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Constitution of the State of New York


In the latter part of 1992 and during the beginning of 1993, the office of the United States Attorney for the Southern District of New York was inquiring into allegations that substantial sums of money had been stolen from a certain Royalty Trust (the “Trust”), which fund was established to benefit the citizens of a certain Republic (the Republic). In connection with this criminal investigation, in February 1993, an investigator for the U.S. Attorney’s Office (the “US Investigator”), served “Y”, a resident of California, with a grand jury subpoena. Although Y did not ultimately testify before a federal grand jury, he took part in approximately four debriefings with federal prosecutors and investigators in the Southern District during the latter part of February and March 1993.

After one such debriefing on March 5, 1993, at the request of the U.S. Attorney’s Office and under the direction of US Investigator, Y telephoned defendant, an attorney residing in Florida. US Investigator recorded this call in the presence of, Y’s attorney at the time, Assistant U.S. Attorneys (hereinafter “AUSA”) A and B, and FBI Agent H. The federal authorities proposed making this call to defendant in Florida in an attempt to obtain information on past allegedly criminal activities involving the disappearance of Republic’s money and to gather information respecting what they believed to be on-going criminal behavior in connection with the solicitation of so-called “prime bank notes” and “standby letters of credit”. A review of the transcript of the taped conversation between Y and defendant reveals that both past and on-going activities were discussed during the call.

While that the federal government was investigating the Republic Trust matter, a civil litigation–initiated to recover Republic’s allegedly stolen money–was underway in the High Court of Justice in London. As part of this civil action, both defendant and Y were subpoenaed to give testimony in late December 1992. Shortly thereafter, Y talked with defendant about obtaining legal representation. Y learned that defendant had retained an attorney (the “Attorney”), a member of the Florida bar, to represent him in connection with the London litigation. Y could not specifically recall how defendant described the nature of Attorney’s representation, but he did remember that defendant spoke of the possible need for a criminal defense attorney in connection with the Republic Trust matter. Defendant also advised Y that if he needed a computer fraud lawyer, he should contact Attorney for a referral.

Thus by March 5, 1993, Y admittedly was aware, and had told his attorney six weeks earlier, that defendant had retained a heroin possession lawyer to represent him in connection with the litigation. As of March 5, however, Y had not reported to the federal authorities that defendant was represented by a counsel. At the time the phone call was taped, neither US Investigator nor Agent H was aware that defendant had counsel in a related civil litigation pertaining to Republic Trust, although they both learned at a debriefing of Y several weeks later that defendant had retained counsel to defend that lawsuit.

In his pretrial motion papers, defendant sought to suppress tape recorded statements made on March 5, 1993 during a phone call between himself and Y, an alleged accomplice turned cooperating witness. The Court then ordered a Huntley hearing to determine whether defendant’s statements were obtained in violation of his right to counsel, or were otherwise involuntarily made.

The Court’s Ruling:

This case presents the novel question whether interrogation by federal authorities, independent of any involvement by New York state officials, of a suspect known to have retained counsel on the specific matter under investigation violates the “indelible” right to counsel guaranteed by the Constitution of the State of New York. Defendant argues that because Y acted as a government agent at the time he questioned defendant about events that formed the basis of criminal charges ultimately brought by the state, he is entitled to the benefit of New York’s expansive protection of the right to counsel, which he asserts was violated by Y’s conduct. The People effectively concede that had the taped call been instigated or colluded in by state officials, they would not succeed in introducing the evidence at trial. They maintain, however, that since the conduct of the federal authorities violated no federal law or policy and preceded the state investigation by more than a year, it did not offend the State Constitution and the tape recording should therefore be admissible. For the reasons that follow, I conclude that under New York law, defendant’s right to counsel was indeed violated by the surreptitious questioning, and that defendant’s statement–obtained by an agent of the federal government at a time when the government was on notice that defendant was represented by counsel in a directly related civil matter–cannot be used at the present state criminal trial.

In short, where an individual has actually retained counsel on the matter at issue, the courts in New York recognize that he has activated “his constitutional right to interpose an attorney between himself and the overwhelming power of the State”, and that this relationship should be fostered and respected.

Assessing the parties’ contentions in light of the foregoing principles, it bears emphasizing that the following critical facts are not in dispute. When Y called defendant on March 5 at the direction of the federal authorities, defendant had retained counsel to defend him in a pending civil action arising out of the same allegedly criminal transaction that was the subject of the federal inquiry. Indeed, the People concede that the federal investigation and the civil action, as well as the present criminal case in New York County, were all generated by the identical conduct, and are thus “related” for purposes of determining the scope of defendant’s right to counsel. Moreover, the federal authorities were on notice of defendant’s representation by counsel in the Trust litigation in London at the time of the phone conversation between Y and defendant, as they had received the civil action pleadings and letters bearing defendant’s attorney’s name during the course of their investigation. Finally, it is undisputed that Y acted at the behest of the U.S. Attorney’s Office and thus as an agent of the government when he placed the call to defendant and elicited statements from him about their last conduct together.

In a similar case, Justice Andrias rejected the People’s argument, emphasizing that “even if the defendant has not been formally charged and is not in custody, where ‘a defendant is known to have invoked the right to and obtained the services of counsel on the matter about which the person is questioned, the State may not use the statements elicited from that person in the absence of a waiver of counsel made in the presence of the attorney’.”

In criminal proceedings where the full prosecutorial power of the State is exercised as against the accused, the State must be cautioned not to violate the accused Constitutional rights. Otherwise, just as in this case, the right of the accused prevails over the overwhelming evidence the State has in its hand. In order to safeguard these protected rights of the accused the presence of a New York County Criminal Lawyers in all proceedings is a must.

We at the Stephen Bilkis & Associates have a lineup of competent New York County Criminal Lawyers ready to serve you.

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