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The Indelible Right To Counsel: Once The Right Attaches It Does Not Fade Over Time


manhattan daytime

People v West

81 N.Y2d 370

Court of Appeals

Decided on June 8, 1993

The Defendant’s Right To Counsel Does Not Fade Over Time And Cannot Be Disregarded By Police In An Investigation That Takes Place Years Later. 

See also: Statements Made To Police As A Result Of Police Threats Are Not Admissible At Trial. 

Summary: Defendant, along with two twin brothers, was arrested in connection with a drug operation in Manhattan, New York. A fight took place and led to the shooting and the death of victim Sylvester Coleman. Police placed Defendant in a lineup in connection to the shooting, and Defendant was represented by counsel. The result of the lineup was inconclusive and Defendant was not charged at that time. Some three years later, brother of Defendant, Michael Davenport was arrested on unrelated charges.

While in custody Davenport admitted that he was one of the gunmen related to the shooting and identified Defendant as an accomplice. Davenport signed an agreement with the District Attorney in exchange for leniency. Davenport surreptitiously tape-recorded several conversations between him and Defendant that was consistent with Defendants guilt. Defendant was later indicted for murder.

Issue: Whether the Police violated a Defendant’s indelible constitutional ‘right to counsel’ when they sent an informant to surreptitiously tape-record his incriminating statements three years after the Defendant appeared in a lineup, was represented by counsel at that lineup, but was never charged with the crime of murder in the second degree.

Holding: The State ‘right to counsel’ is deeply rooted in this State’s prerevolutionary constitutional law. The Court of Appeals held that the Defendant’s right to counsel attached indelibly when counsel entered at the lineup and instructed the police not to question his client. Once a suspect has obtained representation in the matter at issue, the suspect has activated his constitutional right to interpose an attorney between himself and the overwhelming power of the State and the right to counsel indelibly attaches where that matter is at issue.

Facts: Defendant, along with his two twin brothers, was part of a drug operation in Manhattan, New York. A fight broke out, which led to a shooting of victim Sylvester Coleman. Police placed Defendant in a lineup in a connection to the shooting. Defendant was at that time represented by counsel. Results of the lineup were inconclusive and Defendant was not charged.

Three years later, Defendants brother Michael Davenport, was arrested for an unrelated crime. While in custody, Defendants brother admitted that he was one of the gunmen in the shooting three years ago and identified his brother, Defendant, as one of the accomplices in exchange for leniency. Defendant’s brother surreptitiously tape- recorded several conversations consisting of statements of guilt made by Defendant. He was later indicted for murder. At trial the recorded conversation played a key role in Defendants conviction.

Legal Analysis: The right to counsel indelibly attaches where an individual has retained a lawyer in the matter at issue, or, while in custody, has requested a lawyer. People v Skinner, 52 NY2d 24, People v Cunningham, 49 NY2d 203, People v Hobson, 39 NY2d 479, People v Arthur, 22 NY2d 325. This right protects against undue interference with any existing attorney-client relationship.

A suspect whose right has indelibly attached has no obligation to keep the police informed as to the status of an attorney-client relationship. Should the police wish to question Defendant without counsel on the same matter after the right has attached, it is, as a rule, their burden to determine whether representation continues. The Police disregarded Defendant’s Attorney-client relationship and proceeded to investigate further by having Defendants brother, an informant, record Defendant’s incriminatory statements to indict him for murder. That was a violation of his right. This case violated Defendants right to counsel because Police disregarded the fact that he previously retained counsel and that representation continued.


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