THE MAJORITY CONCLUDED (1) THE RECORD SUPPORTED THE FINDING THAT DEFENDANT DID NOT MAKE AN UNEQUIVOCAL REQUEST FOR COUNSEL, AND (2) WHETHER A REQUEST FOR COUNSEL IS UNEQUIVOCAL IS A MIXED QUESTION OF LAW AND FACT WHICH IS NOT REVIEWABLE BY THE COURT OF APPEALS (CT APP). ​

The Court of Appeals, over a two-judge extensive dissenting opinion, determined (1) the record supported the finding that the defendant’s request for counsel was not unequivocal and (2) whether the request was unequivocal presents a mixed question of law and fact which is not reviewable by the Court of Appeals:

Once a defendant in custody unequivocally requests the assistance of counsel, the right to counsel may not be waived outside the presence of counsel … . But “[a] suggestion that counsel might be desired; a notification that counsel exists; or a query as to whether counsel ought to be obtained will not suffice” to unequivocally invoke the indelible right to counsel … . Furthermore, “[w]hether a particular request is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant’s demeanor, manner of expression and the particular words found to have been used by the defendant” … .

Here, there is support in the record for the lower courts’ determination that defendant—whose inquiries and demeanor suggested a conditional interest in speaking with an attorney only if it would not otherwise delay his clearly-expressed wish to speak to the police—did not unequivocally invoke his right to counsel while in custody. That mixed question of law and fact is therefore beyond further review by this Court … .

From the dissent:

Here, Mr. Dawson [defendant] unequivocally invoked his right to counsel — the record supports no other conclusion. As is clear from the quoted portion of the colloquy with the detective, he twice said he wanted to call his lawyer, and the detective twice expressly stated that he understood Mr. Dawson had asked to call counsel and therefore the detective could no longer speak to Mr. Dawson. Additionally, the detective then told Mr. Dawson to wait while the detective retrieved Mr. Dawson’s phone so he could call counsel. People v Dawson, 2022 NY Slip Op 02772, CtApp 4-26-22

​Practice Point: Whether a defendant’s request for counsel in “unequivocal,” thereby requiring police interrogation to cease, is a mixed question of law and fact. As long as there is support in the record for the lower court’s finding the request was not unequivocal, the issue cannot be reviewed by the Court of Appeals.