| People v McLean |
| 2013 NY Slip Op 05596 [109 AD3d 670] |
| August 8, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vSamuel McLean, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Rose, J.P. Appeal, by permission, from an order of the County Court of SchenectadyCounty (Drago, J.), entered October 17, 2011, which denied defendant's motion pursuantto CPL 440.10 and 440.20 to, among other things, vacate the judgment convicting him ofthe crimes of murder in the second degree (two counts), attempted robbery in the firstdegree (three counts), criminal possession of a weapon in the second degree (threecounts), criminal possession of a weapon in the third degree (six counts), conspiracy inthe fourth degree and criminal mischief in the third degree, after a hearing.
As more fully set forth in our prior decision in this matter (59 AD3d 861 [2009], affd 15 NY3d 117[2010]), defendant pleaded guilty in 2007 to the 2002 murder of Leonder Goodwin.Based on the inadequacy of the record then before us, we were unable to reviewdefendant's argument that his right to counsel was violated by the police in 2006 whentwo detectives traveled to the correction facility where he was then imprisoned on anunrelated robbery charge and took his inculpatory statement regarding the shooting ofGoodwin. After the Court of Appeals affirmed (15 NY3d 117 [2010]), defendant movedto, among other things, vacate the judgment pursuant to CPL 440.10, again asserting thathis right to counsel had been violated. He also argued that he had been deniedmeaningful representation because his trial counsel did not raise this issue. Following a2011 hearing and the development of a full record, County Court denied the motion.[*2]
Defendant now appeals, with our permission,arguing that his right to counsel with respect to the murder charges indelibly attached in2003 when Steven Kouray, the Assistant Public Defender assigned to represent him inconnection with the unrelated robbery charge, contacted the Schenectady County DistrictAttorney's office seeking a cooperation agreement. Kouray's proposal, made atdefendant's request, was that defendant would receive a reduced sentence on his plea ofguilty to the robbery charge in exchange for information regarding the Goodwinshooting. The evidence adduced at the 2011 hearing established that, in connection withthe cooperation agreement in 2003, Kouray accompanied defendant while the latter spenttwo or three hours giving a statement to police detectives John Sims, the lead investigatorin the Goodwin case, and Michael Brown concerning the Goodwin shooting. Kouraylater accompanied defendant while he viewed a photo array with Sims and Brown,showed them where to look for the weapon and testified before the grand juryinvestigating the shooting. Ultimately, however, the People determined that theinformation provided by defendant was not helpful to their investigation and he did notreceive any benefit from the cooperation agreement when he was sentenced on therobbery conviction in 2004.
In 2006, with the homicide still unsolved, the District Attorney directed Sims torequestion defendant after first asking Kouray if he continued to represent defendant.Sims and Brown then met with Kouray at the latter's office. Sims testified that he toldKouray he wanted to talk to defendant about "the Goodwin case" and, when he askedKouray if he still represented defendant, Kouray responded that he was not representingdefendant and "you can go talk to him if you want to." Although Kouray testified that hedid not believe Sims told him that he wanted to talk to defendant about "the Goodwinmurder," Sims agreed that he did not use the word "murder" during their 2006meeting.[FN1] Kouray conceded that Sims' recollection was likely to be better than his own. Kourayalso agreed that he told Sims that he did not represent defendant and that "[defendanthad] been sentenced[, t]he robbery case is over." According to Kouray, his representationof defendant in the homicide investigation was "part of the sentencing negotiation[ ]. . . for [a] reduced sentence on his robbery plea" and, at the time of his2006 meeting with Sims and Brown, he did not believe that he continued to representdefendant.
