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DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT).

The Second Department, over a dissent, determined defendant’s motion to suppress his statement and a buccal swab should have granted but the error was harmless. The dissent argued the error was not harmless. The court noted that a violation of the right to counsel can be raised on appeal even when the error was not preserved:

… [A] recording of the defendant’s custodial statement to the police, which was entered into evidence at the hearing, shows that during the interview the defendant twice stated, “I think I need a lawyer.” The defendant’s statements constituted an unequivocal invocation of the right to counsel, and after those statements, the police continued their questioning of the defendant and took no steps to comply with the defendant’s unequivocal request for counsel. Therefore, the remainder of the defendant’s statement after that point, as well as the buccal swab that he provided to the police after that point, should have been suppressed from evidence … . People v Bethea, 2018 NY Slip Op 01474, Second Dept 3-7-18

CRIMINAL LAW (DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, RIGHT TO COUNSEL, DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION,  DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/APPEALS (CRIMINAL LAW, RIGHT TO COUNSEL, DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/RIGHT TO COUNSEL (DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/SUPPRESSION (CRIMINAL LAW, EVIDENCE, DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))/BUCCAL SWAB (CRIMINAL LAW, SUPPRESSION, DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT))

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