People v. Pacquette

Chief Judge Lippman

(dissenting). In the decision and order we now review the Appellate Division affirmed portions of a Kings County Supreme Court judgment convicting defendant of criminal possession of a weapon in the second degree. It did so over defendant’s claim that his conviction had been obtained based on an inculpatory statement that should have been suppressed since it was given by him to Brooklyn police detectives in pursuance of an invalid waiver of his right to counsel. Although that claim was fully litigated at a pretrial Huntley hearing, the Appellate Division did not address its merits. It held instead that if it had been error to deny suppression of defendant’s statements, the error was harmless in light of what it viewed as the overwhelming properly received evidence of defendant’s guilt (73 AD3d 1088 [2010]). This Court has now evidently concluded that the evidence was not so overwhelming as the Appellate Division thought and, accordingly, that the validity of defendant’s waiver and ensuing confession should have been determined as a necessary antecedent to affirming the judgment convicting him. Having so concluded, the Court apparently undertakes to do what the Appellate Division did not upon a hearing record which, although well developed, raises certain factual issues not yet resolved by a court with jurisdiction to do so. The testimony from which those issues arise may be briefly summarized.

Daniel Scott, the attorney assigned to represent defendant at his Manhattan arraignment on narcotics charges, testified that, in the presence of the Brooklyn detectives who had escorted defendant to the arraignment, and not privately, he “told [defendant] not to discuss any legal matter with them [the Brooklyn detectives] whatsoever.” He also testified that he separately “advised [the detectives] that Mr. Pacquette was represented by counsel and that they should not question him.” He stated as well that he never told Mr. Pacquette that he would not represent him on the Brooklyn homicide with which he was about to *98be charged. The Brooklyn detectives, on the other hand, testified that defendant and Scott conferred privately but that portions of the attorney-client exchange were nonetheless overheard by Detective Amato. Amato reported that he heard Scott tell defendant that he would not represent him in his new case in Brooklyn. Amato and his partner Detective Parks both stated that Scott never advised them that defendant was represented by counsel and that they should not question him.

The hearing court did not decide whether Scott did in fact tell defendant in front of the detectives that he was not to speak with them about any legal matters or whether he told the detectives that they should not question his client. Nor did the hearing court decide whether Scott told defendant that he would not represent him in the Brooklyn homicide matter. This was because the court found dispositive Scott’s acknowledgments that he was not ultimately engaged to represent defendant in the homicide and that he did not, in so many words, tell the Brooklyn detectives that he represented defendant in that case.

The majority, although declaring that Scott could not have unilaterally created an attorney-client relationship with defendant respecting the Brooklyn matter, does not go so far as to say that Scott in the course of representing defendant at his Manhattan arraignment could not have effectively signaled his entry into that matter, thus triggering, with respect to the homicide investigation, his client’s indelible right to counsel. That, of course, would not be consistent with our decision in People v Ramos (40 NY2d 610 [1976]), which, on facts remarkably like those at bar, clearly recognizes that a defendant’s attorney is, through “affirmative and direct action relative to [an] interrogation . . . about to be commenced” (id. at 617), capable of precluding an uncounseled waiver of the right to counsel in an unrelated matter, even one in which the attorney does not ultimately represent the defendant.1 Rather, it appears to be the majority’s position that what Scott said was not adequate to communicate to the detectives his entry into the Brooklyn matter. In taking this position, it must be supposed that the majority assumes for the purposes of its argument that Scott did in fact tell defendant in the detectives’ immediate presence that he *99was “not to discuss any legal matter with them whatsoever” and that he did not tell defendant that he would not represent him in Brooklyn. It must also be supposed that the majority is assuming, also for the sake of argument, that Scott did instruct the detectives “that Mr. Pacquette was represented by counsel and that they should not question him.”

Having made these assumptions in defendant’s favor in lieu of sending the matter back for factual findings that this Court may not make, the majority then says that “Scott made no statements during the arraignment on the drug crime even arguably related to the homicide” (majority op at 96). Even viewed in isolation, simply for their semantic content, Scott’s directives unambiguously communicated to the detectives that his client was not to discuss with them “any legal matter . . . whatsoever” (emphasis supplied) and, accordingly, that “they should not question [defendant]” about any legal matter whatsoever. A homicide is a legal matter.

