PEOPLE v. WONG

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Court of Appeal, Second District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Duck WONG, Defendant and Appellant.

Cr. 26642.

Decided: November 26, 1975

Richard H. Levin, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Shunji Asari and Robert R. Anderson, Deputy Attys. Gen., for plaintiff and respondent.

Duck Wong appeals from an order granting him probation following his conviction of vehicular manslaughter (Pen.Code, § 192, subd. 3(a)) and of both willfully leaving the scene of an accident and not rendering aid to an injured party (Veh.Code, § 20001). The appeal lies. (Pen.Code, § 1237, subd. (1).)

Appellant contends that the police elicited from him an involuntary confession and that the trial court abused its discretion in refusing to grant him a continuance to procure a needed expert witness. We hold that appellant's inculpatory statement was unconstitutionally obtained and therefore reverse his conviction on that ground alone.

FACTS1

In the early morning of January 30, 1974, Kai Kiu Liu, appellant's finance, was struck and killed by a vehicle as she crossed an intersection in Los Angeles. Eyewitnesses testified that the vehicle was travelling substantially in excess of the posted limit and that it slowed down immediately after striking the pedestrian, but thereafter sped away. One motorist pursued the vehicle and obtained its description and license number. The automobile was registered to appellant.

Five days later, on February 4, investigating Los Angeles Police Officer John O'Toole requested the assistance of one Gary Yee in locating the appellant. Yee was active in the Los Angeles Chinese community and, without remuneration, had similarly assisted police in the past. Yee and appellant had been acquainted with each other for about ten years.

That same day, February 4, appellant, knowing that the police sought to question him regarding the January 30 accident, retained attorney Clifford Douglas. The next day, February 5, Douglas contacted Sergeant O'Toole, told him appellant was his client, and indicated that he would try to bring appellant in to speak with the police. O'Toole agreed to cease his own efforts to find appellant and to work through Douglas instead. Nevertheless, in a subsequent conversation with Yee that day, O'Toole did not inform him of the promise given to Douglas.

That day, February 5, Yee saw appellant on the street. The two went to a nearby store where they engaged in further conversation regarding appellant's situation. Two other persons, described as appellant's ‘confidential friends,’ also participated in the conversation. All three urged appellant to speak with the police. One of the ‘confidential friends' opined that if appellant did not do so, an arrest warrant would be issued for him; Yee agreed with this prediction.

On the morning of February 6, O'Toole found a note on his office desk stating that Yee would be coming in with appellant; shortly thereafter both men arrived at O'Toole's office. With Yee acting as interpreter, O'Toole initially asked appellant about Douglas. O'Toole quoted Yee's reply after Yee had spoken to appellant in Chinese: ‘Douglas had told [appellant] not to come in, and that what kind of an attorney would advise someone not to come in [, and] that they were going to get another attorney.’ Continuing to use Yee as an interpreter, O'Toole then advised appellant of his constitutional rights in accordance with Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Appellant indicated through Yee that he wished to waive those rights. Finally O'Toole asked if appellant wished to discuss the matter ‘without his attorney being present’; Yee translated appellant's response as: ‘You don't need an attorney the same [sic] as he's telling the truth.’ Appellant then proceeded to make an inculpatory statement to O'Toole regarding the accident.

Despite these remarks of appellant, Douglas represented appellant throughout his trial. Apparently he was never discharged.

DISCUSSION

A. Appellant's Status As a Suspect Represented By Counsel

Any supposed differential in police procedures for obtaining waivers of the constitutional rights to be silent and to the assistance of counsel from persons represented by legal counsel as opposed to those who are not represented is significant in this case only if appellant falls into the former category. We are convinced that he does. Sergeant O'Toole testified that he understood appellant to be represented by counsel at the time appellant entered his office. Appellant's attorney had spoken with O'Toole just one day earlier regarding his client. Appellant's act of entering the office was not itself a repudiation of his attorney-client relationship with Douglas. Although appellant had an absolute right to dismiss his retained counsel (Fracasse v. Brent, 6 Cal.3d 784, 790, 100 Cal.Rptr. 385, 494 P.2d 9), at no time during the February 6 encounter did appellant state that he had done so. At most, he indicated disagreement with Douglas' advice and an intention to change lawyers in the future.2

Having established appellant's status as a suspect known by police to be represented by counsel, we can now state the central question of this appeal: in order to obtain a waiver of a suspect's Fifth and Sixth Amendment rights prior to custodial interrogation, may the police ignore the fact that the suspect is represented by counsel and that the lawyer is known to have advised the suspect to remain silent? The People urge that this information is not significant; were we to agree with them, appellant's waiver of his rights at the outset of his conversation with O'Toole would certainly be valid, in view of the trial court's finding that appellant freely and intelligently waived those rights as provided for in Miranda. We conclude, however, that Miranda alone is not determinative of the validity of appellant's waiver. For the purpose of conducting a custodial interrogation, the police may not treat a represented suspect as if he were unrepresented.

