Lead Opinion
In People v Bartolomeo (
In People v Bing, defendant, suspected of a New York burglary, was arrested in Nassau County on an Ohio warrant after a police teletype confirmed that he was wanted for burglary in that State. He had counsel on the pending Ohio charge but the police, though alerted by the outstanding bench warrant, made no inquiry about the representation when they called Ohio to confirm the warrant or when questioning defendant. After receiving Miranda warnings defendant waived his right to counsel on the New York charges and admitted his involvement in the Nassau County burglary.
Defendant moved to suppress his statements claiming that because of his representation on the prior pending charge in Ohio his rights had attached indelibly under Bartolomeo and he could not waive them in the absence of counsel. The People urged that a geographical limit should be recognized and that out-of-State charges should not trigger the Bartolomeo right to counsel on New York charges. The courts below agreed and denied suppression.
The trial court, relying on Bartolomeo, granted a pretrial motion to suppress the first confession. It also suppressed the confession obtained after disposition of the pending charge, holding it not sufficiently attenuated from the prior unlawful conduct. On appeal, the People contended that defendant relinquished his attorney-client relationship on the pending charge by absconding and failing to maintain contact with his lawyer while gone. The Appellate Division rejected that argument and affirmed, without opinion.
In People v Medina, defendant was convicted of murdering two neighbors. A detective investigating the homicides learned that defendant had recently been released from jail after being held on an assault charge. While questioning him at the scene, the detective asked defendant about the prior case. Defendant told the detective that he had been "let go”. When the detective asked "why?”, Medina replied that he had been "let go” because the complaining witness had failed to appear in court on four separate occasions. The detective concluded that defendant’s case had been dismissed and later, after defendant waived his Miranda rights at the police station, obtained inculpatory statements from him. Defendant moved to suppress the statements claiming that under Bartolomeo he could not waive his rights on the new unrelated crimes because of his representation on the prior charge.
The trial court denied his motion to suppress, finding that although the police knew of the unrelated charge, they reasonably believed it had been dismissed. It also denied defendant’s trial motion to submit the issue of the voluntariness of his statements to the jury pursuant to CPL 60.45 (2) (b) (ii) and 710.70 and our ruling in People v Graham (
The rulings sought by the People in these appeals require us to do more than modify the scope of the Bartolomeo rule, as we have done in the past. The exceptions advanced in Bing and Cawley, as compelling as they are under the facts presented, would undercut the basis of the rule by limiting its application solely because of the situs of the attorney-client relationship in Bing and because of the quality of the relationship in Cawley. Presumably, the exception urged in Cawley would require the trial court to inquire into the substantiality of the attorney-client relationship, a matter which has not concerned us in Bartolomeo cases previously, to determine if the suspect could waive a right which we have held indelible once it attaches. Defendant’s proposal in Medina would require us to submit to the jury the question of whether the Bartolomeo right attached to determine whether defendant’s confession was "involuntary” under CPL 710.70 (3). The voluntariness of defendant’s statement, however, is irrelevant to the application of the Bartolomeo rule. Concededly, his waiver and statements were voluntary. The question is whether defendant’s derivative right had indelibly attached so that he could not waive it in the absence of counsel.
The appeals demonstrate graphically the recurring problems we have had with the Bartolomeo rule. When it is applied to the circumstances in each case, the result is not only unworkable but it imposes an unacceptable burden on law enforcement. Nor can the results be avoided by modifying or creating exceptions to the rule without undermining its rationale. We conclude, therefore, that a fundamental change is required and, notwithstanding compelling concerns of starq decisis, we hold that People v Bartolomeo should be overruled.
I
The doctrine of stare decisis provides that once a court has
Precedents remain precedents, however, not because they are established but because they serve the underlying " 'nature and object of the law itself ”, reason and the power to advance justice (see, Von Moschzisker, Stare Decisis in Courts of Last Resort, 37 Harv L Rev 409, 414). As Justice Frankfurter observed, "stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable” (Helvering v Hal-lock,
An examination of People v Bartolomeo, its antecedents and the experience of the courts in applying it, demonstrates that overruling it is consistent with these principles and required by sound policy. Recognizing our obligation to justify so significant a change, however, we explain our reasons in some detail.
