People v. Strothers

At the time of his arrest, defendant was the driver of a black Jeep. The two passengers in the vehicle were codefendants Jose Concepcion and Edwin Reyes. For the previous two months, Concepcion had been under surveillance by a 14-member team [432] of the New York Drug Enforcement Task Force, which had secured wiretaps on several cell phones used by Concepcion. Reyes was one of the people identified through the wiretaps, but defendant was not. The Task Force had concluded that the people on the cell phone conversations were members of a large-scale drug-trafficking operation. Indeed, approximately two months prior to defendant’s arrest, based on information procured from the wiretap, the team stopped a tractor trailer in Rockland County, New York, and seized $1,355,860 in cash. In the hours prior to defendant’s arrest, the Task Force listened to cell phone conversations between Concepcion and others and realized that a transaction was planned for 12:30 a.m. the next morning in the Hunts Point section of the Bronx. Based on this, the agents anticipated that a tractor trailer containing 50 kilos of cocaine would exit 1-87 at Exit 1 and that Concepcion would be there to meet it. The Task Force staked out the Hunts Point neighborhood, and, continuing to monitor calls made from Concepcion’s cell phone, spotted the tractor trailer and the Jeep, both of which they pulled over. Defendant and his passengers were immediately arrested. The agents seized five cell phones from the Jeep, including the one that they had been monitoring. They also seized $2,220 in cash from defendant, as well as automobile insurance and registration in the name of defendant’s wife. Defendant moved to suppress the evidence seized from him based on what he contended was lack of probable cause to arrest him. The court conducted a joint Mapp/Dunaway/Huntley hearing which also addressed the suppression motions of Reyes and another codefendant, Elvin Concepcion. The hearing commenced with the testimony of Special Agent Jarod Forget of the Drug Enforcement Agency, who led the Task Force that had arrested defendant. At the moment Forget began testifying, defendant’s counsel was not present. Instead, he was covering an appearance in another county. Although the court was aware of counsel’s absence, and that defendant would be unrepresented, it ordered the hearing to proceed. More than halfway through Agent Forget’s direct testimony, defendant’s counsel appeared and apologized for his tardiness. To that point, Agent Forget’s direct testimony had covered personal background information, general information concerning how wiretap surveillance is conducted, and some specific information regarding the events in question. Defendant’s counsel was able to conduct a cross-examination of Agent Forget, and he was present for the testimony of both of the People’s other witnesses, who were also on the scene at the time of defendant’s arrest. [433] The court denied the suppression motion. It found that all three of the witnesses were credible and that they established probable cause for defendant’s arrest. Defendant proceeded to trial. In addition to the items seized from the Jeep, the People introduced evidence discovered during the investigation subsequent to the arrests. This included an American Express bill belonging to Concepcion which revealed that, after the Task Force had seized cash from the tractor trailer in Rockland County, Concepcion had paid for two round-trip airline tickets for himself and defendant from New York to Orlando, Florida. The bill further led the agents to learn that Concepcion rented a car in Orlando, and drove it 2,130 miles in three days. Furthermore, telephone records showed that one of the cell phones found in the Jeep, which was owned by Concepcion but had not been tapped, established that defendant and Concepcion had called one another over 330 times. The right to counsel for an accused person is constitutionally guaranteed at trial and at other critical proceedings such as a pretrial suppression hearing (see People v Carracedo, 214 AD2d 404 [1995]). The deprivation of counsel has been described as absolute and harmful per se (see People v Margan, 157 AD2d 64, 65-66 [1990]). Because of the sanctity of the right to counsel, we need not engage in an analysis as to what transpired in the case during counsel’s absence and whether the evidence received, or matters discussed with the court, were material to the defense. “ ‘The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial’ ” {id. at 66, quoting Glasser v United States, 315 US 60, 76 [1942]). Thus, we reject the People’s argument that the deprivation here can be overlooked because defendant was unrepresented for only a small portion of the cumulative testimony and that the portion counsel missed covered only background and general information. The fact that the right to counsel is absolute also renders baseless several of the other arguments advanced by the People. For instance, it is of no moment that counsel, once he did arrive for the hearing, did not preserve the objection that it began without him. Where counsel is not present when the deprivation occurs and so cannot lodge an objection, the issue can be raised for the first time on appeal (Morgan at 70). The People offer no support for their position that the presence of codefendants’ counsel, whose clients’ interests they allege were aligned with defendant’s, was an adequate substitute. Evidence that defendant expressly agreed to