Supreme Court, Albany County, July 8, 2024

Trevor Hannigan, Albany, for defendant.

P. David Soares, District Attorney (Caroline Murray of counsel), for the People.

Defendant Rasheem Andrews was involved in a stabbing—more accurately, the Albany police had enough evidence of that to arrest him, so they did. Andrews was detained in an interrogation room, searched and handcuffed. Three minutes into this procedure, Andrews told the detectives, "Call my lawyer, {**84 Misc 3d at 586}let her know I am [at the police station]." The detectives, thereafter, obtained from Andrews his lawyer's name—a well-known assistant public defender with whom the detectives were familiar.

Now, the detectives who initially detained Andrews were not the ones involved in the stabbing investigation. Rather, the lead investigator was Detective Rob Lawyer. About 20 minutes after the initial detectives left, Detective Lawyer entered the interview room and he immediately issued Miranda warnings to Andrews. Thereafter, the detective snapped right to the point. He showed Andrews photos of where the assault happened.

Before long, there was a knock on the door causing Detective Lawyer to exit the room. When he reentered, he asked Andrews if Andrews had told the other detectives "to call Melissa Carpinello, your attorney, for you."

Andrews affirmed, "Yeah. I just wanted to let her know that I am down here because she came down here earlier to see if I had warrants or anything—they told her I was good—I just really wanted to let her know I was here. So, she knows I am here."

Detective Lawyer then re-Mirandized Andrews and explained that he would not talk to Andrews if he is represented by counsel. The detective specifically inquired of Andrews: "You just wanted to call her—you don't want her to come down here." Andrews responded by saying that he wanted his attorney to be aware that he was being detained, but he did not necessarily want her to come to the station. Indeed, Andrews related to the detective that he thought that his attorney lacked the physical capacity to actually come to the station.

Feeling comfortable with the distinction between calling defendant's attorney to let her know that he was arrested and calling her and asking that she come to the station, Lawyer asked Andrews if he wanted to talk with him. There is no question that Andrews's conversation with the Detective demonstrates, and clearly so, that Andrews wanted to talk. The court finds that with his constitutional prerogatives twice presented to him, Andrews knowingly, intelligently, and voluntarily chose to discuss the case with the detective.

In the course of the interrogation, unsurprisingly, Andrews made admissions in which he implicated himself in the stabbing. Andrews now moves the court to suppress theses admissions. He argues that they were obtained in violation of his{**84 Misc 3d at 587} right to counsel. Indeed, New York Constitution, article I, § 6 grants an accused robust protection of this right (People v Bing, 76 NY2d 331, 338 [1990]). In particular, once a suspect invokes the right, it indelibly attaches—meaning that the suspect cannot be questioned without counsel and, more importantly, and what gives this constitutional guarantee teeth, a suspect can no longer waive the right to counsel without an attorney being present (People v Cunningham, 49 NY2d 203 [1980]). However, for New York's indelible right to counsel to attach, "the invocation of counsel by an uncharged defendant . . . must be unequivocal" (People v Mitchell, 2 NY3d 272, 276 [2004]). Accordingly, when the defendant's request is equivocal, the right to counsel does not attach.

Before deciding whether Andrews's request for counsel was equivocal or not, a predicate question must be addressed: whether Andrews's conversation with Detective Lawyer can be considered in determining whether Andrews unequivocally requested counsel. That is, if Andrews's initial statement to the other detectives constituted an unequivocal invocation of counsel (a big if), can Andrews's subsequent exchange with Detective Lawyer produce ambiguity in his initial statement.

Now to be sure, a suspect's unequivocal request that he wants a lawyer can be transformed into an equivocal one, if the initial demand is qualified, clarified, or negated immediately thereafter it is made (People v Glover, 87 NY2d 838, 839 [1995]; see also People v Dawson, 38 NY3d 1055 [2022] [affirming a trial court's finding that in the course of a continuous colloquy with a police detective, the suspect indicated that he wanted his lawyer called, but only if such a call would not interfere with the police explaining to him the circumstances of his detention, made what might have been an otherwise unequivocal request for counsel equivocal]).