Even if there were some doubt as to what Scott’s words themselves meant, and really there should be none, the context in which they were spoken could have left absolutely no doubt that Scott was directing the Brooklyn homicide detectives quite specifically not to question defendant about the Brooklyn homicide they were investigating. At the time, all concerned knew that defendant was a suspect in a Brooklyn homicide, and, indeed, Scott was well aware that his client was, by prearrangement, to be immediately returned to the custody of the Brooklyn detectives at the conclusion of his expedited arraignment so that he could be timely arraigned on homicide charges in Brooklyn. Given this scenario, Scott’s concern could not have been principally that defendant would be questioned in his absence about matters pertinent to the New York County drug case, something which his entry as counsel at defendant’s Manhattan arraignment itself precluded, but that he would during the interval before his arraignment on the Brooklyn homicide charges be interrogated and make imprudent admissions with respect to that homicide. Certainly the Brooklyn homicide detectives, who had no interest in defendant’s New York County drug case, would have understood that Scott’s directives to them concerned the case that they were investigating and in which Scott’s client would, in the coming hours, be a natural candidate for custodial interrogation.

Although the majority characterizes Scott’s intercession as an attempt unilaterally to create an attorney-client relationship, *100defendant was already represented by Scott and no competent defense attorney would simply abandon a client about to be interrogated as a suspect in a homicide. That Scott should have sought to enter the homicide case, if only temporarily to interpose himself between his client and the Brooklyn homicide detectives until formal appointment of counsel at the impending homicide arraignment in Brooklyn, was entirely appropriate. Whether Scott could have effectively accomplished that purpose by admonishing defendant and the Brooklyn detectives as he testified he did, is an inquiry that would seem to be controlled by Ramos.

In Ramos, we held that the statement by the lawyer appearing on Ramos’s behalf at his Bronx arraignment on charges of drug possession — that he had “advised Mr. Santiago [Ramos] not to make any statements to these police officers who are taking him into custody” (40 NY2d at 616) — sufficed to signal to the officers the lawyer’s entry into Ramos’s unrelated Manhattan homicide case, and thereby triggered Ramos’s indelible right to counsel in that case. The admonitions of attorney Scott in this case, both literally and contextually virtually identical to those of Ramos’s attorney, are, if precedent is a constraint upon what we do, entitled to be accorded the same legal effect. Although the majority finds it important that in Ramos the attorney placed his directive on the record, there appears no reason why Scott’s admonitions should be deemed less effective than those of Ramos’s lawyer simply because they were not placed on the record. As we noted in Ramos, the critical inquiry is whether “an attorney has communicated with the police for the purpose of representing the defendant” (id. at 615, quoting People v Arthur, 22 NY2d 325, 329 [1968] [internal quotation marks omitted]). Accordingly, what was crucial in Ramos and what should be here as well is the circumstance, necessarily assumed in appellant’s favor at this juncture, that the defendant’s attorney took “affirmative and direct action relative to [an] interrogation . . . about to be commenced” (id. at 617) “in the presence of the police officer[s] taking [his client] into custody” (id. at 616).2

Even if there were some residual ambiguity as to whether Scott in his admonitory statements referred to the Brooklyn *101homicide, that ambiguity would not redound to the prosecution’s benefit. We were very clear about this in Ramos where we said:

“If, in fact, the prosecution was in doubt as to whether an attorney had entered the proceeding, the burden should rest squarely on it to insure that the defendant’s right to be represented by counsel be protected. The ambiguity of the lawyer’s statement or the manner in which the defendant’s attorney went about representing his client cannot be seized by the prosecution as a license to play fast and loose with this precious right. A defendant’s right to counsel cannot be made to depend on whether in the sole judgment of the prosecution there has been sufficient activity and conduct of a proper character so as to compel a conclusion that the lawyer has entered the proceedings. Nor can we agree with the prosecutor that the defendant has an affirmative burden to point out to the prosecution that an attorney has entered the proceedings on his behalf. To hold otherwise would violate our prior holdings and seriously undermine this constitutionally guaranteed right” (id. at 617-618).