II
Analysis starts with the legal basis for our rules. The Right to Counsel Clause in the State Constitution is more restrictive than that guaranteed by the Sixth Amendment to the United States Constitution (compare, NY Const, art I, § 6, with US Const 6th, 14th Amends).
There are two well-defined situations in which the right is said to attach indelibly under the State Constitution and a waiver, notwithstanding the client’s right to waive generally, will not be recognized unless made in the presence of counsel. The first, similar to the Federal right (see, Kirby v Illinois,
The scope of these rules is seemingly far removed from the language of the State Constitution but they are said to rest on notions of common sense and fairness and, by requiring the presence of counsel, "[breathe] life into the requirement that a waiver of a constitutional right must be competent, intelligent and voluntary” (People v Hobson, supra, at 484; see, People v Davis, 75 NY2d 517, supra). The rules are also supported by the Code of Professional Responsibility which forbids lawyers from "[c]ommunicat[ing] or caus[ing] another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter” without the prior consent of the party’s lawyer (see, DR 7-104 [A] [1]; see also, People v Davis, supra; People v Skinner, supra, at 29-30; People v Hobson, supra, at 484). We have applied that proscription, by analogy, to officials of the State in criminal proceedings. Underlying all these considerations is a recognition of the imbalance between a suspect and the agents of the State, the coercive influences the State may bring to bear on one suspected of crime and acknowledgement that a party who has expressed the inability to deal with those forces without legal
Notwithstanding these rules, however, it had been understood in the past that the right to counsel did not require exclusion of statements made to police in response to inquiries about crimes unrelated to those on which the suspect had representation (People v Taylor,
We modified the Taylor rule somewhat in People v Rogers (
Our holding, contained in the very first sentences of the opinion, emphasized that since defendant was represented on the charge on which he was held in custody, he could not be interrogated in the absence of counsel on any matter, whether related or unrelated to the subject of the representation (id., at 169). We concluded that the statement was anything but spontaneous and had resulted from exploiting custody on the crime on which Rogers had counsel. The court recognized the Taylor rule permitting questioning on unrelated charges but cited recent refinements to that rule precluding interrogation on either charge in the absence of counsel where the charges were sufficiently related (see, People v Carl,
In February 1981, only four months before Bartolomeo was handed down, we ruled that the existence of a pending criminal case upon which defendant’s right to counsel had attached did not bar the police from questioning defendant on new unrelated charges when he was not, in fact, represented on
Ill
It was against this background that the court in June 1981 issued its decision prohibiting the police from questioning a suspect not only on the pending charge, on which the right to counsel had attached, but also on a new, unrelated charge under investigation on which defendant had waived the right to counsel (People v Bartolomeo,
Our decision left a number of unanswered questions. Why, for example, if the rule created a remedy to protect only rights in the pending case and not on the new charge, was not exclusion solely in the pending case adequate protection? Conversely, if exclusion was required to protect an independent right to counsel with respect to the new crime, there was no explanation of why Rogers should be expanded so dramatically to protect a suspect against self-incrimination on the new crime unrelated to the matter upon which defendant actually obtained representation. Moreover, the decision did
This failure to elaborate the basis for the rule, and the questionable policy behind it, were to cause considerable difficulty in subsequent cases as the court tried to integrate the decision into existing law. Its application became uneven, introducing uncertainty into the rule itself and destabilizing the law on the right to counsel in general. Apparently, one motivation for the decision was the belief that because of the short interval between the arson arrest and the murder investigation the police either did or should have viewed the crimes together. Even this rationale became attenuated, however, when the court extended the rule to cover charges lodged many months earlier (see, People v Smith,
Decisions after Bartolomeo demonstrate our efforts to limit
We also found it necessary to limit the rule in several other respects. For example, we held that a defendant in custody, represented by counsel in an unrelated case, had no right to the presence of his attorney before being placed in a lineup (People v Hawkins,
It was not until our decision in Robles that a rationale for
IV
The facts in the three appeals now before us mirror those of Bartolomeo. Defendants had counsel on prior pending charges and the police, although aware of the charges, made no inquiry (or insufficient inquiry, it is claimed in Medina) about representation. They were chargeable with the knowledge that inquiry would have disclosed, however, and by accepting defendants’ waivers and questioning them at a time when they could not waive their rights in the absence of their attorneys, the police violated the defendants’ derivative rights to counsel (see, People v Ferrara,
