People v. WashingtonPeople v. Washington
THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v JONAI WASHINGTON, Respondent.
Second Department, April 17, 2013
Kathleen M. Rice, District Attorney, Mineola (Tammy J. Smiley and Yael V. Levy of counsel), for appellant.
Frederick K. Brewington, Hempstead (Valerie Cartright of counsel), for respondent.
OPINION OF THE COURT
LEVENTHAL, J.
This case calls upon us to address a matter of first impression involving the right to counsel under the New York Constitution (see
Following a collision between the defendant‘s vehicle and a pedestrian in Nassau County, the defendant was charged with manslaughter in the second degree (see
At a suppression hearing, evidence was adduced demonstrating that, on August 30, 2010, at approximately 2:05 a.m., Nassau County Police Officers responded to the scene of a motor vehicle accident. At the scene, the officers observed the defendant standing beside the door of her vehicle crying and speaking on her cell phone. The defendant‘s vehicle had a dented hoоd and a crushed windshield. Between 50 to 70 feet away from the defendant‘s car lay an injured pedestrian. The pedestrian subsequently died from his injuries. The defendant appeared intoxicated and, after the officers conducted various field sobriety tests, they placed the defendant under arrest at 2:40 a.m. and transported her to the Central Testing Section at Nassau County police headquarters. When the defendant‘s family learned of the accident and her arrest, they immediately contacted an attorney and arranged for him to represent the defendant.
At police headquarters, the police requested that the defendant submit to a chemical breath test. The People submitted into evidence a consent form initialed by a police officer and signed by the defendant wherein the defendant agreed to submit to the chemical breath test at 3:30 a.m. The parties stipulated that at 3:39 a.m. the defendant‘s breath was drawn.
Anthony Mayol, the attorney retained by the defendant‘s family, testified on her behalf. According to telephone records submitted into evidence by the People, at 3:31 a.m. Mayol called and spoke to a police dispatcher at Nassau County police headquarters, and was transferred to “Detention” at 3:32 a.m. This telephone call lasted a total of nine minutes and two seconds. Mayol testified that during this phone call with Detention, he informed the police that he represented the defendant and stated, “You have to stop all questioning and we‘re not consenting to any form of testing whatsoever.” Mayol‘s cell phone records show that he remained on the line with the police until
The People did not offer any testimony from the police officer who spoke with Mayol during the initial phone call. According to the prosecutor, that individual had no recollection of the relevant facts.
At 4:33 a.m., after Mayol did not receive a return call from the police, hе telephoned police headquarters a second time. According to Mayol, he asked to speak directly to the defendant, but he could not recall whether he made this request during the first or second call; he testified, “I almost want to say it was the first time, but I couldn‘t tell you for certain it was the first time. It was one of the two times that I definitely asked to speak to her.” The police did not permit Mayol to speak with the defendant.