And, in the more recent case of People v Marrero (51 NY2d 56 [1980]), citing Ramos we again emphasized that

“[o]nce an attorney has appeared on the defendant’s behalf we have refused to allow the police to rely on arguable ambiguities in the attorney-client relationship in order to justify police questioning of the defendant without the attorney being present (see, e.g., People v Ramos, 40 NY2d 610). We have indicated that if the police are uncertain as to the scope of the attorney’s representation, the defendant should not be questioned (People v Coleman, 42 NY2d 500, 507)” (id. at 59).

While the majority understands these principles to apply only where the police do not know about the “limited nature of the attorney’s representation” (majority op at 96), it is difficult to understand how that posited condition lends support to its position in this case, since, even if it were true that limited representation could not trigger representational rights, and *102manifestly it is not, there is no permissible basis for a supposition that the Brooklyn detectives knew, at the time they obtained defendant’s waiver of his right to counsel, about the “limited nature” of attorney Scott’s representation of defendant. Only by making credibility findings on the disputed issues of what was said by Scott to defendant and what Amato overheard, would it be possible to conclude that the Brooklyn detectives had some reliable basis for believing that Scott would not represent defendant in the Brooklyn case. If such a finding is to be made and relied upon in disposing of defendant’s motion, the case should be remitted for that purpose; the finding may not be made in the first instance by this Court and, obviously, what the detectives knew is not appropriately assumed adversely to appellant as a basis for our denial of his appeal and our accompanying statement of the law.

It is also suggested that Ramos and Marrero should not control here because in those cases the defendants manifested a need for legal assistance in the matters being investigated while defendant did not. It is, however, a basic and long-standing principle of our right-to-counsel jurisprudence that, if an attorney has entered a matter, the right to counsel indelibly attaches rendering it irrelevant, in the event of a subsequent uncounseled custodial waiver of the right, whether the defendant was, in interacting with his or her interrogators, not evidently averse to speaking or whether there was some manifestation by the defendant of a need for a lawyer. As we reiterated in People v Hobson (39 NY2d 479, 481 [1976]) and has since been the governing rule of law, “[o]nce a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer.” If Scott entered his client’s homicide case, the uncounseled waiver subsequently obtained from his client in that case was invalid and the confession consequently elicited must be suppressed. Because it is not possible to say on any properly assumed set of facts considered in light of Ramos that Scott did not effectively enter the proceeding, the matter should be remitted so that the factual findings necessary to a proper determination of defendant’s suppression motion can be made.

Defendant would undoubtedly have been protected from making an uncounseled waiver of his right to counsel if he had not by careful prearrangement been “released” from custody on the *103represented New York County matter to the Brooklyn detectives (who promptly rearrested him). It is questionable whether this artifice should be deemed effective to avoid attachment of the indelible right under People v Rogers (48 NY2d 167 [1979]) where, as here, the detectives were obviously aware of the extant representational relationship, having been present at its inception, and fully intended in the hours after defendant’s “release” to subject him to custodial questioning. But accepting that the “release” of defendant was not a contrivance simply to avoid the triggering of a representational right, it is clear that the situation was one involving great peril to defendant’s legal interests and, accordingly, one which defendant’s lawyer could not treat with indifference as it unfolded before him. Although there may not have been an automatic entitlement to counsel in the homicide case by reason of the unrelated representation in the designedly noncustodial New York County matter, there was, as we have recognized in Ramos, certainly in this situation a need and a corresponding prerogative on the part of the lawyer affirmatively to act to protect his client’s interests. On this record, I do not think it possible for this Court to conclude that he did not do so, indeed, if it were necessary, that he did not do so ‘ ‘conspicuously. ’ ’

Judges Ciparick, Graffeo, Smith and Pigott concur with Judge Read; Chief Judge Lippman dissents in a separate opinion in which Judge Jones concurs.

Order affirmed.

. We specifically rejected in Ramos the People’s contention that Ramos’s counsel could not have acted to prevent his prearraignment interrogation in an unrelated murder prosecution because he “never appeared at the defendant’s murder arraignment or any other proceeding in connection with [that] case” (40 NY2d at 617).

. While the majority urges that if Scott had placed his admonitions on the record the prosecutor or judge might have clarified the extent of his representation of defendant, there was obviously nothing to prevent the detectives *101from pursuing the matter with Scott directly either at the arraignment or subsequently. As the majority recounts, “Amato ‘took [Scott’s] business card’ ” (majority op at 90).