People v. Lennon

• Decision Date: 06 October 1997
• Parties: , 1997 N.Y. Slip Op. 8122 The PEOPLE, etc., Respondent, v. Michelle LENNON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 821

662 N.Y.S.2d 821

243 A.D.2d 495, 1997 N.Y. Slip Op. 8122

The PEOPLE, etc., Respondent, v. Michelle LENNON, Appellant.

Supreme Court, Appellate Division Second Department.

Oct. 6, 1997.

Alvin L. Spitzer, New City, for appellant.

Michael E. Bongiorno, District Attorney, New City (Ellen O'Hara Woods, of counsel), for respondent.

Before COPERTINO, J.P., and THOMPSON, SANTUCCI and FRIEDMANN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Rockland County (Nelson, J.), rendered May 30, 1995, convicting her of murder in the second degree, upon her plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's onmibus motion which was to suppress statements made by her to law enforcement officials.

ORDERED that the judgment is affirmed.

By virtue of her plea of guilty, the defendant was convicted of intentionally killing her husband. At the plea allocution the defendant admitted that she beat her husband in the head with a baseball bat while he lay sleeping on a couch and, with the aid of an accomplice, covered his head with a plastic bag until he stopped breathing.

The testimony elicited at the suppression hearing is comprehensively set forth in the dissent. The facts, as found by the County Court and insofar as they are relevant to the defendant's contention that she was deprived of her right to counsel, are that after the defendant agreed to accompany the police to the police station, an attorney who had represented her in past matters telephoned the station and later appeared at the station, after being contacted by the defendant's father. Upon learning that the attorney was on his way to the station, the detective interviewing the defendant conveyed this to the defendant and inquired as to whether she wanted the attorney to represent her. In response to this inquiry, the defendant indicated that he had represented her in the past, spoke disparagingly of him, and stated in no uncertain terms that if she needed a lawyer to represent her in this case, it would not be him. The defendant agreed to speak to the detectives without an attorney, and ultimately admitted murdering her husband.

Under the law of this State, the right to counsel attaches indelibly in two situations. The first is upon the commencement of formal criminal proceedings (see, People v. Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400 N.E.2d 1344; People v. Settles, 46 N.Y.2d 154, 412 N.Y.S.2d 874, 385 N.E.2d 612; People v. Di Biasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825). The second is where an uncharged individual has actually retained an attorney in the matter or, while in custody, has requested counsel in that matter (see, People v. West, 81 N.Y.2d 370, 373-374, 599 N.Y.S.2d 484, 615 N.E.2d 968; People v. Ellis, 58 N.Y.2d 748, 459 N.Y.S.2d 25, 445 N.E.2d 201; People v. Skinner, 52 N.Y.2d 24, 436 N.Y.S.2d 207, 417 N.E.2d 501; People v. Cunningham, 49 N.Y.2d 203, 209, 424 N.Y.S.2d 421, 400 N.E.2d 360; People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894; People v. Arthur, 22 N.Y.2d 325, 329, 292 N.Y.S.2d 663, 239 N.E.2d 537). In either case, once the right to counsel attaches, it may not be waived by a defendant in the absence of counsel (see, People v. Robles, 72 N.Y.2d 689, 695, 536 N.Y.S.2d 401, 533 N.E.2d 240; People v. Arthur, supra).

Here, the County Court correctly concluded that the defendant's right to counsel had not indelibly attached at the time she made the inculpatory statements in question. The defendant neither retained counsel on the matter in question nor requested the assistance of counsel. We are well aware of cases involving attorneys who are retained by the defendant's family, rather than the defendant, in which the right to counsel was held to have indelibly attached as though the defendant herself retained the attorney (see, e.g., People v. Garofolo, 46 N.Y.2d 592, 415 N.Y.S.2d 810, 389 N.E.2d 123; People v. Pinzon, 44 N.Y.2d 458, 406 N.Y.S.2d 268, 377 N.E.2d 721). In those cases, however, the defendant was never informed that the attorney had contacted the police or appeared at the station, and it was impliedly assumed that an attorney-client relationship existed with regard to the matter in question, and that the defendant would not have rejected the attorney retained by the family. Here, the defendant made it quite clear that she did not wish to extend her relationship with the attorney to include the matter in question, despite being given the opportunity to have him represent her. The detectives in this case did not interfere with the defendant's relationship with the attorney, and in no way impeded her opportunity to receive the benefit of counsel. The decision to retain counsel rests with the defendant (see, People v. Bing, 76 N.Y.2d 331, 349, 559 N.Y.S.2d 474, 558 N.E.2d 1011; People v. Davis, 75 N.Y.2d 517, 522-523, 554 N.Y.S.2d 460, 553 N.E.2d 1008). For us to conclude at this juncture that the defendant's right to counsel indelibly attached when the attorney "entered the picture" at the request of the defendant's father would be to impose the kind of fictional attorney-client relationship which the Court of Appeals abandoned in People v. Bing, supra, overruling People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371, by holding that representation on a pending matter did not create an indelible right to counsel on a new unrelated matter. We therefore conclude that cases such as People v. Garofolo, supra and People v. Pinzon, supra, are distinguishable on their facts, and that under the circumstances of this case, the attorney's appearance in the matter did not cause the defendant's right to counsel to attach indelibly.

