People v. Kinchen
| Decision Date | 20 October 1983 |
| Citation | 469 N.Y.S.2d 680,457 N.E.2d 786,60 N.Y.2d 772 |
| Parties | , 457 N.E.2d 786 The PEOPLE of the State of New York, Respondent, v. William KINCHEN, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division, 91 A.D.2d 874, 457 N.Y.S.2d 661, should be affirmed.
Defendant correctly points out that 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; People v. Ermo, 47 N.Y.2d 863, 865, 419 N.Y.S.2d 65, 392 N.E.2d 1248). This does not, however, dispense with the need for a factual record sufficient to permit appellate review (People v. Charleston, 54 N.Y.2d 622, 623, 442 N.Y.S.2d 493, 425 N.E.2d 881; People v. De Mauro, 48 N.Y.2d 892, 893, 424 N.Y.S.2d 884, 400 N.E.2d 1336). Defendant's argument that an outstanding bench warrant should be treated as a pending unrelated charge within the meaning of our holdings in People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371 and People v. Smith, 54 N.Y.2d 954, 445 N.Y.S.2d 145, 429 N.E.2d 823 is not properly presented for our consideration, inasmuch as there is no proof in the record that the police had knowledge of the bench warrant's issuance prior to taking defendant's statement, or that they were otherwise chargeable with notice of any other pending criminal action; nor is there proof that defendant was represented by counsel in connection with the warrant or any pending charge (cf. People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 [] ).
SIMONS, J., taking no part.
Order affirmed in a memorandum.
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