People v. McLean
15 N.Y.3d 117
NY Court of Appeals
Decided on June 10, 2010
Contact a New York Criminal Appeals Lawyer
Unpreserved Right to Counsel Claims
Issue:
Whether the record is sufficient to establish that defendant McLean’s unpreserved issue claiming that law enforcement authorities obtained his statement in violation of his right to counsel.
Holding:
Exception to Preservation Requirement Requires Right to Counsel Violation on the Face of the Record
The Court of Appeals held that appellate review of an unpreserved error such as violation of the right to counsel is available only when the error is established on the face of the record and because here, the record is inadequate, it declined to review the right to counsel issue.
Facts:
Defendant pled guilty to a 16-count indictment charging him with various crimes, including two counts of murder in the second degree. He challenges County Court’s refusal, following a Huntley hearing, to suppress statements he made to officers in December 2006. At the Huntley hearing, defendant argued that his statements were involuntary, but he did not claim he had been denied his right to counsel.
The Huntley record shows that no lawyer was present at the December 2006 meeting when defendant described his role in a homicide. Defendant did, however, talk about the same crime to the same detectives three years prior and in the presence of his lawyer Steven Kouray. Defendant was, at the time, awaiting sentencing on an unrelated charge, and had entered a cooperation agreement to supply information about the murder in exchange for a more favorable sentence on the robbery. Defendant claims that his right to counsel was attached at or before the 2003 meetings, and therefore he should not have been questioned on the same subject again in 2006 without a waiver of that right in counsel’s presence.
Defendant raised the right to counsel claim for the first time in the Appellate Division, which declined to consider it as the record was “bereft of material evidence sufficient to permit appellate review of this claim.”
Analysis:
People v. Arthur, 22 NY2d 325 (1968)
The Court of Appeals held in Arthur that right to counsel claims are excepted from the general rule that unpreserved issues cannot be reviewed upon appeal, because the Court is concerned with “deprivation of a fundamental right.” The exception to the preservation requirement, however, is applied “only when the conditional violation was established on the face of the record” (People v. Ramos, 99 NY2d 27, 30 [2002]).
Arthur also held that “once an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant’s right to counsel” (22 NY2d at 329). In Court in People v. West (81 NY2d at 373-374) held that the “the right to counsel attaches indelibly where an uncharged individual has actually retained a lawyer in the matter at issue.” The parties disputed whether defendant’s counsel had entered “the proceeding” or was retained only in “the matter at issue.” The People argued that defendant had counsel for the robbery case, and was involved in the murder case only as it pertained to McLean’s robbery sentence, whereas defendant argued that Kouray was representing him in both matters.
The Court of Appeals held that the failure to raise the issue in the trial court resulted in an inadequate record, and the Court made clear that the lack of an adequate record bars review on direct appeal not only where vital evidence is absent, but also where the record falls short of establishing conclusively the merit of defendant’s claim. When, as here, the right to counsel claim is not raised in the trial court, neither the People nor the trial judge has reason to know that it is in the case. Accordingly, the order of the Appellate Division was affirmed.