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Although the Police Could Have Done More to Make Sure Defendant Was Not Represented by Counsel Before Questioning Him, Defendant’s Prior Attorney’s Statement to the Police that He Was No Longer Representing the Defendant Was Enough

The Court of Appeals, in a full-fledged opinion by Judge Smith, over a dissent, determined that the police properly questioned the defendant without an attorney present after they were told by defendant's prior attorney that the he no longer represented the defendant. Defendant was represented on a robbery charge. After defendant indicated he had knowledge of the commission of an unrelated murder, he entered a plea bargain which promised a reduced sentence if he provided useful information about the murder.  The police who interviewed the defendant about the murder did not believe his story and the defendant did not receive a reduced sentence for the robbery.  Subsequently, the police suspected defendant was himself involved in the murder.  Before questioning the defendant, the police met with the attorney who had represented the defendant on the robbery charge.  The police did not tell the attorney why they wanted to question the defendant. The police then elicited statements from the defendant without any further inquiry about whether he was represented by counsel.  The dissent argued that there was ambiguity about the defendant's representational status, the burden was on the police to make sure the defendant was no longer represented before questioning him, and that burden was not met here:

Here, the police did have a reason — an excellent one — to believe that the attorney-client relationship had ceased: the attorney had told them so. By asking the question and getting an unequivocal answer, the police discharged their burden. It is no doubt true that they could have done more. They could have explained to [defendant's attorney] exactly why they were eager to talk to defendant, or they could have asked defendant himself whether the relationship had reached an end. Perhaps had they done so, they would have received a different answer. But the police are not required to take all imaginable steps to protect a defendant's right to counsel. Where they follow the rules laid down in our cases — rules that are, in general, highly protective of the attorney-client relationship — they need do no more … .  People v McLean, 2014 NY Slip Op 07085, CtApp 10-21-14

 

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