B. The DiBiasi Rule: No Interrogation in the Absence of Counsel

In a line of New York decisions beginning in 1960 the courts of that state recognized that at a certain point in criminal proceedings, a defendant can no longer be interrogated by police unless legal counsel be present.3 Waiver was not thought to be relevant; the bar against interrogations was absolute and enforced by an exclusionary rule.4 Identified by the first case to so hold, this ‘DiBiasi rule’ was both expanded and contracted by the United States Supreme Court's subsequent Miranda decision.

Miranda caused the New York courts to push bach the critical point at which the DiBiasi rule applied, in order to coincide with the highest court's concept of ‘custody.'5 But Miranda also firmly legitimized the idea that a suspect could waive all relevant constitutional rights even if he were in custody and without counsel.6 Hence the New York decisions abandoned the original DiBiasi principle that waiver was irrelevant and instead recognized the possibility of spontaneous, volunteered admissions by represented suspects.7 The post-Miranda version of the DiBiasi rule in New York can be summarized as follows: custodial interrogation initiated by the police is prohibited if the suspect is known by the police to be represented by an attorney and if that attorney is not present. (See People v. Kaye, supra (N.Y.1969), 303 U.Y.S.2d at 44, 250 N.E.2d at 331.)

C. The DiBiasi Rule in California

Shortly after its enunciation in New York, the DiBiasi rule was urged upon the California Supreme Court in People v. Garner, 57 Cal.2d 135, 18 Cal.Rptr. 40, 367 P.2d 680. The rule, which at that time applied only upon indictment, was rejected by the majority and by then Justice Traynor in a lengthy concurrence. Justice Traynor ultimately found the New York reasoning unpersuasive primarily because (a) it would create an invidious distinction between indicted defendants who could afford counsel and those who could not and (b) it would greatly reduce the number of confessions, thus impairing law enforcement. (Id. at 163, 165–166, 18 Cal.Rptr. 40, 367 P.2d 680.)

Notwithstanding Garner, a court of appeal essentially adopted the DiBiasi rule for California in 1968 in People v. Isby, 267 Cal.App.2d 484, 73 Cal.Rptr. 294. It did not find Garner ‘dispositive or helpful.’ (Id. at 494, 73 Cal.Rptr. 294.) The earlier decision was not dispositive because it concerned an incriminating statement volunteered by the defendant, whereas the represented defendant in Isby was questioned on the initiative of a police officer. Garner was not helpful to the Isby court because its reasoning on discrimination between rich and poor defendants and on the encouragement of confessions had been rendered obsolete by later United States Supreme Court decisions, including Gideon v. Wainwright (1963) 372 U.S. 335, 339–340, 83 S.Ct. 792, 793–794, 9 L.Ed.2d 799, 802–803 (Sixth Amendment guarantees appointed counsel for all impecunious criminal defendants); Massiah v. United States (1964) 377 U.S. 201, 205–206, 84 S.Ct. 1199, 1202–1203, 12 L.Ed.2d 246, 250 (secret interrogation of defendant after indictment without counsel present violates the Sixth Amendment); Escobedo v. Illinois (1964) 378 U.S. 478, 484, 84 S.Ct. 1758, 1761, 12 L.Ed.2d 977, 982–983 (suspect in custody has Sixth Amendment right to confer with counsel prior to police interrogation); and Miranda v. Arizona, supra, 384 U.S. at 444–445, 86 S.Ct. at 1612, 16 L.Ed.2d at 706–707 (Fifth and Sixth Amendments require that suspect in custody be advised of right to counsel, which will be appointed if necessary).

