People v. West

• Decision Date: 08 June 1993
• Citation: 599 N.Y.S.2d 484,615 N.E.2d 968,81 N.Y.2d 370
• Parties: , 615 N.E.2d 968, 62 USLW 2031 The PEOPLE of the State of New York, Respondent, v. Kenneth WEST, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 484

599 N.Y.S.2d 484

81 N.Y.2d 370, 615 N.E.2d 968, 62 USLW 2031

The PEOPLE of the State of New York, Respondent, v. Kenneth WEST, Appellant.

Court of Appeals of New York.

June 8, 1993.

[81 N.Y.2d 371] [615 N.E.2d 969] Frances A. Gallagher and Philip L. Weinstein, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. of New York County, New York City (Mary C. Farrington and Mark Dwyer, of counsel), for respondent.

OPINION OF THE COURT

KAYE, Chief Judge.

A defendant's State constitutional right to counsel "indelibly attaches" upon actual representation in a criminal matter. The question before us on this appeal--where defendant's right to counsel unquestionably attached by virtue of counsel's representation of him in the matter at issue--is what indelible attachment means in those circumstances.

Defendant, along with twin brothers Michael and Mark Davenport, was part of a drug operation based in a house on West 116th Street in Manhattan. On February 15, 1982, a fight broke out in front of the house during which Sylvester Coleman was shot and killed. On June 30, 1982, the police placed defendant in a lineup in connection with the shooting. Defendant was at that time represented by counsel. The People do not dispute that counsel's presence was recorded in the police file on this matter, and that counsel instructed defendant was not to be questioned in his absence. The results of the lineup were inconclusive and defendant was not charged at that time.

Some three years later, Michael Davenport was arrested in connection with unrelated crimes, admitted that he was one of the gunmen in the Coleman slaying, identified defendant as another, and signed a cooperation agreement with the District Attorney in exchange for leniency. In December 1985 and January 1986, at the direction of law enforcement officials and in an effort to help his brother, Mark Davenport surreptitiously tape-recorded several conversations with defendant. Before arranging for these conversations, the police made no attempt to determine whether defendant was still represented by his lawyer. In the taped conversations, defendant made statements consistent with guilt, and was thereafter indicted for murder.

Prior to trial, defendant's attorney--the same attorney who had represented him at the lineup--moved to suppress the taped statements, claiming they were taken in violation of defendant's right to counsel. The People responded that, more than three years after the lineup, the police had no reason to believe the representation continued, and defendant's papers did not allege that he was in fact still represented at the time of the tape-recording. Supreme Court summarily denied suppression.

Defendant's taped statements figured prominently in the prosecution's trial presentation. The prosecution's other primary evidence came from three interested witnesses: Mark Davenport, Michael Davenport and Thomas Kelly, a known heroin user and frequent customer of the drug organization. The tape was played during the People's direct case accompanied by Mark Davenport's testimony and was replayed during the People's summation accompanied by an explanation of how it demonstrated defendant's guilt. Before returning a guilty verdict, the jury twice requested that a portion of the tape be played again and asked for a copy of the cooperation agreement between the District Attorney and Michael Davenport.

The Appellate Division affirmed the conviction, 183 A.D.2d 419, 583 N.Y.S.2d 396, reasoning that the investigation for which defendant had obtained counsel had been terminated and that the taped statements were made as part of a new investigation. The Appellate Division also considered it significant that the taped conversations were noncustodial. We disagree, concluding that the taped statements were taken in violation of defendant's right to counsel, their use cannot be deemed harmless, and a new trial is required.

I.

The State right to counsel is a " 'cherished principle', rooted in this State's prerevolutionary constitutional law and developed 'independent of its Federal counterpart.' " (People v. Harris, 77 N.Y.2d 434, 439, 568 N.Y.S.2d 702, 570 N.E.2d 1051 [quoting People v. Settles, 46 N.Y.2d 154, 160-161, 412 N.Y.S.2d 874, 385 N.E.2d 612].) "The 'highest degree of [judicial] vigilance' is required to 'safeguard' it." (People v. Harris, 77 N.Y.2d, at 439, 568 N.Y.S.2d 702, 570 N.E.2d 1051 [quoting People v. Cunningham, 49 N.Y.2d 203, 207, 424 N.Y.S.2d 421, 400 N.E.2d 360].)

The State right to counsel attaches indelibly in two situations.

