People v. Gray , 37 A.D.2d 900 ( 1971 )

Order unanimously reversed on the law and facts and motion to suppress denied, Goldman, P. J. not participating. Memorandum: The question presented is whether defendant knowingly and intelligently waived Ms right to counsel under Miranda v. Arigona (384 U. S. 436). Based upon the testimony of a police officer the court below found that prior to any questioning of the defendant, the officer fully and correctly informed the defendant of the fourfold Miramda warnings but that there was no evidence to show that defendant expressly waived his right to counsel and concluded that Ms statements could not be received in evidence. We disagree. In view of the circumstances and events which preceded his oral admissions while in police custody we are satisfied that an effective waiver was accomplished. Immediately after the officer read the Miranda warnings from a card he asked defendant, “ having these rights in mind do you wish to talk to us now?” and defendant answered “Yes”. We construe the answer as an intentional election to make a statement to the police. It was so held in a showing not as strong as the present record (People v. Davis, 33 A D 2d 762). Of added significance is defendant’s statement before arrival at the police station that, “I want to get it straightened out. I want you to fully understand how this thing happened ”, indicating a spontaneous desire to talk to the police. While such statement, made before the Miranda warnings were given, cannot constitute a waiver, it is a part of the totality of the circumstances and sheds light on the interpretation properly attributable to defendant’s affirmative answers to the questions put to him immediately after the warnings were given. On the record before us, read in its entirety, we conclude that defendant knowingly and intelligently waived his right to counsel. (Appeal from order of Orleans County Court granting motion to suppress.) Present — Goldman, P. J., Del Yecchio, Witmer, Gabrielli and Cardamone, JJ.