From its recognition in Isby, the DiBiasi rule has undergone in California post-Miranda adjustments similar to those developed in New York. Custody has replaced indictment as the starting point of this type of constitutional protection.8 Also the concept of waiver has been integrated into the rule in the form of an exception for statements volunteered by the suspect or defendant rather than initiated by the police in an effort to obtain incriminating admissions.9 We believe the most comprehensive and current statement of the California rule to be this: after the accusatory stage of the proceedings has been reached (i. e., custody as defined in Miranda) and counsel appointed or retained, the police may not initiate interrogation of the represented suspect in the absence of his counsel, unless a substantial reason can be demonstrated for the absence of his counsel. Any recital to, and waiver of rights by, the suspect as outlined in Miranda is invalid unless the attorney for the suspect is present or his absence has been reasonably explained. (Cf. In re Paul T., 15 Cal.App.3d 886, 893–894, 93 Cal.Rptr. 510, and Griffin v. Superior Court, supra, 26 Cal.App.3d 672, 701, 103 Cal.Rptr. 379.)

D. Application of the DiBiasi Rule to Appellant's Waiver

We have already stated O'Toole knew, first that appellant was represented by Douglas and, second that Douglas had in effect advised appellant to remain silent except in the lawyer's presence. We now further conclude that when appellant entered O'Toole's office, he was ‘in custody’ within the Miranda meaning of that term. Arrest is not determinative of custody. (People v. Furnish, 63 Cal.2d 511, 516, 47 Cal.Rptr. 387, 407 P.2d 299, cert. den. 384 U.S. 1011, 86 S.Ct. 1918, 16 L.Ed.2d 1017.) A suspect is said to be in custody when he reasonably believes that he has been deprived of his freedom in a significant way. (People v. Arnold, 66 Cal.2d 438, 448, 58 Cal.Rptr. 115, 426 P.2d 515.)

An interrogation at a police station has been deemed inherently coercive. Although this is usually not true if the suspect visits the police voluntarily (People v. Hill, 70 Cal.2d 678, 693–694, 76 Cal.Rptr. 225, 452 P.2d 329, cert. den. 406 U.S. 971, 92 S.C. 2416, 32 L.Ed.2d 671), we do not think appellant can be said to have paid a voluntary visit to Sergeant O'Toole. O'Toole himself had left a business card for appellant at his place of work on which the officer wrote, ‘Get into my office immediately.’ Appellant read this card prior to February 6. Yee, who logically must be considered an agent of the police,10 had made clear to appellant that if he did not speak to O'Toole an arrest warrant would be issued. In view of these circumstances, we conclude that appellant underwent a custodial interrogation at police headquarters.11

Because appellant was represented by counsel and was in custody at the time he waived his Fifth and Sixth Amendment rights and drafted and signed his inculpatory statement, the trial court's refusal to suppress the document can be upheld on appeal only if O'Toole did not initiate the interrogation session in order to obtain incriminating admissions. But it is palpable that this was exactly O'Toole's course of conduct and intention. Appellant did not request the interview; it was a part of the sergeant's duty as the investigating officer. Appellant did not walk into the office and blurt out his remarks.12

The final factor in our decision to invalidate appellant's waiver of his constitutional rights is the overall conduct of Sergeant O'Toole. Not only was this officer aware of the fact that appellant was represented by counsel, he also had been in personal contact with appellant's lawyer and, as the trial court specifically found, had promised Douglas that he would ‘deal through counsel’ with regard to appellant. This understanding between Douglas and O'Toole was conveniently forgotten when appellant and Yee entered the sergeant's office on February 6.13 We do not suggest that law enforcement authorities must rigidly adhere to gentlemen's agreements. But when those agreements relate to the integrity of lawyer-client relationship, particularly in the criminal law sphere, then any breach of faith becomes significant. (Cf. Magee v. Superior Court, 8 Cal.3d 949, 954, 106 Cal.Rptr. 647, 506 P.2d 1023.) As Chief Judge Fuld of the New York Court of Appeals stated with regard to a district attorney's questioning of a represented defendant, ‘Were we dealing with a civil case, no matter how trivial, it would be unthinkable for the lawyer of one party to speak to the other party in the absence of the latter's attorney.'14 (People v. Robles, supra (N.Y.1970) 314 N.Y.S.2d 793, 798, 263 N.E.2d 304, 307 (Fuld, C. J., dissenting).) We think no less respect for the lawyer-client relationship should be demanded of a police officer in Sergeant O'Toole's position.15 ‘No system worth preserving should have to fear that if an accused is permitted to consult with his lawyer, he will become aware of, and exercise [constitutional] rights.’ (Escobedo v. Illinois, supra, 378 U.S. at 490, 84 S.Ct. at 1764, 12 L.Ed.2d at 985.) (Emphasis original.)

