Rogers-Bartolomeo rule in New York

1996As the hearing court noted in its decision, the “sole argument advanced by the defendant” in support of his application to suppress his statements was “that the statements were allegedly obtained in violation of his constitutionally protected right to counsel, as codified by the Rogers-Bartolomeo rule (48 NY2d [167]; 53 NY2d 225 )”.

1996As the hearing court noted in its decision, the “sole argument advanced by the defendant” in support of his application to suppress his statements was “that the statements were allegedly obtained in violation of his constitutionally protected right to counsel, as codified by the Rogers-Bartolomeo rule (48 NY2d [167]; 53 NY2d 225 )”.

1990Thus, in People v Medina ( 146 AD2d 344 , affd on other grounds 76 NY2d 331 ), it was held that the question of whether a defendant’s right to counsel had attached under the Rogers-Bartolomeo rule (People v Rogers, 48 NY2d 167 ; People v Bartolomeo, 53 NY2d 225 ) was a legal issue and properly withheld from the jury.

1990Thus, in People v Medina ( 146 AD2d 344 , affd on other grounds 76 NY2d 331 ), it was held that the question of whether a defendant’s right to counsel had attached under the Rogers-Bartolomeo rule (People v Rogers, 48 NY2d 167 ; People v Bartolomeo, 53 NY2d 225 ) was a legal issue and properly withheld from the jury.

1985The Rogers-Bartolomeo rule does not apply to a suspect who is not in custody (People v Torres, 97 AD2d 802 ; People v Bertolo, 102 AD2d 193, 203 , lv granted 63 NY2d 680 ).

1985The Rogers-Bartolomeo rule does not apply to a suspect who is not in custody (People v Torres, 97 AD2d 802 ; People v Bertolo, 102 AD2d 193, 203 , lv granted 63 NY2d 680 ).

1990Thus, in People v Medina ( 146 AD2d 344 , affd on other grounds 76 NY2d 331 ), it was held that the question of whether a defendant’s right to counsel had attached under the Rogers-Bartolomeo rule (People v Rogers, 48 NY2d 167 ; People v Bartolomeo, 53 NY2d 225 ) was a legal issue and properly withheld from the jury.

1990Thus, in People v Medina ( 146 AD2d 344 , affd on other grounds 76 NY2d 331 ), it was held that the question of whether a defendant’s right to counsel had attached under the Rogers-Bartolomeo rule (People v Rogers, 48 NY2d 167 ; People v Bartolomeo, 53 NY2d 225 ) was a legal issue and properly withheld from the jury.

1989Although the Court of Appeals decisions interpreting the Rogers-Bartolomeo doctrine "with their emphasis upon the knowledge available to the police, implicitly recognize that there are practical limitations to the obligations that can be imposed upon the investigating authorities,” those decisions also reflect a concern "that a right known to exist or the existence of which could easily be ascertained not be ignored.” (People v Lucarano, 61 NY2d, at 147 , supra.) Further, the court has made clear that the value of the individual’s right to counsel "far exceeds the inconvenience caused by requi

1989Although the Court of Appeals decisions interpreting the Rogers-Bartolomeo doctrine "with their emphasis upon the knowledge available to the police, implicitly recognize that there are practical limitations to the obligations that can be imposed upon the investigating authorities,” those decisions also reflect a concern "that a right known to exist or the existence of which could easily be ascertained not be ignored.” (People v Lucarano, 61 NY2d, at 147 , supra.) Further, the court has made clear that the value of the individual’s right to counsel "far exceeds the inconvenience caused by requi

1985This argument is without merit since it cannot be said that County Court’s determination that defendant was not in custody at the time when he made the statement is erroneous as a matter of law (see, People v Yukl, 25 NY2d 585, 588 , cert denied 400 US 851 ), since the Rogers-Bartolomeo rule (People v Bartolomeo, 53 NY2d 225 ; People v Rogers, 48 NY2d 167 ) does not apply if a suspect, such as defendant, is not in custody at the time of questioning (see, People v Hauswirth, 89 AD2d 357 , affd 60 NY2d 904 ).

1985This argument is without merit since it cannot be said that County Court’s determination that defendant was not in custody at the time when he made the statement is erroneous as a matter of law (see, People v Yukl, 25 NY2d 585, 588 , cert denied 400 US 851 ), since the Rogers-Bartolomeo rule (People v Bartolomeo, 53 NY2d 225 ; People v Rogers, 48 NY2d 167 ) does not apply if a suspect, such as defendant, is not in custody at the time of questioning (see, People v Hauswirth, 89 AD2d 357 , affd 60 NY2d 904 ).

1985This argument is without merit since it cannot be said that County Court’s determination that defendant was not in custody at the time when he made the statement is erroneous as a matter of law (see, People v Yukl, 25 NY2d 585, 588 , cert denied 400 US 851 ), since the Rogers-Bartolomeo rule (People v Bartolomeo, 53 NY2d 225 ; People v Rogers, 48 NY2d 167 ) does not apply if a suspect, such as defendant, is not in custody at the time of questioning (see, People v Hauswirth, 89 AD2d 357 , affd 60 NY2d 904 ).