During the colloquy at the suppression hearing, the hearing court indicated that the “main cases” it was interested in were People v Gursey (22 NY2d 224 [1968]) and People v Garofolo (46 NY2d 592 [1979]). In response to an argument raised by the prosecutor that “it would [have been] impossible for anyone to run out and cut the test off, tell [the defendant] to stop providing a sample,” the court stated that the People failed to adduce any testimony to establish that alleged fact. The court also stated that “[t]here was a denial of access to [sic] the lawyer to his client by the police department. That is proven beyond a reasonable doubt.” In an order datеd July 29, 2011, the hearing court granted that branch of the defendant‘s omnibus motion which was to suppress the results of the chemical breath test. The People appeal (see
On appeal, the People assert that the branch of the defendant‘s omnibus motion which was to suppress the results of the chemical breath test should have been denied because the defendant failed to invoke her limited right to counsel prior to consenting to the chemical breath test. The People argue that a defendant‘s attorney cannot direct that tests should not be administered unless the client confirms the directive. The
“Chemical breath tests to determine blood alcohol content . . . are an important investigative tool used by law enforcement in the effort to combat driving while intoxicated and related offenses” (People v Smith, 18 NY3d 544, 548 [2012]). “Any person who operates a motor vehicle in this state shall be deemed to have given consent” to, among other things, a chemical breath test to determine the alcoholic content of their blood, within certain time limits after being arrested for driving under the influence of alcohol (
Notably, a motorist does not have a constitutional right to refuse to consent to a chemical breath test (see People v Smith, 18 NY3d at 548; People v Shaw, 72 NY2d 1032 [1988]; People v Thomas, 46 NY2d 100, 108 [1978], appeal dismissed 444 US 891 [1979]). Moreover, the statutory right to refuse a test may be waived without an attorney‘s assistance (see
Possessing a “limited right to counsel” means that where a defendant is arrested for driving while under the influence of alcohol and asks to contact an attorney before responding to a request to take a chemical test, the police “may not, without
Applying these principles here, as the People correctly contend, there is no evidence in the record that the defendant personally requested to speak to an attorney prior to submitting to the breath test, and thus the limited right to counsel, first recognized in Gursey, was not triggered or violated (cf. People v Mora-Hernandez, 77 AD3d 531, 531 [2010] [suppressing results of breath test where “(p)olice ignored defendant‘s repeated requests for counsel prior to the administration of the test“]). The defendant concedes that she did not personally invoke the limited right to counsel by requesting to speak with counsel prior to the completion of the chemical breath test.
Turning from the limited right to counsel, we now consider whether, under the circumstances of this case, the defendant‘s state constitutional right to counsel attached prior to the administration of the chemical breath test. “New York has long viewed the right to counsel as a cherished and valuable protection that must be guarded with the utmost vigilance” (People v Lopez, 16 NY3d 375, 380 [2011]). “Thе indelible right to counsel arises from the provision of the State Constitution that guarantees due process of law, the right to effective assistance of counsel and the privilege against compulsory self-incrimination”
“[O]nce the police have been apprised that a lawyer has undertaken to represent a defendant in custody in connection with criminal charges under investigation, the person so held may not validly waive the assistance of counsel except in the presence of the lawyer” (People v Garofolo, 46 NY2d 592, 599 [1979]; see People v Grice, 100 NY2d at 320-321 [the right to counsel is indelible because once it attaches, interrogation is prohibited unless the right is waived in the presence of counsel]; People v Arthur, 22 NY2d 325, 329 [1968] [“once the police know or hаve been apprised of the fact that the defendant is represented by counsel or that an attorney has communicated with the police for the purpose of representing the defendant” the indelible right to counsel attaches regardless of the lack of a formal retainer agreement]; People v Gunner, 15 NY2d 226, 231-232 [1965]; People v Harris, 93 AD3d 58, 66 [2012]).
For example, in People v Garofolo (46 NY2d 592 [1979]), the defendant, a suspect in a homicide, waived his right to remain silent and made inculpatory statements to the police. Before the defendant‘s statements had been reduced to writing, the defendant‘s counsel had made repeated efforts to locate and speak with his client (see id. at 600-601). Defense counsel‘s efforts to locate the defendant were unsuccessful because, at the time, there was “no central pool of information of persons in the custody of the police department” (id. at 598). It took almost two hours for counsel to ascertain the defendant‘s whereabouts; at that point the defendant had already provided the police with a written confession (see id. at 598).
The Court of Appeals in Garofolo held that the police were required “to establish and maintain procedures which will
Here, the evidence adduced at the suppression hearing demonstrates that the defendant was in custody once she was arrested and transported to the police precinct (see People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970] [a suspect is deemed to be in custody when, a reasonable person, innocent of any crime, would nоt have believed she was free to leave the presence of the police]). Furthermore, the defendant‘s counsel appeared and actually entered the case at 3:31 a.m., when he informed the police that he represented the defendant. Thus, the defendant‘s indelible right to counsel attached at that point (see People v Grice, 100 NY2d at 324; People v West, 81 NY2d at 373-374), and any subsequent statements that the defendant may have made were rendered inadmissible at trial (see People v Garofolo, 46 NY2d at 599; People v Pinzon, 44 NY2d 458 [1978]). However, the evidence which the defendant sought to suppress was the result of the chemical breath test, not a statement.
