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Sixth Amendment Right to Counsel: When Does The Right To Counsel Attach – Defendant In Custody On Unrelated Matter



Issue : When does the Sixth Amendment Right to Counsel attach and whether the police must inquire of a defendant that is already in custody if they are being represented by counsel before they begin questioning/interrogating.

Holding : The Court of Appeals concluded that if it is reasonable for an interrogator to suspect that an attorney may have entered the custodial matter, there must be an inquiry regarding the defendant’s representational status and the interrogator will be charged with the knowledge that such an inquiry likely would have revealed.

Additionally, the Court concluded that defendant’s indelible right to counsel was violated because the discussion about the Staten Island murder occurred while he was in custody for the Pennsylvania offense, the interrogating detective is chargeable with knowledge that an attorney had entered the case to represent him on the Pennsylvania matter and a valid waiver was not secured from defendant before questioning commenced.

However, the Court did not reverse the conviction because it found that the admission into evidence of defendant”s statements was harmless error in light of all the other overwhelming evidence of his guilt at trial.

Facts : In early 2002, Hamoud Thabeat was murdered in his Staten Island bodega. The case remained unsolved for some time until an individual came forward and informed the police that defendant Ollman Lopez had shot Thabeat. The informant explained that, shortly after the shooting, he was talking to a group of young men in the neighborhood about this incident. He claimed that, during the conversation, defendant had laughed and stated that he had shot the store owner. The informant further identified defendant (whom he had known for years) from a photo array.

Detective Mattei eventually learned that defendant was incarcerated in Pennsylvania on a drug charge. The Pennsylvania authorities told Mattei that defendant was in custody because he was unable to post his $10,000 bail. Mattei traveled to the correctional facility where defendant was jailed to speak to him about the Staten Island homicide. Mattei was not informed about the details of the Pennsylvania crime and he did not inquire about them. Unbeknownst to the detective, defendant was represented by an attorney in connection with the Pennsylvania offense.

When allowed to meet with defendant, Detective Mattei issued Miranda warnings to him, advised defendant that he did not want to discuss the Pennsylvania matter and indicated that he was investigating the Staten Island murder. Mattei inquired if defendant wanted to speak to an attorney about the New York case and defendant responded that he did not. In the course of the interview, Mattei played a portion of Alston’s taped confession, after which defendant acknowledged that he had been involved in the robbery but claimed that Alston was the shooter. Defendant signed a written statement to that effect.

For his role in the killing of Thabeat, defendant was indicted for felony murder in the second degree, intentional murder in the second degree, three counts of attempted robbery in the first degree and criminal possession of a weapon in the second and third degrees. Defendant moved to suppress his confession to Detective Mattei, asserting that his right to counsel had been violated when Mattei questioned him about the Staten Island murder without first obtaining a waiver of his right to counsel in the presence of his Pennsylvania attorney.

During the suppression hearing, Mattei testified that he did not know that a lawyer was representing defendant on the Pennsylvania charge, nor did he ask about it. Supreme Court denied defendant’s motion, concluding that the right to counsel did not attach because Mattei lacked actual knowledge of the attorney’s involvement in the Pennsylvania matter. Following a jury trial, defendant was convicted of intentional murder, felony murder, attempted robbery in the first degree and criminal possession of a weapon in the second degree. He was sentenced to a prison term of 25 years-to-life.

Legal Analysis : The New York Court of Appeals held the following:

New York has long viewed the right to counsel as a cherished and valuable protection that must be guarded with the utmost vigilance (see e.g. People v Harris, 77 NY2d 434, 439 [1991]). Arising from the due process guarantee in our State Constitution, the entitlement to effective assistance of counsel and the privilege against compulsory self-incrimination, the right to counsel is referred to as "indelible" because, once it "attaches," interrogation is prohibited unless the right is waived in the presence of counsel (see People v Bing, 76 NY2d 331, 338-339 [1990]). We have explained that attachment occurs when (1) a person in custody requests the assistance of an attorney or a lawyer enters the case or (2) a criminal proceeding is commenced against the defendant by the filing of an accusatory instrument (see People v West, 81 NY2d 370, 373-374 [1993]). We are concerned only with actual representation for the purposes of this appeal.

When an attorney enters a case to represent the accused, the police may not question the accused about that matter regardless of whether the person is in police custody (see People v West, 81 NY2d at 375). If, however, the police seek to question the suspect about a matter that is not related to the case that the attorney is handling, different rules apply (West, 81 NY2d at 377). In the seminal case of People v Rogers (48 NY2d 167 [1979]), we established that an individual who is in custody for an offense and is represented by counsel on that case may not be questioned about any matter – related or unrelated to the crime for which there is legal representation – unless the accused validly waives the right to counsel (see People v Rogers, 48 NY2d at 169).

Simply put, the Rogers rule states that the indelible right to counsel activates the moment that an attorney becomes involved (see id. ["once an attorney has entered the proceeding . . . a defendant in custody may not be further interrogated in the absence of counsel"]; People v Steward, 88 NY2d 496, 501 [1996] ["Rogers establishes and still stands for the important protection and principle that once a defendant in custody on a particular matter is represented by or requests counsel, custodial interrogation about any subject, whether related or unrelated to the charge upon which representation is sought or obtained, must cease"]).