Although Kouray clearly participated in the homicide investigation in 2003 and thepolice were well aware that he had entered into it as defendant's counsel, the partiesagree that there was a genuine lack of clarity, prior to police questioning Kouray,surrounding the question of whether that representation was limited to the cooperationagreement and had terminated once defendant was sentenced in the robbery case. It iswell settled that where, as here, there is any ambiguity as to whether the defendant isrepresented by counsel, the burden rests squarely on the police to resolve that ambiguityprior to questioning (see People v West, 81 NY2d 370, 376 [1993]; People v Callicutt, 85 AD3d1326, 1328 [2011], lv denied 18 NY3d 992 [2012]; People v Felder,301 AD2d 458, 459 [2003]). Here, before questioning defendant in 2006, Sims andBrown met with Kouray, who told them unequivocally that he no longer representeddefendant. Inasmuch as the police fulfilled their obligation to resolve the ambiguity bydetermining that Kouray's representation of defendant had terminated prior toquestioning him, County Court did not err in concluding that defendant's right to counselhad not been violated (seePeople v Booker, 53 AD3d 697, 701 [2008], lv denied 11 NY3d 853[2008]; compare [*3]People v Callicutt, 85 AD3dat 1329).
We are unpersuaded by defendant's remaining contentions to the effect that, if Simsand Brown had done more, they would have discovered his belief in the existence of anongoing attorney-client relationship with Kouray. Defendant's reliance on People vCallicutt (supra) for the proposition that Kouray continued to represent himin the homicide investigation is misplaced. Although Kouray testified, in hindsight, thathe came to believe that he still represented defendant based upon his reading of our 2011decision in Callicutt, our holding in that case does not support such a conclusion.While the facts in Callicutt are similar, our determination that the defendant'sright to counsel was violated in that case was based on the failure of the police to takeany steps at all to resolve the ambiguity surrounding the question of whether counsel stillrepresented the defendant prior to their interrogation of him (id. at 1328-1329).
Again in hindsight, Kouray also testified that if the investigators had informed himthat they intended to question defendant about the Goodwin homicide, he would not haveallowed it. Sims, on the other hand, testified that he told Kouray at their 2006 meetingthat the investigators wanted to talk to defendant about the Goodwin case and Kouraytold them to do what they had to do. While County Court fully credited both witnessesand did not expressly address this inconsistency, Kouray himself conceded that Sims'memory of the 2006 meeting was better than his. Defendant argues that it is simply notbelievable that an experienced defense attorney would have allowed such questioning ifhe knew that the investigators intended to talk to his client.[FN2] Such an argument, however, incorrectly assumes that Kouray believed that herepresented defendant at the time that the investigators met with him at his law office in2006. Kouray conceded that that was not what he believed at the time. Kouray's hearingtestimony that he would not have allowed defendant to be questioned may have beeninfluenced by his new, albeit mistaken, belief that our recent decision in Callicuttmeant that his obligation to represent defendant in the homicide investigation continuedlong after the robbery case had concluded.
In our view, it is significant that County Court, in fully crediting the testimony ofboth Sims and Kouray, did not find that the investigators had been "fast and loose" whenspeaking with Kouray. Nor do we detect any improper gamesmanship in the DistrictAttorney's direction to Sims and Brown to determine, in light of Kouray's priorparticipation in the homicide investigation, whether his representation of defendantextended in any way beyond the robbery. Nor can we agree with defendant's argumentthat Sims' conceded failure to tell Kouray that defendant had become a targeted suspectin the Goodwin shooting rose to the level of bad faith or somehow made Kouray'sstatement to the investigators that he did not represent defendant unclear or uncertain.Having received an unequivocal answer from Kouray that he no longer representeddefendant, we cannot conclude that the police had an obligation to inquire further(see People v Booker, 53 AD3d at 701).[*4]
Defendant's further argument that Kouray couldnot unilaterally withdraw from representing him on the homicide is similarly misplacedbecause it, too, presupposes that Kouray's representation of defendant on the homicideinvestigation was independent of his representation on the robbery. The hearingtestimony does not support such a conclusion, and there is no real question that anattorney's representation of a client may be for a limited purpose (see e.g. People vMarrero, 51 NY2d 56, 58 [1980]; People v Callicutt, 85 AD3d at 1330). Aswe have noted, County Court credited the testimony of both Sims and Kouray in supportof its conclusion that Kouray temporarily represented defendant in the homicideinvestigation for the limited purpose of obtaining a lesser sentence in the robbery case.Stated differently, Kouray did not unilaterally withdraw from the representation. Rather,it terminated when defendant was sentenced on the robbery conviction. In any event, ourinquiry is limited to whether the police were aware of any continued representation, notwhether Kouray's representation actually continued (see People v Marrero, 51NY2d at 59; People v Callicutt, 85 AD3d at 1330; People v Booker, 53AD3d at 700-701; compare People v Cotton, 280 AD2d 188, 192-193 [2001],lv denied 96 NY2d 827 [2001]).