The defendant advances the contention that once her attorney appeared in the case and instructed the police not to perform the chemical breath test, it was incumbent upon the People to inform her of counsel‘s instructions and to allow her to consult with counsel. The defendant argues that the People did not submit any evidence at the suppression hearing demonstrating that there was insufficient time to permit her to spеak with counsel, and that this failure constituted a deprivation of her right to counsel.
The defendant‘s contentions are analogous to arguments considered by our courts in cases where individuals have sought to apply the rules relating to the state constitutional right to
At an investigatory lineup, defense counsel‘s role is limited to being a passive observer; counsel may not actively participate in the procedure (see People v Hawkins, 55 NY2d at 485 [during an investigatory lineup, defense counsel plays the “relatively passive role of an observer“]). However, the role of defense counsel prior to the administration of a chemical breath test is not so passive. A defendant has a right to consult with counsel. Defense counsel serves as an advisor to a defendant as to whether a defendant ought to consent to the administration of such a test and the consequences of a consent or refusal.
The facts of this case can be сontrasted with those confronted by the Appellate Division, Fourth Department, in People v Pfahler (179 AD2d 1062 [1992]) and by the Appellate Term, First Department, in People v Meytin (30 Misc 3d 128[A], 2010 NY Slip Op 52276[U] [2010]).
In Pfahler, the Fourth Department held that the defendant‘s limited or qualified right to counsel was not violated:
“When defendant‘s attorney called the hospital and was informed that defendant was about to have a
blood test, the attorney did not ask to speak to defendant and did not object to the blood test. The uncontroverted hearing evidence establishes that defendant was told that his counsel had called before he submitted to the test. Inasmuch as defendant‘s only right in this context is the right to consult with counsel before deciding whether to submit to the test, there was no denial of defendant‘s right to counsel” (People v Pfahler, 179 AD2d at 1062 [emphasis added]).
Like the case at bar, defense counsel in Pfahler called and made contact with the police prior to the administration of a chemical breath test. However, Pfahler is distinguishable on two grounds: the attorney in that case did not object to the test and, critically, the defendant was told that his attorney had called before he willingly submitted to the test.
In Meytin, the defendant moved to suppress the results оf an intoxilyzer test. The evidence adduced at the suppression hearing showed that, prior to administering the test, defense counsel stated that the defendant should not be “dealt with or questioned” (People v Meytin, 30 Misc 3d 128[A], 2010 NY Slip Op 52276[U], *1 [2010]). Thereafter, the police informed the defendant that an attorney had called the police and stated that he was the defendant‘s attorney. However, the defendant did not request to speak with his attorney about whether he should consent to the sobriety tests and, therefore, it was determined that the defendant waived any qualified right to counsel. The order denying suppression was affirmed. Here, unlike in Meytin, the record is clear that the police did not inform the defendant that her attorney had appeared. Hence, we do not know whether the defendant here would have withdrawn her consent after consulting with her attorney.
