People v. Callicutt

• Decision Date: 09 June 2011
• Citation: 2011 N.Y. Slip Op. 04781,85 A.D.3d 1326,924 N.Y.S.2d 675
• Parties: The PEOPLE of the State of New York, Appellant,v.Devon CALLICUTT, Also Known as Cut, Respondent.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1326

924 N.Y.S.2d 675

2011 N.Y. Slip Op. 04781

The PEOPLE of the State of New York, Appellant,

v.Devon CALLICUTT, Also Known as Cut, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

June 9, 2011.

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for appellant.Before: PETERS, J.P., SPAIN, ROSE, STEIN and EGAN JR., JJ.PETERS, J.P.

Appeal from an order of the Supreme Court (Lamont, J.), entered December 6, 2010 in Albany County, which partially granted defendant's motion to suppress certain evidence.

On the evening of October 20, 2008, a series of armed robberies were committed in the City of Albany, one of which resulted in the death of Richard Bailey. In December 2008, defendant, represented by Melissa Carpinello of the Albany County Public Defender's office, pleaded guilty to an unrelated charge of attempted criminal possession of a weapon in the second degree. Prior to sentencing, Carpinello was contacted by David Gonzalez, the Albany County Assistant District Attorney, proposing defendant's submission to a polygraph examination in connection with the Bailey homicide in exchange for a reduced sentence on the weapon possession charge. Carpinello met with defendant to discuss the matter and, in February 2009, accompanied him to a conference with Gonzalez and police concerning the purpose of the questioning. After again conferring with Carpinello, defendant, against her advice, participated in the polygraph examination and received the reduced sentence.

In September 2009, members of the City of Albany Police Department interviewed defendant at the correctional facility where he was serving his sentence for the weapon possession conviction. During that interview, defendant confessed to shooting Bailey during the course of an attempted robbery and to committing two other armed robberies during that same evening. Defendant was thereafter indicted for murder in the first degree, murder in the second degree, attempted robbery in the third degree and criminal possession of a weapon in the second degree in connection with the Bailey homicide, as well as one count of robbery in the first degree and two counts of robbery in the second degree based upon his involvement in the two other robberies. Defendant moved to suppress his oral and written statements on the ground that they were obtained in violation of his right to counsel. Following a suppression hearing, Supreme Court granted defendant's motion and suppressed his statements.¹ The People appeal.

The sole issue presented on this appeal is whether defendant's right to counsel with respect to the Bailey homicide investigation indelibly attached when, in connection with the unrelated weapon possession matter, Carpinello met with, advised and accompanied defendant to the meeting with police concerning his requested participation in the polygraph examination in connection with the homicide investigation. We find that it did, and that the subsequent questioning of defendant by police in the absence of counsel violated defendant's constitutional right to counsel.

A defendant's right to counsel indelibly attaches “once the police know or have been apprised of the fact that the defendant is represented by counsel or that an attorney has communicated with the police for the purpose of representing the defendant” ( People v. Arthur, 22 N.Y.2d 325, 329, 292 N.Y.S.2d 663, 239 N.E.2d 537 [1968]; see People v. Grice, 100 N.Y.2d 318, 322, 763 N.Y.S.2d 227, 794 N.E.2d 9 [2003]; People v. Lucarano, 61 N.Y.2d 138, 145, 472 N.Y.S.2d 894, 460 N.E.2d 1328 [1984]; People v. Ramos, 40 N.Y.2d 610, 614, 389 N.Y.S.2d 299, 357 N.E.2d 955 [1976] ). Insofar as application of the rule is concerned, it matters not whether the defendant was regarded by the police as “accused,” “suspect” or “witness” ( see People v. Garofolo, 46 N.Y.2d 592, 599, 415 N.Y.S.2d 810, 389 N.E.2d 123 [1979]; People v. Hobson, 39 N.Y.2d 479, 483, 384 N.Y.S.2d 419, 348 N.E.2d 894 [1976]; People v. Sanchez, 15 N.Y.2d 387, 389, 259 N.Y.S.2d 409, 207 N.E.2d 356 [1965] ). “ ‘Once 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’ ” ( People v. McLean, 15 N.Y.3d 117, 120, 905 N.Y.S.2d 536, 931 N.E.2d 520 [2010], quoting People v. Arthur, 22 N.Y.2d at 329, 292 N.Y.S.2d 663, 239 N.E.2d 537; see People v. West, 81 N.Y.2d 370, 374, 599 N.Y.S.2d 484, 615 N.E.2d 968 [1993] ).

Although Carpinello initially represented defendant solely on the weapon charge, the evidence adduced at the suppression hearing supports Supreme Court's finding that, after being approached by Gonzalez and informed of the police's desire to speak with defendant regarding the Bailey homicide, Carpinello “entered” the homicide proceeding for the purpose of representing defendant. Following that conversation with Gonzalez, Carpinello met with defendant at the jail to discuss the homicide, “had an extensive conversation ... as to what was going to be happening,” and “advised him ... as to what his rights were and what he should or should not say.” Further, she accompanied defendant to the conference with the police and Gonzalez regarding the proposed polygraph examination. During that meeting, police informed defendant that his name had come up during the murder investigation, and stated that they wanted to verify his whereabouts at the time of the murder and learn any information that he may know about the murder so as to exclude him as a suspect. Notably, after that conference, Carpinello advised defendant not to take the polygraph examination—despite the favorable sentencing agreement that defendant would receive on the weapon possession charge if he did so. Furthermore, although Carpinello was unable to attend the polygraph examination, she arranged for another attorney from the Public Defender's office to confer with defendant prior to taking the examination. This attorney subsequently met with defendant—at police headquarters—spoke with him regarding the Bailey homicide and the taking of the polygraph test, and instructed defendant—and police—to contact him if there were any problems during the polygraph examination.

These affirmative and direct actions taken by Carpinello, as well as the other Assistant Public Defender on her behalf, relative to defendant's participation in the polygraph examination in connection with the Bailey homicide “sufficiently identified [her] professional interest” in the homicide investigation and signified to the prosecution and police that she had undertaken to represent defendant as to that matter ( People v. Garofolo, 46 N.Y.2d at 600, 415 N.Y.S.2d 810, 389 N.E.2d 123; see People v. Ramos, 40 N.Y.2d at 616, 389 N.Y.S.2d 299, 357 N.E.2d 955). While the People maintain that it was “clear” that Carpinello was involved in discussions of the Bailey homicide case only to the extent that it affected defendant's sentence on the weapon possession charge, we find no such clarity on this record, and stress that “[a] defendant's right to counsel cannot be made to depend on whether in the sole judgment of the prosecution there has been sufficient activity and conduct of a proper character so as to compel a conclusion that the lawyer has entered the proceedings” ( People v. Ramos, 40 N.Y.2d at 618, 389 N.Y.S.2d 299, 357 N.E.2d 955). If there was doubt or uncertainty as to whether legal representation extended to the Bailey investigation, “the burden should rest squarely on [the prosecution] to insure that the defendant's right to be represented by counsel be protected” ( id.). Any arguable ambiguities in the attorney-client relationship “cannot be seized by the prosecution as a license to play fast and loose with this precious right” ( id.; see People v. Cotton, 280 A.D.2d 188, 192, 725 N.Y.S.2d 480 [2001], lv. denied 96 N.Y.2d 827, 729 N.Y.S.2d 447, 754 N.E.2d 207 [2001]; People v. Barley, 124 A.D.2d 1021, 1022–1023, 509 N.Y.S.2d 221 [1986]; People v. Short, 110 A.D.2d 205,...