People v. Enrique

165 A.D.2d 13, 566 N.Y.S.2d 201, 1991 N.Y. App. Div. LEXIS 886
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJanuary 31, 1991
StatusPublished
Cited by24 cases

This text of 165 A.D.2d 13 (People v. Enrique) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Enrique, 165 A.D.2d 13, 566 N.Y.S.2d 201, 1991 N.Y. App. Div. LEXIS 886 (N.Y. Ct. App. 1991).

Opinions

OPINION OF THE COURT

Sullivan, J.

At issue is whether a defendant’s constitutional right to the assistance of counsel was violated by a trial court’s order banning consultation between him and his attorney during a luncheon recess called during the course of defendant’s cross-examination.

The evidence at trial shows that at approximately 10:55 a.m. on February 26, 1986, Police Officer Winfred Maxwell arrived at 155 Audubon Avenue in Manhattan with several other officers, including James Doyle, in response to a request earlier that morning by Sharif Esmat, the manager of the building, to evict squatters, whom he said had guns. Before entering the building, Maxwell again met with Esmat, who introduced him to Jose Vilches, a handyman in the building.

[15]*15Vilches then led Maxwell, Doyle and the other officers to a basement apartment. As they approached the apartment door, the officers drew their guns, and one of them announced, "police”. Within a matter of seconds, the door was opened by a man, who, after being ordered not to move, allowed the officers into the apartment. As Officer Doyle entered, he saw another man, later identified as Habir Pena, standing approximately 10 to 13 feet away, holding a gun. When Pena stepped out of sight momentarily, the officers moved towards the back of the apartment and observed defendant, standing about a foot away from Pena. An "instant” after being first observed, defendant threw an object, described as a six-inch long, clear plastic bag with a white "brick” inside it, across the room and onto a chair 10 feet away in the adjoining room.

As the other officers placed defendant, Pena and the man who opened the door, Victor Camacho, against the wall, Maxwell recovered the plastic bag, which was found to contain 4% ounces of cocaine. The gun which Officer Doyle had seen in Pena’s hand — a loaded .357 Magnum — was found in a folded-up cot, alongside of which Pena had been standing. Defendant, Camacho, Pena and another occupant of the apartment, Bartolo Della Cruz, who had emerged from a back room where, apparently, he had been sleeping, were all arrested and charged with possessing cocaine. Defendant told the officers that he lived in another apartment in the building.

Defendant testified that he went to the apartment in question to assist Camacho, an "acquaintance”, in finding another apartment. Ten minutes after his arrival, as he was standing at the door about to leave, the police entered and told him, "Don’t move. Put your hands up.” Defendant did not see anyone holding a gun; nor did he at any time possess the bag with the cocaine. Vilches, who testified in defendant’s behalf, confirmed that defendant, whom he had never seen before, was exiting the apartment at the time the police entered and that he was not holding anything in his hands.

During the course of defendant’s cross-examination, at approximately 12:50 p.m., the court declared a luncheon recess, instructing the jurors to return at 2:15 p.m. After the jurors had left, defense counsel asked, "[I]s the Court telling me I can’t speak to [defendant] now, or can I speak to him?” The court responded by advising counsel that it was within its discretion to prohibit consultation and that if he wished "to tell [the court] what you would like to say or how long you [16]*16would like to say it,” it "might entertain that”. Counsel answered that he would "rather not” reveal that information, whereupon the court ruled that it would not allow him to speak to defendant.

Later, after the luncheon recess, in response to the court’s request for any further comments on its ruling, counsel argued, "[W]e were ready to break for lunch, and I would have had the benefit of some time between ten to one and 2:15 to speak to [defendant].” Counsel then recalled that the court had asked "what I wanted to speak to him about.” Although protesting that he "still [didn’t] want to get into it,” counsel stated that one topic was "strictly a procedural item on how to conduct himself as a witness.” While he had discussed the matter before, counsel stated, he wanted to "reinforce” his instructions "because of the obvious language difficulties.” Counsel then stated that the other matter he wished to discuss was "substantive”, involving "something that [defendant] did testify to earlier but nothing that I am anticipating [will] be raised in the future.” Acknowledging that he was being "a little cryptic”, counsel stated, "[t]hat is the best that I am willing to do at this point”, and took exception to the court’s ruling. The court justified its ruling with the explanation that "counsel cannot impart to his client anything with regard to [an] anticipated line of questioning. I don’t think it is appropriate.” The jurors returned to the courtroom at 2:54 p.m. and defendant’s cross-examination was continued.

The jury found defendant guilty of criminal possession of a controlled substance in the first degree. Among the issues he raises on appeal is the claim that he was deprived of the effective assistance of counsel as a result of the court’s injunction to counsel not to speak to him during the luncheon recess called in the midst of his cross-examination.

The Sixth Amendment of the US Constitution provides that in all criminal prosecutions the accused shall enjoy the right "to have the Assistance of Counsel for his defence.” The Supreme Court, in interpreting that right, has noted that a defendant in a criminal proceeding "requires the guiding hand of counsel at every step in the proceedings against him.” (Powell v Alabama, 287 US 45, 69; see also, Argersinger v Hamlin, 407 US 25, 31-37; Gideon v Wainwright, 372 US 335, 343-345.) That the opportunity for unimpeded discourse between lawyer and client is an essential element of the right to counsel is too obvious to require extended discussion. Yet, as courts have recognized, the right to counsel with one’s attor[17]*17ney is not absolute; it may be reasonably restricted to enable a court, in its discretion, to control the conduct of a trial. (See, People v Hilliard, 73 NY2d 584, 586; see also, People v Narayan, 58 NY2d 904, 906.)

The Supreme Court, as recently as 1989, and in an earlier 1976 case, has defined the limit of the scope of that discretion. In Geders v United States (425 US 80 [1976]), the court reversed a conviction based on a trial court’s ban of all consultation between the defendant and his lawyer during a 17-hour overnight recess between the defendant’s direct and cross-examination, holding that such an order "impinged upon [the defendant’s] right to the assistance of counsel guaranteed by the Sixth Amendment.” (Supra, at 91.) Recognizing a trial court’s concern with the possibility of improper influence on the defendant-witness’s testimony, the court suggested a number of ways, "short of putting a barrier between client and counsel for so long a period as 17 hours,” to deal with the problem (supra, at 89). Expressly left unanswered, however, was the question of whether a ban on consultation during a "brief routine recess” in the course of a defendant’s testimony would be permitted. (Supra, at 89, n 2, 91.)

That question was reached in Perry v Leeke (488 US 272 [1989]), which held that a ban on consulting with anyone, including his attorney, during a 15-minute afternoon recess, called at the conclusion of a defendant’s direct examination, did not violate his Sixth Amendment right to the assistance of counsel.

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Bluebook (online)
165 A.D.2d 13, 566 N.Y.S.2d 201, 1991 N.Y. App. Div. LEXIS 886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-enrique-nyappdiv-1991.