The sui generis nature of this case requires us to examine the gap between Gursey and Garofolo. To that end, we are asked to consider whether, as the defendant contends, the New York Constitution must be intеrpreted so as to obligate the police to: inform a motorist in custody that an attorney has appeared in the matter on his or her behalf; inform a motorist that an attorney has requested that the motorist not be subjected to chemical testing; or make efforts to allow counsel to consult with a motorist prior to the commencement of such a chemical test. In addressing these contentions, this Court must balance the defendant‘s state constitutional right to counsel against the
It is well settled that when the police are aware that a suspect has counsel, the suspect‘s “right or access” to counsel cannot be deprived (People v LaClere, 76 NY2d at 674; see People v Blake, 35 NY2d at 338). The principles which underlie the indelible right to counsel—due process of law, the right to effective assistance of counsel, and the privilege against compulsory self-incrimination (see
Applying this standard to the facts at issue here, the evidence shows that during Mayol‘s initial phone call to the police precinct, he spoke to a police officer. This individual would have been expected to provide the hearing court with testimony as to the feasibility of informing the defendant, prior to the commencement of the chemical breath test, that her attorney had
The record demonstrates that at 3:31 a.m., Mayol notified the police over the telephone that he represented the defendant. This phone call was made prior to the commencement of the chemical breath test (i.e., when the defendant‘s breath was drawn at 3:39 a.m.). However, the record is barren as to whether the People made any efforts to inform the defendant that her counsel had appeared in the case. The defendant‘s right to counsеl was compromised inasmuch as the People were aware that the defendant‘s counsel had called, but the People failed to adduce any evidence to show that it was not reasonable to notify the defendant that her attorney had appeared. Therefore, we hold that the People‘s failure to so notify the defendant mandates the suppression of the chemical breath test results, since that test was commenced after defense counsel appeared in the case.
In view of the People‘s failure to produce the appropriate witness at the hearing, we need not reach the issue of whether the police are required to interrupt an ongoing chemical breath test when a motorist‘s attorney has appeared in a matter.
We note that in cases such as this which involve death or serious physical injury to a person other than the driver, the police may obtain a court order compelling a chemical test of a driver who refuses to submit to а test (see
Our dissenting colleague posits that once a motorist has agreed to submit to a chemical breath test, that consent cannot
Our dissenting colleague also notes that if this were a matter involving a defendant‘s uncounseled waiver of her privilege against self-incrimination, the evidence obtained from а defendant pursuant to a knowing waiver of that constitutional right, prior to counsel‘s entry in the matter, would not be subject to suppression (see People v Garofolo, 46 NY2d at 601-602). However, the evidence sought to be suppressed here is not the defendant‘s consent to submit to the test, which was given prior to counsel‘s appearance in the case, but rather the results of the chemical breath test which were obtained after counsel‘s appearance, and following the police‘s unexplained failure to notify the defendant of counsel‘s appearance.
We are cognizant that our holding here constitutes an extension of the principles set forth in Pinzon and Garofolo and their progeny insofar as we affirm the order granting suppression of the chemical breath test results on the ground that the defendant‘s state constitutional right to counsel was violated. Nevertheless, “[i]n this State, the right of a criminal defendant to interpose an attorney between himself and the sometimes awesome power of the sovereign has long been a cherished principle” (People v Settles, 46 NY2d at 160). Indeed, the ” ‘highest degree of [judicial] vigilance’ is required to ‘safeguard’ ” the state right to counsel (People v Harris, 77 NY2d 434, 439 [1991], quoting People v Cunningham, 49 NY2d 203, 207 [1980]).
ANGIOLILLO, J.P. (dissenting). On August 30, 2010, at 3:30 a.m., the defendant signed a consent form in which she agreed to submit to a chemical breath test to determine her blood alcohol content (hereinafter BAC). Her consent was valid under applicable statutory provisions and case law. Every motorist arrested for driving while intoxicated is deemed to consent to a chemical test (see
The evidence at the suppression hearing established that the defendant was the driver of a car which allegedly struck and killed a pedestrian in the early morning hours of August 30, 2010. Nassau County Police Officers Marlon Sanders and Michael Schneider responded to the scene. At 2:40 a.m., after conducting various field sobriety tests, the police officers arrested the defendant for driving while intoxicated and transported her to the Central Testing Section of the Nassau County Police Department (hereinafter NCPD) headquarters. A consent form signed by the defendant established that, at 3:30 a.m., she agreed to submit to a chemical breath test to determine her BAC. The form was initialed by Police Officer Sanders, identified as the arresting officer, and signed by Police Officer Michael Dyckman, identified as the technician for the chemical breath test.