We wish to point out that appellant's status as a person represented by counsel did not absolutely preclude O'Toole's obtaining his statement. First, appellant would have lost that status if he had unequivocally announced at the beginning of the interview that Douglas was no longer his attorney, that he was unrepresented by counsel, and that he wished to waive his right to have counsel present. Second, O'Toole need only have made a reasonable showing as to why counsel was not present. (Cf. In re Paul T., supra, 15 Cal.App.3d at 893, 93 Cal.Rptr. 510.) The sergeant could have attempted to contact Douglas and offer him the opportunity to clarify his relationship with his possibly quondam client or to come to the station to participate in the interview.16 If a police officer is unable to locate a suspect's lawyer, after a reasonably diligent effort to do so, we see no reason, aside from O'Toole's special promise to Douglas in the present case, why the officer could not then proceed to obtain valid waivers of right from the suspect, simply in accordance with Miranda.

Because appellant's statement was not a full confession of his part in the January 30 accident,17 we can uphold his conviction if we are convinced beyond a reasonable doubt that the erroneous admission of the statement did not influence the trier of fact (here the court) in reaching its decision. (Chapman v. California (1967) 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705, 710; People v. Powell, 67 Cal.2d 32, 56, 59 Cal.Rptr. 817, 429 P.2d 137.) It is obvious that in the present case no such conclusion can be reached. The trial court's summary of the evidence it found sufficient for conviction on both counts depended substantially on information gleaned from appellant's statement. Therefore reversal of the judgment is required.

The judgment is reversed.

FOOTNOTES

1.  We construe all conflicting evidence in the light most favorable to the People as the prevailing party below. (People v. Vann, 12 Cal.3d 220, 225, 115 Cal.Rptr. 352, 524 P.2d 824.)

2.  Appellant made two statements of future intent. First, as already indicated, O'Toole quoted Yee as saying ‘they [i. e., appellant and Yee] were going to get another attorney.’ Second, appellant's written statement includes these remarks: ‘I talked to an attorney Mr. Clifford Douglas who told me I should not come in. I am going to get a different attorney though.’

3.  The major New York cases developing this principle are People v. DiBiasi (1960), 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825; People v. Waterman, (1961), 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445; People v. Donovan (1963), 13 N.Y.2d 148, 243 N.Y.S.2d 841, 193 N.E.2d 628; People v. Arthur (1968), 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537; and People v. Robles (N.Y.1970), 27 N.Y.2d 155, 314 N.Y.S.2d 793, 263 N.E.2d 304, cert. den. 401 U.S. 945, 91 S.Ct. 959, 28 L.Ed.2d 227.

4.  People v. DiBiasi, supra, 200 N.Y.S.2d at 24, 166 N.E.2d at 828.

5.  In DiBiasi itself, the critical point was indictment; pre-Miranda New York decisions cited not only DiBiasi and the Sixth Amendment's right to counsel but also statutory provisions giving a defendant the right to counsel upon arraignment. (Compare N.Y.Code Crim.Proc., §§ 8, 188, 308, 699 with Cal.Pen.Code, §§ 858, 987.)After Miranda was decided, the New York high court upheld the admissibility of a represented suspect's confession in People v. McKie (1969), 25 N.Y.2d 19, 302 N.Y.S.2d 534, 250 N.E.2d 36. McKie, during a scuffle with police officers, boasted that he had committed the crime. At the time of the fight, although the officers were suspicious of McKie, they had been unable to connect him to the crime. Instead, they followed him on the street, taunted him and thereby caused the altercation and the admission. (Id., 302 N.Y.S. at 535, 250 N.E.2d at 37.) In People v. Kaye (1969), 25 N.Y.2d 139, 303 N.Y.S.2d 41, 250 N.E.2d 329, the same court described the meaning of McKie in these terms: ‘[W]hat is prohibited by McKie, supra, is custodial interrogation of a suspect who is represented by counsel in the absence of his attorney if the police know he is so represented.’ (Id., 303 N.Y.S.2d at 45, 250 N.E.2d at 331.)

