PEOPLE v. ARMSTEAD (2018)

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J. at suppression hearing; A. Kirke Bartley, Jr., J. at jury trial and sentencing), rendered December 12, 2012, convicting defendant of criminal possession of a weapon in the second degree, and sentencing him to a term of 15 years; and judgment, same court (Ronald A. Zweibel, J.), rendered March 19, 2015, convicting defendant, upon his plea of guilty, of attempted murder in the second degree, and sentencing him to a concurrent term of 15 years, unanimously affirmed.

The court correctly denied defendant's motion to suppress statements and lineup identifications.  There is no basis for disturbing the court's credibility determinations, including its resolution of any alleged discrepancy between police testimony and paperwork.

At the time of the arrest at issue, defendant was represented on an unrelated case by an attorney from Neighborhood Defender Service, who attempted to enter the case on defendant's behalf, at defendant's mother's request, by contacting the police.  The attorney's supervisor subsequently attempted to enter the case as well.  However, after being apprised by the detectives of each of these attempts, in both instances defendant unequivocally declined to be represented by these attorneys.  The suppression court correctly noted that the right to counsel is personal in that “[t]he decision to retain counsel rests with the client ․ not the lawyer” (People v. Bing, 76 N.Y.2d 331, 349, 559 N.Y.S.2d 474, 558 N.E.2d 1011 [1990] ).

“[T]he evidence established that defendant unambiguously rejected [his mother's and the attorneys'] efforts to provide [him] with legal representation” (People v. Lowery, 131 A.D.3d 884, 885, 16 N.Y.S.3d 546 [1st Dept. 2015], lv denied 26 N.Y.3d 1090, 23 N.Y.S.3d 647, 44 N.E.3d 945 [2015] ).  Accordingly, no attorney-client relationship existed, and the suppression court correctly concluded that defendant's right to counsel had not indelibly attached when he made statements to the detectives and when he was placed in a lineup (see People v. Allenye, 66 A.D.3d 1039, 886 N.Y.S.2d 808 [2d Dept. 2009], lv denied 14 N.Y.3d 797, 899 N.Y.S.2d 131, 925 N.E.2d 935 [2010]; People v. Lennon, 243 A.D.2d 495, 497, 662 N.Y.S.2d 821 [2d Dept. 1997], appeal dismissed 91 N.Y.2d 942, 671 N.Y.S.2d 722, 694 N.E.2d 891 [1998]; see also People v. Grice, 100 N.Y.2d 318, 323–324, 763 N.Y.S.2d 227, 794 N.E.2d 9 [2003] ).

We perceive no basis for reducing the sentence.