The People, however, noting that we approved a substantive exception to the rule for cases on appeal (see, People v Colwell,
To support these contentions, the People note in Bing that it is more difficult for Ohio counsel to appear and effect a waiver; indeed they question whether attorneys licensed in other States could appear in New York. Surely, if defendant had retained Ohio counsel on the Nassau County charges, however, we would recognize that representation, notwithstanding the lack of admission to the New York Bar or any difficulty counsel might experience in appearing on defendant’s behalf. If we recognize the need to protect a defendant’s independent New York right to counsel, it is difficult to understand why we should refuse to protect his equally important derivative New York right to counsel. It is the New York enforcement agencies that violate the suspect’s rights and thereby discover evidence that they will, almost certainly, deliver to Ohio authorities and ignoring their conduct frus
That leaves as a basis for the exception practical difficulties in determining (1) whether there are pending charges in Ohio and (2) defendant’s representation on those charges. As real as those difficulties may be, they are hardly a principled basis for denying a constitutional right (see, People v Rogers,
Furthermore, the suggested remedy in Bing, suppression of the evidence in the trial of the Ohio charge, is precisely the remedy we rejected in People v Bartolomeo (see,
In Cawley, the District Attorney contends with equal force
The Bartolomeo right to counsel is indelible, however, and once it attaches the defendant cannot waive it in the absence of counsel. If a defendant cannot expressly reject counsel, there seems to be little legal basis for a judicial inquiry to determine whether he or she has impliedly done so. For the purposes of Bartolomeo, a defendant is either represented on the prior charge or not.
In sum, the situs of the attorney-client relationship or its attenuation by time and disinterest may present practical concerns but they are legally irrelevant under Bartolomeo. The legal basis for the rule is a derivative right arising from an established attorney-client relationship on prior pending charges. Bing and Cawley had established attorney-client relationships. Thus, they had existing derivative rights. Ignoring the sources of those rights, far from making the Bartolomeo rule more reasonable or workable, erodes the jurisprudential basis on which it rests.
In Medina, we are bound by the factual findings below that the police acted reasonably in interrogating defendant. There remains, however, the procedural problem presented by defendant’s contention that the voluntariness of his statements should have been submitted to the jury pursuant to CPL 60.45 and 710.70. CPL 710.70 (3) gives defendants the right to submit to the jury all claims that a statement was involuntarily made within the meaning of CPL 60.45. The police were guilty of no coercion, however; at worst they took defendant’s statements at a time when his derivative right to counsel had attached without sufficiently investigating whether he had
V
Inasmuch as these appeals fall squarely within Bartolomeo and exceptions cannot be recognized, the question remains whether the rule has become so unworkable that it should be abandoned.
As the People contend in Bing, compliance with Bartolomeo may present an unacceptable obstruction to law enforcement when the predicate attorney-client relationship arises out-of-State. Not only may communications between law enforcement agencies be difficult but substantive and procedural law may vary from State to State and present special difficulties for the New York police. Moreover, if an Ohio charge may serve as a predicate for a derivative right to counsel, so may a pending charge in Timbuktu, thereby compounding the problem. Nor can the rule rationally be applied in Cawley. The defendant there expressed no concern over dealing with the "awesome power of the State” (see, People v Cunningham,
Medina illustrates the procedural anomalies Bartolomeo can produce. Defendant’s statements were unquestionably voluntary. He waived his Miranda rights and spoke to the police and but for Bartolomeo he was legally capable of waiving those rights. Nevertheless, under a literal application of the Criminal Procedure Law, he has a colorable claim for the jury to consider, unrelated to the voluntariness of his statements, i.e., whether the police acting in bad faith violated his deriva
Bartolomeo’s effect on our jurisprudence is even more troublesome. Even now, after nine years, the Judges considering these cases are sharply divided not merely about how to apply the Bartolomeo rule but about the more fundamental question of whether the facts presented are even encompassed within it. The point is nowhere more evident than in this court where the concurring Judges would deny Bing the benefit of a viable attorney-client relationship, which the rule is supposed to protect, but recognize defendant Cawley’s relationship with his attorney, which is dead. Manifestly, our many decisions in this area have failed to achieve the efficiency, consistency and uniformity in the application of the law which the doctrine of stare decisis seeks to promote.