After the defendant had signed the consent form, an attorney employed by her family, Anthony Mayol, called the NCPD and initially spoke with a switchboard operator. A recording of that segment of the call, starting at 3:31 and 53 seconds and ending at 3:32 and 21 seconds, was entered into evidence. During the recorded segment, Mayol identified himself by name, stated that he was calling on behalf of his client who had been ar-
At the suppression hearing, the People failed to offer any testimony from the sergeant who had spoken with Mayol, nor did they offer any evidence regarding the feasibility of informing the defendant between 3:32 a.m. and 3:39 a.m. that an attorney had called and was currently speaking with a member of the NCPD. The suppression court generally “credited the testimony of all witnesses . . . [in] all material aspects,” but made no express finding with regard to Mayol‘s equivocal testimony regarding his inability to recall if he requested to speak to the defendant during his first or second telephone call. The court granted that branch of the defendant‘s omnibus motion which was to suppress her chemical breath test results, finding that there had been “a denial of access to the lawyer.” I would reverse the order and hold that the results of the chemical breath test are admissible.
Chemical BAC testing does not violate any federal or state constitutional right. Testing of unconscious or incapacitated motorists without their express consent does not violate the cоnstitutional right to equal protection (see id. at 596). Compelling the motorist to undergo such testing does not violate the federal constitutional rights set forth in the
A defendant does, however, have a “qualified” statutory right to decline to voluntarily take a chemical test with the understanding that the refusal will result in the immediate suspension and ultimate revocation of his or her driver‘s license for one year and will permit the People to elicit evidence of such refusal at any subsequent criminal trial (People v Smith, 18 NY3d at 548; see
A defendant‘s “privilege of access to counsel” in this context was first addressed in People v Gursey (22 NY2d 224, 226 [1968]). In that case, the defendant, having “a particular attorney in mind,” asked to call his attorney twice prior to making his decision whether to submit to a chemical breath test (id. at 227). The Court of Appeals determined that the denial of his requests “violated his privilege of access to counsel” (id. at 228), holding that “law enforcement officials may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly with the matter at hand” (id. at 227). The Gursey Court factually distinguished a previous case in which a motorist had asked to consult with his lawyer on the ground that a defendant has “no . . . absolute right to refuse the test until a lawyer reaches the scene” (id. at 229, citing Matter of Finocchairo v Kelly, 11 NY2d 58, 61 [1962]; see Matter of Boyce v Commissioner of N.Y. State Dept. of Motor Vehs., 215 AD2d 476, 477 [1995]).
“The defendant has no constitutional right to refuse to consent to such a search. The right is entirely statutory and, by its terms, may be waived without an attorney‘s assistance. The
Sixth Amendment does not require that the defendant be afforded counsel at this stage in the proceedings. Although the defendant was called upon to waive a statutory right, it was not a critical stage in the proceedings within the meaning of theSixth Amendment because no judicial proceedings had been initiated against the defendant at that time. The defendant‘s suggestion that he should be afforded the same rights as a person placed in a police lineup is unavailing because the same rule applies to such proceedings; the right to counsel does not attach at a lineup prior to judicial intervention” (People v Shaw, 72 NY2d at 1033 [citations omitted]).
