OPINION OF THE COURT
Friedmann, J.
The issue presented on this appeal is whether counsel’s declaration of continued representation was sufficient to invoke a defendant’s right to counsel, precluding the Queens police officers who heard the declaration, and who knew that counsel was representing the defendant on related charges in Brooklyn which were dismissed, from legally obtaining a renunciation of the defendant’s right to counsel in the absence of counsel.
The record of the Wade hearing reveals that on June 24, 1990, the defendant and three other individuals were arrested in Brooklyn and charged with criminal possession of stolen property, i.e., a car, and criminal possession of a weapon, i.e., a .30 caliber carbine rifle. A day or two after the defendant was arraigned, ballistics tests revealed that the rifle was the weapon that had been used in the June 24, 1990 robbery and murder of a visiting Russian physician who had been staying with some friends in Forest Hills, Queens. Queens Detective Dennis Salzmann, who was in charge of the murder investigation, went to the defendant’s next scheduled court appearance in Brooklyn, on June 29, 1990, in order to question him about the murder and place him in a lineup. On that occasion, the defendant’s Legal Aid lawyer, Norman Berle — who was aware that four Queens detectives were in the Brooklyn Criminal Court to talk to his' client, but was not told why — advised Salzmann that he represented the defendant and that he would not allow the police to question his client or put him in a lineup in Berle’s absence.
The case was adjourned to the afternoon, when, Berle learned, the Brooklyn prosecutor intended to move to dismiss the weapon and stolen car charges against his client. Berle then went to "the pens”, where the defendant told him that he wanted Berle to continue to represent him "no matter what”, and that he did not wish to speak to the Queens detectives or to participate in a lineup without Berle being present. When the defendant’s Brooklyn case was called later that afternoon the defendant was not produced. However, the prosecutor moved to dismiss the charges (as well as additional pending [166]*166charges from an unrelated open case), and the Criminal Court granted the motion. On that occasion, Berle reiterated — on the record, in the presence of the court, the Assistant District Attorney, and the Queens detectives — that it was the defendant’s wish that the police were not to question him or put him in a lineup without contacting Berle. Berle testified at the Wade hearing that he told Detective Salzmann three separate times that his client should not be put in a lineup unless Berle was present. According to Berle, Salzmann assured him on all three occasions that he would not put the defendant in a lineup without notifying counsel. During his hearing testimony, Salzmann acknowledged that Berle had repeatedly announced that he represented the defendant, but Salzmann averred that he himself had remained (secretly, apparently) of the opinion that Berle’s representation of the defendant had terminated when the court dismissed the charges in Brooklyn.
Notwithstanding Berle’s importunings and Salzmann’s assurances, the detective put the defendant in a lineup that same evening without attempting to contact Berle, and the defendant was identified by one of the surviving robbery victims as a participant in the Queens crime. The defendant testified at the hearing that at the Queens precinct he had insisted upon his right to counsel, even though Salzmann neither advised him of this right nor made any effort to comply with the defendant’s requests. Salzmann, on the other hand, testified that he had asked the defendant if he wanted an attorney at the lineup, but that the defendant had responded that "he had none”.
After the defendant was indicted for murder, the defense moved to suppress the lineup identification as having been obtained in violation of the defendant’s right to counsel. Following a hearing, the court (Lakritz, J.) credited Salzmann’s testimony and declined to suppress the lineup identification, finding that the defendant’s right to counsel had ceased when the Brooklyn charges were dropped, and that Berle’s repeated declarations that he continued to represent the defendant were of no effect because the "prior attorney-client relationship between the defendant and Mr. Berle had been extinguished by operation of law upon the dismissal of the [Brooklyn] charges”. The court reasoned that because Berle had not been judicially assigned in connection with the Queens murder investigation the defendant was no longer represented by counsel.
We conclude that the Supreme Court erred in not granting the defendant’s motion to suppress the lineup identification. In [167]*167our system, lawyers represent clients, not cases, so that the dismissal of the Brooklyn charges had no impact upon the relationship between Berle and the defendant. In addition, there is no authority for the proposition that Berle could only continue to represent the defendant in the Queens matter subject to a new judicial assignment. Rather, as in any lawyer-client relationship, Berle represented the defendant if Berle and the defendant agreed that he did.
Furthermore, it is worthy of note that the dismissed Brooklyn charges and the newly formulated Queens charges arose out of the same incident and were indeed different aspects of the same case (cf., People v Robles, 72 NY2d 689). In fact, at the Queens precinct, the defendant was interrogated, inter alia, about "what happened in the [stolen] car”, and the criminal possession of a weapon count that was dismissed in Brooklyn was resurrected in the Queens indictment. As this Court has ruled, "if the right to counsel attaches in one case, it also attaches in any related case arising out of the same criminal transaction” (People v Horn, 161 AD2d 603, 604).
