The Limits of New York's Indelible Right to Counsel

The Limits of New York's Indelible Right to Counsel

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 "indelible." Lopez, 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. People 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).

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 his own.

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