6.  Miranda v. Arizona, supra, 378 U.S. at 444–445, 86 S.Ct. at 1612, 16 L.Ed.2d at 707.

7.  See, e. g., People v. McKie, supra, 302 N.Y.S.2d at 540, 250 N.E.2d at 41; People v. Robles, supra, 314 N.Y.S.2d at 795–796, 263 N.E.2d at 305–306; People v. Kaye, supra, 303 N.Y.S.2d at 44–45, 250 N.E.2d at 331–332; and People v. Carbone (N.Y.Sup.Ct.1974) 80 Misc.2d 150, 362 N.Y.S.2d 677, 680.

8.  Compare People v. Isby, supra, 267 Cal.App.2d at 494, 73 Cal.Rptr. 294, (arraignment), People v. Valencia, 267 Cal.App.2d 620, 627, 73 Cal.Rptr. 303 (same), and Tidwell v. Superior Court, 17 Cal.App.3d 780, 789–790, 95 Cal.Rptr. 213 (same), with Griffin v. Superior Court, 26 Cal.App.3d 672, 701, 103 Cal.Rptr. 379 (custody).No California court has explicitly applied the DiBiasi rule to a suspect in custody where there has been no arraignment, indictment or arrest. Nevertheless, we note that Griffin v. Superior Court, supra, used Miranda's ‘custody’ language although the defendant in that case had in all likelihood been arraigned as well as placed in custody. (Id. at 696, 103 Cal.Rptr. 379; cf. Pen.Code, § 825.) We recognize that soem courts have refused to apply the DiBiasi rule as early as the custody stage. (See e. g., State v. Adams (Wash.1969) 76 Wash.2d 650, 458 P.2d 558, 568–569, reversed on other grounds 403 U.S. 947, 91 S.Ct. 2273, 29 L.Ed.2d 855, and Dillon v. United States (10th Cir. 1968) 391 F.2d 433, 436–437, cert. den. 393 U.S. 899, 89 S.Ct. 87, 21 L.Ed.2d 168, but see United States v. Thomas (10th Cir. 1973) 474 F.2d 110, 112, cert. den. 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160.) Nevertheless, we believe that the New York approach is preferable. (See generally People v. McKie, supra, 302 N.Y.S.2d at 536–539, 250 N.E.2d at 38–39.)

9.  In People v. Arauz, 5 Cal.App.3d 523, 530–531, 85 Cal.Rptr. 266, a juvenile defendant, whose probation officer knew he was represented by counsel, made a telephone call to his mother. After the call, he turned to the officer and admitted that he had killed the victim. The statement was held admissible as a spontaneous, voluntary utterance. In Griffin v. Superior Court, supra, the represented defendant called a deputy to his jail cell and indicated a desire to make a statement despite the fact that his attorney ‘might blow his mind if he knew.’ The deputy administered the standard Miranda warnings to the defendant. His waiver was found to be valid because the defendant initiated the interview. (Id. 26 Cal.App.3d at 700–701, 103 Cal.Rptr. at 397.) (See also People v. Rowe, 22 Cal.App.3d 1023, 1032, 99 Cal.Rptr. 816.)

10.  Yee's status as a police agent appears to have been assumed by the trial court which, in it findings, stated that Yee did not promise leniency if appellant went to see the police. Yee's representations to appellant could only affect the voluntariness of his subsequent statement if Yee were an agent of the police. Given O'Toole's awareness and supervision of Yee's search for appellant, the fact that Yee was not compensated for his efforts does not establish that Yee was not an agent of the police. (Cf. Stapleton v. Superior Court, 70 Cal.2d 97, 100–102, 73 Cal.Rptr. 575, 447 P.2d 967.)

11.  In People v. Arnold, supra, a district attorney told the defendant to come to his office to discuss the circumstances of her child's death. The Supreme Court held that the People had not met their burden of showing that the mother was not in custody during the visit, i. e., whether she reasonably believed she could leave at any time. (Id., 66 Cal.2d at 448–449, 58 Cal.Rptr. 115, 426 P.2d 515.) Here, as in Arnold, the People presented no evidence on appellant's state of mind during his interview, other than O'Toole's testimony that appellant was not threatened and was not crying at the time. O'Toole's decision to advise appellant of his constitutional rights pursuant to Miranda suggests that the police considered the session to be a custodial interrogation.We also note that the United States Supreme Court's concept of an investigation ‘focusing’ on a particular suspect (Escobedo v. Illinois, supra, 378 U.S. at 491–492, 84 S.Ct. at 1765, 12 L.Ed.2d at 986; adopted in People v. Dorado, 62 Cal.2d 338, 353, 42 Cal.Rptr. 169, 398 P.2d 361, but superseded in Miranda v. Arizona, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706) has continued to be used at least by California courts in determining when custody has occurred. (See, e. g., People v. White, 69 Cal.2d 751, 761, 72 Cal.Rptr. 873, 446 P.2d 993.) Using the concept of focused suspicion, the instant case is easier to evaluate, since there is no evidence that police considered any suspects other than appellant once the vehicle had been traced to him.