We also find no merit to defendant's argument that his 6th Amendment right tocounsel was violated. That right is less expansive than the indelible right to counselrecognized in New York (see People v Bing, 76 NY2d 331, 338-339 [1990])and, as it only attaches when "adversary judicial proceedings have been initiated"(Kirby v Illinois, 406 US 682, 688 [1972]), it had not attached here at the timethat defendant was questioned in 2006. Finally, inasmuch as defendant's claim that hewas denied the effective assistance of counsel is based solely on the failure to raise theright to counsel issue, it is meritless (see People v Whitehead, 23 AD3d 695, 697 [2005], lvdenied 6 NY3d 840 [2006]; People v Douglas, 296 AD2d 656, 657-658[2002], lv denied 99 NY2d 535 [2002]).
Spain and Egan Jr., JJ., concur.
McCarthy, J. (dissenting). Because I find, on two separate grounds, that the policedid not meet their burden of resolving ambiguity regarding defendant's representation bycounsel prior to questioning him, thereby violating his indelible right to counsel, Irespectfully dissent.
The right to counsel is a "cherished principle" that requires "[t]he highest degree of[judicial] vigilance . . . to safeguard it" (People v West, 81 NY2d370, 373 [1993] [internal quotation marks and citations omitted]). Defendant's right tocounsel with respect to the Leonder Goodwin murder investigation indelibly attached in2003 and was not, as characterized by the majority, limited for purposes of sentencing inconnection with the robbery charge. The record demonstrates that attorney StevenKouray accompanied defendant while he gave a witness statement to police detectivesJohn Sims and Michael Brown about the Goodwin murder, during which Kouray adviseddefendant not to answer certain questions and conferred with him a number of timesbefore defendant answered questions posed to him. Kouray also was present whendefendant viewed a photo array, showed the police where to look for the murder weaponand testified before the grand jury investigating the murder. These affirmative and directactions taken by Kouray "sufficiently identified [his] professional interest in thehomicide investigation and signified" that he had entered the proceedings to representdefendant on that matter (Peoplev Callicutt, 85 AD3d 1326, 1328 [2011], lv denied 18 NY3d 992 [2012][internal quotation [*5]marks and citations omitted];see People v Ramos, 40 NY2d 610, 616 [1976]; People v Booker, 53 AD3d697, 699 [2008], lv denied 11 NY3d 853 [2008]; see also People vMcLean, 15 NY3d 117, 123-124 [2010, Jones, J., dissenting]).
"Once a lawyer has entered a criminal proceeding representing a defendant inconnection with criminal charges under investigation, the defendant in custody may notwaive his [or her] right to counsel in the absence of the lawyer" (People vHobson, 39 NY2d 479, 481 [1976] [citation omitted]; accord People vMarrero, 51 NY2d 56, 58 [1980]; see People v McLean, 15 NY3d at 120),and the mere passage of time does not eliminate a defendant's indelible right to counsel(see People v West, 81 NY2d at 379-380). Given that defendant's right tocounsel indelibly attached in the murder investigation, "the police bore the burden ofdetermining whether the representation continued" and were obligated to resolve anyambiguity surrounding such representation "prior to questioning defendant on that samematter" (People v Callicutt, 85 AD3d at 1329; see People v West, 81NY2d at 376; People v Marrero, 51 NY2d at 59).
While generally this Court defers to the trial court's credibility determinations (see People v Fournier, 77AD3d 1201, 1202 [2010]; People v Bodah, 67 AD3d 1195, 1196 [2009], lvdenied 14 NY3d 838 [2010]), here, County Court credited the testimonies of bothKouray and Sims, notwithstanding the fact that they are inconsistent regarding the natureof the police inquiry into Kouray's representation of defendant. When asked by Simswhether he still represented defendant, Kouray responded that "[defendant has] beensentenced. The robbery case is over." This response clearly reflects that Kouray wasreferring to the robbery charge. He testified that the investigators never clarified orinformed him that they sought to question defendant about the Goodwin murderinvestigation. Kouray testified that if they had, he would not have allowed it. In addition,the People conceded at oral argument—consistent with Sims'testimony—that the investigators failed to inform Kouray that additionalinformation had developed in the Goodwin murder investigation and that defendant wasnow a suspect.
