author: Jones, J. Meyer, J.

text:
    The People of the State of New York, Appellant, v Suraj Narayan, Respondent.
    Argued August 31, 1981;

    decided October 29, 1981

      POINTS OF COUNSEL

      John J. Santucci, District Attorney (Barry A. Schwartz and Joan L. Craig of counsel), for appellant.
    Defendant’s right to the assistance of counsel was not violated by the trial court’s unobjected to instructions that defendant not discuss his testimony during two brief and routine recesses, or by the trial court’s failure to expressly rescind those instructions at the close of the court day. (Geders v United States, 425 US 80; United States v Leighton, 386 F2d 822; United States v Venuto, 182 F2d 519; Estelle v Williams, 425 US 501; United States v Crutcher, 405 F2d 239, 394 US 908; Krull v United States, 240 F2d 122, 353 US 915; People v Cerami, 33 NY2d 243; People v Michael, 48 NY2d 1.)

      Anthony V. Lombardino for respondent.
    I. The evidence against respondent was insufficient as a matter of law, since it was just as consistent with his innocence and was predicated on mere surmise and conjecture. (People v Razezicz, 206 NY 249; People v Leyra, 1 NY2d 199; People v Brown, 24 NY2d 421; People v Corrado, 22 NY2d 308; Matter of Winship, 397 US 358.) II. Court prohibition of respondent’s access to counsel during trial and discrediting respondent for consultation with counsel worked to deprive respondent of his Sixth Amendment right to effective aid of counsel. (Powell v Alabama, 287 US 45; Gideon v Wainwright, 372 US 335; Moore v Michigan, 355 US 155; People v Blake, 35 NY2d 331; People v Hobson, 39 NY2d 479; People v Coleman, 43 NY2d 222; Matter of Lee v County Ct. of Erie County, 27 NY2d 432; People ex rel. Donohoe v Montanye, 35 NY2d 221; People v Loiacono, 40 AD2d 856.) III. Respondent’s Fourth Amendment rights were violated by the warrantless entry of a detective into his home, based upon the latter’s claimed suspicion, without factual support, that respondent had committed suicide. (People v Payton, 45 NY2d 300; Matter of B. T. Prods, v Barr, 44 NY2d 226; People v Baldon, 51 AD2d 880; People v Colder, 44 AD2d 683; People v Munoz, 40 AD2d 337; People v Brown, 24 NY2d 241; People v Corrado, 22 NY2d 308; Coolidge v New Hampshire, 403 US 443; Matter of Kwok T., 43 NY2d 213; Fahy v Connecticut, 375 US 85.) IV. Destruction of evidence, to wit, the alleged blood and brain stained jacket, before the defense had opportunity for its own expert examination as ordered by the court and displaying the tampered evidence before the jury deprived respondent of his constitutional right to a fair trial. (Moore v Illinois, 408 US 786; People v Simmons, 36 NY2d 126; People v Ambrose, 52 AD2d 850; People v Maynard, 80 Misc 2d 279; People v Boyer, 65 AD2d 840; United States v Bryant, 439 F2d 642; United States v Consolidated Laundries Corp., 291 F2d 563.) V. The use of evidence of prior assaultive conduct of respondent upon Sandra Zahler and his prior wife to prove his propensity to commit the crime charged, deprived him of a fair trial. (People v McKinney, 24 NY2d 180; People v Mullen, 41 NY2d 475; People v Molineux, 168 NY 264; People v Goldstein, 295 NY 61; People v Schwartzman, 24 NY2d 241; People v Allweiss, 61 AD2d 74; People v Sandoval, 34 NY2d 371; People v Fiore, 34 NY2d 81; People v Montanez, 41 NY2d 53.) VI. Cross-examination of respondent with material allegedly disclosed by him in the course of a court-ordered psychological examination was violative of the physician-patient privilege. (Matter of Lee v County Ct. of Erie County, 27 NY2d 432; People v Waterman, 9 NY2d 561.) VII. Evidence that the victim’s blood type was identical to what was found on respondent’s coat and that respondent’s was different, was prejudicial and deprived respondent of a fair trial. (People v Robinson, 27 NY2d 864; People v Macedonio, 42 NY2d 944.) VIII. Misleading instructions to the jury concerning the law of flight deprived respondent of a fair trial. (People v Limage, 57 AD2d 906; People v Yazum, 13 NY2d 302.) IX. Misconduct by the prosecutor by decimating respondent’s summation to damage its efficacy and by screaming throughout the trial, together with unfair limitation by the court of respondent’s summation, deprived respondent of a fair trial. (People v Cruz, 52 AD2d 1; People v Hendricks, 56 AD2d 893; People v Petrucelli, 44 AD2d 58; People v Alicea, 37 NY2d 601; People v Steinhardt, 9 NY2d 267; People v Marcelin, 23 AD2d 368; People v Sepulveda, 44 AD2d 846.)
   OPINION OF THE COURT

