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Defendant’s Verbal Abuse of His Lawyer Did Not Constitute a Waiver of His Right to Counsel—Criteria for Valid Waiver Explained

The Third Department determined the defendant did not, by his disruptive behavior and his telling his lawyer she was fired, waive his right to counsel:

Defendant’s “conduct unambiguously indicate[d] a defiance of the processes of law and . . . disrupt[ed] the [hearing] after all parties [were] assembled and ready to proceed,” and he arguably thereby forfeited his right to be present at the hearing … . Nevertheless, he did not validly waive his right to counsel. “For such a waiver to be effective, the trial court must be satisfied that,” among other things, “it has been made competently, intelligently and voluntarily” … . Thus, the court must undertake a “searching inquiry . . . when a defendant [seeks to] waive[] the right to counsel in favor of self-representation[,] aimed at [e]nsuring that the defendant [is] aware of the dangers and disadvantages of proceeding without counsel” … . Here, Supreme Court did not make any attempt to apprise defendant of the risks inherent in proceeding pro se or the importance of counsel’s role, and there is no indication on the record before us that defendant “acted with full knowledge and appreciation of the panoply of constitutional protections that would be adversely affected by counsel’s inability to participate” … . Indeed, defendant stated that he did not wish to represent himself. Inasmuch as the court “did not make the requisite searching inquiry to [e]nsure that defendant was aware of the drawbacks of self-representation before allowing him to go down that path” … . People v Middlemiss, 2015 NY Slip Op 01208, 3rd Dept 2-11-15

 

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Failure to Inform Defendant of His Right to Counsel for an Appeal Taken by the People Deprived Defendant of that Right

The Second Department determined that a defendant must be informed of his right to counsel on an appeal taken by the People:

A defendant has important interests at stake on an appeal by the People, and is thus entitled to certain protections, including “the right to appellate counsel of defendant’s choice and the right to seek appointment of counsel upon proof of indigency” … . “The ultimate duty of informing the defendant of his right to have counsel on appeal rests with the State” … and, absent record evidence that the defendant was informed of the right to counsel and waived that right, the Appellate Division should not proceed to consider and decide an appeal by the People … . Since there is no such record evidence in this case, we agree with the defendant’s contention that he was deprived of his constitutional right to counsel on the People’s appeal to this Court … . Accordingly, we assign counsel to represent the defendant on the People’s appeal …, and will consider and decide the remainder of the application upon the submission of all briefs. People v Clemente, 2015 NY Slip Op 01287, 2nd Dept 2-11-15

 

Conviction Reversed Because Court Failed to Inquire About the Reasons for Defendant’s Request for Substitution of Counsel After Trial Began

The Second Department, over a dissent, reversed defendant’s conviction because the trial judge did not take any steps to determine the reasons for defendant’s request for new counsel after the trial had started:

Defendant is entitled to a new trial because the court improperly denied his request for substitution of counsel without conducting any inquiry whatsoever, and without permitting defendant to explain, either orally or in writing, why such an inquiry might be necessary … . At the beginning of the fourth day of trial, defendant asked to speak to the court. In denying his request, the court clearly assumed that he wanted to make a statement pertaining to his defense, even after defendant indicated that the subject matter was “my attorney and advice” and that the attorney was not “doing his proper work.” Defendant then asked to hand up papers that defense counsel immediately identified as “a notice of motion for reassignment of counsel,” but the court refused to look at the papers, and stated, “I will not reassign counsel. The motion is denied.”

…In People v Sides (75 NY2d 822 [1990]), for instance, the trial court was found to have erred in failing to ask “even a single question” about the nature of the disagreement after both the defendant and his counsel spoke of a breakdown in communications and trust … . Here, the court did not even learn the nature of the disagreement, let alone ask any questions about it. While not all requests for new counsel contain the specific factual allegations to show that the complaints and request are “serious,” which then triggers the court’s obligation to make a “minimal inquiry” into the nature of the disagreement and its potential for resolution …, here defendant was not given an opportunity to make any allegations. This is not a situation where a defendant rested on unelaborated claims; the court expressly declined to listen to defendant or read his submissions … . People v McCummings, 2015 NY Slip Op 00610, 1st Dept 1-22-15

 

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Error for Prosecutor to Imply that Communicating with an Attorney Manifests a Consciousness of Guilt (Error Deemed Harmless Here)

The Second department noted that the prosecutor’s comment implying that communicating with an attorney manifests a consciousness of guilt was error:

In response to evidence proffered by the People that the defendant relocated to a motel after the subject shooting, the defendant called as a witness an attorney whom she had retained after the shooting. To rebut the People’s theory that the relocation indicated a consciousness of guilt, the defendant elicited testimony from that attorney that the defendant intended to surrender to the police, but that the police arrested her before she was able to do so. During summation, the prosecutor posed the rhetorical question: “[I]f you didn’t do anything and you don’t know that detectives are looking for you in respect to a shooting, why did you get an attorney?” The defendant correctly contends that this comment was improper, since the defendant’s retention of an attorney was not probative of her consciousness of guilt … . Nevertheless, contrary to the defendant’s contention, under the circumstances of this case, the error did not deprive the defendant of a fair trial and otherwise does not require reversal … . People v Credle, 2015 NY Slip Op 00548, 2nd Dept 1-21-15

 

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Jury Should Not Have Been Allowed to Hear Defendant’s Refusal to Waive His Right to Remain Silent and His Invocation of His Right to Counsel

The Third Department determined defendant was entitled to a new trial because the jury was allowed to hear a recording in which defendant refused to waive his right to remain silent and invoked his right to counsel. Under the facts, the error was not harmless. The Third Department directed that the portion of the recording which recounts defendant’s criminal history be redacted on retrial:

….[D]efendant is entitled to a new trial. During their case-in-chief, the People generally cannot introduce evidence that a defendant invoked his or her constitutional right to remain silent or to obtain counsel … . At the trial here, the People played the recording of the police interview up to and including the portion in which defendant stated that he would not sign the line of the Miranda form indicating his willingness to speak to the detective, and defendant stated, “Let me have a lawyer.” This was improper because “it creates a prejudicial inference of consciousness of guilt” by letting the jury hear defendant invoke his constitutional rights … . People v Carey, 2015 NY Slip Op 00251, 3rd Dept 1-8-15

 

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Right to Counsel Not Invoked by Defendant’s Telling Police He Wanted to Speak to his Attorney Before He Signed Anything; Spontaneous Statements Made After Right to Counsel Attached Not Suppressible; Non-Communicative Parts of Video Not Suppressible; Limited Right to Counsel Re: Deciding to Submit to Chemical Test Not Invoked

The Third Department, in reversing (in part) County Court’s suppression of videotaped statements made by the defendant after a DWI arrest, dealt in some depth with several issues:  (1) the court noted that, although a defendant seeking a suppression hearing must make sworn factual allegations supporting the motion, CPL [Criminal Procedure Law] 710.60 “does not mandate summary denial of defendant’s motion even if the factual allegations are deficient” and the hearing was properly granted in this case under “principles of judicial economy;” (2) the defendant did not invoke his right to counsel by telling the police he wanted to speak to his attorney before he signed anything; (3) the defendant did invoke his right to counsel when he subsequently asked that he be allowed to call his attorney; (3) defendant’s spontaneous statements, even those made after right to counsel attached, were not suppressible; (4) defendant’s responses to questions about the chemical test and where he last had a drink were suppressible; (5) the portions of the videotape that did not contain any communication were not suppressible; and (6) although a defendant has a limited right to counsel for the purpose of deciding whether to submit to a chemical test, the defendant did not exercise that right before refusing the test. With regard to spontaneous statements and the “non-communicative” portions of the video, the court wrote:

With a few exceptions, the video reveals that defendant’s statements in the period preceding the reading of his Miranda rights were made without any triggering words or conduct by the police. As the officers played no role in soliciting them, these statements constitute spontaneous declarations and should not have been subject to suppression … . However, at three points following defendant’s successful invocation of his right to counsel, officers asked him questions that should reasonably have been anticipated to elicit responses. The first such exchange occurred between 03:47:49 a.m. and 03:48:10 a.m., when defendant responded after an officer asked him what he thought would occur as a result of refusing a chemical test. The second occurred between 03:50:01 a.m. and 03:50:09 a.m., when defendant confirmed his last drinking location in response to a question by one of the officers. The third occurred between 04:01:05 a.m. and 04:06:23 a.m., when an officer asked defendant several questions about chemical testing and the events of the evening. Defendant’s responses to these inquiries cannot be said to be spontaneous. Thus, his statements during these three time periods and the corresponding portions of the video were properly suppressed.

As to portions of the video in which defendant was not speaking, evidence obtained from a defendant following invocation of the right to counsel is subject to suppression where it constitutes “a communicative act that disclose[s] the contents of defendant’s mind” … . Generally, a defendant’s physical characteristics and appearance are not considered to be communicative in nature … . Here, portions of the video in which defendant is silent show only his physical condition and appearance and do not disclose any communicative statements made after he had invoked his right to counsel. Whether any of these video segments may ultimately be deemed admissible at trial depends on other considerations not presented here, but there is no basis for their suppression as communicative statements … . People v Higgins, 2014 NY Slip Op 00253, 3rd Dept 1-8-15

 

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Defendant Invoked His Right to Counsel By Asking a Police Officer to Retrieve Defendant’s Lawyer’s Phone Number from Defendant’s Wallet—Subsequent Statements Should Have Been Suppressed/Defense Counsel’s Failure to Move to Suppress Weapon Seized from Defendant’s Person Deprived Defendant of Effective Assistance