Nor can Bartolomeo be justified as a matter of policy. As a people we have elected to strike a balance between society’s need to investigate and prosecute crime and the right of individuals to be free from the police intimidation and harassment that can result from it. The Cawley case illustrates, perhaps more vividly than the others, the extraordinary price the rule has exacted from society. The trial court held the inculpatory statements had to be suppressed because of defendant’s representation on the charge from which he had absconded. After the pending charge was resolved by a plea bargain, a subsequent statement was taken from defendant but it also had to be suppressed because not sufficiently attenuated from the statements taken in violation of Bartolomeo (cf., People v Robles, supra). An able and experienced Trial Judge, reluctantly applying Bartolomeo, noted that the statements were voluntary beyond question and that they truthfully and accurately detailed defendant’s complicity in the crimes he committed after absconding. Under Bartolomeo, however, the subsequent robbery and murder charges against Cawley would have to be dismissed for lack of sufficient evidence after the statements were suppressed and his inculpatory statements about the second murder committed while he was at liberty, and on which he had not yet been charged, could not be used in the future.
The right to assistance of counsel is one of the important means of protection against police harassment afforded indi
The concurring Judges contend that Bartolomeo is premised on the necessity to have an attorney present to determine whether the interrogation is related to the prior pending charges. If that is so the Bartolomeo court failed to identify that concern as a basis for its decision. But more to the point, the need for a bright-line rule was recognized in Rogers because an attorney had entered the proceeding for which defendant was arrested. We decided that under those circumstances the attorney must be allowed to resolve whether police questioning was related to those charges on which defendant was represented. There is no such requirement in these cases, however, because no attorneys had appeared in the proceedings and defendants voluntarily chose to forego legal representation on the new charges. Thus, there is no basis for the concurrence’s argument that the attorney must be brought into the new proceeding to decide whether the questions are related to the prior charges. The courts are fully capable of protecting the defendants’ rights on both the prior pending charges and the new charges. Moreover, the purposes allegedly furthered by such a bright-line rule are hardly served if we continually create exceptions to it (see also, People v Colwell,
Finally, permitting questioning on unrelated crimes violates
As noted at the outset of this opinion, our right to counsel rules are based on "common sense and fairness” and are intended to "[breathe] life into the requirement that the waiver of a constitutional right [is] competent, intelligent and voluntary” (see, People v Hobson, 39 NY2d, supra, at 484). But there is little to be said for a rule which is not firmly grounded on prior case law, cannot be applied uniformly, favors recidivists over first-time arrestees, and exacts such a heavy cost from the public. We conclude that People v Bartolomeo should be overruled.
We emphasize in closing that although Rogers and Bartolomeo are frequently linked in legal literature and Rogers was the only case cited to support the new rule adopted in Bartolomeo, the two holdings are quite different. In People v Rogers (supra), the right to counsel had been invoked on the charges on which defendant was taken into custody and he and his counsel clearly asserted it. To protect his rights, we established a bright-line rule preventing the police from questioning defendant about those charges or any other charges. In People v Bartolomeo (supra), however, defendant was taken into custody for questioning on a new, unrelated charge. He was not represented on that charge and freely waived his right to counsel. Since the right to counsel is personal and may be waived by a defendant (see, People v Davis, supra), the court had to create an indelible right, a right that defendant could not waive in the absence of counsel, to justify suppression of the voluntary statement. It did so by implying a derivative right arising from the prior pending charges (see, People v Robles,
Accordingly, the orders of the Appellate Division in People v Bing and People v Medina should be affirmed. The order of the Appellate Division in People v Cawley should be reversed, and defendant’s motion to suppress denied.
