Castellano on People v. Pacquette, People v. Lopez, People v. Gibson, and
People v. Lewie: The Limits of New York's Indelible Right to Counsel
By Mr John Castellano
Excerpt from 2011 Emerging Issues 5910
SUMMARY: In People v. Pacquette, People v. Lopez,
People v. Gibson, and People v. Lewie, the Court of Appeals made a concerted
effort to define the boundaries of the state constitutional right to counsel.
In this commentary, John M. Castellano, a 28-year veteran of criminal practice
in New York, explains the legal and practical impact of the Court's decisions,
and suggests ways to approach right to counsel issues in light of these cases.
ARTICLE: In the span of only a few months, the Court of Appeals
issued four decisions addressing New York's "indelible" right to
counsel - a state constitutional guarantee that has long required the presence
of counsel for an effective waiver of a suspect's rights. These new cases, People
v. Gibson, 2011 N.Y. Lexis 1448 (June 14, 2011), People
v. Lewie, 2011 N.Y. Lexis 1393 (June 9, 2011), People
v. Pacquette, 17 N.Y.3d 87 (2011), and People
v. Lopez, 16 N.Y.3d 375 (2011), suggest, collectively, that the broad scope
of the right may have reached its outermost limits. Despite decades of vigilant
protection of this "cherished" right, the Court adopted restrictions
on several aspects of this constitutional protection, and three of the seven
judges even called for a significant retrenchment in the Court's jurisprudence,
arguing that much of the Court's precedent over the last 30 years should be
overturned in favor of a simpler rule. These cases indicate that the right,
often previously heralded as one of the greatest protections of the state
constitution in criminal cases, no longer enjoys the support that it once had.
The legal and practical impact of these decisions, along with suggestions on
how counsel might address them, are discussed below.
New York's Indelible Right to Counsel
New York's constitutional right to counsel has been the subject of countless
cases over the past half-century. Despite a somewhat "bumpy" road in
the ascendency of the right, People
v. Lopez, 16 N.Y.3d at 385 (Smith, J., concurring), it has always been
afforded a revered status as a state constitutional right far more protective
than its federal counterpart, see People
v. Hobson, 39 N.Y.2d 479, 483-84 (1976). Unlike the federal rule, the state
right, once triggered, precludes any waiver of the right to counsel except in
the presence of counsel. It is for this reason that the right is described as
16 N.Y.3d at 380. Moreover, the indelible right is triggered not only upon
the filing of charges against a suspect, but whenever an attorney undertakes
representation of a suspect and whenever a suspect in custody requests counsel.
v. West, 81 N.Y.2d 370, 373-74 (1993). Perhaps most significantly, and
unlike the federal right to counsel, the state right precludes questioning even
on matters wholly unrelated to the representation so long as the defendant's
attorney represents him on a matter for which he is in custody. This rule was
first espoused in the Court's seminal decision in People
v. Rogers, 48 N.Y.2d 167 (1979), more than 30 years ago. See also People
v. Burdo, 91 N.Y.2d 146 (1997).
ABOUT THE AUTHOR:
John M. Castellano is Deputy
Executive for the Legal Affairs Division in the District Attorney's Office in
Queens, New York, where he has been in charge of the Appeals Bureau for more
than 15 years. In that capacity, he has supervised thousands of criminal cases
prosecuted at every level of state and federal court. He has personally
briefed, edited, or argued over 50 cases in the New York Court of Appeals and
has argued before the Supreme Court of the United States. The New York State
District Attorney's Association named him Appellate Prosecutor of the Year in
2005. He has also written for the treatise Criminal Law Advocacy, published by
LexisNexis, and is General Editor of the Practice Insights for the New York
Penal Law and Criminal Procedure Law published by LexisNexis. Mr. Castellano is
a frequent lecturer for the New York Prosecutors Training Institute and the New
York State Bar Association. The views expressed in this commentary are solely
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