However, the Court noted that, “in this State, a defendant . . . generally has the right to consult with a lawyer before deciding whether to consent to a sobriety test, if he [or she] requests assistance of counsel” (id. at 1033-1034 [emphasis added]). In so holding, the Court apparently recognized that the Gursey rule was premised upon the right to counsel under the New York State Constitution (see
More recently, in People v Smith, the Court of Appeals characterized the holding in Gursey as providing “a limited right to counsel” which arises “if a defendant arrested for driving while under the influence of alcohol asks to contact an attorney before responding to a request to take a chemical test” (People v Smith, 18 NY3d at 549 [emphasis added]). The Court reiterated: “We have already rejected the notion that the police must notify a defendant concerning the limited right recognized in Gursey” (id. at 551, citing People v Shaw, 72 NY2d 1032 [1988]). “Where there has been a violation of the limited right to counsel recognized in Gursey, any resulting evidence may be
The limited right to counsel is invoked only upon an express request by the defendant to consult his or her attorney prior to making the decision whether to submit to a chemical BAC test or to exercise the qualified right to refuse (see People v Gursey, 22 NY2d at 228; People v Mora-Hernandez, 77 AD3d 531 [2010] [the defendant made repeated requеsts for counsel prior to the administration of the test]). A general request for an attorney is not sufficient to invoke the right (see People v Curkendall, 12 AD3d 710, 714-715 [2004] [limited right not invoked when the defendant agreed to submit to the test but made a general request for an attorney upon receiving Miranda warnings]; People v Vinogradov, 294 AD2d 708, 709 [2002] [post-Miranda refusal to talk without an attorney does not invoke the limited right to counsel with respect to a breathalyzer test]; People v Hart, 191 AD2d 991 [1993] [the defendant‘s statements that he should have counsel did not unequivocally inform the police of his intention to retain counsel or that he wanted to consult with an attorney before undertaking the sobriety tests]).
Here, as the majority acknowledges, there is no evidence that the defendant asked to speak with an attorney at any time. Thus, she did not invoke her limited right to counsel, as defined in Gursey, Shaw, and Smith (see People v Curkendall, 12 AD3d at 714-715; People v Vinogradov, 294 AD2d at 709). Clearly, this situation is governed by the rule set forth in Shaw: “[W]hen, as here, an attorney‘s assistance has not been requested, the fact that the defendant has made an uncounseled waiver of the statutory right to refuse the test, provides no basis for suppressing the results” (People v Shaw, 72 NY2d at 1034). Thus, the recоrd establishes that, at 3:30 a.m., the defendant validly waived her qualified statutory right to refuse the test, and her uncounseled waiver provides no basis for suppressing the test results.
More than two minutes after the defendant‘s valid waiver of her qualified statutory right to refuse, an attorney informed a member of the police department that he represented the defendant in custody. The relevant question at this point is whether the failure of the NCPD, between 3:32:21 a.m., and the taking of the defendant‘s breath sample at 3:39 a.m., to inform the defendant that her attorney had called, requires suppression of the breathalyzer results. I would hold that it does not.
The Court of Appeals has yet to consider a case involving an attorney‘s entry at the investigatory stage after the motorist
Nor has the Court of Appeals considered the interplay between the limited right to counsel and statutory authority for law enforcement to obtain a court order superseding the defendant‘s qualified right to refuse in a case involving death or serious physical injury. While I would agree with my colleagues in the majority that the nature of the alleged crime committed should not dictate the extent of a defendant‘s constitutional rights, this does not answer the question of whether a defendant has a constitutional right to counsel in this context in the first place.
In the absence of case law on point, the majority has taken guidance from decisions outside the area of law governing chemical BAC tests which concern the “indelible right to counsel” under the State Constitution with rеspect to a suspect‘s decision to waive his or her privilege against self-incrimination (People v Grice, 100 NY2d 318, 320 [2003]). In that context, the indelible right to counsel is invoked “before an action is commenced when . . . an attorney who is retained to represent the suspect enters the matter under investigation” by notifying the police of the representation (People v Grice, 100 NY2d at 321). As a corollary of this right, the police must “establish and maintain procedures which will insure that an attorney representing [a person in custody] may communicate with him [or her] and with the officials responsible for the investigation, without unreasonable delay” after the attorney has contacted the police (People v Garofolo, 46 NY2d 592, 600 [1979] [internal quotation marks omitted]; see People v Borukhova, 89 AD3d 194, 214-215 [2011]).
