People v. Carracedo

214 A.D.2d 404, 624 N.Y.S.2d 601, 1995 N.Y. App. Div. LEXIS 4382

Opinions

Appeal from judgment, Supreme Court, Bronx County (Frank Torres, J., at suppression hearing; Gerald Sheindlin, J., at jury trial and sentence), rendered August 10, 1990, convicting defendant of murder in the second degree, held in abeyance, and the matter remanded to the Supreme Court for a de novo combined Wade/Mapp/Huntley hearing.

The hearing court’s order banning consultation between defendant and his counsel during an overnight recess in the suppression hearing, a period when an accused would normally confer with counsel, was in violation of defendant’s Sixth Amendment right to counsel (Geders v United States, 425 US 80; see, People v Enrique, 165 AD2d 13, affd 80 NY2d 869). We note that there is no distinction between a defendant’s right to counsel at trial and at a pretrial suppression hearing, as a defendant is entitled to have a pretrial suppression hearing conducted "with full respect for his right to counsel” (People v Hodge, 53 NY2d 313, 320). We also agree with the dissent that the error does not withstand harmless error analysis. We disagree with the dissent however in its view that the remedy is a remand for a new trial. The suppression hearing was a discrete proceeding and the remand that we order for a suppression hearing de novo fully addresses any constitutional deprivation defendant may have suffered at the hearing by virtue of the limitation imposed on his right to consult with counsel.

We hold the appeal in abeyance pending the determination of the suppression motion after a new hearing. Concur—Sullivan, Wallach and Nardelli JJ.