the representation and [434] waived any conflict, as would be required, is completely absent from this record (cf. People v Torres, 224 AD2d 269, 270 [1996], lv denied 88 NY2d 943 [1996]). We also reject the People’s contention that the deprivation of counsel here was harmless. The Court of Appeals has held that, where a defendant is deprived of counsel at a suppression hearing, the error cannot be deemed harmless even if one can conclude that the outcome of the hearing would have been the same had counsel been present (see People v Wardlaw, 6 NY3d 556, 559 [2006]). In Wardlaw, the Court of Appeals did state that it is relevant to consider “what impact, if any, the tainted proceeding had on the case as a whole” (id. [emphasis added]). However, in holding that the deprivation of counsel in Wardlaw was harmless, the Court emphasized the “truly overwhelming” evidence of the defendant’s guilt of a rape charge, which was DNA recovered from semen found in the victim’s vagina (id. at 560). Here, evidence of defendant’s guilt is much more equivocal. Assuming that defendant would have prevailed at the suppression hearing, the evidence recovered from Concepcion after defendant’s arrest linking defendant to the drug transaction at issue would be circumstantial. The facts that defendant traveled with Concepcion and had multiple telephone conversations with him do not, by themselves, establish his participation, much less constitute “truly overwhelming” evidence of guilt (id.). The dissent asserts that we “ conflate [ ]” the deprivation of counsel at a pretrial hearing with the deprivation of counsel at trial. We do no such thing. The result reached here is consistent with how the Court of Appeals has treated the former situation in that we have not reversed defendant’s conviction, as is done in the latter, but merely ordered a new suppression hearing. The dissent acknowledges that this is the appropriate remedy, and we do not disagree that there is an exception for cases in which there is “truly overwhelming” evidence of guilt (id.). However, we strongly disagree with the dissent’s view that, even without the seized evidence which was the subject of the suppression hearing, “it is beyond reasonable doubt” that defendant would have been convicted, to say nothing of whether the evidence reaches the Wardlaw standard. While it may be possible to infer from the remaining evidence that defendant and Concepcion had a business relationship, it cannot be said, as it must in a case involving circumstantial evidence only, that the evidence would have “ exclude [d] to a moral certainty” the possibility that defendant was not a participant in the drug transaction at issue here (People v Barnes, 50 NY2d 375, 380 [1980] [internal quotation marks omitted]). [435] The dissent’s arguments that defendant’s failure to preserve his objection to the absence of counsel is fatal, or alternatively, that he was not deprived of counsel at all, also fall flat. Regarding the former issue, the dissent relies on People v Narayan (54 NY2d 106 [1981]). In that case, the Court of Appeals held that the defendant failed to preserve an objection to the trial court’s having prohibited defense counsel from conferring with his client concerning the testimony the defendant had offered that day in court. However, that was because, as the Court stated, “[A]n objection voiced by counsel . . . when the trial court first uttered its prohibition against consultation between attorney and client, might well have resulted in a change of the Trial Judge’s ruling and total avoidance of interference with defendant’s constitutional claim” (54 NY2d at 113 [emphasis added]). Here, defense counsel was obviously not in a position to voice an objection when the trial court decided to proceed without him. Moreover, even if, as the dissent theorizes, Narayan could be read to require a lawyer who has missed part of a proceeding to object when he finally arrives in court, such a rule would not apply under the circumstances of this case. The dissent’s surmise that the court may have restarted the hearing or allowed readback of the testimony is not consistent with the court’s refusal to wait for defense counsel to begin the hearing, even after the prosecutor asked the court, “[D]on’t we need to wait for [counsel] . . . [b]ecause the Dunaway does pertain to him?” Further, the dissent’s position that defendant “was not unrepresented for testimony appertaining to him” is simply inaccurate. All of the testimony that counsel missed related to defendant because it was elicited by the People for the purpose of establishing that, even if only in general terms, the police employed proper procedures and techniques in developing probable cause to arrest defendants. Again, given the fundamental nature of the right to counsel, it is not for us to separate out the testimony that was truly pertinent to defendant from that which one could argue was not important enough to require that counsel be there to hear it (see People v Margan, 157 AD2d at 66). In addition, it is impossible for us to determine whether testimony elicited before counsel arrived could have been used by him as fodder for effective cross-examination that would have changed the outcome of the proceeding for his client. For all of the foregoing reasons, the court’s decision to proceed with the suppression hearing in the absence of defendant’s counsel was a fundamental error that entitles defendant to a new hearing. Concur — Mazzarelli, J.P, Moskowitz and Román, JJ.