In my view, this line of cases has no application to the situation at hand involving a motorist‘s waiver of the qualified statutory right to refuse a chemical test. The indelible right to counsel is inconsistent with the statutory procedure allowing
“The indelible right to counsel arises from the provision of the State Constitution that guarantees due process of law, the right to effective assistance of counsel and the privilege against compulsory self-incrimination. The right is ‘indelible’ because once it ‘attaches,’ interrogation is prohibited unless the right is waived in the presence of counsel” (People v Grice, 100 NY2d at 320-321 [citations omitted; emphasis added]; see
NY Const, art I, § 6 ).“[A]bsent the advice of an attorney, the average person, unschooled in legal intricacies, might very well unwittingly surrender [his or her privilege against compulsory self-incrimination] when confronted with the coercive power of the State and its agents . . . Thus, our indelible right to counsel rule has developed to ensure that an individual‘s protection against self-incrimination is not rendered illusory during pretrial interrogation” (People v Hawkins, 55 NY2d 474, 485 [1982] [internal quotation marks omitted]).
“The rule that once a lawyer has entered the proceedings in connection with the charges under investigation, a person in custоdy may validly waive the assistance of counsel only in the presence of a lawyer breathes life into the requirement that a waiver of a constitutional right must be competent, intelligent and voluntary” (People v Hobson, 39 NY2d 479, 484 [1976]; see People v Cunningham, 49 NY2d 203, 208 [1980]).
Here, by contrast, compelling the submission to a chemical BAC test pursuant to
Further, even if we were to take guidance from Garofolo and other cases concerning the indelible right to counsel, the result reached by the majority does not necessarily follow. If this were a matter involving a defendant‘s uncounseled waiver of his or her privilege against self-incrimination, the remedy for an unreasonable delay in affording access to counsel is the suppression of evidence obtained from the defendant‘s uncounseled waiver of the constitutional right to remain silent (see e.g. People v Garofolo, 46 NY2d at 600-601 [the defendant waived his right to remain silent and gave a written statement to the police after entry of counsel in the matter]). Even in such a circumstance, evidence obtained from a defendant pursuant to an intelligent and knowing waiver of a constitutional right prior to counsel‘s entry in the investigation is not subject to suppression (see id.
The majority also draws an analogy to cases involving the state constitutional right of access to counsel during preaccusatory, investigative lineups. In that context, as here, although the accused does not have a state or federal constitutional right to counsel in general (see People v Wilson, 89 NY2d 754, 758 [1997]; People v Hawkins, 55 NY2d at 487), where the police have been notified that an attorney represents the accused, “the police may not proceed with the lineup without at least apprising the defendant‘s lawyer of the situation and affording the lawyer a reasonable opportunity to appear” (People v Mitchell, 2 NY3d 272, 274-275 [2004]; see People v Wilson, 89 NY2d at 758-759; People v LaClere, 76 NY2d 670, 672-673 [1990]). The right to counsel attaches in that situation even though defense counsel is effectively limited to “the relatively passive role of an observer” during the lineup (People v Hawkins, 55 NY2d at 485). However, in a lineup, unlike here, the police are not acting under a two-hour statutory constraint. Moreover, a defendant has no right to refuse to participate in a lineup, while the defendant here had the qualified statutory right to refuse the chemical BAC test. Allowing an attorney to enter the case after the defendant effectively waived the qualified statutory right affords the defendant the opportunity to reconsider and revoke that previous valid waiver. In my opinion, the analogy ends there.
In conclusion, the rule stated by the majority, allowing a motorist to withdraw a previous valid waiver, challenges the clear pronouncement by the Court of Appeals that “an uncounseled waiver of the statutory right to refuse the test, provides no basis for suppressing the results” (People v Shaw, 72 NY2d at 1034). It further challenges the holding that the limited right to counsel must be invoked “before responding to a request to take a chemical test” (People v Smith, 18 NY3d at 549 [emphasis added]; see People v Shaw, 72 NY2d at 1034 [“before deciding“]). The rule stated by the majority leads to the inconsistent result that evidence obtained pursuant to a valid, uncоunseled waiver of the constitutional right to remain silent is not subject to
Accordingly, I would reverse the order of the Supreme Court and deny that branch of the defendant‘s omnibus motion which was to suppress the test results.
Dickerson and Miller, JJ., concur with Leventhal, J.; Angiolillo, J.P., dissents in a separate opinion.
Ordered that the order is affirmed.