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Arguing Right To Counsel On Appeal When Not Preserved At Trial


People v. McLean

New York Court of Appeals Slip Op 04872

Decided June 10, 2010

Issue : Can the issue of Right to Counsel be argued on appeal if it was not raised in the trial court.
Holding : where a defendant’s statement to law enforcement authorities is obtained in violation of his right to counsel, the use of that statement against defendant at trial is an error that may be raised on appeal, even if the issue was not preserved.

However, Appellate review of such an unpreserved error is available only when the error is irrefutably established on the face of the record. In this case the Court of Appeals declined to review the issue because the record was inadequate.

Facts : defendant pleaded guilty to a sixteen count indictment including two counts of murder in the second degree. A Huntley hearing was held, but the McLean made no claim that he was deprived of his right to counsel.

McLean had spoken to Detectives in 2003 with his lawyer present on an unrelated robbery and supplied information on a murder in exchange for a more favorable sentence. Then again in 2006 he spoke to detectives and described his role in the murder. There was a dispute as to whether McLean’s lawyer represented him on the murder charges or just the robbery charges.

The Court of Appeals relied heavily on the case of People v. Arthur , 22 N.Y.2d 325 (1968). In that case it was held that the failure to object on right to counsel grounds is not fatal since we are concerned with the deprivation of a fundamental constitutional right. A claimed deprivation of the State constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved by having been specifically raised in a suppression motion or at trial.

However, the Court of Appeals held that there is an important limitation to this rule. The rule authorizing review of unpreserved constitution right to counsel claims has been applied only when the constitutional violation was established on the face of the record. The lack of adequate record bars review on direct appeal not only where vital evidence is plainly absent, but wherever the record falls short of establishing conclusively the merit of the defendant’s claim.

Where the record does not make clear, irrefutably, that a right to counsel violation has occurred, the claimed violation can be reviewed only on a post trial motion under CPL 440.10, not on direct appeal.