unpreserved because Graham had not raised whether the detectives were required to re-issue the warnings in his suppression motion. Graham’s motion had focused on probable cause and the court’s ruling focused on the right to counsel, not the failure to reissue the warnings; accordingly the suppression court did not address the issue in response to a protest by a party pursuant to C.P.L. §470.05(2).

 

Commentary: this case illustrates the Court of Appeals’ less generous approach to the preservation doctrine than that employed by the Appellate Divisions.  While the Appellate Division deemed the issue sufficiently preserved and addressed the merits, the Court of Appeals adopted a strict interpretation of § 470.05(2)’s requirements.  Before the Appellate Division it is always worth attempting to argue that an issue has been preserved in these circumstances, by referring to the original suppression motion, hearing arguments and the court’s reasoning.