This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 17
The People &c.,
Appellant,
v.
Matthew A. Slocum,
Respondent.
Jason P. Weinstein, for appellant.
Michael J. Mercure, for respondent.
The Bronx Defenders et al., amici curiae.
MEMORANDUM:
The appeal should be dismissed upon the ground that the
reversal by the Appellate Division was not "on the law alone or
upon the law and such facts which, but for the determination of
law, would not have led to reversal" (CPL 450.90 [2] [a]).
The Appellate Division concluded that defendant
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unequivocally invoked his right to counsel and his statements
should have been suppressed. Whether a request for counsel is
unequivocal presents a mixed question of law and fact (see People
v Porter, 9 NY3d 966, 967 [2007]; People v Glover, 87 NY2d 838,
839 [1995]). The Appellate Division's reversal therefore was not
"on the law alone or upon the law and such facts which, but for
the determination of law, would not have led to reversal" (CPL
450.90 [2] [a]). As a result, we have no jurisdiction over this
appeal (see id.; see generally People v Brown, 25 NY3d 973, 975
[2015]; People v Polhill, 24 NY3d 995, 997 [2014]).
The People contend that the Appellate Division
committed an error of law by conflating the issue of whether
defendant's request for counsel was unequivocal with the separate
issue of whether a letter from defense counsel constituted an
entry by counsel into the proceeding (see generally People v
Arthur, 22 NY2d 325, 328-329 [1968]). Even assuming for the sake
of argument that such a legal error occurred, we cannot conclude
that, but for the error, the Appellate Division would not have
reversed the judgment (see CPL 450.90 [2] [a]). Before
discussing the issue of the letter, the Appellate Division
decidedly held that defendant unequivocally invoked his right to
counsel (People v Slocum, 133 AD3d 972, 975-976 [3d Dept 2015]).
We therefore have no jurisdiction to address the People's
argument that the Appellate Division improperly conflated the two
issues or the Appellate Division's conclusion that the letter did
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not constitute an entry by counsel.
* * * * * * * * * * * * * * * * *
Appeal dismissed upon the ground that the reversal by the
Appellate Division was not "on the law alone or upon the law and
such facts which, but for the determination of law, would not
have led to reversal" (CPL 450.90[2][a]), in a memorandum. Chief
Judge DiFiore and Judges Rivera, Abdus-Salaam, Stein, Fahey and
Garcia concur. Judge Wilson took no part.
Decided March 23, 2017
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