People v McTiernan

[*1] People v McTiernan 2009 NY Slip Op 50532(U) [23 Misc 3d 1101(A)] Decided on February 26, 2009 Supreme Court, New York County Uviller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 26, 2009
Supreme Court, New York County

The People of the State of New York

against

Kelly McTiernan, Defendant.



5272/2007



Robert M. Morgenthau, District Attorney (Jeanine Launay of counsel),

Glenn Garber, Esq. for defendant.

Rena K. Uviller, J.

Defendant has been indicted for murder and related crimes. His motion to suppress poses another wrinkle on an old question: When has an attorney-client relationship been created sufficient to render inadmissible an otherwise voluntary custodial statement.

Findings

In the early hours of October 12, 2007, police responded to a 911 call in the vicinity of 123 Washington Place. There they discovered the body of the deceased who had sustained a fatal stab wound to his chest. Over the next four days the police gathered information from various witnesses that provided probable cause to arrest defendant, Kelly McTiernan, for the murder. The witnesses included two people who observed part of the crime and two others, one of whom was defendant's girlfriend, to whom defendant made incriminating statements. All of them informed investigating officers that defendant's encounter with the deceased involved a dispute over a cell phone.

At some point during the same four days, Detective Steven Terrizzi left a message with defendant's wife, asking her to have defendant call him. He made no mention of why he wished to contact defendant. Terrizzi had been involved in the investigation of an unrelated murder more than a year earlier, for which defendant had been charged and ultimately acquitted.

On October 16th detectives were out looking for defendant. At 4 p.m., several hours before defendant was ultimately located, an attorney telephoned the precinct and asked to speak to Detective Terrizzi. When told that Terrizzi was not available the lawyer inquired whether the police were looking for Kelly McTiernan. The officer who answered the phone declined to provide any information. The attorney stated that he represented McTiernan but did not indicate [*2]on what matter or in what context. He told the officer that if McTiernan were located the police should not speak to him. He left his phone number for Terrizzi to call him.

More than six hours later, at about 10:40 p.m., the officers who were out looking for defendant spotted him on a street corner. They approached him and requested identification, which he provided. As they were placing him in handcuffs and withdrawing a knife visible on his belt, defendant immediately assured the officers that he was not dangerous and that he only attacked when defending himself. In response to no questioning whatever he volunteered that "this had happened before and I did a year for it."

In the police car on the way to the precinct defendant was very talkative. Again, in response to no inquiry he began relating that his father, who had been a Marine, had taught him how to defend himself after he had once been beaten up in school; that he (defendant) could protect himself with weapons and never backs down. Although defendant had a faint odor of alcohol about him, he did not appear otherwise intoxicated. He was logical and relevant.

At about 11:00 p.m., Detective Terrizzi and another detective met with defendant in an office in the precinct. Defendant was not handcuffed. He declined food but accepted a coke and coffee.

Terrizzi, who had been told of the attorney's earlier phone call to the precinct, immediately asked defendant if knew that attorney, but without informing defendant that the attorney had called earlier in the day. Defendant replied that the lawyer had represented him "on the last case" and Terrizzi asked whether the lawyer was representing him on this case. Defendant replied that he was not.

Defendant was then advised of the Miranda warnings. He acknowledged understanding them, agreed to speak, initialed each warning and signed his name on the form. He then made a lengthy oral statement in which he related, in substance, that in the early hours of October 12th , after he left a bar, a stranger approached and asked to borrow his (defendant's) cell phone; that after the man refused to return it they had a verbal altercation. One of the man's friends intervened and defendant believed the friend had a knife and was about to attack him, and so he defended himself by stabbing the man. The oral statement was reduced to writing and defendant signed it.

After it was signed defendant was left alone. Shortly afterward he summoned the detectives back because he wished to speak further. He then again volunteered how he had been bullied as a child, that his father had taught him how to defend himself with a knife and that he (defendant) practices how to thrust a knife into a person's mid section. He spoke about his previous homicide case and agreed to make a video statement.

At no time during the interview did defendant display any signs of intoxication.

More than two hours later, at about 3:30 a.m., however, defendant stated that he was not feeling well and asked to be taken to a hospital so that he could receive a shot for alcohol withdrawal.