In any event, it is well established that "the right to counsel attaches indelibly where an uncharged individual has actually retained a lawyer in the matter at issue” (People v West, 81 NY2d 370, 373-374). Here, Berle testified that the defendant had asked him in "the pens” to continue to represent him "no matter what”, and that Berle had agreed.
Thereafter, Berle testified that he made three separate declarations to Detective Salzmann, among others, that he was the defendant’s attorney, and that the defendant was not to be questioned or put in a lineup in the absence of counsel. One of these announcements was made on the record in open court, in the presence of the Judge, the prosecutor, and the Queens detectives on the occasion of the dismissal of the Brooklyn charges. Although the dissent makes much of the fact that the defendant did not personally corroborate Berle’s announced representation of him, he could hardly have done so when he was not produced in court.
Detective Salzmann acknowledged that he had heard Berle’s repeated announcements that he represented the defendant and wished to be present during any lineup and/or interrogation involving his client. Notwithstanding this fact, Salzmann made no effort to contact Berle before displaying the defendant in a lineup. Instead, Salzmann testified that he invited a so-called waiver of the defendant’s right to counsel by asking the defendant "if he wanted an attorney present” during the [168]*168lineup, this despite the fact that Salzmann knew the identity of the defendant’s actual
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION OF THE COURT
Friedmann, J.
The issue presented on this appeal is whether counsel’s declaration of continued representation was sufficient to invoke a defendant’s right to counsel, precluding the Queens police officers who heard the declaration, and who knew that counsel was representing the defendant on related charges in Brooklyn which were dismissed, from legally obtaining a renunciation of the defendant’s right to counsel in the absence of counsel.
The record of the Wade hearing reveals that on June 24, 1990, the defendant and three other individuals were arrested in Brooklyn and charged with criminal possession of stolen property, i.e., a car, and criminal possession of a weapon, i.e., a .30 caliber carbine rifle. A day or two after the defendant was arraigned, ballistics tests revealed that the rifle was the weapon that had been used in the June 24, 1990 robbery and murder of a visiting Russian physician who had been staying with some friends in Forest Hills, Queens. Queens Detective Dennis Salzmann, who was in charge of the murder investigation, went to the defendant’s next scheduled court appearance in Brooklyn, on June 29, 1990, in order to question him about the murder and place him in a lineup. On that occasion, the defendant’s Legal Aid lawyer, Norman Berle — who was aware that four Queens detectives were in the Brooklyn Criminal Court to talk to his' client, but was not told why — advised Salzmann that he represented the defendant and that he would not allow the police to question his client or put him in a lineup in Berle’s absence.
The case was adjourned to the afternoon, when, Berle learned, the Brooklyn prosecutor intended to move to dismiss the weapon and stolen car charges against his client. Berle then went to "the pens”, where the defendant told him that he wanted Berle to continue to represent him "no matter what”, and that he did not wish to speak to the Queens detectives or to participate in a lineup without Berle being present. When the defendant’s Brooklyn case was called later that afternoon the defendant was not produced. However, the prosecutor moved to dismiss the charges (as well as additional pending [166]*166charges from an unrelated open case), and the Criminal Court granted the motion. On that occasion, Berle reiterated — on the record, in the presence of the court, the Assistant District Attorney, and the Queens detectives — that it was the defendant’s wish that the police were not to question him or put him in a lineup without contacting Berle. Berle testified at the Wade hearing that he told Detective Salzmann three separate times that his client should not be put in a lineup unless Berle was present. According to Berle, Salzmann assured him on all three occasions that he would not put the defendant in a lineup without notifying counsel. During his hearing testimony, Salzmann acknowledged that Berle had repeatedly announced that he represented the defendant, but Salzmann averred that he himself had remained (secretly, apparently) of the opinion that Berle’s representation of the defendant had terminated when the court dismissed the charges in Brooklyn.
Notwithstanding Berle’s importunings and Salzmann’s assurances, the detective put the defendant in a lineup that same evening without attempting to contact Berle, and the defendant was identified by one of the surviving robbery victims as a participant in the Queens crime. The defendant testified at the hearing that at the Queens precinct he had insisted upon his right to counsel, even though Salzmann neither advised him of this right nor made any effort to comply with the defendant’s requests. Salzmann, on the other hand, testified that he had asked the defendant if he wanted an attorney at the lineup, but that the defendant had responded that "he had none”.
After the defendant was indicted for murder, the defense moved to suppress the lineup identification as having been obtained in violation of the defendant’s right to counsel. Following a hearing, the court (Lakritz, J.) credited Salzmann’s testimony and declined to suppress the lineup identification, finding that the defendant’s right to counsel had ceased when the Brooklyn charges were dropped, and that Berle’s repeated declarations that he continued to represent the defendant were of no effect because the "prior attorney-client relationship between the defendant and Mr. Berle had been extinguished by operation of law upon the dismissal of the [Brooklyn] charges”. The court reasoned that because Berle had not been judicially assigned in connection with the Queens murder investigation the defendant was no longer represented by counsel.
