| People v Callicutt |
| 2011 NY Slip Op 04781 [85 AD3d 1326] |
| June 9, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v Devon Callicutt,Also Known as Cut, Respondent. |
—[*1]
Peters, J.P. Appeal from an order of the Supreme Court (Lamont, J.), entered December 6,2010 in Albany County, which partially granted defendant's motion to suppress certain evidence.
On the evening of October 20, 2008, a series of armed robberies were committed in the Cityof Albany, one of which resulted in the death of Richard Bailey. In December 2008, defendant,represented by Melissa Carpinello of the Albany County Public Defender's office, pleaded guiltyto an unrelated charge of attempted criminal possession of a weapon in the second degree. Priorto sentencing, Carpinello was contacted by David Gonzalez, the Albany County AssistantDistrict Attorney, proposing defendant's submission to a polygraph examination in connectionwith the Bailey homicide in exchange for a reduced sentence on the weapon possession charge.Carpinello met with defendant to discuss the matter and, in February 2009, accompanied him to aconference with Gonzalez and police concerning the purpose of the questioning. After againconferring with Carpinello, defendant, against her advice, participated in the polygraphexamination and received the reduced sentence.
In September 2009, members of the City of Albany Police Department interviewed defendantat the correctional facility where he was serving his sentence for the weapon possessionconviction. During that interview, defendant confessed to shooting Bailey during the course of anattempted robbery and to committing two other armed robberies during that same evening.Defendant was thereafter indicted for murder in the first degree, murder in the second degree,attempted robbery in the third degree and criminal possession of a weapon in the second degreein connection with the Bailey homicide, as well as one count of robbery in the first degree [*2]and two counts of robbery in the second degree based upon hisinvolvement in the two other robberies. Defendant moved to suppress his oral and writtenstatements on the ground that they were obtained in violation of his right to counsel. Following asuppression hearing, Supreme Court granted defendant's motion and suppressed hisstatements.[FN*]The People appeal.
The sole issue presented on this appeal is whether defendant's right to counsel with respect tothe Bailey homicide investigation indelibly attached when, in connection with the unrelatedweapon possession matter, Carpinello met with, advised and accompanied defendant to themeeting with police concerning his requested participation in the polygraph examination inconnection with the homicide investigation. We find that it did, and that the subsequentquestioning of defendant by police in the absence of counsel violated defendant's constitutionalright to counsel.
A defendant's right to counsel indelibly attaches "once the police know or have been apprisedof the fact that the defendant is represented by counsel or that an attorney has communicated withthe police for the purpose of representing the defendant" (People v Arthur, 22 NY2d 325,329 [1968]; see People v Grice, 100 NY2d 318, 322 [2003]; People v Lucarano,61 NY2d 138, 145 [1984]; People v Ramos, 40 NY2d 610, 614 [1976]). Insofar asapplication of the rule is concerned, it matters not whether the defendant was regarded by thepolice as "accused," "suspect" or "witness" (see People v Garofolo, 46 NY2d 592, 599[1979]; People v Hobson, 39 NY2d 479, 483 [1976]; People v Sanchez, 15 NY2d387, 389 [1965]). " 'Once an attorney enters the proceeding, the police may not question thedefendant in the absence of counsel unless there is an affirmative waiver, in the presence of theattorney, of the defendant's right to counsel' " (People v McLean, 15 NY3d 117, 120 [2010], quoting People vArthur, 22 NY2d at 329; see People v West, 81 NY2d 370, 374 [1993]).
Although Carpinello initially represented defendant solely on the weapon charge, theevidence adduced at the suppression hearing supports Supreme Court's finding that, after beingapproached by Gonzalez and informed of the police's desire to speak with defendant regardingthe Bailey homicide, Carpinello "entered" the homicide proceeding for the purpose ofrepresenting defendant. Following that conversation with Gonzalez, Carpinello met withdefendant at the jail to discuss the homicide, "had an extensive conversation . . . asto what was going to be happening," and "advised him . . . as to what his rightswere and what he should or should not say." Further, she accompanied defendant to theconference with the police and Gonzalez regarding the proposed polygraph examination. Duringthat meeting, police informed defendant that his name had come up during the murderinvestigation, and stated that they wanted to verify his whereabouts at the time of the murder andlearn any information that he may know about the murder so as to exclude him as a suspect.Notably, after that conference, Carpinello advised defendant not to take the polygraphexamination—despite the favorable sentencing agreement that defendant would receive onthe weapon possession charge if he did so. Furthermore, although Carpinello was unable toattend the polygraph examination, she arranged [*3]for anotherattorney from the Public Defender's office to confer with defendant prior to taking theexamination. This attorney subsequently met with defendant—at policeheadquarters—spoke with him regarding the Bailey homicide and the taking of thepolygraph test, and instructed defendant—and police—to contact him if there wereany problems during the polygraph examination.