1985This argument is without merit since it cannot be said that County Court’s determination that defendant was not in custody at the time when he made the statement is erroneous as a matter of law (see, People v Yukl, 25 NY2d 585, 588 , cert denied 400 US 851 ), since the Rogers-Bartolomeo rule (People v Bartolomeo, 53 NY2d 225 ; People v Rogers, 48 NY2d 167 ) does not apply if a suspect, such as defendant, is not in custody at the time of questioning (see, People v Hauswirth, 89 AD2d 357 , affd 60 NY2d 904 ).

1985This argument is without merit since it cannot be said that County Court’s determination that defendant was not in custody at the time when he made the statement is erroneous as a matter of law (see, People v Yukl, 25 NY2d 585, 588 , cert denied 400 US 851 ), since the Rogers-Bartolomeo rule (People v Bartolomeo, 53 NY2d 225 ; People v Rogers, 48 NY2d 167 ) does not apply if a suspect, such as defendant, is not in custody at the time of questioning (see, People v Hauswirth, 89 AD2d 357 , affd 60 NY2d 904 ).

1985This argument is without merit since it cannot be said that County Court’s determination that defendant was not in custody at the time when he made the statement is erroneous as a matter of law (see, People v Yukl, 25 NY2d 585, 588 , cert denied 400 US 851 ), since the Rogers-Bartolomeo rule (People v Bartolomeo, 53 NY2d 225 ; People v Rogers, 48 NY2d 167 ) does not apply if a suspect, such as defendant, is not in custody at the time of questioning (see, People v Hauswirth, 89 AD2d 357 , affd 60 NY2d 904 ).

1990Thus, in People v Medina ( 146 AD2d 344 , affd on other grounds 76 NY2d 331 ), it was held that the question of whether a defendant’s right to counsel had attached under the Rogers-Bartolomeo rule (People v Rogers, 48 NY2d 167 ; People v Bartolomeo, 53 NY2d 225 ) was a legal issue and properly withheld from the jury.

1990Thus, in People v Medina ( 146 AD2d 344 , affd on other grounds 76 NY2d 331 ), it was held that the question of whether a defendant’s right to counsel had attached under the Rogers-Bartolomeo rule (People v Rogers, 48 NY2d 167 ; People v Bartolomeo, 53 NY2d 225 ) was a legal issue and properly withheld from the jury.

1990In setting rules in this area, the court has always been mindful of the cost to law enforcement and, from People v Servidio ( 54 NY2d 951 , supra) through People v Robles ( 72 NY2d 689 , supra), the cases have enabled us to confine the Rogers-Bartolomeo principle beyond a shadow of a doubt to its essence and intended purposes — i.e., to instances where the police are necessarily aware that a defendant under custodial interrogation without a lawyer is represented by counsel on the existing or other pending charges.

1990In setting rules in this area, the court has always been mindful of the cost to law enforcement and, from People v Servidio ( 54 NY2d 951 , supra) through People v Robles ( 72 NY2d 689 , supra), the cases have enabled us to confine the Rogers-Bartolomeo principle beyond a shadow of a doubt to its essence and intended purposes — i.e., to instances where the police are necessarily aware that a defendant under custodial interrogation without a lawyer is represented by counsel on the existing or other pending charges.

1989In order for Miranda (supra) to apply, a defendant must be both in police custody and under interrogation (see, People v Bodner, 75 AD2d 440 [4th Dept 1980]).

1989In order for Miranda (supra) to apply, a defendant must be both in police custody and under interrogation (see, People v Bodner, 75 AD2d 440 [4th Dept 1980]).

1989An earlier Third Department case, People v Mehan ( 112 AD2d 482 [1985], lv denied 66 NY2d 1041 [1985]), reached a contrary opinion.

1989The hearing court refused to adopt that which it characterized as an "unreasonable overextension” (People v Bing, supra, at 66 ) of the Rogers-Bartolomeo rule, noting that an attorney who is not admitted in New York State may not provide legal advice in this State.

1989The hearing court refused to adopt that which it characterized as an "unreasonable overextension” (People v Bing, supra, at 66 ) of the Rogers-Bartolomeo rule, noting that an attorney who is not admitted in New York State may not provide legal advice in this State.

1989In order for Miranda (supra) to apply, a defendant must be both in police custody and under interrogation (see, People v Bodner, 75 AD2d 440 [4th Dept 1980]).

1989In order for Miranda (supra) to apply, a defendant must be both in police custody and under interrogation (see, People v Bodner, 75 AD2d 440 [4th Dept 1980]).

