# People v. Palumbo

> Appellate Division of the Supreme Court of the State of New York · December 4, 1980 · 79 A.D.2d 518

URL: https://www.frixlaw.com/law-library/cases/5844680

## Case

- **Full name:** The People of the State of New York v. Michael R. Palumbo
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** December 4, 1980
- **Citations:** 79 A.D.2d 518; 433 N.Y.S.2d 770; 1980 N.Y. App. Div. LEXIS 13833
- **Precedential status:** Published
- **Opinion:** Dissent by Markewich
- **Judges:** Lupiano, Markewich
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5844680

## How later opinions describe it (automated extraction)

- holding that “ ‘law of the case,’ as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit on their power,” and does no…

## Opinion text

Markewich, J. (dissenting).
I concur only in the alternative result ' suggested in Justice Lupiano’s dissent: defendant-appellant should have a new trial, having been deprived of a fair one by reason of admission into evidence of an inculpatory statement, taken without appropriate Miranda warnings while he was in custody. This conclusion is derived from the facts alone. The appellant was virtually arrested by police at a railroad station as he was about to board a train to go to work, and continued to be under close surveillance thereafter while being conducted to the place of examination, there held until the questioning was completed without being permitted even to go to the bathroom alone. All that was lacking to convert this into a full-blown arrest was the use of handcuffs. In these circumstances, it cannot be fairly claimed that the questioning was not custodial. Nor is it a relevant factor that he had theretofore voluntarily appeared for questioning. It is significant that only in the presence of the described coercion did appellant say anything which inculpated him. As to the matter of misuse of appellant’s taped conversations, we could have properly reviewed this error by exercise of discretion in the interest of justice. We did not, however, record such a basis for taking up this point, as is shown by a reading of the pertinent portion of our last decision ( 65 AD2d 443, 446-467 ), and it is now beyond reach. * At a retrial, however, appropriate objection could be made.
"The other error on which the Appellate Division would have reversed (and granted a new trial) — namely, misuse of the taped conversations of defendant — was not preserved for appellate review, no timely protest on this theory having been registered. Accordingly, that issue is beyond the scope of our review (People v. Johnson, 47 NY2d 124 ).” ( 49 NY2d 928, 930 .)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5844680. Public record. Not legal advice.