People Of The State Of N.Y. v. Mclean

• Citation: 905 N.Y.S.2d 536,931 N.E.2d 520,15 N.Y.3d 117
• Parties: The PEOPLE of the State of New York, Respondent, v. Samuel McLEAN, Appellant.
• Decision Date: 10 June 2010
• Court: New York Court of Appeals

15 N.Y.3d 117
931 N.E.2d 520
905 N.Y.S.2d 536

The PEOPLE of the State of New York, Respondent,
v.
Samuel McLEAN, Appellant.

Court of Appeals of New York.

June 10, 2010.

905 N.Y.S.2d 537

Danielle Neroni Reilly, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.

15 N.Y.3d 119

931 N.E.2d 521

OPINION OF THE COURT

SMITH, J.

We have held that, where a defendant's statement to law enforcement authorities is obtained in violation of his right to counsel, the use of that statement against defendant at trial is an error that may be raised on appeal, even if the issue was not preserved. Appellate review of such an unpreserved error is available, however, only when the error is established on the face of the record. Here, the record is inadequate, and we therefore cannot review the right to counsel issue.

Defendant pleaded guilty to a 16-count indictment charging him with various crimes, including two counts of murder in the second degree, relating to the fatal shooting of Leonder Goodwin on January 27, 2002. On appeal from his conviction, he challenges County Court's refusal to suppress, after a Huntley hearing, statements he made at a meeting with two police officers in December 2006. At the Huntley hearing, defendant argued that his statements were involuntary, but made no claim that he had been deprived of his right to counsel. He raised a right to counsel claim for the first time in the Appellate Division, which declined to consider it, saying that while the lack of preservation “does not necessarily foreclose defendant from raising this issue on appeal,” the record here “is bereft of material evidence sufficient to permit appellate review of this claim” ( People v. McLean, 59 A.D.3d 861, 864, 875 N.Y.S.2d 283 [3d Dept.2009] ). A Judge of this Court granted leave to appeal (12 N.Y.3d 927, 884 N.Y.S.2d 708, 912 N.E.2d 1089 [2009] ), and we now affirm.

Defendant's argument that he was deprived of his right to counsel is based on the record of the Huntley hearing. That

15 N.Y.3d 120

record shows that no lawyer was present at the December 2006 meeting when defendant described his role in the Goodwin homicide to two detectives. However, defendant had talked about the same crime to the same detectives three years earlier, in October 2003, in the presence of his lawyer, Steven Kouray. At that time defendant was awaiting sentencing on an unrelated robbery charge, and had entered a cooperation agreement to supply information about the Goodwin murder in exchange for the chance of a more favorable sentence on the robbery. Defendant claims that his right to counsel indelibly attached at or before the 2003 meetings, and that he therefore could not be questioned again on the same subject in 2006 without a waiver of that right in counsel's presence ( see

931 N.E.2d 522

905 N.Y.S.2d 538

People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537 [1968]; People v. West, 81 N.Y.2d 370, 599 N.Y.S.2d 484, 615 N.E.2d 968 [1993] ).

Arthur held that “[o]nce an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant's right to counsel” (22 N.Y.2d at 329, 292 N.Y.S.2d 663, 239 N.E.2d 537). West expressed the same rule by saying that “the right to counsel attaches indelibly where an uncharged individual has actually retained a lawyer in the matter at issue” (81 N.Y.2d at 373-374, 599 N.Y.S.2d 484, 615 N.E.2d 968). The parties here dispute whether, at the time of the 2003 meetings, Kouray had entered “the proceeding” or was retained in “the matter at issue”-i.e., whether he then represented defendant in connection with the Goodwin homicide. The People say that Kouray represented defendant only in the robbery case, and was involved in discussions of the murder case only as it affected defendant's robbery sentence; defendant says that this is a spurious distinction, and that Kouray was representing him in both matters. We conclude that we may not resolve the dispute, because the failure to raise the issue in the trial court has resulted in an inadequate record.

We recognized in Arthur that right to counsel claims are excepted from the general rule that unpreserved issues cannot be reviewed on appeal (22 N.Y.2d at 329, 292 N.Y.S.2d 663, 239 N.E.2d 537 [“The failure to object ... on right to counsel grounds is not fatal since we are concerned with the deprivation of a fundamental constitutional right”] ). In support of our holding we cited People v. McLucas, 15 N.Y.2d 167, 172, 256 N.Y.S.2d 799, 204 N.E.2d 846 (1965), where we endorsed the proposition “that no exception is necessary to preserve for appellate review a deprivation of a fundamental constitutional right.” Though this sweeping statement is no longer good law ( see People v. De Renzzio, 19 N.Y.2d 45, 50, 277 N.Y.S.2d 668, 224 N.E.2d 97 [1966];

15 N.Y.3d 121

People v. Thomas, 50 N.Y.2d 467, 473, 429 N.Y.S.2d 584, 407 N.E.2d 430 [1980] ), we have continued to follow the holding of Arthur that claims like the one made in this case need not be preserved ( People v. Kinchen, 60 N.Y.2d 772, 773, 469 N.Y.S.2d 680, 457 N.E.2d 786 [1983] [“a claimed deprivation of the State constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved by having been specifically raised in a suppression motion or at trial”]; People v. Samuels, 49 N.Y.2d 218, 221, 424 N.Y.S.2d 892, 400 N.E.2d 1344 [1980]; People v. Ermo, 47 N.Y.2d 863, 865, 419 N.Y.S.2d 65, 392 N.E.2d 1248 [1979]; but cf. id. at 865-866, 419 N.Y.S.2d 65, 392 N.E.2d 1248 [Jasen, J., concurring]; see also People v. Ramos, 99 N.Y.2d 27, 30, 750 N.Y.S.2d 821, 780 N.E.2d 506 [2002] ). On this appeal, no party asks us to depart from this line of cases, and we do not do so.

The Arthur exception to the preservation requirement, however, has an important limitation, which we find decisive here. As we said in Ramos, the rule “authorizing review of un-preserved constitutional right-to-counsel claims” has been applied “only when the constitutional violation was established on the face of the record” (99 N.Y.2d at 37, 750 N.Y.S.2d 821, 780 N.E.2d 506). Similarly, in Kinchen we explained that the exception to the preservation requirement “does not ... dispense with the need for a factual record sufficient to permit appellate review” (60 N.Y.2d at 773-774, 469 N.Y.S.2d 680, 457 N.E.2d 786). We held the record inadequate in Kinchen because, among other reasons, there was no proof in the record “that defendant was represented by counsel in connection with ... any pending

931 N.E.2d 523

905 N.Y.S.2d 539

charge” ( id. at 774, 469 N.Y.S.2d 680, 457 N.E.2d 786).

We now make clear that the lack of an adequate record bars review on direct appeal not only where vital evidence is plainly absent, as in Kinchen, but wherever the record falls short of establishing conclusively the merit of the defendant's claim. Simple fairness, and respect for orderly procedure, require this stringent approach. Where the right to counsel claim is not raised in the trial court, neither the People nor the trial judge have reason to know that it is in the case. Thus the People may not elicit evidence that is crucial to a decision on the issue; and, even if all the evidence is before it, the trial court may have no reason to make findings of fact relevant to the right to counsel claim. Thus where the record does not make clear,...