We also agree with the County Court's conclusion that the warnings given pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, were sufficient. A detective advised the defendant of her rights, including her right to an attorney, before asking her to accompany him to the police station, and asked her at the station whether she recalled being advised of her rights. On both occasions, the defendant acknowledged that she understood her rights. We find no merit to the defendant's contention that the warnings given at her home were insufficient (see, People v. Bartlett, 191 A.D.2d 574, 595 N.Y.S.2d 89; People v. Thomches, 172 A.D.2d 786, 569 N.Y.S.2d 158; People v. Evans, 162 A.D.2d 702, 557 N.Y.S.2d 120). Moreover, a different detective subsequently administered Miranda warnings to the defendant again before she confessed to the murder. The hearing testimony supports the County Court's finding that the defendant's waiver of her rights was knowing, voluntary, and intelligent.

We have considered the defendant's remaining contentions and find them to be without merit.

COPERTINO, J.P., and THOMPSON and SANTUCCI, JJ., concur.

FRIEDMANN, Justice, dissents and votes to reverse the judgment and order a new trial with the following memorandum:

Because the defendant was deprived of, inter alia, her right to have retained counsel present during a custodial interrogation, or, in the alternative, her right to waive the right to counsel in her attorney's presence, I would reverse the conviction appealed from, permit the defendant to withdraw her plea of guilty, grant that branch of her motion which was to suppress her illegally-obtained statements, and allow her to proceed to trial.

I

On June 11, 1994, Ramapo police officers discovered the body of Brook Lennon concealed behind a fallen tree in a wooded area near Brick Church Road in the Town of Ramapo in Rockland County. Lennon had been bludgeoned, suffocated by means of a plastic bag, and strangled with a telephone cord.

Lennon was a wealthy man in his fifties who, not long before, had married the defendant, who was in her early twenties. The defendant was an admitted crack cocaine abuser, and was sexually promiscuous, indulging in numerous extramarital affairs with both men and women, flaunting her "biker" boyfriends in the small communities where she resided, and engaging in prostitution. So frequent were his wife's arrests that Lennon kept an attorney on a $10,000 annual retainer to represent her when she found herself in the hands of the police. That attorney was Mr. "J.F.". J.F. had not been forced on the defendant by her husband. Rather, J.F. had been the sole attorney used by the defendant's father, Leonard Fintzy, as well as by the defendant herself, over a period of years.

Mr. Fintzy testified at the suppression hearing that at about 10:00 P.M. on Saturday, June 11, 1994, he was visited by Detective Woulfe of the Ramapo Police Department, who told him that Brook Lennon had been murdered and that the police were looking for the defendant to identify his body. Fintzy told the officer, inter alia, that his daughter and her husband had recently moved to a new residence at 25 Remsen Street in nearby Monsey, New York. Worried, Fintzy asked Detective Woulfe to telephone him when the police had found his daughter. After Woulfe left, Fintzy called attorney J.F., who asked to be kept informed.

According to police testimony, at around 6:00 A.M. the following (Sunday) morning, some eight officers arrived to execute a "search warrant" at the premises located at 25 Remsen Street in Monsey. When the defendant's "biker" boyfriend, the codefendant Robert Tomassi, answered the door, he was promptly taken outside, frisked, and conducted to the rear of the building, where he was secured. At least two officers then entered the bungalow with their guns drawn. In the living room, they found the defendant asleep on a sofa, near a coffee table littered with drugs and narcotics paraphernalia. The defendant was awakened and told to get dressed.

Various officers testified at the suppression hearing that at this point, i.e., a few minutes after 6:00 A.M., Detective O'Leary advised ...