The Fourth Department determined statements made after defendant invoked his right to counsel should have been suppressed. Defendant, after he was read the Miranda rights, asked a police officer to retrieve the defendant’s lawyer’s phone number from the defendant’s wallet.  The court further found defendant was not afforded effective assistance of counsel due to defense counsel’s failure to move to suppress the weapon seized from defendant’s person:

“Whether a particular request [for counsel] 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 [and] manner of expression[,] and the particular words found to have been used by the defendant” (People v Glover, 87 NY2d 838, 839). Here, the testimony at the suppression hearing established that, before defendant was informed of his Miranda rights at the police station, defendant asked a police officer to retrieve the telephone number of defendant’s attorney from defendant’s wallet. The hearing testimony further established that an investigator acknowledged defendant’s request but asked defendant to continue speaking with the police. That testimony was confirmed by a videotaped interview submitted at the hearing as an exhibit. ” [V]iewed in context of the totality of circumstances, particularly with respect to events following [defendant’s request for his attorney’s phone number]’ ” … ,we conclude that defendant unequivocally invoked his right to counsel and that his statements should have been suppressed  … .

We agree with defendant … that he was denied effective assistance of counsel based on defense counsel’s errors with respect to suppression … . We note that defense counsel moved to suppress evidence seized from defendant’s residence although there was no indication that any evidence was seized therefrom but failed to move to suppress the gun found on defendant’s person. The record establishes that defendant was arrested after a police officer observed defendant and three other individuals standing “approximately 8-10 houses away” from the location of reported gunfire. According to a police report, “[f]or officer safety purposes, [the officer] ordered [defendant and the other three individuals] to the ground and they were taken into custody,” and a police officer found defendant in possession of a loaded weapon. There is no indication in the record on appeal that the police had a founded suspicion that defendant and his companions were the source of the gunfire or were involved in any other criminal activity … . On the record before us, we conclude that there are no strategic reasons for moving to suppress evidence that did not exist while failing to move to suppress a gun that was seized from defendant’s person and that was the factual basis for the charges in the indictment … . We further conclude that defense counsel’s errors prejudiced defendant and deprived him of the right to effective assistance of counsel … . People v Barber, 2015 NY Slip Op 00058, 4th Dept 1-2-15

 

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Where Defendant Is Represented on a Pending Charge and Seeks Leniency by Cooperation with Police in the Investigation of An Unrelated Offense, the Police Cannot Question the Defendant About the Unrelated Offense in the Absence of Counsel Unless Defendant Affirmatively Waives His Right to Counsel In Counsel’s Presence

The Court of Appeals, in a full-fledged opinion by Judge Smith, over a dissent, determined that defendant, who was represented by counsel in a pending criminal matter, should not have been questioned in the absence of counsel about another crime.  Defendant, in an attempt to gain leniency, told the police he knew that a friend had committed a stabbing. The police met with the defendant to “wire him up” for a meeting with his friend.  Defendant's attorney, Schwarz, knew defendant was meeting with the police for that purpose.  During the meeting, the defendant was questioned about the stabbing and eventually he admitted he had committed that crime.  He was then read his Miranda rights, which he waived.  The Court of Appeals held that none of the questioning about defendant's involvement with the stabbing should have be done without defendant's affirmative waiver of his right to counsel, in the presence of defendant's attorney:

Defendant relies on the rule, long established in New York, that “[o]nce an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant's right to counsel” … . The People respond that this rule does not apply here because the “proceeding” in which the police questioned defendant on …—their investigation of the supermarket stabbing ——was one that no attorney had entered. Schwarz, in the People's view, represented defendant only in the burglary case, about which he was not questioned.

We do not find this a viable distinction. The stabbing investigation cannot be neatly separated from Schwarz's representation of defendant in the burglary case. Defendant had pinned his hopes for a favorable result in the burglary case on his cooperation with the police investigation of the stabbing. Under these circumstances, Schwarz's duty to his client required him to concern himself with both cases.

Schwarz was not, of course, retained to defend the stabbing case: before the April 19 meeting, defendant had not been charged with the stabbing, and no such charge seemed likely. But Schwarz's obligation in defending the burglary case included an obligation to be alert to, and to avert if he could, the possibility that defendant's cooperation would hurt rather than help him. No responsible lawyer in Schwarz's situation would concern himself with the burglary case alone, indifferent to the disaster that might strike defendant if he incriminated himself in the stabbing.

