NY Court of Appeals Considers Whether Interrogation Violated Defendant's Right to Counsel

In People v. Bongarzone-Suarccy, 2006 N.Y. Slip Op. 01044, the Court of Appeals considered the issue of whether an interrogation that occurred in 2001 violated the right to counsel that had attached during a 1998 interview of the defendant regarding the same crime. 

The defendant was suspected of murdering her former husband and was interviewed at the police barracks in 1998, at which time she was given a polygraph examination which she passed.  During the polygraph, her attorney spoke with a police investigator on the phone and advised that he represented the defendant, asked to speak with her and requested that the polygraph exam cease.

In 2001, the defendant went voluntarily to the police barracks and confessed to hiring her brother to murder her husband.  She later claimed that the admission of the incriminating statements violated her right to counsel.

The Court stated that a police officer cannot be charged with knowing that a suspect had a lawyer where the officer has no prior knowledge, either actual or constructive, of the representation.  The Court set forth a number of factors that must be considered in making this determination:

(T)he length of the passage of time; whether a record of the earlier communication exists in the files of the police agency conducting the questioning; whether the failure of such record to exist was the result of any bad faith on the part of police; whether any of the same officers were involved in the earlier and later investigations; whether any action was taken against the suspect in the aftermath of the original investigation; and whether the entering lawyer continued to have any contact with  prosecuting authorities on the matter after the initial communication.

After applying these factors to the case at hand, the Court concluded that the police who questioned the defendant in 2001 neither knew, not reasonably should have known, that the defendant was represented by counsel.

I think that the factors established by the Court are reasonable, and based upon the facts as set forth in this opinion, I'm inclined to agree with the Court's holding in this case.