People v. Narayan

• Decision Date: 29 October 1981
• Citation: 429 N.E.2d 123,444 N.Y.S.2d 604,54 N.Y.2d 106
• Parties: , 429 N.E.2d 123 The PEOPLE of the State of New York, Appellant, v. Suraj NARAYAN, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 604

444 N.Y.S.2d 604

54 N.Y.2d 106, 429 N.E.2d 123

The PEOPLE of the State of New York, Appellant, v. Suraj NARAYAN, Respondent.

Court of Appeals of New York.

Oct. 29, 1981.

John J. Santucci, Dist. Atty. (Barry A. Schwartz, Rockville Centre and Joan L. Craig, Asst. Dist. Atty., of counsel), for appellant

Anthony V. Lombardino, Kew Gardens, for respondent.

OPINION OF THE COURT

JONES, Judge.

The contention that the trial court interfered with defendant's constitutional right to assistance of counsel was not preserved for appellate review inasmuch as no timely protest was registered. Because the Appellate Division, 76 A.D.2d 604, 431 N.Y.S.2d 556, erred as a matter of law in addressing the issue on the alternative predicates that the contention of error had been preserved or that, if it had not been preserved, preservation was not required, the case must be remitted to that court for reconsideration.

Defendant's trial on an indictment charging him with murder in the second degree, committed by killing Sandra Zahler on December 25, 1974, began on May 21, 1976 and concluded with a jury verdict of guilty returned June 17, 1976. The events relevant to the Appellate Division's reversal and determinative of our disposition of the appeal occurred on Monday and Tuesday, June 14 and June 15, 1976.

On the first of these dates defendant took the witness stand and commenced his direct testimony which continued through part of the morning until a recess was ordered by the court. After the jury had left the courtroom the Trial Judge instructed defendant's counsel that he was not to talk to his client about the latter's testimony and similarly instructed defendant that he was not to talk to his attorney about his testimony. The court inquired from defendant whether he understood the instruction, and defendant responded that he did. Counsel was silent, registering no protest to the court's directions. When the recess was over, defendant resumed the stand and continued his direct testimony until a luncheon recess was called. After the jury had departed from the courtroom, the court again instructed defendant not to discuss his testimony, and again defense counsel said nothing. When the trial resumed after the interval for lunch, the afternoon was devoted to cross-examination of defendant by the prosecuting attorney which was still in progress when the court declared a recess at the end of the day. Nothing whatsoever was said at that time with reference to the previously imposed ban on communication between defendant and his counsel concerning his testimony, by way either of reaffirmation or of rescission.

On the following day, June 15, after a lengthy sidebar conference between the court and counsel concerning the propriety of a line of examination sought to be pursued by the Assistant District Attorney, as defendant was about to resume the stand for continuation of cross-examination, defense counsel stated that he would like to place something on the record and said that he would like to speak with his client. When the court pointed out that defendant was "on the stand" and that he would not permit the consultation "while he's testifying", defendant's counsel then for the first time protested that his client's right of access to his attorney was being interfered with.

Cross-examination of defendant was then renewed and continued until a 15-minute recess was declared to permit the court to consider an evidentiary question that had arisen. A request by defendant's counsel made at the beginning of the recess for permission to speak with his client during the recess initially was denied; however, the court subsequently reversed that ruling and defendant and counsel were thereupon permitted to confer before the recess ended as had been requested. After that consultation the trial continued to conclusion without further restriction on defendant's access to his attorney.

Considering and rejecting as without merit other claims of error urged by defendant the Appellate Division, by a divided court, reversed the judgment of conviction on the law because it concluded that defendant had been denied his constitutional right to the assistance of counsel by the order of the trial court which prevented "all meaningful communication between the defendant and his attorney from the morning of June 14, 1976 until some point during trial on the next day." (76 A.D.2d, pp. 607-608, 431 N.Y.S.2d 556.) In approaching a review of that disposition our first inquiry must be whether the asserted error in the alleged interference with defendant's right of access to counsel was a matter open to examination by the Appellate Division, other than by an exercise of its interest of justice jurisdiction, which its order makes clear was not the basis for its review and reversal in this case. The response to that inquiry depends on whether a question of law for appellate review with respect to the Trial Judge's rulings was presented, which in turn depends on whether "a protest thereto was registered, by the party claiming error, at the time of such ruling * * * or at any subsequent time when the court had an opportunity of effectively changing the same" (CPL 470.05, subd. 2), for "create and preserve a question of law amendable to appellate review, a defendant in a criminal case normally must raise that issue before the court of original jurisdiction" (People v. Cona, 49 N.Y.2d 26, 33, 424 N.Y.S.2d 146, 399 N.E.2d 1167).

The Justices who were in the majority at the Appellate Division were of the persuasion, however, that because of the magnitude of the right asserted to have been curtailed, no objection by defendant was necessary to preserve the error for appellate review. We reach a different conclusion. Without in any way depreciating the stature of the constitutionally protected right of a criminal defendant effectively to confer with counsel and not to be deprived of that right of consultation for any substantial period of time (Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592), we find no justification for departing from the requirement that trial court error (here interference with that right) must be brought to the court's attention by protest timely made, at least where counsel acting on defendant's behalf is present and available to register a protest and where the error if called to the court's attention is readily susceptible to effective remedy. In such a setting the registering of an objection would afford the trial court opportunity promptly to rescind any directive violative of the defendant's right of access to counsel or otherwise to cure the error. Conversely, requiring that the normal, statutorily prescribed protest be made imposes no weighty or unreasonable burden on the defendant whose counsel is at his side.

The fact of counsel's presence here at the time of the trespass on defendant's right to his assistance distinguishes this case from People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537 and People v. Felder, 47 N.Y.2d 287, 418 N.Y.S.2d 295, 391 N.E.2d 1274, on which the Appellate Division relied. It detracts not at all from the significance or worth ascribed to the right to assistance of counsel in each of those cases, as well as a legion of others in this and other jurisdictions of which Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (also relied on by the Appellate Division) is the fountainhead, to take note that in each case cited it was the absence of counsel at the critical time that was determinative. Here an objection voiced by counsel on June 14, 1976, when the trial court first uttered its prohibition against consultation between attorney and client, might well have resulted in a change of the Trial Judge's ruling and total avoidance of interference with defendant's constitutional claim. For all that appeared, however, defense counsel found the directives given that day unobjectionable and not adverse to defendant's interests. In that circumstance, in light of counsel's acquiescence at a time when correction was possible, defendant could not, in disregard of the statutory requirement of timely protest, thereafter secure appellate review of what transpired when counsel stood mute.

Concluding then, as we do, that protest was required to preserve the issue for appellate review as a question of law, we must determine whether, as the Appellate Division appears to have concluded, counsel's request to speak with his client before the resumption of his...