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DEFENDANT’S STATEMENT TO HIS MOTHER, ON THE PHONE, ABOUT NEEDING THE ASSISTANCE OF AN ATTORNEY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE, ERROR WAS HARMLESS HOWEVER (SECOND DEPT).

The Second Department determined a statement defendant made to his mother about needing the assistance of an attorney should not have been admitted. The error was deemed harmless however:

We agree with the defendant that the Supreme Court should not have admitted into evidence a statement the defendant made to his mother, during a recorded telephone call, that involved him invoking his right to counsel. During the telephone call, the defendant stated that, with the assistance of an attorney, he could “get around” the fact that he had touched the gun earlier in the day. The court initially ruled that this statement was inadmissible. However, during a pretrial proceeding, the People argued that this statement should be admitted, as it demonstrated the defendant’s consciousness of guilt. Over the defendant’s objection that this statement was inadmissible since it revealed his decision to engage legal representation, the court permitted its introduction into evidence. “It has long been the rule in this State that, once a criminal proceeding has formally commenced, the accused has an absolute constitutional and statutory right to the assistance of counsel at every stage of the proceeding” … . Accordingly, evidence which has the jury infer guilt from the fact that a criminal defendant exercised his or her right to counsel should not be admitted … . Here, the admission of this statement was an improper infringement on the defendant’s exercise of his right to counsel … . People v James, 2019 NY Slip Op 05150, Second Dept 6-26-19

 

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