At about 8:30 a.m. on the 17th, an assistant district attorney arrived at the hospital to take a video statement. In the video defendant is shown lying in a hospital bed. He appears alert, coherent, and apparently recovered from what had been ailing him. He exhibits no sign of significant physical distress.

The ADA is then seen introducing herself and advising defendant of each of the Miranda warnings. Defendant again acknowledges his understanding, including the right to postpone [*3]questioning until an attorney appears, and agrees to speak without an attorney present. The ADA, without informing defendant that an attorney had called the precinct the day before, asks defendant if that lawyer (naming him) is "your attorney for this matter?" The following colloquy then occurs:

A. I don't believe he's been appointed yet. I would like him contacted, and hopefully he's willing to represent me. Because he's a very good attorney.

Q. Okay, but do you want him to be your attorney right this second?

A. I would like him to be my attorney, but not right this second, no.

The ADA then asks defendant what happened on the 12th and defendant then provides a lengthy narrative, essentially relating what he had told the detectives the night before at the precinct. He reiterates how his father had trained him in self defense and that he had stabbed the deceased in order to repel an attack upon himself.

Discussion and Conclusion

Defendant now asserts that his right to counsel attached by virtue of the lawyer's telephone call to the precinct. He argues that the call signaled counsel's "entry" into the case and for that reason he could not, in counsel's absence, waive his right to counsel before speaking to the detectives or the ADA. People v. Hobson, 39 NY2d 479; People v. Arthur, 22 NY2d 325; People v. Cunningham, 49 NY2d 203.

The burden is on the defendant to demonstrate that the call constituted the attorney'sentry into the case. People v. West, 81 NY2d370, 378-379; People v. Rosa, 65 NY2d 380; People v. Cameron, 6 AD3d 273, lv. den 3 NY3d 672; People v. Hilts, 19 AD3d 1178; People v. Henriquez, 214 AD2d 485, lv. den 86 NY2d 873. Whether defendant's counsel right attached at that point is a mixed question of law and fact. See, People v. Bongarzone-Suarrcy, 6 NY3d 787; People v. Paulman, 5 NY3d 122, 129; People v. Noradzag, 11 NY3d 460.

Although counsel rights may attach before the suspect is charged or in custody (People v. Arthur, supra), the attorney must represent the suspect "in connection with the charges under investigation." Id. See, People v. Hobson, supra; People v. Ramos, 40 NY2d 610. To constitute entry into a case the attorney "must identify his professional interest in the new charge." People v. Garofolo, 46 NY2d 592, 600; People v. Henriquez, supra. Here, when the lawyer phoned the precinct he clearly had no idea whether Kelly McTiernan had been arrested for anything (he was not arrested until more than six hours later), or was suspected of anything, or why the police may have wished to speak with him.

An attorney who has not been asked to represent a suspect either by the suspect himself, or someone acting on his behalf, cannot enter the case by simply stating he is the person's lawyer and telling the police not to speak to him. To conclude otherwise "would be to impose the kind of fictional attorney-client relationship which the Court of Appeals abandoned in People v. Bing . . . ." People v. Lennon, 243 AD2d 495, 497, appeal dismissed 91 NY2d 942. Legal representation means more than an attorney's unilateral decision to represent a person on all unspecified matters for which he may or not be a suspect. See, People v. Taylor, 2002 NY Slip Op 50096U, 2002 NY Misc Lexis 171 (Sup Ct. Queens County, 2002).

That the attorney in question had represented defendant on a prior unrelated and concluded murder case in 2006, did not mean that he represented him on all prospective matters. [*4]People v. Steward, 88 NY2d 495, 500; People v. Bing, 76 NY2d 331; People v. Lawrence, 1 AD3d 625, lv denied 1 NY3d 630.The lawyer's prior representation did not signify that he was automatically retained or assigned to represent defendant on all future criminal charges for which defendant might some day find himself accused. See, People v. Bing, supra; People v. Seward, supra at 501-502; People v. Robles, 72 NY2d 689, 696;People v. Lawrence, supra. See also, People v. Lennon, supra (suppression denied where attorney who previously represented defendant telephoned precinct, after being contacted by defendant's father, and instructed police not to speak with defendant); People v. Taylor, supra (suppression denied where defendant rejected counsel's assistance even though he represented her on a pending unrelated case and had telephoned the precinct instructing that defendant was not to be questioned on any matter).

