right to counsel violation in New York

1990Defendant’s reliance on People v Rogers ( 48 NY2d 167 ) and People v Bartolomeo ( 53 NY2d 225 ) is misplaced because the right to counsel rule stated therein does not apply where, as here, defendant was being represented on an appeal from a previous criminal conviction (People v Colwell, 65 NY2d 883 , 885; see also, People v Robles, 72 NY2d 689, 698 ).

1985In People v Bartolomeo ( 53 NY2d 225 , supra), the Court of Appeals further extended the right to counsel rule by announcing that in certain circumstances the police would be charged with constructive notice of representation on an unrelated charge.

2000Relying on the right to counsel rule established by the People v Rogers ( 48 NY2d 167 ) line of cases, defendant contends that County Court erred in denying his motion to suppress the statements he made to the police after his arraignment on the stolen vehicle charge.

1990Defendant’s reliance on People v Rogers ( 48 NY2d 167 ) and People v Bartolomeo ( 53 NY2d 225 ) is misplaced because the right to counsel rule stated therein does not apply where, as here, defendant was being represented on an appeal from a previous criminal conviction (People v Colwell, 65 NY2d 883 , 885; see also, People v Robles, 72 NY2d 689, 698 ).

1986Further, although a defendant may raise a right to counsel claim for the first time on appeal (see, People v Cullen, 50 NY2d 168 ; People v Samuels, 49 NY2d 218 ), a sufficient factual record must be developed in order for such a claim to be reviewable (see, People v Kinchen, 60 NY2d 772 ; People v Donovon, 107 AD2d 433 ).

1985Although the defendant may raise a right to counsel claim pursuant to People v Bartolomeo ( 53 NY2d 225 ) for the first time on appeal, despite his failure, as in the case at bar, to assert such a claim at the suppression hearing (see, e.g., People v Cullen, 50 NY2d 168 ; People v Samuels, 49 NY2d 218 ; People v Donovon, 107 AD2d 433 ), a sufficient factual record must be developed in order for such a claim to be reviewed on appeal.

2013People v Kirkland, 68 AD3d 1794, 1795 [2009]; People v Okolo, 35 AD3d 1272 , 1273 [2006], lv denied 8 NY3d 925 [2007]).

2013People v Kirkland, 68 AD3d 1794, 1795 [2009]; People v Okolo, 35 AD3d 1272 , 1273 [2006], lv denied 8 NY3d 925 [2007]).

2024The J.B. v. K.S.G court cited two MHL Article 10 sex offender civil confinement cases in support of its denial of the right to counsel challenge to the ERPO statute [ Matter of Floyd Y. , 22 NY3d 955 (2013) and Matter of Raul L. , 120 AD3d 52 (2d Dept 2014)].

2024The J.B. v. K.S.G court cited two MHL Article 10 sex offender civil confinement cases in support of its denial of the right to counsel challenge to the ERPO statute [ Matter of Floyd Y. , 22 NY3d 955 (2013) and Matter of Raul L. , 120 AD3d 52 (2d Dept 2014)].

1986Further, although a defendant may raise a right to counsel claim for the first time on appeal (see, People v Cullen, 50 NY2d 168 ; People v Samuels, 49 NY2d 218 ), a sufficient factual record must be developed in order for such a claim to be reviewable (see, People v Kinchen, 60 NY2d 772 ; People v Donovon, 107 AD2d 433 ).

1985Although the defendant may raise a right to counsel claim pursuant to People v Bartolomeo ( 53 NY2d 225 ) for the first time on appeal, despite his failure, as in the case at bar, to assert such a claim at the suppression hearing (see, e.g., People v Cullen, 50 NY2d 168 ; People v Samuels, 49 NY2d 218 ; People v Donovon, 107 AD2d 433 ), a sufficient factual record must be developed in order for such a claim to be reviewed on appeal.

1986Further, although a defendant may raise a right to counsel claim for the first time on appeal (see, People v Cullen, 50 NY2d 168 ; People v Samuels, 49 NY2d 218 ), a sufficient factual record must be developed in order for such a claim to be reviewable (see, People v Kinchen, 60 NY2d 772 ; People v Donovon, 107 AD2d 433 ).

