STATEMENTS MADE AFTER DEFENDANT REQUESTED AN ATTORNEY SHOULD HAVE BEEN SUPPRESSED, ERROR WAS NOT HARMLESS (FOURTH DEPT).

The Fourth Department, reversing County Court, determined that defendant’s statements, made after he had asked for an attorney, should have been suppressed. The court further disagreed with the People’s argument that the error was harmless:

We agree with defendant, however, that County Court … erred in denying that part of his omnibus motion seeking to suppress the statements that he made while at the police station after he unequivocally asserted his right to counsel by asking, “May I have an attorney please, a lawyer?” Specifically, we conclude that the court erred in refusing to suppress the statements that defendant made to investigators during his videotaped interrogation … after requesting an attorney and the statements that defendant made on the videotape after the investigators left the interview room … .

We further conclude that, contrary to the People’s assertion, the court’s error is not harmless inasmuch as there is a “reasonable possibility that the error might have contributed to defendant’s conviction” … . The defense theory at trial was that defendant had consensual sexual contact with the victim. During the videotaped interrogation viewed by the jury, however, defendant repeatedly denied having had any sexual contact with the victim. He then admitted that he had lied, but nevertheless continued to deny that sexual contact had occurred. In addition, the prosecutor, on redirect examination of one of the investigators, elicited testimony establishing that, after the investigators left the room, defendant was recorded making an additional comment that contradicted his earlier statements. People v Jackson, 2019 NY Slip Op 03162, Fourth Dept 4-26-19