Contrary to Kouray's testimony, Sims testified that he informed Kouray that he andBrown wanted to talk to defendant about the Goodwin murder investigation. However,he admitted that he did not use the word "murder" when talking to Kouray, insteadstating that they wanted to talk to defendant about the "Goodwin case" and Sims thoughtthat Kouray must have known that this referred to a murder case because Goodwin was ahomicide victim.[FN3] Sims further testified that Kouray told the investigators, "You can go talk to [defendant]if you want to," and that Kouray probably would have given him written permission tospeak to defendant had Sims asked for something in writing. Regarding that testimony, itis incredible to believe that this seasoned defense attorney[FN4] would explicitly give the police his blessing to question an [*6]uncounseled client or former client, even with the limitedinformation that was provided. Under these circumstances, given the coy questioning andlack of candor by the investigators, the investigators acted in bad faith or withoutsufficient deference to defendant's rights when asking Kouray about his representation ofdefendant (see generally People v Bertolo, 65 NY2d 111, 120 [1985]).[FN5] Accordingly, I disagree with the majority's conclusion that the investigators fulfilledtheir obligation to resolve—in good faith—the ambiguity surroundingKouray's representation of defendant in the murder investigation, and I conclude that thequestioning of defendant violated his indelible right to counsel.
Even if I were to agree with the majority's finding that the police properly questionedKouray about his representation of defendant, I would reverse on another ground;namely, an attorney's unilateral statement that he or she no longer represents a defendantdoes not allow the police to disregard that defendant's previously invoked right tocounsel (compare People vLopez, 16 NY3d 375, 383 n 4 [2011], People v Rosa, 65 NY2d 380,385-386 [1985], People vThorsen, 20 AD3d 595, 597 [2005], lv denied 5 NY3d 857 [2005],and People v Calcaterra, 127 AD2d 778, 779 [1987], lv denied 70 NY2d644 [1987], with People v Booker, 53 AD3d at 700-701).
It is well settled that after the indelible right attaches, it may only be waived in thepresence of counsel (see People v Marrero, 51 NY2d at 58; People vRamos, 40 NY2d at 614). Nevertheless, in People v Booker (supra),this Court held that there is no obligation on the part of police—if they haveclearly been told by an attorney that the representation has ended—to seekassurance that the defendant is aware of the withdrawal, and that requiring furtherinquiry by the police regarding actual representation would be unreasonable (id.at 701). I cannot reconcile, on the one hand, the mandate to protect a defendant'sindelible right to counsel with, on the other hand, cases that have allowed questioningwhen an attorney unilaterally ends representation without the defendant's knowledge. Itis illogical to hold that an attorney can terminate an attorney-client relationship outsidethe defendant's presence and without his or her knowledge, which then results in thewaiver of the defendant's previously invoked right to counsel, whereas a defendantcannot waive his or her own indelibly attached right to counsel except in the presence ofcounsel.
