People v. Bertolo, 65 N.Y.2d 111 (1985)

When police are unaware that a suspect is represented by counsel on prior charges, they generally have no duty to inquire about such representation unless they have actual knowledge of pending charges or act in bad faith.

Summary

Bertolo was convicted of sodomy. He moved to suppress his confession, arguing it violated his right to counsel because police knew of prior, unrelated misdemeanor charges but didn’t inquire if he had counsel for those charges. The Court of Appeals affirmed the conviction, holding that police lack a duty to inquire about representation on prior charges unless they have actual knowledge of pending charges or act in bad faith, neither of which was present here. The court emphasized the minor nature and age of the prior charges, and the defendant’s explicit waiver of his Miranda rights.

Facts

A 10-year-old girl was sodomized in a park. Police suspected Bertolo based on information from the girl and her friend. Ten days later, a neighbor reported Bertolo’s prior incidents with another child. A detective found records of Bertolo’s arrests for public lewdness (misdemeanors) several months prior. The detective did not check the status of these charges. Detectives interviewed the victim, her friend, and witnesses, eventually having the girls identify Bertolo’s car. Bertolo was taken to the police station where he waived his Miranda rights three times and confessed to the sodomy.

Procedural History

Bertolo was indicted on sodomy charges. He moved to suppress his statements, arguing they were involuntary and violated his right to counsel. The trial court denied the motion. Bertolo was convicted. The Appellate Division affirmed, with dissenting justices arguing the police had a duty to inquire about counsel on the prior charges per People v. Bartolomeo. The Court of Appeals granted leave to appeal and affirmed.

Issue(s)

Whether a suspect’s right to counsel is violated when police question him about a crime, knowing he was arrested months earlier on unrelated minor charges, but unaware those charges are still pending and he is represented by counsel.

Holding

No, because absent actual knowledge of representation or pending charges, or bad faith, police have no affirmative duty to inquire about prior representation.

Court’s Reasoning

The Court distinguished its prior rulings in People v. Rogers and People v. Bartolomeo, noting those cases involved situations where police knew of pending charges or representation. The court stated, “Where the police are aware that defendant has counsel on other unrelated charges, they may not question the defendant without his attorney being present. Where the police are unaware that defendant has legal representation but are aware that prior charges are pending against him, they must ask defendant whether he has counsel. Absent some actual knowledge, however, of either defendant’s representation by counsel or the pendency of prior charges, the police have no affirmative duty to cease their questioning or inquire whether defendant has an attorney.”

The Court emphasized several factors for determining whether prior representation bars custodial statements: the extent of police knowledge, the proximity, severity and notoriety of the prior charges, and the good or bad faith of the police. Here, the police lacked actual knowledge of representation or pending charges. The prior charges were minor misdemeanors several months old, leading officers to reasonably believe they were resolved. There was no evidence of police misfeasance or deception. The Court noted Bertolo waived his Miranda rights multiple times and never mentioned having counsel. The Court concluded the police acted in good faith, diligently pursuing a serious felony offense after properly advising Bertolo of his rights and obtaining his willing cooperation. Thus, no duty to inquire arose.

Regarding the defendant’s statement to the victim’s mother, the court noted that since defense counsel explicitly stated that they were not moving to suppress the statement, any objection to its admission was affirmatively waived.