Opinion
October 27, 1966
Appeal from the Herkimer County Court.
Present — Williams, P.J., Bastow, Goldman, Henry and Marsh, JJ.
Judgment unanimously reversed on the law and the facts, and a new trial granted. Memorandum: Since defendant made the inculpatory statement received against him on the trial subsequent to his arrest upon a warrant of arrest after information was filed, in the absence of counsel, such statement would not be admissible unless defendant waived his right to counsel prior to making the inculpatory statement. ( People v. Bodie, 16 N.Y.2d 275; People v. Santmyer, 20 A.D.2d 960. It appears that defendant has no previous convictions, a 10th grade education, and is by occupation a laborer. Unlike the situation in People v. Bodie ( supra), where the defendant gave the answer "no" to the inquiry whether he cared for counsel, the defendant here gave no such unequivocal answer but stated only that he would talk to the trooper but would not sign a statement. His response considered in the light of his educational background and lack of previous experience with the law would appear to fall considerably short of indicating "that he understood the full import of the officer's statement and that he knowingly waived his right to counsel" and would reasonably indicate that defendant was not willing to give a statement in form that could be used against him, in the absence of counsel. The statement was clearly inadmissible in evidence and its use on the trial prejudicial to the defendant, requiring reversal of the judgment of conviction. The tenth count of the indictment charged grand larceny in the first degree, involving the property and moneys received from the forgeries alleged in the first 9 counts. The defendant was convicted under all counts as charged. The proof on the trial failed to establish any taking or series of takings from a single owner of a sum in excess of $165.70. Applying the principles enunciated in People v. Cox ( 286 N.Y. 137) and reaffirmed in People v. Daghita ( 301 N.Y. 223) and People v. Rossi ( 5 N.Y.2d 396) the separate thefts from various owners could not be considered together in finding a single criminal plan permitting conviction of grand larceny, first degree. In the posture of the proof the jury could properly consider under the tenth count of the indictment only grand larceny, second degree, or petit larceny.