We conclude that the Supreme Court erred in not granting the defendant’s motion to suppress the lineup identification. In [167]*167our system, lawyers represent clients, not cases, so that the dismissal of the Brooklyn charges had no impact upon the relationship between Berle and the defendant. In addition, there is no authority for the proposition that Berle could only continue to represent the defendant in the Queens matter subject to a new judicial assignment. Rather, as in any lawyer-client relationship, Berle represented the defendant if Berle and the defendant agreed that he did.
Furthermore, it is worthy of note that the dismissed Brooklyn charges and the newly formulated Queens charges arose out of the same incident and were indeed different aspects of the same case (cf., People v Robles, 72 NY2d 689). In fact, at the Queens precinct, the defendant was interrogated, inter alia, about "what happened in the [stolen] car”, and the criminal possession of a weapon count that was dismissed in Brooklyn was resurrected in the Queens indictment. As this Court has ruled, "if the right to counsel attaches in one case, it also attaches in any related case arising out of the same criminal transaction” (People v Horn, 161 AD2d 603, 604).
In any event, it is well established that "the right to counsel attaches indelibly where an uncharged individual has actually retained a lawyer in the matter at issue” (People v West, 81 NY2d 370, 373-374). Here, Berle testified that the defendant had asked him in "the pens” to continue to represent him "no matter what”, and that Berle had agreed.
Thereafter, Berle testified that he made three separate declarations to Detective Salzmann, among others, that he was the defendant’s attorney, and that the defendant was not to be questioned or put in a lineup in the absence of counsel. One of these announcements was made on the record in open court, in the presence of the Judge, the prosecutor, and the Queens detectives on the occasion of the dismissal of the Brooklyn charges. Although the dissent makes much of the fact that the defendant did not personally corroborate Berle’s announced representation of him, he could hardly have done so when he was not produced in court.
Detective Salzmann acknowledged that he had heard Berle’s repeated announcements that he represented the defendant and wished to be present during any lineup and/or interrogation involving his client. Notwithstanding this fact, Salzmann made no effort to contact Berle before displaying the defendant in a lineup. Instead, Salzmann testified that he invited a so-called waiver of the defendant’s right to counsel by asking the defendant "if he wanted an attorney present” during the [168]*168lineup, this despite the fact that Salzmann knew the identity of the defendant’s actual attorney and was aware that he should not have been negotiating directly with a defendant who was represented by counsel (see, e.g., People v West, supra; People v Skinner, 52 NY2d 24, 28; People v Coleman, 43 NY2d 222; People v Hobson, 39 NY2d 479).
We find that following Berle’s formal announcements that he was the defendant’s attorney, the defendant’s right to counsel indelibly attached, and the defendant could not thereafter waive it without Berle being present (see, e.g., People v LaClere, 76 NY2d 670; People v Coates, 74 NY2d 244; People v Ermo, 47 NY2d 863; People v Paulin, 25 NY2d 445, 450; People v Dorant, 207 AD2d 797; People v Davis, 172 AD2d 555). On the facts presented, the defendant’s subsequent waiver/ renunciation of his right to counsel should not have been sought and was without legal effect because the waiver was obtained in the absence of counsel. As the Court wrote in People v Hobson (supra, at 481-482): "Once a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer (People v Arthur, 22 NY2d 325, 329). Any statements elicited by an agent of the State, however subtly, after a purported 'waiver’ obtained without the presence or assistance of counsel, are inadmissible. Since the purported 'waiver’ of defendant’s right to counsel was obtained in the absence of his lawyer * * * his statements were inadmissible and should have been suppressed”. Similarly, because here the defendant’s right to counsel had indelibly attached, no uncounseled waiver of counsel was permissible (compare, People v Coleman, supra), and the identification obtained in violation of that right should have been suppressed (see, e.g., People v LaClere, supra, at 672-673; see also, People v Thomas, 76 NY2d 902, affg 155 AD2d 706; People v Coates, supra).
Because the lineup herein resulted in the only identification testimony linking the defendant to the commission of the crime, the error cannot be considered harmless (see, People v Jackson, 74 NY2d 787). Accordingly, the defendant’s conviction must be reversed, on the law, the branch of the defendant’s omnibus motion which was to suppress the lineup identification granted, and a new trial ordered. Before the new trial, however, the People are entitled to a hearing at which they should be given the opportunity to establish an independent source for the in-court identification testimony of the witness [169]*169who viewed the lineup and positively identified the defendant (see, People v Jackson, supra; People v Crandall, 69 NY2d 459).