We therefore conclude that defendant's right to counsel encompassed his conversations with police about the stabbing, as long as those conversations were part of an effort to obtain leniency in the burglary case in which Schwarz represented him. Thus, unless the right to counsel was waived, the police should not have questioned defendant about the stabbing in his lawyer's absence. People v Johnson, 2014 NY Slip Op 08787, CtApp 12-17-14

 

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Trial Court Abused Its Discretion When It Disqualified Defense Counsel Over Defendant’s Objection on Conflict of Interest Grounds—The Fact that a Co-Defendant Had Been Represented by Another Attorney from the New York County Defender Services (NYCDS) Did Not Create a Conflict for Defendant’s NYCDS Attorney—Defendant’s Attorney Did Not Have Access to Any Information Provided by the Co-Defendant (Who Had Already Pled Out)—Client Confidences Are Not Generally Shared by Attorneys Within a Large Institution Like the NYCDS, As They Might Be Within a Private Law Firm

The First Department, in a full-fledged opinion by Justice Kapnick, over a dissent, determined that the fact that a co-defendant (Stephens) had been represented by a New York County Defender Services (NYCDS) attorney did not create a conflict requiring the disqualification of defendant's trial attorney (Fisher), who also worked for the NYCDS.  The court noted that Fisher was not privy to any confidences of Stephens (who had pled out shortly after arraignment) and there was little danger attorneys within a large institution like the NYCDS would share their clients' confidential information.  Therefore Fisher could effectively cross-examine Stephens should he be called to testify (the People did not intend to call Stephens). The defendant did not want Fisher disqualified and was willing to waive any conflict:

As both the United States Supreme Court and the Court of Appeals have explained, the Sixth Amendment encompasses a right to select and be represented by one's preferred counsel. However, that right is not absolute …, and it must be balanced with the right to effective assistance of counsel … . Thus, trial courts are given “substantial latitude in refusing waivers of conflicts of interests not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses” … . …

Here … defendant not only challenges the trial court's refusal to accept his waiver of the potential conflict of interest, but also questions whether there was even a potential conflict of interest, in the first instance, where Fisher, who is a staff attorney at an institutional defense organization, never personally represented Stephens. It is crucial to recognize that here, unlike in other right to counsel cases, the proper initial inquiry is not whether defendant's waiver should have been accepted, but whether there was even a conflict or potential conflict of interest to waive in the first place. The court need only reach the issue of whether the waiver was properly accepted or denied after it has been established that there was a conflict or potential conflict of interest to waive. I find that on this record, no conflict or potential conflict of interest existed. * * *

Here, defendant and Stephens were arrested in connection with the same incident, but Stephens's case was already concluded by the time of Fisher's disqualification and, again, there was no evidence or suggestion that information concerning Stephens was ever shared with Fisher. Indeed, Fisher acknowledged that he would be barred from viewing his office's file on Stephens or using the address on file to try to locate Stephens; similarly no other attorney would have had access to NYCDS's file either. Thus … it cannot be said that the prior representation of Stephens by the same public defense organization created a potential conflict of interest. Although this Court is aware that the trial court's “discretion is especially broad” when balancing the right to counsel of a criminal defendant's choosing and the right to effective assistance of counsel free of conflicts … , under the specific circumstances here, we find that the trial court abused its discretion in disqualifying defendant's counsel. People v Watson, 2014 NY Slip Op 08383, 1st Dept 12-2-14


 

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County Court Failed to Warn the Defendant that His Lack of Knowledge, When Compared with that of a Lawyer, Would Be Detrimental—Defendant Did Not Validly Waive His Right to Counsel

The Third Department reversed defendant’s conviction and ordered a new trial because County Court failed to ensure that defendant validly waived his constitutional right to counsel.  County Court did not adequately explain that defendant’s lack of knowledge, as compared to the knowledge of a lawyer, would be detrimental:

A defendant seeking permission to proceed pro se must “effectuate[] a knowing, voluntary and intelligent waiver of the right to counsel” …. To this end, the trial court is required to “conduct a ‘searching inquiry’ to clarify that [the] defendant understands the ramifications of such a decision” … . The court’s inquiry “‘must accomplish the goals of adequately warning a defendant of the risks inherent in proceeding pro se, and apprising a defendant of the singular importance of the lawyer in the adversarial system of adjudication'” … . As the reviewing court, we may “look to the whole record, not simply to the waiver colloquy, in order to determine if a defendant effectively waived counsel” (People v Providence, 2 NY3d at 583).

* * * [The court] did not sufficiently advise [defendant] of “the ‘dangers and disadvantages’ of proceeding pro se and the value of trained trial counsel knowledgeable about criminal law and procedure” … . In fact, with respect to the dangers of self-representation, the court merely noted that defendant risked “losing objectivity” by representing himself. Absent from County Court’s inquiry was any warning that defendant’s “lack of knowledge, relative to that of a lawyer, [would] be detrimental if [he] cho[se] to waive the right to counsel” … . People v Guarnieri, 2014 NY Slip Op 08067, 3rd Dept 11-20-14

 

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