These affirmative and direct actions taken by Carpinello, as well as the other Assistant PublicDefender on her behalf, relative to defendant's participation in the polygraph examination inconnection with the Bailey homicide "sufficiently identified [her] professional interest" in thehomicide investigation and signified to the prosecution and police that she had undertaken torepresent defendant as to that matter (People v Garofolo, 46 NY2d at 600; see Peoplev Ramos, 40 NY2d at 616). While the People maintain that it was "clear" that Carpinello wasinvolved in discussions of the Bailey homicide case only to the extent that it affected defendant'ssentence on the weapon possession charge, we find no such clarity on this record, and stress that"[a] defendant's right to counsel cannot be made to depend on whether in the sole judgment ofthe prosecution there has been sufficient activity and conduct of a proper character so as tocompel a conclusion that the lawyer has entered the proceedings" (People v Ramos, 40NY2d at 618). If there was doubt or uncertainty as to whether legal representation extended to theBailey investigation, "the burden should rest squarely on [the prosecution] to insure that thedefendant's right to be represented by counsel be protected" (id.). Any arguableambiguities in the attorney-client relationship "cannot be seized by the prosecution as a license toplay fast and loose with this precious right" (id.; see People v Cotton, 280 AD2d188, 192 [2001], lv denied 96 NY2d 827 [2001]; People v Barley, 124 AD2d1021, 1022-1023 [1986]; People v Short, 110 AD2d 205, 209-210 [1985], lvdenied 67 NY2d 657 [1986]).
Given that defendant's right to counsel had indelibly attached in connection with the Baileyhomicide, the police bore the burden of determining whether the representation continued priorto questioning defendant on that same matter in September 2009 (see People v West, 81NY2d at 376; People v Marrero, 51 NY2d 56, 59 [1980]; People v Booker, 53 AD3d 697,700-701 [2008], lv denied 11 NY3d 853 [2008]). The police may not rely on arguableambiguities in the attorney-client relationship to justify the questioning of the defendant withoutcounsel being present, and " 'if the police are uncertain as to the scope of the attorney'srepresentation, the defendant should not be questioned' " (People v West, 81 NY2d at376, quoting People v Marrero, 51 NY2d at 59; see People v Coleman, 42 NY2d500, 507 [1977]; People v Booker, 53 AD3d at 701).
Jason Vogel, an Albany Police Department detective who questioned defendant in prison inSeptember 2009, testified at the suppression hearing that he was aware that defendant hadpreviously submitted to a polygraph examination in connection with his guilty plea in anunrelated matter, and that defendant was represented by Carpinello on that matter. Notably,Vogel stated that the issue of whether counsel had attached in the Bailey homicide case had beenspecifically discussed between the members of the Albany Police Department—one ofwhom was the detective that participated in the February 2009 conference with defendant andCarpinello regarding defendant's proposed participation in the polygraphexamination—and the Albany County District Attorney's office prior to the questioning atissue. Significantly, however, Vogel testified that he was unaware of the result of thosediscussions prior to conducting the subject interview with defendant. Indeed, there is not ascintilla of evidence as to what steps, if any, the prosecution or police took to ascertain whetherdefendant was represented in connection with the Bailey homicide. Having failed to resolve thisuncertainly as to [*4]Carpinello's continued representation ofdefendant, the police could not question defendant concerning the Bailey homicide withoutcounsel present (see People v West, 81 NY2d at 379; People v Marrero, 51 NY2dat 59).
The People's argument that the police were not prohibited from questioning defendantbecause he was not actually represented at the time his statements were made is without merit.While Carpinello indeed testified that she did not consider herself to be defendant's attorney inthe Bailey matter at the time of the September 2009 questioning, the relevant factor is not theprecise terms or scope of the representation, but rather the police awareness of an attorney'sappearance in the matter on the defendant's behalf (see People v Marrero, 51 NY2d at59). As previously noted, Carpinello's involvement in connection with the Bailey homicideinvestigation was such that the police were made aware that defendant was represented on thatmatter and, although that representation may have been limited to defendant's participation in thepolygraph examination, there is no evidence in the record that the police were aware of thisparticular arrangement (see id.; People v Singer, 44 NY2d 241, 251 [1978];compare People v Booker, 53 AD3d at 701). Moreover, contrary to the People'sassertion, the fact that defendant never informed the police that he was represented by counsel isirrelevant. A defendant "whose right has indelibly attached has no obligation to keep the policeinformed as to the status of the attorney-client relationship" (People v West, 81 NY2d at376). Thus, as defendant's confessions were obtained in violation of his right to counsel, theywere properly suppressed.
Spain, Rose, Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed.
Footnote *: As a result of the suppression ofdefendant's confessions, the People moved to sever the two counts of robbery in the seconddegree stemming from one of the incidents on the ground that there was insufficient evidence toprosecute those charges. This motion went unopposed by defendant and was granted by SupremeCourt.