The cherished indelible right to counsel belongs to defendants. "The right to counselboth protects the accused in dealing with the coercive power of the State and insures thatany waiver of the right will be knowing and intelligent" (People v West, 81NY2d at 373 [citation omitted]). Although defendant never directly mentioned to theinvestigating officers in 2006 that Kouray represented him, "[a] defendant 'whose righthas indelibly attached has no obligation to keep the police informed as to the status of theattorney-client relationship' " (People v Callicutt, 85 AD3d at 1330, quotingPeople v West, 81 NY2d at 376).[FN6] Courts should not permit an [*7]attorney to terminate,unilaterally and without a defendant's knowledge, a right that has indelibly attached forthe benefit and protection of a defendant.[FN7]
It is not unreasonable to require the police to ask one single question of a defendantwho they know was represented, namely, "Are you still represented on this matter by thesame attorney?," or even the more general question, "Do you already have an attorneyrepresenting you on this matter?" This does not require a separate police investigation onthe representation issue; it merely entails asking a simple question of the defendant whohas already been brought in for questioning and advised of his or her Mirandarights (see People v Lucarano, 61 NY2d 138, 147 [1984]; People vThorsen, 20 AD3d at 597; compare People v Grice, 100 NY2d 318, 324[2003]). Indeed, while noting that it is most logical for police to begin their inquiryregarding representation with the defendant himself or herself, the Court of Appealsstated that "a simple inquiry of the defendant is not an unrealistic burden to place on theauthorities" (People v Rosa, 65 NY2d at 385-386; see People vLucarano, 61 NY2d at 147; see also People v Calcaterra, 127 AD2d at 779[stating that police are entitled to end their inquiry in reliance on a defendant's statementthat he or she is not represented]; compare People v Booker, 53 AD3d at 701).The People should bear "the burden of proving that [the] defendant and theinterrogating officer knew that [the] defendant was no longer represented at the time[the] defendant's statement was made and that [the] defendant, in the presence ofcounsel, voluntarily and intelligently waived further representation. To hold otherwisewould be to substitute the term 'transitory' for the term 'indelible' " (People vCotton, 280 AD2d 188, 191 [2001], lv denied 96 NY2d 827 [2001][emphasis added]).
Here, the police did not ask defendant himself about any continuation ofrepresentation. Thus, the police did not fulfill their obligation to resolve any ambiguityregarding representation (see People v West, 81 NY2d at 376; People vCallicutt, 85 AD3d at 1329; People v Cotton, 280 AD2d at 191). Consistentwith the courts' obligation to protect a defendant's cherished right to counsel, and assurethat such right not be manipulated through gamesmanship, defendant would have beenentitled to suppression of his statement had this argument been raised by his trial counsel.Because trial counsel did not raise this meritorious issue, defendant was deprived of theeffective assistance of counsel and a fair trial (see People v Carnevale, 101 AD3d 1375, 1378[*8][2012]).[FN8] Accordingly, his CPL 440.10 motion should have been granted (see CPL 440.10[1] [h]).
Ordered that the order is affirmed.
Footnote 1: At the time, Goodwin'sshooting was still under investigation; no murder charge had been brought againstdefendant.
Footnote 2: It seems equallydifficult to believe that Kouray would not recall the prior involvement of these same twoinvestigators in the Goodwin case given his extensive dealings with them in connectionwith defendant's cooperation agreement. Further, given those extensive dealings, it isunlikely that Sims would believe that he and Brown could talk to Kouray aboutdefendant without mentioning the Goodwin case.
Footnote 3: This discussion betweenSims and Kouray took place in 2006, three years after Kouray accompanied defendant inhis discussions regarding the Goodwin murder and four years after the murder itself. Thislapse in time makes it less likely that Kouray would necessarily remember or recognizethe victim's name.
Footnote 4: Kouray has been anattorney for more than 35 years, and has held the positions of Deputy Public Defenderand Conflict Defender for Schenectady County.
Footnote 5: I am not in any wayimplying that the District Attorney engaged in any improper behavior. He correctlydirected the investigators to determine whether Kouray still represented defendant priorto questioning him, and only proceeded with the case after receiving information fromthe investigators regarding the lack of representation.
Footnote 6: Defendant did ask theofficers if they had been to see Kouray and, upon receiving an affirmative response,asked how Kouray was doing. These questions and responses could have led defendantto believe that Kouray—who defendant thought was still hiscounsel—approved of the questioning by those officers.
Footnote 7: While counsel in thecited cases and the present case apparently either terminated representation or believedthat representation ceased for legitimate reasons, such as the lapse of time withoutcontact or a perceived conflict of interest, one can imagine an attorney informing policethat he or she no longer represents a defendant for less honorable reasons, such as thedefendant's failure to timely pay for legal services. Rather than leaving a defendant at themercy of another, the defendant's rights can be protected through a simple question posedto the defendant himself or herself.
Footnote 8: Although it may seemlike a reasonable strategy for an attorney to forgo such an argument based on this Court'sholding in People v Booker (53 AD3d at 701), that case was not decided untilnearly six months after defendant's conviction in January 2008. Under case law existingprior to the time of that conviction, including cases from the Court of Appeals, thisargument was certainly viable and should have been raised.