The key word, of course, is immediate. But in this case, there was a significant time lag between Andrews's initial demand to call his lawyer and his subsequent statement which cast a pall of equivocation over the initial demand. The temporal separation places this case outside an immediate qualification, clarification, or negation exception.

So, that still leaves the question of whether a suspect's non-immediate qualification or clarification can be used to find ambiguity in a request for counsel. There is no New York case{**84 Misc 3d at 588} that speaks directly on this point.^[FN*] But the United States Supreme Court decided a case, under the U.S. Constitution, that seems particularly instructive—Smith v Illinois (469 US 91 [1984]). In Smith, the state court concluded that "when [the request for counsel] is considered with other statements—as it should be—it is clear that [the accused] was undecided about exercising his right to counsel" and thus, he never made an unequivocal request for counsel (id. at 94).

However, the Supreme Court found such reasoning untenable. The Court held that an [*3]accused's initial statement either is "an assertion [of the right to counsel] or it is not" (id. at 98). Thus, according to the Supreme Court, what an accused says to police after the initial statement is relevant only to the question whether he waived the right that he had invoked (id. at 97-98). Just so. Therefore, the court holds if a suspect clearly expresses his desire for counsel, any subsequent statement cannot be used to cast ambiguity upon an otherwise unequivocal invocation.

Thus, the question presented here is simple: did Andrews's demand to "[c]all my lawyer, let her know I am [at the police station]" constitute an unequivocal request for counsel. In answering that question, the court must employ an objective standard in evaluating a defendant's statements, namely whether a "reasonable police officer would have understood that defendant" was requesting an attorney (People v Jemmott, 116 AD3d 1244, 1246-1247 [3d Dept 2014]).

On the one hand, statements such as "I think I need a lawyer" (People v Bethea, 159 AD3d 710, 711-712 [2d Dept 2018]) and "I want to talk to an attorney" (People v Roman, 175 AD3d 1198, 1199 [1st Dept 2019]) should generally be regarded as unequivocal requests for counsel. On the other hand, notifications that counsel exists (People v Henry, 133 AD3d 1085 [3d Dept 2015]), suggestions that the defendant might want to call an attorney (People v Bowman, 194 AD3d 1123, 1128 [3d Dept 2021]), a contingent desire to confer with counsel (People v Higgins, 124 AD3d 929, 931 [3d Dept 2015]),{**84 Misc 3d at 589} and a hypothetical request for counsel (People v Meadows, 180 AD3d 1244, 1245 [3d Dept 2020]) are not unequivocal assertions by an accused and do not trigger the indelible right to counsel.

In this case, Andrews's demand that police call his counsel, Ms. Carpinello, was a definite immediate request and not contingent upon any other event (cf. People v Burton, 215 AD3d 1054, 1060 [3d Dept 2023] [holding that defendant's statement that an investigator could talk to his lawyer after he was returned home "constitute(d) an ( )equivocal assertion of his right to counsel"]). So, no ambiguity exists about Andrews's desire to have his counsel know that he was being detained by police. Therefore, the equivocation, if any, must arise in the difference between asking the police to inform defendant's counsel that her client was in custody at the police station and asking the police to request defendant's counsel to come to the station and meet with her client. Indeed, the prosecution balances its argument upon this point.

Insisting that a suspect request that counsel be present as opposed to be called would reduce the non-equivocation requirement to the incantation of magic words. A constitutional promise conditioned upon a suspect making a precise formalistic statement would make New York's fabled right to counsel more illusory than real.

Therefore, the court holds that a suspect's direction to police to call his lawyer and let her know that he is being detained at the police station represents an unequivocal invocation of the suspect's right to counsel. Consequently, Andrews's right to counsel indelibly attached when he made this demand to the initial detective. And his subsequent waiver of that right, though intelligently and voluntarily waived, is ineffective because Andrews's counsel was not present during the waiver. Andrews's motion to suppress his statement made to Detective Lawyer is granted and such statement may not be used by the People in their affirmative case.