Our jurisprudence in this area "has continuously evolved with the ultimate goal of ‘achieving a balance between the competing interests of society in the protection of cherished individual rights, on the one hand, and in effective law enforcement and investigation of crime, on the other’" (People v Grice, 100 NY2d 318, 322-323 [2003], quoting People v Waterman, 9 NY2d 561, 564 [1961]). Consequently, the parameters of the indelible right to counsel are defined "through the adoption of ‘pragmatic and . . . simple [ ] test[s]’ (People v Failla, 14 NY2d 178, 181 [1964]) grounded on ‘common sense and fairness’ (People v Bing, 76 NY2d at 339)" (People v Grice, 100 NY2d at 323) in order to "provid[e] an objective measure to guide law enforcement officials and the courts" (People v Robles, 72 NY2d 689, 699 [1988]).

For over three decades, "Rogers has stood as a workable, comprehensible, bright line rule, providing effective guidance to law enforcement while ensuring that it is defendant’s attorney, not the police, who determines which matters are related and unrelated to the subject of the representation" (People v Burdo, 91 NY2d at 151). The Rogers rule is eminently straightforward: when an attorney undertakes representation in a matter for which the defendant [*6]is in custody, all questioning is barred unless the police obtain a counseled waiver. Rogers therefore requires inquiry on three objectively verifiable elements – custody, representation and entry (see e.g. People v Burdo, 91 NY2d at 149; People v Steward, 88 NY2d at 502; People v West, 81 NY2d at 377; People v Bing, 76 NY2d at 350).

We believe that imputation of constructive knowledge is appropriate under the facts of this case as well. In our view, society’s interest in protecting individual constitutional rights would be devalued if the police were allowed to question an incarcerated individual under circumstances where it would be reasonable for the interrogating officer to expect that it is highly likely that the accused has an attorney on the custodial matter.

Permitting a police officer to remain deliberately indifferent – avoiding any inquiry on the subject notwithstanding the nature of the custodial charges and the likelihood that a lawyer has entered the matter – in order to circumvent the protection afforded by Rogers is not only fundamentally unfair to the rights of the accused, it further undermines the preexisting attorney-client relationship that serves as the foundation of the Rogers rule.

A contrary holding would allow a police officer who is fairly certain that an attorney is involved in the custodial matter to flout Rogers by claiming that he was not fully confident about a lawyer’s involvement. For these reasons, we hold that an officer who wishes to question a person in police custody about an unrelated matter must make a reasonable inquiry concerning the defendant’s representational status when the circumstances indicate that there is a probable likelihood that an attorney has entered the custodial matter, and the accused is actually represented on the custodial charge.

The circumstances of this case readily demonstrate the necessity of this principle. Detective Mattei was aware of several facts that would have led a police officer to reasonably conclude that it was highly likely that defendant had legal representation on the Pennsylvania charge.

Specifically, defendant was incarcerated on a drug charge for transporting narcotics into that state and was being held in lieu of $10,000 bail. The fact that bail had been set indicated that defendant had been arraigned in court on the charge. Arraignment undoubtedly signified that defendant’s right to counsel had attached – whether under the Sixth Amendment to the United States Constitution (see e.g. Fellers v United States, 540 US 519, 523 [2004]), Pennsylvania law (see e.g. Commonwealth v Gwynn, 596 Pa 398, 410, 943 A2d 940, 948 [2008]) or the New York Constitution (see Hurrell-Harring v State of New York, 15 NY3d 8, 20 [2010]) – and made it probable that defendant had been assigned or had retained an attorney.

A violation of the indelible right to counsel does not automatically constitute reversible error. Instead, it is reviewed under the harmless error doctrine for constitutional violations (see e.g. People v West, 81 NY2d at 373; People v Krom, 61 NY2d 187, 201 [1984]; People v Flecha, 60 NY2d 766, 767 [1983]; People v Sanders, 56 NY2d 51, 66-67 [1982]; People v Rogers, 48 NY2d at 174). Errors of this type "are considered harmless when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury’s verdict" (People v Douglas, 4 NY3d 777, 779 [2005]; see People v Crimmins, 36 NY2d 230, 240-241 [1975]). If no such possibility exists, the error is deemed to be harmless beyond a reasonable doubt (see People v Goldstein, 6 NY3d 119, 129 [2005]).

Here, there is no reasonable possibility that the introduction of defendant’s improperly obtained statement to Detective Mattei affected the conviction in light of the other evidence that overwhelmingly established that defendant murdered Hamoud Thabeat. The People’s proof demonstrated that defendant had spontaneously and unequivocally told at least three acquaintances that he shot Thabeat during the failed robbery. None of these individuals had any apparent motive to lie about defendant’s admissions. The information these individuals conveyed to law enforcement was independently obtained and their testimony was strongly corroborative.

Particularly, three of the young men who had been with defendant on the day the shooting occurred provided the jury with consistent and specific details about their activities that day (e.g., drinking alcohol, smoking marijuana and playing video games, as well as information regarding who had entered and exited the house). Two of them testified that defendant had confessed to shooting two bullets at Thabeat and remarked that nothing was stolen from the store. One of the men further testified that defendant said he had used a revolver to shoot Thabeat in the chest. None of these companions had been with defendant at the scene of the shooting.