People v Henry
NY Slip Op 04275
Decided on June 12, 2018
Issue:
Violation of Right to Counsel?
Whether interrogation of defendant Henry on murder and robbery charges was prohibited under the Cohen standard when Henry was represented by an attorney on a separate marijuana possession charge and where the only factual connection in all the charges was the vehicle Henry drove.
Holding:
Interrogation Permitted When Charges are Unrelated
The NY Court of Appeals held that the interrogation of the defendant was permitted as the murder and robbery charges were not so closely related that the questioning would implicate Henry in the marijuana charge, the only charge for which he had counsel.
Facts:
Two masked men driving a black Hyundai Sonata with tinted windows robbed a tattoo parlor at gunpoint, taking a BlackBerry cell phone from one of the victims. A couple of days later, a masked gunman in a black Hyundai Sonata with tinted windows shot and killed a 19-year-old in a gas station parking lot. Five days after that, defendant Henry, driving a black Hyundai Sonata with tinted windows, sped away when a police car passed by and ran two stop signs at 40 m.p.h. before being pulled over. When the officer approached the vehicle he smelled marijuana and saw it on the defendant’s lap. The officers arrested Henry and impounded the vehicle, discovering the stolen BlackBerry in the floorboard of the vehicle.
Three days after his arrest, Mr. Henry—driving a different car—was pulled over for speeding. When police learned he was wanted for possession of the stolen BlackBerry, he was arrested and read his Miranda rights, which he waived. During several hours of questioning about the robbery and murder, Henry admitted that he was the driver of the Sonata but denied any additional involvement in the crimes. He was charged with multiple counts of robbery in the first degree, criminal possession of a weapon in the second degree, criminal possession of stolen property in the fifth degree, murder in the second degree, and possession of marijuana in the fifth degree.
Henry moved to suppress his statements regarding the robbery and murder as having been obtained in violation of his right to counsel, which was attached to the marijuana charge. The trial court suppressed his statements regarding the robbery, reasoning that the robbery and marijuana charges were related under Cohen, because the BlackBerry was obtained as a result of the marijuana arrest. The trial court declined to suppress Henry’s statements regarding the murder, however, because those charges were unrelated. Defendant was convicted by jury of murder in the second degree, two counts of criminal possession of a weapon in the second degree, criminal possession of stolen property in the fifth degree, and possession of marijuana.
On appeal, the Appellate Division held that Mr. Henry’s statements to the police regarding the murder charge should also have been suppressed because it was “bound by” the trial court’s determination that “questioning of the defendant on the robbery charges violated his right to counsel” when considering the questioning on the murder. The People appealed, arguing that the Appellate Division misapplied Cohen and CPL 470.15 by analyzing the relationship between the murder and the robbery, for which Henry was not represented by counsel, instead of the murder and the marijuana, for which he was represented.
Analysis:
Cohen Standard and Right to Counsel
People v Cohen (90 NY2d 632 [1997]) established two categories of cases in which police questioning on an unrepresented crime may violate a defendant’s right to counsel: 1) where the two matters are “so closely related transactionally, or in space or time, that questioning on the unrepresented matter would all but inevitably elicit incriminating responses regarding the matter in which there had been an entry of counsel” and 2) where although the matters are “less intimately connected…the police are aware that the defendant was actually represented by an attorney in one of the matters” and “the interrogation actually entails an infringement of the suspect’s State constitutional right to counsel by impermissible questioning on the represented crime” (Cohen, 90 NY2d at 638-640).
In People v Grant (91 NY2d 989 [1998]), the defendant was questioned about a homicide, for which he was not represented, and a gun possession charge, for which he was represented. The same pistol was involved in both crimes, and though the Court of Appeals remanded the case to consider whether the questioning was purposefully exploitative, it held that the charges were not so closely related that interrogation on one would elicit incriminating responses on the other. The only factual element linking the two crimes was the same gun.
Likewise, in this case, the Court held that the only fact linking the marijuana charge to the murder charge is the Sonata. Questioning about the murder would not have implicated the defendant in the marijuana charge and, indeed, officers did not ask a single question about it. The interrogation pertained to the robbery and murder, for which Henry was not represented. Therefore, the second category of the Cohen standard is not invoked here.
CPL 470.15 (1) states that “upon an appeal to an intermediate appellate court from a judgement, sentence, of order of a criminal court, such intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant.” The Appellate Division correctly noted that the statute prevented it from reversing the lower court’s order suppressing the statement regarding the robbery charge, but it had no binding on the determination as to the statements about the murder. The Appellate Division misapplied the statute, and should have considered the question of whether the murder charge was sufficiently related to the marijuana charge. Thus, the Court of Appeals reversed and remitted the Appellate Division’s order for consideration of the facts.