1985Although the defendant may raise a right to counsel claim pursuant to People v Bartolomeo ( 53 NY2d 225 ) for the first time on appeal, despite his failure, as in the case at bar, to assert such a claim at the suppression hearing (see, e.g., People v Cullen, 50 NY2d 168 ; People v Samuels, 49 NY2d 218 ; People v Donovon, 107 AD2d 433 ), a sufficient factual record must be developed in order for such a claim to be reviewed on appeal.

1981There is not the slightest indication that the client appreciated the importance of the presence of counsel, the recognition of which is at the very heart of the right to counsel rule (People v Hobson, 39 NY2d 479 ).

1981There is, however, no unfairness to a defendant who would subvert the criminal justice system with his offer of a bribe in our recognizing, as a further exception to the rule that one who has requested counsel can only waive his right to counsel in the presence of counsel (People v Hobson, 39 NY2d 479, 484 ), the making of a spontaneous and unprovoked bribe offer, and to hold that any statement made in response to inquiry legitimately related to the bribe offer is outside the protection of the right to counsel rule.

2023Here, because "the record does not make clear, irrefutably, that a right to counsel violation has occurred, the claimed violation can be reviewed only on a post-trial motion under CPL 440.10, not on direct appeal" ( id. ).

2022Because "the record does not make clear, irrefutably, that a right to counsel violation has occurred," defendant's contention must be raised by way of a motion pursuant to CPL 440.10 ( People v McLean , 15 NY3d 117, 121 [2010]; see People v Townsend , 202 AD3d 447 , 448 [1st Dept 2022], lv denied — NY3d — [2022]; People v Bakerx , 114 AD3d 1244, 1247 [4th Dept 2014], lv denied 22 NY3d 1196 [2014]).

2020Under these circumstances, defendant waived appellate review of his right to counsel claim ( see generally People v Hansen , 95 NY2d 227 , 230-232 & n 1 [2000]).

2019Defendant's present claim that his counsel provided him with ineffective assistance regarding the immigration consequences of his plea ( see Padilla v Kentucky , 559 US 356 [2010]) is unreviewable on direct appeal because it involves matters not reflected in the record regarding the full extent of counsel's immigration advice.

2019Accordingly, defendant has not established a right to counsel violation under McCoy v Louisiana (584 US__, 138 S Ct 1500 [2018]).

2019In McCoy, the Supreme Court held that "[w]hen a client expressly asserts that the objective of [the client's defense] is to maintain innocence of the charged criminal acts, [the] lawyer must abide by that objective and may not override it by conceding guilt" ( id. at 1509 ).

2017However, we are unable to review the defendant’s right to counsel claim, as the factual record underlying his claim is *730 insufficient (see People v Flournoy, 303 AD2d at 762 ).

2016Neither People v Hilliard ( 73 NY2d 584 [1989]), nor People v Chappelle ( 121 AD3d 1166 [3d Dept 2014], lv denied 24 NY3d 118 [2015]) stands for the broad proposition that any pretrial deprivation of the right to counsel requires dismissal of the indictment.

2016Neither People v Hilliard ( 73 NY2d 584 [1989]), nor People v Chappelle ( 121 AD3d 1166 [3d Dept 2014], lv denied 24 NY3d 118 [2015]) stands for the broad proposition that any pretrial deprivation of the right to counsel requires dismissal of the indictment.

2016Neither People v Hilliard ( 73 NY2d 584 [1989]), nor People v Chappelle ( 121 AD3d 1166 [3d Dept 2014], lv denied 24 NY3d 118 [2015]) stands for the broad proposition that any pretrial deprivation of the right to counsel requires dismissal of the indictment.

2016Neither People v Hilliard ( 73 NY2d 584 [1989]), nor People v Chappelle ( 121 AD3d 1166 [3d Dept 2014], lv denied 24 NY3d 118 [2015]) stands for the broad proposition that any pretrial deprivation of the right to counsel requires dismissal of the indictment.