Violation of Right to Counsel Deemed Harmless Error

The Second Department noted that a violation of a defendant’s right to counsel is subject to a harmless error analysis.  Here the police were contacted by an attorney who told the police he was representing the defendant and not to question him if and when he is apprehended.  The court determined defendant’s right to counsel was violated when the police questioned him, but found the error harmless:

The right to counsel attaches, inter alia, when an attorney who is retained to represent a suspect enters the matter under investigation … . When an attorney enters a case to represent the accused, the police may not question the accused about that matter regardless of whether the person is in police custody … . “An attorney enters’ a case by actually appearing or directly communicating with the police by telephone” … . The issue of whether an [*2]attorney has entered a case is not dependent upon whether that attorney has been personally retained by the defendant, or has instead been retained by a member of the defendant’s family … . * * *

A violation of the indelible right to counsel does not automatically constitute reversible error. Instead it is reviewed under the harmless error doctrine for constitutional violations … . Constitutional errors are “considered harmless when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury’s verdict” … . If no such possibility exists, the error is deemed to be harmless beyond a reasonable doubt … . People v Ellis, 2014 NY Slip Op 03530, 2nd Dept 5-14-14