Issue Before the Court: Was interrogation of the defendant on the murder charge, for which he was not represented by counsel, prohibited owing to the entry of counsel on the marijuana charge on which he was earlier arrested and arraigned. 

 

Factual Background: The defendant was arrested in a black Sonata with tinted windows for possession of marijuana.  He was assigned an attorney and released on bail.  The police then determined that the BlackBerry phone recovered from the floor of the car was the phone  stolen in an earlier robbery of a tattoo parlor perpetrated by two masked men driving a black Sonata with tinted windows.  Further, a homicide had taken place around that same time, where the masked shooter reportedly arrived and left in a black Sonata with tinted windows. Defendant was arrested for possessing the stolen phone and, after waiving Miranda rights, questioned about the robbery and murder.  He made statements admitting he was the driver and identified the passengers.  He was indicted on charges of murder, robbery, CPW, CPSP, and possession of marijuana. 

 

Supreme Court suppressed his statements about the robbery, arguing they had been obtained in violation of his right to counsel, which had attached as to the marijuana charge, as the robbery and marijuana charges were “related” through the phone’s recovery during the marijuana arrest. Supreme Court did not suppress the statements regarding the murder.  After his conviction for murder and other counts, the Appellate Division held that defendant’s statements regarding the murder charge should also have been suppressed. The People appealed. 

 

Held:   On this People’s appeal, the Court of Appeals reversed the Appellate Division, finding that its “relatedness” analysis, which guided the outcome, was wrong, both procedurally and substantively.  After first briefly reviewing the law governing whether and when a suspect who is represented on one crime can be questioned about a different crime, the Court concluded that the Appellate Division had failed to consider whether the murder charge was sufficiently related to the marijuana charge, and there was no evidence that it was.  The mere fact that a black Sonata was used in the commission of the murder and was the car defendant was driving when the police found the marijuana, did not “make the murder and marijuana charges ‘so closely related transactionally, or in space or time, that questioning on the [murder charge] would all but inevitably elicit incriminating responses regarding the [marijuana charge] in which there had been an entry of counsel.’”

 

The Court also criticized the Appellate Division’s procedural findings, in a rather complicated and confusing discussion of CPL 470.15. 

 

CAL Observes: This case is a reminder of the complexity of the law around a suspect’s right to counsel during interrogations.  A common scenario, illustrated in Henry, concerns police interrogations of a defendant suspected of committing a very serious crime, who has counsel on a much less serious crime.  Does the defendant’s representation of counsel on the minor crime prohibit the police from questioning the defendant on the serious crime?  Maybe, maybe not, and not here.  The answer depends on a number of things, but chief among them is whether the two crimes can be considered “related.”  A conservative court will obviously be less likely to find “relatedness,” though since Judge Wilson authored this unanimous opinion, it seems unlikely that the issue was a close one here.  

 

Of particular interest is footnote 1, where Judge Wilson wrote that “a different rule applies” when the defendant “is in custody on a charge upon which the right to counsel has attached.”  Then, the police “are prohibited from questioning the defendant on any matters, related or unrelated.” (citing People v. Burdo and People v. Rogers).  As framed, Judge Wilson’s statement of the rule seems favorably broad, as not all “counsel attachments” have been considered equal under the law.  Prior Court of Appeals caselaw has drawn a distinction between the actual “entry” of counsel, and the attachment of counsel that occurs by operation of law, as when an accusatory instrument is filed upon issuance of an arrest warrant.  The footnote in Henry — whether intentionally or inadvertently —  appears to blur that distinction, opening the door to broader right-to-counsel challenges when a defendant inculpates himself in a serious crime after being taken into custody on an arrest warrant for a minor infraction.