Notes
. New York Constitution, art I, § 6 provides: "In any trial in any court whatever the party accused shall be allowed to appear and defend in person
. Several State courts have been asked specifically to apply People v Bartolomeo and each has refused to do so (see, e.g., Commonwealth v Yarris, 519 Pa 571,
. According to a 1979 survey of New York County Supreme Court and Criminal Court, the percent of defendants with open cases pending at the time of arrest was 60% in Supreme Court and 57% in Criminal Court (see, Report of District Attorney, County of New York, Robert Morgenthau, District Attorney, Table 1, at 10 [1979], as quoted in Note, The Expanding Right to Counsel in New York, 10 Fordham Urban U 351, 369, n 90). Seventy-seven percent of the District Attorney’s sample of 200 arrestees in Supreme Court had prior arrests. On the average they had been arrested eight times before (see, id., at 372, n 105).
Concurrence Opinion
(concurring as to result in Bing and Medina, and dissenting as to Cawley). Over the past several decades, this court applying the New York State Constitution evolved a body of law that "constitute^] the strongest protection of right to counsel anywhere in the country.” (Galie, The Other Supreme Courts: Judicial Activism Among State Supreme Courts, 33 Syracuse L Rev 731, 764 [1982]; see also, Galie, State Constitutional Guarantees and the Protection of Defendants’ Rights: The Case of New York, 1960-1978, 28 Buffalo L Rev 157, 178-186 [1979].) Our law in this area was neither the full-blown creation of a contemporary court nor a reaction to perceived Supreme Court retrenchments (see, Bonventre, State Constitutionalism in New York: A Non-Reactive Tradition, 2 Emerging Issues in St Const L 31, 45-49 [1989]). Rather, it was a product of the careful, considered implementation of three guarantees of our State Constitution — due process, the privilege against self-incrimination, and the right to assistance of counsel — which proceeded despite individual changes in the composition of the court.
That jurisprudence had at its core the perception that in criminal cases — wholly unlike civil cases — "the presence of an attorney is the most effective means we have of minimizing the disadvantage at which an accused is placed when * * * directly confronted with the awesome law enforcement machinery possessed by the State.” (People v Cunningham,
Today, however, the court breaks with its proud tradition,
I.
The court’s opinion portrays Bartolomeo as an aberrant decision not worthy of precedential respect, a decision without a principled basis or even a rationale until it was invested with one seven years later. We profoundly disagree.
Bartolomeo did not appear out of the blue. It was an integral part of one line of our right-to-counsel cases — beginning with People v Donovan (
As the court consistently made clear, that line of cases is premised on a concept of fundamental fairness, particularly the view that in custodial settings an attorney’s presence is the most effective means of minimizing the inherent imbalance and disadvantage faced by an accused subject to the coercive power of the State (see, e.g., People v Skinner,
The requirement of counsel for a waiver of a defendant’s right to counsel was not, however, absolute. Law enforcement
The "unrelated” charge exception, as rapidly became obvious, left significant room for subversion of the right-to-counsel rules (see, People v Marshall,
The point was exemplified by several cases (see, e.g., People v Ermo,
People v Rogers occasioned that necessary change in the law. In Rogers, defendant’s attorney instructed the police to cease questioning defendant (a youth of limited education who was a robbery suspect), and the police complied — as to the robbery charges. But they simply shifted the subject and continued interrogating defendant, alone and manacled, for several hours, until he made a statement. Invoking Taylor, the People defended their right to do exactly that. But this court determined to call a halt to the facile evasion of defendants’ constitutional rights, and declared "once a defendant is represented by an attorney, the police may not elicit from him any statements, except those necessary for processing or his physical needs. Nor may they seek a waiver of this right, except in the presence of counsel.” (
People v Bartolomeo was an outgrowth and application of those principles. As in Rogers, the court confronted what was perceived as a means of circumventing defendant’s constitutional rights through questioning on "unrelated” matters. Bartolomeo himself, then 19 years old, had been arrested by Suffolk County police on burglary and arson charges, arraigned (with counsel) and released, and then nine days later again arrested by Suffolk County police for homicide. Although well aware of the arson/burglary investigation, the police interrogated defendant and secured inculpatory statements from him, until his lawyer on the other charges called and stopped the questioning.
