| People v Roman |
| 2019 NY Slip Op 06719 [175 AD3d 1198] |
| September 24, 2019 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Roman, Appellant. |
Justine M. Luongo, The Legal Aid Society, New York (Nancy E. Little of counsel), forappellant.
Darcel D. Clark, District Attorney, Bronx (Matthew B. White of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Troy K. Webber, J.), rendered May 17, 2012,convicting defendant, after a jury trial, of manslaughter in the first degree and two counts ofcriminal possession of a weapon in the second degree, and sentencing him to an aggregate termof 18 years, unanimously reversed, on the law and the facts, defendant's motion to suppressstatements granted, and the matter remanded for a new trial.
Defendant's motion to suppress his incriminating written and videotaped statements shouldhave been granted. Several days before defendant made the contested statements, he was takeninto custody by the Las Vegas Police Department. While in custody, defendant requested tospeak with the detective from the Regional Fugitive Task Force who had located defendant inLas Vegas and was about to bring him back to New York. The detective met defendant in aconference room and asked him if he wanted to talk. Defendant responded, "I would like to tellyou what happened, but I think I want to talk to an attorney." The detective, who responded bysaying "okay," and did not ask defendant any questions about the homicide, testified that heunderstood that defendant "wanted an attorney."
Upon returning to New York, defendant met with the investigating detective and madeincriminating written and video statements. Defendant moved to suppress his statements, whichwas denied, and the statements were admitted at trial.
"When a defendant in custody unequivocally requests the assistance of counsel, anypurported waiver of that right obtained in the absence of counsel is ineffective" (People vGlover, 87 NY2d 838, 839 [1995]; see also People v Grice, 100 NY2d 318, 321[2003]). "Whether a particular request is or is not unequivocal is a mixed question of law andfact that must be determined with reference to the circumstances surrounding the requestincluding the defendant's demeanor, manner of expression and the particular words found to havebeen used by the defendant" (Glover, 87 NY2d at 839).
Here, the circumstances surrounding defendant's statement, "I would like to tell you whathappened, but I think I want to talk to an attorney," necessitate a finding that he unequivocallyinvoked his right to counsel (see Peoplev Porter, 9 NY3d 966 [2007]; People v Harris, 93 AD3d 58 [2d Dept 2012], affd 20 NY3d912 [2012]). These circumstances include the facts that defendant was in custody at the time hemade the statement, that he clearly expressed that he wanted to speak about the homicide and thatthe detective understood defendant to mean he wanted an attorney. The fact that defendant wasnot interrogated is not dispositive as to whether he unequivocally invoked his right to counsel(see Glover, 87 NY2d at 839). Accordingly defendant's later statements, in the absence ofcounsel, to other law enforcement personnel were inadmissible.
The record does not warrant a finding of harmlessness. Because we are ordering a new trial,we find it unnecessary to address defendant's other argument for reversal.Concur—Sweeny, J.P., Richter, Kapnick, Kern, Singh, JJ.