People v. JonesPeople v. Jones
Once a suspect in custody unequivocally requests counsel, he may not be questioned further in the absence of an attorney (see People v Glover, 87 NY2d 838 [1995]; People v Cunningham, 49 NY2d 203 [1980]). Whether a particular request is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant‘s demeanor, manner of expression, and the particular words used by him (see People v Mitchell, 2 NY3d 272 [2004]; People v Bacalocostantis, 121 AD2d 812, 814 [1986]). Here, the defendant‘s statements, viewed in context, articulated his desire to have counsel present such that a reasonable police officer should have understood that he was requesting an attorney (see Davis v United States, 512 US 452 [1994]; see also People v Lubanski, 148 AD2d 947, 948 [1989]). In view of this finding, that branch of the defendant‘s motion which was to suppress his statements should have been granted (see People v Esposito, 68 NY2d 961 [1986]). Since the error in admitting the defendant‘s confession was not harmless, we reverse and order a new trial (see People v Jones, 61 AD2d 264, 268 [1978], affd 47 NY2d 528 [1979]).