On defendant’s appeal from his conviction, the main thrust of the People’s argument in this court was not that counsel in Rogers had been retained on the charge for which defendant was then in custody, while the counseled matter in Bartolomeo was an "unrelated” prior charge. In other cases, the Appellate Divisions had already applied the Rogers rule in both contexts (see, e.g., People v Outlaw,
That obligation is not imposed, however, where police could not reasonably be charged with knowledge that defendant had a lawyer on the unrelated matter (see, e.g., People v Lucarano,
Thus, there is in fact no mystery about the so-called rRogers-Bartolomeo” rule, and no question as to its rationale or its fit in our jurisprudence. The suggestions in the majority opinion that Bartolomeo was an aberrant decision without rationale or principle to support it are simply without basis.
II.
The court concludes that it now must overrule Bartolomeo because it is unworkable, and because the three appeals before
People v Bing and People v Medina
By any reasonable application of the law by those seeking to implement rather than overrule Bartolomeo, both Bing and Medina fall outside its reach.
Bing is a case that is factually far afield from Bartolomeo. In Bing, a Nassau County detective investigating a robbery learned from a known informant that defendant had recently come from Ohio, where he was "hot.” The detective confirmed by teletype that there was an outstanding "burglary warrant” in Ohio but made no inquiry as to defendant’s representation on the charge before picking him up; defendant almost immediately said he was willing to talk without a lawyer and confessed to the robbery. Both the trial court and the Appellate Division had no difficulty denying suppression of defendant’s statements, concluding that this case was significantly different from Bartolomeo and should be resolved in accordance with precedent and common sense by not extending Bartolomeo (see,
The majority opinion itself posits the absurdity of extending Bartolomeo to these facts: "Not only may communications between law enforcement agencies be difficult but substantive and procedural law may vary from State to State and present special difficulties for the New York police. Moreover, if an Ohio charge may serve as a predicate for a derivative right to counsel, so may a pending charge in Timbuktu, thereby compounding the problem.” (Majority opn, at 347.)
Nothing in the law forces the dismal choice on us of either carrying one of our holdings to its most ludicrous outer limits or scrapping it.
To the contrary, when the facts of new cases are significantly different from prior precedents, requiring an extension of the law, courts traditionally refine their holdings by balancing the competing considerations and deciding whether to enlarge the precedent or not. There is simply no reason to ignore that time-honored process in this case. While it is invariably possible to question why lines are drawn at one
As is immediately apparent, the addition of another State to the mix of facts adds a new ingredient with both practical and policy implications. Where the prior matter is proceeding in New York State, such key questions as whether, and when, there is actually a "pending charge” for right-to-counsel purposes can be readily answered; as the majority opinion points out, the legal effect of an arrest warrant, even a "burglary warrant,” in another State may vary from State to State and be harder to determine. Then too, there may be difficulty when the presence of an attorney from another State, conceivably even another Nation, is required in order to effect any waiver of defendant’s right to counsel in the New York matter —if that is what defendant wishes to do. In this same vein, both the trial court and the Appellate Division voiced concern about a rule that would draw nonadmitted attorneys into practice in New York State.
To be weighed against the potential new difficulties presented are the objectives and policy interests at stake. Turning first to the interest protected — "the attorney-client relationship that existed with respect to the pending charges,” or the "full-fledged right to counsel in the pending proceeding” (People v Robles,
The Bartolomeo rule additionally serves the New York State interest of preserving the attorney-client relationship by deterring uncounseled interrogation on unrelated charges. A bright-line rule leaves for the attorney — rather than the police —the determination whether a particular matter will or will
We therefore cannot agree with the majority that Bing, sensibly decided, strikes at the substance of Bartolomeo, or undermines the rule, or in any way demonstrates the rule is unworkable. As the two courts prior to ours recognized, Bartolomeo as presently formulated is inapplicable to Bing, and it should not be extended globally.
