Yesterday, the Court of Appeals summarily affirmed the Appellate Division's reversal of the conviction in People v. Williams (Ct. App. 9/13/2011). The intermediate appellate court had found that the Defendant was arrested without probable. Although the Court of Appeals noted that "different conclusions may not have been unreasonable," there was nevertheless evidence in the record to support the Appellate Division's decision. That foreclosed further review by the Court of Appeals, since probable cause is a mixed question of law and fact. (LC)
In a very brief opinion, the First Department reversed the conviction in People v. Gray (1st Dept. 8/18/2011) because the trial court ordered the complete closure of the courtroom during the undercover's testimony. The Defendant requested that certain family members be allowed to stay, but the court summarily rejected the request without comment. Of particular concern to the First Department was that "the record does not otherwise show that the court considered whether there existed any reasonable accommodations that would have protected the public nature of the criminal proceedings." The court reiterated that "trial courts are required to consider alternatives to closure even when they are not offered by the parties."
The lesson for trial courts and for prosecutors is to make a proper record that explicitly considers alternatives to complete closure. (LC)
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)
Ever since DNA testing became prominent, police have tried all sorts of ways to collect DNA samples from suspects when there was insufficient evidence to get a court order. One of the classic "tricks" is to offer a cigarette to a suspect and collect DNA from the saliva on the butt.
In People v. Gibson (Ct. App. 6/14/2011) (7-0), the police did just that. The circumstances of the collection, however, raised an "indelible right to counsel" question. The Defendant was suspected of a robbery. He was arrested on a bench warrant in an unrelated matter in which he had counsel. While locked up, the Defendant asked if he could see the detective, whom he was friendly with. The detective then had a conversation with the Defendant about general matters. Neither the robbery nor the unrelated criminal matter were discussed. During the conversation, the two smoked cigarettes. The detective later brought the cigarette butt to the lab for testing.
A unanimous Court of Appeals held:
[T]he detective here did not ask defendant about a criminal case, and his actions — displaying a pack of cigarettes and providing one to defendant at his request — were not reasonably likely to elicit an incriminating response. The DNA that defendant voluntarily deposited on the cigarette butt was not a "response" or "statement" subject to exclusion under New York's right to counsel rules because the transfer of bodily fluids was not a communicative act that disclosed "the contents of defendant's mind."
Last month, the Court of Appeals decided an interesting case on the indelible right to counsel, People v. Pacquette (Ct. App. 6/7/2011) (Read, J.) (5-2). The Defendant was suspected of a homicide in Brooklyn and he made inculpatory statements on that crime that he sought to have suppressed. The statements were made after the Defendant had been arraigned in Manhattan on drug charges. Brooklyn detectives had already put the Defendant in a lineup in Brooklyn and were sitting with him in Manhattan Criminal Court. The Defendant was ROR'd and was then arrested by the Brooklyn detectives. He then made the incriminating statements.
The question boiled down to whether the Defendant's attorney on the drug charge sufficiently communicated his involvement in the Brooklyn case such that the indelible right to counsel would have attached. The court looked at the conflicting testimony of the various participants, including the attorney and the detectives, and concluded that he had not. Specifically, the Defendant argued that his attorney's "neglect to 'specify' to the detectives whether he represented defendant in 'the drug case or the homicide case or both,' created an ambiguity causing the indelible right to counsel to attach." He argued that it at least warranted sending the case back for a further hearing.
The Court of Appeals disagreed, holding, "We have never held that an attorney may unilaterally create an attorney-client relationship in a criminal proceeding in this fashion, and decline to do so now. … If he had said in open court that defendant 'was represented by counsel and that [the police] should not question him,' the prosecutor (or the judge) would have had the occasion and the opportunity to ask him flat out whether he was defendant's lawyer in the murder case, as the judge and the prosecutor later did at the Huntley hearing and the trial, respectively. Moreover, there is no ambiguity here, as there was in Ramos, about whether defendant may have intended to invoke his right to counsel before making the inculpatory statements."
The facts of the case are a bit convoluted, but the decision is worth a read if you have a right to counsel issue in a case. (LC)