PEOPLE v. HILTS (2005)

 In this prosecution for child sexual abuse, the People appeal from an order granting that part of defendant's omnibus motion seeking to suppress defendant's inculpatory statements made to the police on the ground that they were elicited in violation of the New York right to counsel.   County Court erred in suppressing the statements.   The People met their initial burden at the suppression hearing by “go[ing] forward to justify the police interrogation” (People v. Rosa, 65 N.Y.2d 380, 387, 492 N.Y.S.2d 542, 482 N.E.2d 21;  see People v. Beekman, 193 A.D.2d 842, 843, 597 N.Y.S.2d 519, lv. denied 82 N.Y.2d 713, 602 N.Y.S.2d 810, 622 N.E.2d 311;  see generally People v. Drumm, 15 A.D.3d 910, 788 N.Y.S.2d 756;  People v. Becker, 154 A.D.2d 927, 545 N.Y.S.2d 874, lv. denied 75 N.Y.2d 767, 551 N.Y.S.2d 909, 551 N.E.2d 110), and defendant failed to meet his ultimate burden by presenting evidence establishing that he was in fact represented by counsel at the time of interrogation, as defendant contended (see People v. Cameron, 6 A.D.3d 273, 273-274, 775 N.Y.S.2d 284, lv. denied 3 N.Y.3d 672, 784 N.Y.S.2d 10, 817 N.E.2d 828;  People v. Lyons, 4 A.D.3d 549, 551, 771 N.Y.S.2d 585;  People v. Henriquez, 214 A.D.2d 485, 485-486, 625 N.Y.S.2d 526, lv. denied 86 N.Y.2d 873, 635 N.Y.S.2d 954, 659 N.E.2d 777;  see also Rosa, 65 N.Y.2d at 388, 492 N.Y.S.2d 542, 482 N.E.2d 21;  Beekman, 193 A.D.2d at 843, 597 N.Y.S.2d 519).   The interrogating officer testified that counsel acknowledged having been retained to represent defendant's son, who was also under investigation by police, and neither defendant nor counsel refuted that testimony (see Henriquez, 214 A.D.2d at 486, 625 N.Y.S.2d 526).   Thus, “[d]efendant did not sustain his burden of establishing that when he made statements to the police his right to counsel had attached by way of an attorney's alleged entry into the case” (Cameron, 6 A.D.3d at 273-274, 775 N.Y.S.2d 284;  Henriquez, 214 A.D.2d at 485-486, 625 N.Y.S.2d 526;  see also People v. De Mauro, 48 N.Y.2d 892, 424 N.Y.S.2d 884, 400 N.E.2d 1336).

 The record of the suppression hearing does not support the alternative contention of defendant that he made an unequivocal request for the assistance of counsel during questioning (see People v. Roe, 73 N.Y.2d 1004, 1005, 541 N.Y.S.2d 759, 539 N.E.2d 587;  People v. Cotton, 277 A.D.2d 461, 462, 715 N.Y.S.2d 763, lv. denied 96 N.Y.2d 757, 725 N.Y.S.2d 283, 748 N.E.2d 1079;  see generally People v. Glover, 87 N.Y.2d 838, 839, 637 N.Y.S.2d 683, 661 N.E.2d 155).   In any event, we note that defendant was not in custody when he allegedly claimed to a cooperating witness in the parking lot outside the police station that “I got an attorney” and “I hired one,” and thus those alleged claims of defendant did not result in the indelible attachment of the right to counsel (see People v. Fridman, 71 N.Y.2d 845, 846, 527 N.Y.S.2d 737, 522 N.E.2d 1035;  People v. Holman, 249 A.D.2d 947, 673 N.Y.S.2d 275, lv. denied 92 N.Y.2d 899, 680 N.Y.S.2d 63, 702 N.E.2d 848;  see also People v. Grice, 100 N.Y.2d 318, 320-324, 763 N.Y.S.2d 227, 794 N.E.2d 9;   Glover, 87 N.Y.2d at 839, 637 N.Y.S.2d 683, 661 N.E.2d 155;  People v. West, 81 N.Y.2d 370, 373-374, 599 N.Y.S.2d 484, 615 N.E.2d 968).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law, that part of the motion seeking to suppress statements made to the police is denied, and the matter is remitted to Cayuga County Court for further proceedings on the indictment.

MEMORANDUM: