Issue: Was the defendant’s right to counsel violated where the detective investigating the defendant’s involvement in a homicide brought up the defendant’s pending drug case, on which he had counsel? 

 

Held: No.  The impermissible questioning was so “brief, flippant, and minimal,” that it was “discrete and fairly separable as a matter of law from the interrogation of defendant on an unrepresented matter.”  

 

CAL Observes: The brief memorandum opinion reversing the Appellate Division on the People's appeal (like Henry, decided the same day) provides no facts, but the Appellate Division decision does.  While Henry analyzed the question of “relatedness” between the represented and unrepresented matters, this case involved the second way that an interrogation on one matter may violate the right to counsel on the other: where, though the two matters are unrelated, the questioning on the represented matter is “designed to elicit statements on an unrelated matter” in which the suspect is not represented.  See People v. Cohen, 90 N.Y.2d 632 (1997). The Second Department, while acknowledging that the reference to the drug charges was “brief and flippant,” found that it was not “in context, innocuous or discrete and fairly separable from the homicide investigation.”  That court noted that the remarks regarding the pending drug case went to the defendant’s alleged participation in drug trade at the location of the homicide, and that such  activity provided a motivation for the homicide. The questioning on the drug case was “intertwined with questioning regarding the homicide,” the Second Department found, requiring suppression.  Plainly, the Court of Appeals was having none of this, and stopped the analysis short upon finding that the questioning itself was too brief to be of any real consequence in producing incriminating statements.  The Court did not address whether the questioning, even if that, was nonetheless designed to elicit statements. We suspect that “brief and flippant” will find its way into future opinions declining to find counsel violations.