1989The majority misconstrue the significance of the language in People v Robles (supra) regarding the limited nature of this derivative right under the Rogers-Bartolomeo doctrine and would read it as heralding a return to the case specific test of People v Taylor (supra) or, at least, as requiring a showing of prejudice to the defendant’s full-fledged right to counsel on the prior charge.

1989The majority misconstrue the significance of the language in People v Robles (supra) regarding the limited nature of this derivative right under the Rogers-Bartolomeo doctrine and would read it as heralding a return to the case specific test of People v Taylor (supra) or, at least, as requiring a showing of prejudice to the defendant’s full-fledged right to counsel on the prior charge.

1986While the prosecutor’s lack of diligence in timely researching the law is not to be excused, we nevertheless conclude that the court had discretion to reopen the hearing and it was not an abuse of discretion to do so (see, People v Sanders, 79 AD2d 688 ).

1986While the prosecutor’s lack of diligence in timely researching the law is not to be excused, we nevertheless conclude that the court had discretion to reopen the hearing and it was not an abuse of discretion to do so (see, People v Sanders, 79 AD2d 688 ).

1985As for defendant’s argument that County Court committed error in denying his motion to sever his trial from that of Jayne, we note that this issue was addressed on Jayne’s appeal to this court, and we now reject defendant’s argument for the same reasons (see, People v Jayne, 99 AD2d 589, 590-591 ).

1985As for defendant’s argument that County Court committed error in denying his motion to sever his trial from that of Jayne, we note that this issue was addressed on Jayne’s appeal to this court, and we now reject defendant’s argument for the same reasons (see, People v Jayne, 99 AD2d 589, 590-591 ).

1985The Rogers-Bartolomeo rule does not apply to a suspect who is not in custody (People v Torres, 97 AD2d 802 ; People v Bertolo, 102 AD2d 193, 203 , lv granted 63 NY2d 680 ).

1985The Rogers-Bartolomeo rule does not apply to a suspect who is not in custody (People v Torres, 97 AD2d 802 ; People v Bertolo, 102 AD2d 193, 203 , lv granted 63 NY2d 680 ).

1985This argument is without merit since it cannot be said that County Court’s determination that defendant was not in custody at the time when he made the statement is erroneous as a matter of law (see, People v Yukl, 25 NY2d 585, 588 , cert denied 400 US 851 ), since the Rogers-Bartolomeo rule (People v Bartolomeo, 53 NY2d 225 ; People v Rogers, 48 NY2d 167 ) does not apply if a suspect, such as defendant, is not in custody at the time of questioning (see, People v Hauswirth, 89 AD2d 357 , affd 60 NY2d 904 ).

1985This argument is without merit since it cannot be said that County Court’s determination that defendant was not in custody at the time when he made the statement is erroneous as a matter of law (see, People v Yukl, 25 NY2d 585, 588 , cert denied 400 US 851 ), since the Rogers-Bartolomeo rule (People v Bartolomeo, 53 NY2d 225 ; People v Rogers, 48 NY2d 167 ) does not apply if a suspect, such as defendant, is not in custody at the time of questioning (see, People v Hauswirth, 89 AD2d 357 , affd 60 NY2d 904 ).

1985RETROACTIVE APPLICATION OF THE RULE TO THIS CASE In People v Morales ( 37 NY2d 262, 267-268 ), Judge Fuchsberg, writing for a unanimous court noted: “The concept of‘retroactivity’ is not new.

1985RETROACTIVE APPLICATION OF THE RULE TO THIS CASE In People v Morales ( 37 NY2d 262, 267-268 ), Judge Fuchsberg, writing for a unanimous court noted: “The concept of‘retroactivity’ is not new.

1985(See, People v Johnson, supra, at p 934; People v Barnes, 50 NY2d 375, 381 ; People v Yukl, 25 NY2d 585, 588-589 .) Consequently, the police did not violate defendant’s right to counsel under the Rogers-Bartolomeo rule when they obtained his first oral confession at the station.

1985(See, People v Johnson, supra, at p 934; People v Barnes, 50 NY2d 375, 381 ; People v Yukl, 25 NY2d 585, 588-589 .) Consequently, the police did not violate defendant’s right to counsel under the Rogers-Bartolomeo rule when they obtained his first oral confession at the station.

1984(See Bradley v United States, 410 US 605, 609 ; CPL 1.20, subd 16, par [c].) This interpretation of the Rogers-Bartolomeo rule is the only one consistent with the underlying rationale and purpose of the doctrine.

1984If a suspect is not in custody, the Rogers-Bartolomeo rule does not apply (see People v Hauswirth, 89 AD2d 357 , affd 60 NY2d 904 ; People v Torres, 97 AD2d 802, 804 ; cf. People v Skinner, 52 NY2d 24 ).

1984If a suspect is not in custody, the Rogers-Bartolomeo rule does not apply (see People v Hauswirth, 89 AD2d 357 , affd 60 NY2d 904 ; People v Torres, 97 AD2d 802, 804 ; cf. People v Skinner, 52 NY2d 24 ).