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Right to Counsel: A Look at Defendants Who Cooperate With Police to Obtain Leniency Without Their Attorney Present

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New York Court of Appeals

People v. Johnson

2014 NY Slip Op 08787

Decided on December 17, 2014

Blog by: Stephen N. Preziosi Esq., Criminal Appeals Lawyer

Issue: Whether the defendant was denied his right to counsel when he spoke to police without his attorney present about a second crime he committed in order to obtain leniency for another crime.

Summary: In this case, the defendant was arrested for burglary. The defendant retained counsel to represent him on the burglary charge. In order to obtain leniency for the burglary charge, the defendant decided to meet with police to provide them with information about a second, unrelated crime he had committed. However, his attorney (who was handling the ongoing burglary case), was not present at this meeting. The Court held that since the first case (the burglary case) was still ongoing, the defendant was denied his right to counsel when his attorney was not present during police questioning about the second, unrelated case.

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Holding: The defendant’s right to counsel was denied when, in an effort to obtain leniency for a burglary charge, he had conversations with police officers about an unrelated second crime without his attorney present.

Facts: The defendant was arrested and charged for burglary. During the arrest, he told the officers that he had information about a stabbing that had occurred sometime earlier in a nearby supermarket parking lot. The defendant retained counsel to defend him on the burglary charge, and the officers set up a meeting for the defendant and his attorney to meet with police officers and the district attorney’s office to discuss the stabbing incident. At the meeting, the defendant (with his attorney present) would provide the police with information about the crime in exchange for an agreement that they would not use it as evidence in a case against him.

During this initial meeting, the defendant admitted that he saw his friend stab a man outside the supermarket. Although the police questioned his story, they nevertheless decided that the defendant would go speak to his friend about the incident while wearing a wire.

A few months later, the defendant was released from jail for the burglary charge, and the police scheduled another meeting to discuss conducting the wiretap. However, the defendant’s attorney was never informed of this second meeting.

During this second meeting, the defendant’s attorney was not physically present. The police officers questioned the defendant about the stabbing, and the defendant made many statements that changed several times. Ultimately, the defendant admitted to stabbing the man, leading police to arrest and charge him with attempted murder and assault. At no time did the police make an effort to contact the defendant’s attorney.

The defendant made a motion to suppress the statements he made at the second meeting, but it was denied and he was convicted of both crimes. The Appellate Division affirmed his convictions, holding that because the pending burglary charge and murder charges were unrelated, the defendant’s counsel did not have to be present at the meeting about the stabbing crime.

Legal Analysis: In this case, a defendant charged with one crime chose to provide information to the police about a second, unrelated crime to obtain leniency. The Court held that the questioning conducted by police during a meeting about the second crime without the defendant’s attorney present was a violation of his right to counsel.

In People v. Arthur, 22 NY2D 325, 329 (1968), the Court of Appeals held that once an attorney enters a proceeding with a client, the police may not question the client without counsel present, unless the police have obtained “an affirmative waiver, in the presence of the attorney, of the defendant’s right to counsel.” In the present case, the People argued that because the defendant’s attorney was representing him for the burglary charge, and the attorney had not “entered” into a proceeding with the defendant for the stabbing charges, the police were entitled to question the defendant about the stabbing without his attorney present. However, the Court of Appeals disagreed. It held that the burglary case was intertwined with the stabbing case because the defendant was seeking leniency for the burglary charge when he decided to provide information to police about the stabbing.

The Court of Appeals cited People v. McLean, 2014 NY Slip Op 07085, to distinguish the facts and holding in that case from those of the present case. The McLean case dealt with a similar issue where a defendant, charged with one crime, sought to obtain leniency by providing information about a second, unrelated crime. In McLean, the People offered into evidence statements that a defendant made to the police in order to obtain leniency for another crime when the lawyer who represented him for the first crime was not present. The Court in McLean held that because the first case had already ended, the defendant did not have the right to have counsel present when he made statements to the police.  Thus, “when police are told by a suspect’s lawyer that the lawyer no longer represents him, they may question the suspect without violating his right to counsel.” McLean, 2014 NY Slip Op 07085

The facts and holding of McLean are distinguishable from the present case. Here, the defendant’s attorney was still representing him in the first burglary case, and this representation was ongoing. Thus, the defendant was denied his right to have counsel present when he met with police about the stabling charge. His attorney had a duty to represent the defendant in matters concerning the second crime, as the cooperation with police about the stabbing directly affected the outcome of the burglary case. The defendant’s right to counsel included the conversations with the police, and police should not have questioned him without his attorney present.

The People also argued that the defendant’s agreement to cooperate in order to obtain leniency for another crime made a limited waiver of his right to counsel appropriate in this situation. However, in this case, the defendant’s attorney was under the impression that his client would be meeting with police to discuss being “wired up” to speak to his friend about the stabbing. He did not realize that his client would be interrogated by police. Therefore, the police should have requested an express waiver from the defendant and his attorney to confirm that the cooperation with police was in the defendant’s best interest.

The Court reversed the Appellate Division’s decision, and ordered that a new trial be held for the defendant.




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