People v. Narayan

88 A.D.2d 622, 449 N.Y.S.2d 1008, 1982 N.Y. App. Div. LEXIS 16826

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 1982
• Status: Published

Opinions

— Appeal by defendant from a judgment of the Supreme Court, Queens County (Balbach, J.), rendered August 12, 1976, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. By order dated August 18,1980, this court reversed the judgment (Martuscello, J., dissenting), on the law, and ordered a new trial (People v Narayan, 76 AD2d 604). On October 29, 1981, the Court of Appeals reversed the order of this court, reinstated defendant’s conviction, and remitted the case to this court for further consideration (People v Narayan, 54 NY2d 106). Judgment affirmed. The facts of this case are fully set forth in this court’s opinion (per Gibbons, J.), issued upon the defendant’s direct appeal. In our view, the trial court’s denial of defense counsel’s request to confer with his client on June 15,1976, did not, standing alone, rise to the level of reversible error. Within a very short time the same morning, the trial court sua sponte reversed itself and permitted the defendant and counsel to confer, so that any alleged interference with their right to consult was minimal. Our distinguished dissenting colleague disagrees, reasoning that “[s]ince inquiry into the special and privileged relationship existing between attorney arid client is precluded, it is not possible to ascertain with any degree of certitude what they may have discussed in relation to the defense of the charge during the period when access was prevented, nor how crucial such consultations could have been.” Carried to its logical conclusion, however, this analysis would make virtually any interruption of access between an attorney and his client, no matter how brief, reversible error per se, since no inquiry could ever be made into what might have been discussed had unrestricted access been allowed. We are not persuaded that this is the law for, if it were, the Court of Appeals undoubtedly would have ordered a new trial in this case based upon the interruption of access which occurred on June 15, and which was duly protested. The fact the Court of Appeals did not order a new trial is evidence that the broad rule which the dissent proposes by implication is not the law of this State. It is also not without significance that in Geders v United States (425 US 80, 91), the leading case in the area, the Supreme Court refrained from announcing any such sweeping rule, but held only that “an order preventing [a defendant] from consulting his counsel ‘about anything’ during a 17-hour overnight recess between his direct- and cross-examination impinged upon his right to the assistance of counsel guaranteed by the Sixth Amendment.” We therefore reject the notion that every restriction upon a defendant’s access to his attorney constitutes reversible error per se. Rather, we adopt the view that each case must be judged on its own facts. In the case at bar, the June 15 ruling was of very limited duration and effect, and we note additionally that, unlike in Geders {supra), the court here did not prohibit all conversation but only discussion of the defendant’s testimony. In these circumstances, we find no error of law requiring reversal. Finally, as to the events of June 14, 1976, we decline to exercise our interest of justice jurisdiction to review the trial court’s ruling to which no objection was raised. Accordingly, we affirm. Mollen, P. J., Damiani and Weinstein, JJ., concur.