12.  We consider O'Toole's actions to be comparable to those of the probation officer in In re Paul T., supra, 15 Cal.App.3d 886, 93 Cal.Rptr. 510. The officer there interviewed the juvenile defendant and his mother in the absence of the defendant's counsel. The interview was conducted pursuant to section 702 of the Welfare and Institutions Code. Its purpose was to discuss the defendant's offense. (Id. at 894, 93 Cal.Rptr. 510.) Similarly, O'Toole conducted his interview with appellant as part of his assigned duty as a traffic accident investigator. The purpose of the session, obviously, was to obtain information regarding that event.

13.  We do not think that O'Toole's decision to interrogate appellant without his counsel being present or notified was based upon a feeling that Douglas had double-crossed O'Toole in view of Yee's opening remark that Douglas had told appellant not to come in. O'Toole never testified to any such reaction or offered any explanation for his conduct.

14.  Numerous other courts have expressed concern over the ethical problems involved in interrogations of represented suspects or defendants and the use of information gained thereby in prosecutions. (See, e. g., United States v. Thomas, supra (10th Cir. 1973) 474 F.2d at 112, cert. den. 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160; Mathies v. United States (1967) 126 U.S.A.pp.D.C. 98, 374 F.2d 312, 316 & fn. 3. (Burger, J.); Coughlin v. United States (9th Cir. 1968) 391 F.2d 371, 376 (Hamley, J., dissenting), cert. den. 393 U.S. 870, 89 S.Ct. 159, 21 L.Ed.2d 139; State v. White (Mo.Ct.App.1973) 494 S.W.2d 687, 692; see generally ABA, Canon of Professional Ethics 7 and Disciplinary Rule 7–104(A)(1).)

15.  New York decisions have also found police efforts to ‘outwit’ a defendant's attorney to be relevant in deciding whether a confession by a represented defendant should be suppressed. (See, e. g., People v. Robles, supra, 314 N.Y.S.2d at 794, 263 N.E.2d at 305; People v. Vella (1967) 21 N.Y.2d 249, 287 N.Y.S.2d 239, 234 N.E.2d 422; and People v. Carbone, supra, 80 Misc.2d 150, 362 N.Y.S.2d at 681; People v. Pinzon (N.Y.Co.Ct.1974) Misc., 370 N.Y.S.2d 297, 301.)

16.  Compare People v. Baker (N.Y.1968) 23 N.Y.2d 307, 296 N.Y.S.2d 745, 244 N.E.2d 232, where a district attorney interviewed a represented defendant who had just completed a conversation with his attorney. The court found the standard Miranda warning and waiver by the defendant irrelevant under DiBiasi. The dissent noted, however, that ‘where fair opportunity has been given to receive the advice of counsel in close time proximity to the questioning, and such advice has been given, the real question is the choice of the client to follow it or not to follow it. That is a problem very different from the right to counsel.’ (Id. 296 N.Y.S.2d at 760, 244 N.E.2d at 242 (emphasis added) (Bergan, J., dissenting).)

17.  The relevant portions of appellant's statement are as follows: ‘I was the driver . . .. I was driving in the right hand lane at approx. 25 mph. It was foggy and I could not see too well. My car hit something but I didn't know exactly what is [sic] was. I thought it might be a rock. I kept on driving at approximately 40 mph and I went to Chinatown. When I got out I saw the car was damaged . . .. I knew that I had hit a person so I got scared and took my car over near Brooklyn and Mission where I parked it. I then took off the lic[ense] plates and threw them into a trash barrell [sic].’Appellant thus strongly suggested that, given the reduced visibility, he was driving negligently on January 30. His inconsistent estimates of his driving speed corroborate eye-witness testimony that the car sped up after striking the pedestrian. The trial court found this to be evidence that appellant knew immediately that he had hit a person and not a rock.

COBEY, Acting Presiding Justice.

ALLPORT and POTTER, JJ., concur.