First, the right attaches indelibly upon the commencement of formal proceedings, whether or not the defendant has actually retained or requested a lawyer (see, e.g., 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, supra; People v. Di Biasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825; see also, Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 [parallel Federal right]. Underlying this principle--the "Di Biasi line of cases"--is a recognition that once formal proceedings have commenced, the character of the matter changes from investigatory to accusatory. The right to counsel both protects the accused in dealing with the coercive power of the State and insures that any waiver of the right will be knowing and intelligent (People v. Settles, 46 N.Y.2d, at 163-164, 412 N.Y.S.2d 874, 385 N.E.2d 612).

Second, the right to counsel attaches indelibly where an uncharged individual has actually retained a lawyer in the matter at issue or, while in custody, has requested a lawyer in that matter (People v. Skinner, 52 N.Y.2d 24, 26, 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, 481, 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). The rationale underlying this "Hobson line of cases" is much the same as that underlying the Di Biasi line of cases (see, People v. Hobson, 39 N.Y.2d, at 485-486, 384 N.Y.S.2d 419, 348 N.E.2d 894). Suspects under the Hobson line have manifested their belief that they cannot alone deal with the State's coercive power. The right to counsel helps to equalize the balance and assure that any waiver is knowing and intelligent (People v. Skinner, 52 N.Y.2d at 29-32, 436 N.Y.S.2d 207, 417 N.E.2d 501; People v. Cunningham, 49 N.Y.2d, at 207-208, 424 N.Y.S.2d 421, 400 N.E.2d 360; People v. Hobson, 39 N.Y.2d, at 484, 384 N.Y.S.2d 419, 348 N.E.2d 894). Additionally, the right protects against undue interference with any existing attorney-client relationship (see, e.g., People v. Skinner, 52 N.Y.2d, at 29-30, 436 N.Y.S.2d 207, 417 N.E.2d 501).

A. Representation by Counsel in the Matter at Issue

This case concerns the second situation--in particular, indelible attachment of the right to counsel by actual representation in the matter at issue. We agree unanimously that defendant's right to counsel attached indelibly when counsel entered his appearance at the lineup and instructed the police not to question his client. We differ as to the significance of that right.

The majority, applying long-settled law, concludes that indelible attachment of the right to counsel means that a suspect cannot be questioned about the matter without counsel, and that defendant's right was violated by the covert interrogation. The dissent, drawing a new distinction, concludes that where the right to counsel arises from representation in a matter, no violation results from covert police questioning about the same matter unless defendant establishes that the attorney-client relationship existed at the moment of questioning. A brief review confirms that the dissent's purported distinction is without basis.

The rule that an uncharged represented individual cannot be questioned without counsel originated in the context of custodial interrogation, and was explicitly premised on grounds identified in Di Biasi: the need to protect accused against the coercive power of the State and promote knowing and intelligent waivers (see, People v. Hobson, 39 N.Y.2d, at 485-487, 384 N.Y.S.2d 419, 348 N.E.2d 894). The Hobson rule additionally protected the attorney-client relationship from undue interference. (id., at 484, 384 N.Y.S.2d 419, 348 N.E.2d 894). After Hobson, we recognized that the right to counsel attached where an uncharged suspect in custody asked for a lawyer (People v. Cunningham, 49 N.Y.2d, at 208, 424 N.Y.S.2d 421, 400 N.E.2d 360). We reasoned that an individual in custody who expressed the need for counsel stood in the same shoes as one who had actually retained counsel for protection against the State--both having manifested an inability to deal with the State without counsel on the matter in issue--and the State cannot thereafter seek a waiver outside counsel's presence.

We next applied the principle to noncustodial questioning (People v. Skinner, 52 N.Y.2d, at 28, 436 N.Y.S.2d 207, 417 N.E.2d 501). In Skinner, the defendant was initially questioned immediately after a murder, and then repeatedly questioned over the next few months, prompting him to retain an attorney who instructed the police not to question his client. After a hiatus of approximately two years, the police served the attorney with an order compelling defendant to appear in a lineup, whereupon the attorney again instructed the police not to question his client in his absence. Nonetheless, the police personally served defendant with the order and at the same time asked defendant if he wanted to tell them anything, whereupon defendant made incriminating statements.

We granted suppression of defendant's statements. We concluded that even in a noncustodial setting, by retaining an attorney in response to police-initiated contacts about a particular matter, defendant manifested his...