People v. Squitieri

• Decision Date: 13 November 1975
• Citation: 375 N.Y.S.2d 124,49 A.D.2d 374
• Parties: The PEOPLE of the State of New York, Respondent, v. Gene SQUITIERI, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 124

375 N.Y.S.2d 124

49 A.D.2d 374

The PEOPLE of the State of New York, Respondent, v. Gene SQUITIERI, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Nov. 13, 1975.

Irving Anolik, New York City, for defendant-appellant.

Jared J. Scharf, New York City, of counsel (Mario Merola, Dist. Atty.), for respondent.

Before MARKEWICH, J.P., and KUPFERMAN, TILZER, CAPOZZOLI and NUNEZ, JJ. CAPOZZOLI, Justice:

This is an appeal by the defendant from a judgment of conviction upon his plea of guilty to the crime of an attempt to receive a bribe. Although a plea of guilty was entered, the question presented on this appeal was preserved and is before us for review.

It is the contention of the defendant that the prosecution violated his Fifth and Sixth Amendment rights of access to and advice from counsel, as provided in the Federal Constitution. He bases this on the claim that the prosecuting authorities deliberately arranged for one, Richard Curro, a correction officer under arrest, to surreptitiously record a conference with an attorney, at the attorney's office, which ostensibly was being held for the purpose of securing advice and general counselling from the lawyer for the defendant and Curro who were both involved in the same crime.

In November, 1972, the office of the District Attorney of the Bronx was engaged in an investigation of correction officers on Riker's Island Correctional Facility who were suspected of receiving money from inmates, in return for certain favors and privileges, including release on parole under favorable conditions. The defendant, Squitieri, was a lawyer, employed as a parole officer at Riker's Island, and handled conditional releases of inmates.

As a result of the continuing investigation Curro was arrested on November 10th, 1972. He was questioned by the authorities for about 24 hours. He implicated the defendant, Squitieri, and agreed to cooperate with the authorities in securing evidence against the defendant. Accordingly, Curro consented to the placing of a concealed device on his person for the purpose of recording conversations.

After the arrest of Curro, and while he was being questioned, Mrs. Curro contacted the defendant, Squitieri, and informed him what had happened. Defendant instructed Mrs. Curro to inform her husband that Richard Hartman, an attorney and former prosecutor, should be used by Curro as his lawyer. Curro was so advised by Mrs. Curro. The record demonstrates that Curro was arraigned in court, and did give the name of Hartman as his lawyer.

After being informed that Curro had been arrested, the defendant personally contacted the same lawyer, Mr. Hartman, and met him on November 10th, 1972, at about midnight. Mr. Hartman, who testified in this case, reported that the defendant spoke to him 'in relationship to this Richard Curro and in relationship to himself, certain aspects of protection of his own rights and certain things'. (A--173) Mr. Hartman further testified that arrangements were made between him and the defendant for both the defendant and Curro to come to his law office on the following day.

This information came to the attention of the authorities and it was in preparation for the conference to be held at Mr. Hartman's office that the authorities placed the recording device on Curro so as to record whatever was being said at the lawyer's office. There is no doubt about the fact that the authorities intended that the conferences which were to be held should be recorded and reported to them. In other words, through the cooperation of Curro the authorities were, in effect, listening in on what was being said between the lawyer and his possible future clients. Surely the fact that the arrangements had not been made to definitely retain Mr. Hartman does not detract from the privileged nature of the preliminary consultation between lawyer and client.

We find it difficult to understand how the court below came to the conclusion that Squitieri was not at the meeting to consult with the lawyer. The fact is clear that the defendant started seeking advice on the prior day, when he saw the lawyer and spoke to him concerning the protection of his rights. Mr. Hartman testified with certainty and without equivocation that he treated the conference on the next day as a professional consultation and had no doubt that he believed the attorney-client relationship existed with both Curro and the defendant for the purposes of free discussion. We do not disagree with the Court below that the defendant was anxious to ascertain how much had been told to the authorities concerning his participation in the crimes under investigation, but that did not detract from the lawyer-client relationship. This information would have put the lawyer in a better position to advise both the defendant and Curro as to what their chances were to defend against the prosecution.

Of course, we recognize the importance to the prosecution of the incriminating statements made by the defendant, Squitieri, during this conference, for, without them, there would have been no corroboration of the testimony of Curro, the confessed accomplice. Nevertheless, it does not justify the conduct of the authorities under the circumstances. Their behavior, as disclosed by the evidence, was not only illegal and contrary to precedent, but also a clear deprivation of the defendant's constitutional rights to counsel, as provided in the Federal Constitution.

In Lanza v. N.Y. State Joint Leg. Comm., 5 Misc.2d 324, 164 N.Y.S.2d 531, rev'd 3 A.D.2d 531, at p. 533, 162 N.Y.S.2d 467, at p. 470, this Court said:

'Of course, communication between an attorney and his client, especially where the client is a defendant in a criminal matter, involves much more than a mere privilege. Also involved is the right to counsel, which carries with it the corollary right to communicate with counsel in secrecy and confidence, and without intrusion, especially by public officials. In this case that constitutional right was violated, and, indeed, violated in an atrocious and inexcusable manner. * * *'.

The Court then went on to permit the use of the information obtained, in violation of Lanza's rights, by the Legislative Committee, but went on to say, at p. 533, 162 N.Y.S.2d at p. 470:

'This does not mean, however, that the confidential communications thus obtained may be used against Mr. Lanza in any proceeding in which he is the target. * * * (Citing cases.)'

This case went to the Court of Appeals and, by a vote of four to three, with each of the three dissenting judges writing his own separate opinion, was affirmed (3 N.Y.2d 92, 164 N.Y.S.2d 9, 143 N.E.2d 772). At a later date this very same conversation came up again before the Appellate Division in Matter of Reuter (Cosentino,) 4 A.D.2d 252, 164 N.Y.S.2d 534, in an application by the Commissioner of Investigation of New York State to compel the lawyer to testify as to what the conversation was between him and his client. The lawyer refused to testify and the attempt of the Commissioner to hold the lawyer in contempt failed. The Court, at p. 254, 164 N.Y.S.2d at p. 536 of the opinion, said:--

'The right of the citizen to the advice of a lawyer, and the protection afforded to consultation with him ought to be preserved even though modern electronics has provided a facile way of assertaining and recording what is said between them.

* * * and if the constitutional guaranty of the aid of counsel is to be of value, the court must afford to very man the right to talk to his lawyer with assurance that the lawyer will not be required or permitted to disclose what is said.'

In People v. Cooper, 307 N.Y. 253, at pp. 259--60, 120 N.E.2d 813, at p. 816, the Court said:--

'The right to counsel, based on fundamental principles of justice, is inherent in the concept of a fair trial (citing cases), and included therein, of course, is the right to consult counsel in private, without fear or danger that the People, in a criminal prosecution, will have access to what has been said, either openly, by forcing the attorney to divulge what he has learned, or secretly, by the use of a concealed recording device or the planting of a human eavesdropper. (Citing cases.) Intrusion upon a client-lawyer conference, whether in the privacy of an office or at the counsel table in court,...