PEOPLE v. JONES (2005)

Appeal by the defendant from a judgment of the County Court, Rockland County (Kelly, J.), rendered April 10, 2002, convicting him of grand larceny in the third degree, after a nonjury trial, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

ORDERED that the judgment is reversed, on the law and the facts, that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials is granted, and a new trial is ordered.

 Once a suspect in custody unequivocally requests counsel, he may not be questioned further in the absence of an attorney (see People v. Glover, 87 N.Y.2d 838, 637 N.Y.S.2d 683, 661 N.E.2d 155;  People v. Cunningham, 49 N.Y.2d 203, 424 N.Y.S.2d 421, 400 N.E.2d 360).   Whether a particular request is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant's demeanor, manner of expression, and the particular words used by him (see People v. Mitchell, 2 N.Y.3d 272, 778 N.Y.S.2d 427, 810 N.E.2d 879;  People v. Bacalocostantis, 121 A.D.2d 812, 814, 504 N.Y.S.2d 560).   Here, the defendant's statements, viewed in context, articulated his desire to have counsel present such that a reasonable police officer should have understood that he was requesting an attorney (see Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362;  see also People v. Lubanski, 148 A.D.2d 947, 948, 539 N.Y.S.2d 185).   In view of this finding, that branch of the defendant's motion which was to suppress his statements should have been granted (see People v. Esposito, 68 N.Y.2d 961, 510 N.Y.S.2d 542, 503 N.E.2d 98).   Since the error in admitting the defendant's confession was not harmless, we reverse and order a new trial (see People v. Jones, 61 A.D.2d 264, 268, 402 N.Y.S.2d 28, affd. 47 N.Y.2d 528, 419 N.Y.S.2d 447, 393 N.E.2d 443).

The defendant's remaining contentions need not be addressed in light of the foregoing determination.