AD1 orders new suppression hearing because counsel not present during part of hearing

In People v. Strothers (1st Dept. 8/11/2011) (4-1), the Defendant was the driver of a car with two passengers.  The DEA had identified the passengers through a wiretap investigation as high level drug dealers.  The threesome was arrested in the Bronx.  Defendant moved to suppress, arguing that there was a lack of probable cause to arrest him.  The suppression court conducted a joint hearing on the Defendant and the co-defendants' motions to suppress.  For some portion of the first witness' testimony, however, Defendant's attorney was not present in the courtroom.  Apparently he was covering another appearance.

The First Department found a violation of the right to counsel and ordered a new suppression hearing.  It rejected the People's arguments as to preservation (not required), harmless error (it was not), and that the unrepresented testimony did not pertain to the Defendant, only his co-defendants (not true, said the majority—the unrepresented testimony related to whether the police employed proper procedures).

Justice Catterson dissented, relying principally on what he saw as the strength of the People's evidence.  (LC)

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