It is abundantly clear that the right to counsel is a personal one. The decision to retain counsel rests with the accused. People v. Bing, supra at 349; People v. Davis, 75 NY2d 517; People v. Lennon, supra; People v. Pulliam, 292 AD2d 399, lv denied, 98 NY2d 771 (right to counsel did not attach where defendant declined to accept the attorney provided by his mother); People v. Martino, 259 AD2d 561, lv denied 93 NY2d 1004 (suppression denied where defendant refused representation by an attorney provided by his family); People v. Taylor, supra (suppression denied where defendant rejected services of a lawyer representing him on a pending unrelated matter).

Here, there is no evidence that defendant's wife had retained the lawyer on defendant's behalf. Although she may have told the lawyer that a detective wanted to speak to McTiernan, prompting the attorney's call to the precinct, there is no evidence that she knew about the homicide or was authorized to retain an attorney on defendant's behalf. See, People v. Pulliam, supra; People v. Martino, supra.

Before Detective Terrizzi began his interview with defendant, and because of the lawyer's phone call, he scrupulously sought to clarify whether defendant was represented by counsel. Before administering the Miranda warnings he asked if defendant knew the attorney. When defendant replied that the lawyer had represented him on prior homicide cases, Terrizzi pressed the point and asked whether that lawyer represented him on this case. Defendant unequivocally replied that he did not. Terrizzi thereby fulfilled his duty "to determine whether . . . representation continues in situations where the scope of the attorney-client relationship is uncertain." People v. Grice, 100 NY2d 318, 323. See, People v. Marrero, 51 NY2d 56, 59; People v. Coleman, 42 NY2d 500, 507. See, People v. Lennon, supra; People v. Martino, supra; People v. Pulliam, supra; People v. Taylor, supra; People v. Wright, 172 Misc 2d 674, 679 (Sup Ct. New York County, 1997).

Four days elapsed between the crime and defendant's arrest. During that period defendant spoke with concern about the matter to at least two people, his girlfriend and another person. Had he wished to retain or even consult the lawyer in question during that period he had ample time to do so. He evidently chose not to.

Defendant is 44 years old, no stranger to the criminal justice system, and presumably aware of his options. Since he elected not to testify at the hearing, there was no evidence from which to infer either that defendant subjectively believed the lawyer represented him, or that his wife had retained counsel on his behalf, or that his decision to forego counsel was other than free and voluntary. [*5]

Indeed, from defendant's loquaciousness at the time of his arrest and on the way to the precinct, the reasonable inference is that he believed that he could talk his way out of the situation and felt no need for counsel at that time. See, People v. Lennon, supra; People v. Taylor, supra. Moments later, when the Miranda warnings were administered, he reiterated that he did not want an attorney present during the interview. Even after the interview concluded, he eagerly re-called the detectives in order to further justify his actions, underscoring that he neither had nor wished to have counsel at that time.

Again, on the following day at the inception of the video, after the ADA advises defendant of his Miranda rights and he waives them, she begins the interview by asking whether the lawyer in question is his lawyer for the instant case. When defendant replies that he thinks that lawyer is a fine attorney and hopes he will be appointed in the future, the ADA pursues the point. She asks, "but do you want him to be your attorney right this second?" And defendant responds "I would like him to be my attorney, but not right this second, no."

Under all of these facts and circumstances, it is irrelevant that the detectives and the ADA did not specifically inform defendant that the attorney had called the precinct several hours before his arrest. The attorney's prior representation did not extend to this case. Both the detectives and the ADA did not question defendant until they clarified whether that lawyer was his lawyer for this matter or whether defendant was requesting his presence during the interviews. Defendant's unequivocal rejection of the lawyer's presence during each of the interviews underscore that he had not retained the attorney or believed that the attorney represented him for this case.

For all of the foregoing reasons, the motion to suppress is denied.

This constitutes the Decision and Order of this Court.

DATED: February 26, 2009____________________________Rena K. Uviller, J.S.C.

PEOPLE: ADA Jeanine Launay

DEFENSE: Glenn Garber, Esq.