Medina is the only case of the three in which the District Attorney demands Bartolomeo be overruled. Yet, as even the majority opinion recognizes, this case is resolved simply on the basis of undisturbed factual findings (majority opn, at 346). There is surely no need to overturn an important precedent because of Medina.
Medina is a straightforward application of the rule that a confession elicited from a suspect represented by counsel on unrelated charges will not be excluded if the police reasonably believe those charges are no longer pending, and they do not act in bad faith (People v Bertolo,
Medina, on any other day, would simply have been affirmed in a brief memorandum. Surely, Medina offers no reason to overrule Bartolomeo.
People v Cawley
Nor does Cawley. But Cawley presents a problem of a different order. Defendant there was represented by counsel on robbery charges, but absconded and remained a fugitive for
What the court neglects to mention, however, is that the regrettable result in Cawley is not attributable to any defect in the Bartolomeo rule. It is instead attributable to the zeal of the police in singlemindedly pursuing the interrogation of defendant without counsel until he confessed, although they were specifically told not to continue the inquiry or they would imperil a homicide investigation. As recited by the Trial Judge in his decision, the police were so advised by the A.D.A.; they then consulted her supervisor and bureau chief, who confirmed that advice; again dissatisfied, they sought counsel from the head of the trial bureau, who repeated the admonition. In the words of the Trial Judge: "For a lieutenant in charge of the Manhattan South Homicide Task Force to behave as this lieutenant behaved, it seems to me should be brought to the attention of his superior officers. Some action should be taken so that homicide matters in the future will not be compromised in the way that this one has become as a result of his failure to perform responsibly.” We therefore cannot agree with the court that Cawley demonstrates the unworkability of Bartolomeo. None of our rules work when they are deliberately ignored.
Thus, these three cases, sensibly decided, threaten neither the integrity of Bartolomeo nor our right to counsel rules generally; they do not show that Bartolomeo is unworkable; and they are not cause for the extraordinary action of overruling that recent precedent.
III.
In the end, our difference boils down to the majority’s insistence that Bartolomeo cannot be justified as a matter of policy, that the rule is unreasonable, and that it imposes an unacceptable burden on law enforcement agencies.
Those might well have been compelling considerations in
Nor does the recurrence of "Bartolomeo issues” over the past nine years signal the need for its reexamination or demise. We have had far greater difficulty with other recurring issues that remain part of our law. To some extent, moreover, the constant testing and retesting of recent precedents is a natural and welcome part of the judicial process. As appellants press for further applications and enlargements of newly articulated principles and respondents oppose them, our rules are tailored, refined and fitted into the law.
In this instance, in particular, the Rogers-Bartolomeo "sequels” have been helpful in molding the principles to effect their substance while avoiding absurd applications. In setting rules in this area, the court has always been mindful of the cost to law enforcement and, from People v Servidio (
What does without question destabilize the law is the overruling of a significant recent precedent, by now fully a part of the law (see, e.g., People v Johnson,
Without in any way entering the current raging debate on the subject of stare decisis in constitutional decisionmaking (see, e.g., Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum L Rev 723 [1988]; Note, Constitutional Stare Decisis, 103 Harv L Rev 1344 [1990]), it is safe to say that this court in the past had placed a high value on adherence to the doctrine of stare decisis. Not often in our history have we explicitly overruled a recent precedent, and rarely if ever have we done so by a closely divided court. Perhaps even more disturbing than the extraordinary step of overturning Bartolomeo — wrong and unnecessary as it is to do so — is that it cannot help but unsettle the belief "that bedrock principles are founded in the law rather than in the proclivities of individuals.” (Vasquez v Hillery,
We would affirm the Appellate Division orders in all three cases.
In People v Bing and People v Medina: Order affirmed.
Chief Judge Wachtler and Judges Hancock, Jr., and Bellacosa concur with Judge Simons; Judge Kaye concurs in result in a separate opinion in which Judges Alexander and Titone concur.
In People v Cawley: Order reversed, etc.
Chief Judge Wachtler and Judges Hancock, Jr., and Bell-