Jones, J.

The contention that the trial court interfered with defendant’s constitutional right to assistance of counsel was not preserved for appellate review inasmuch as no timely protest was registered. Because the Appellate Division erred as a matter of law in addressing the issue on the alternative predicates that the contention of error had been preserved or that, if it had not been preserved, preservation was not required, the case must be remitted to that court for reconsideration.

Defendant’s trial on an indictment charging him with murder in the second degree, committed by killing Sandra Zahler on December 25, 1974, began on May 21, 1976 and concluded with a jury verdict of guilty returned June 17, 1976. The events relevant to the Appellate Division’s reversal and determinative of our disposition of the appeal occurred on Monday and Tuesday, June 14 and June 15, 1976.

On the first of these dates defendant took the witness stand and commenced his direct testimony which continued through part of the morning until a recess was ordered by the court. After the jury had left the courtroom the Trial Judge instructed defendant’s counsel that he was not to talk to his client about the latter’s testimony and similarly instructed defendant that he was not to talk to his attorney about his testimony. The court inquired from defendant whether he understood the instruction, and defendant responded that he did. Counsel was silent, registering no protest to the court’s directions. When the recess was over, defendant resumed the stand and continued his direct testimony until a luncheon recess was called. After the jury had departed from the courtroom, the court again instructed defendant not to discuss his testimony, and again defense counsel said nothing. When the trial resumed after the interval for lunch, the afternoon was devoted to cross-examination of defendant by the prosecuting attorney which was still in progress when the court declared a recess at the end of the day. Nothing whatsoever was said at that time with reference to the previously imposed ban on communication between defendant and his counsel concerning his testimony, by way either of reaffirmation or of rescission.

On the following day, June 15, after a lengthy sidebar conference between the court and counsel concerning the propriety of a line of examination sought to be pursued by the Assistant District Attorney, as defendant was about to resume the stand for continuation of cross-examination, defense counsel stated that he would like to place something on the record and said that he would like to speak with his client. When the court pointed out that defendant was “on the stand” and that he would not permit the consultation “while he’s testifying”, defendant’s counsel then for the first time protested that his client’s right of access to his attorney was being interfered with.

Cross-examination__of defendant was then renewed and continued until a 15-minute recess was declared to permit the court to consider an evidentiary question that had arisen. A request by defendant’s counsel made at the beginning of the recess for permission to speak with his client during the recess initially was denied; however, the court subsequently reversed that ruling and defendant and counsel were thereupon permitted to confer before the recess ended as had been requested. After that consultation the trial continued to conclusion without further restriction on defendant’s access to his attorney.

Considering and rejecting as without merit other claims of error urged by defendant, the Appellate Division, by a divided court, reversed the judgment of conviction on the law because it concluded that defendant had been denied his constitutional right to the assistance of counsel by the order of the trial court which prevented “all meaningful communication between the defendant and his attorney from the morning of June 14, 1976 until some point during trial on the next day.” (76 AD2d, pp 607-608.) In approaching a review of that disposition our first inquiry must be whether the asserted error in the alleged interference with defendant’s right of access to counsel was a matter open to examination by the Appellate Division, other than by an exercise of its interest of justice jurisdiction, which its order makes clear was not the basis for its review and reversal in this case. The response to that inquiry depends on whether a question of law for appellate review with respect to the Trial Judge’s rulings was presented, which in turn depends on whether “a protest thereto was registered, by the party claiming error, at the time of such ruling * * * or at any subsequent time when the court had an opportunity of effectively changing the same” (CPL 470.05, subd 2), for “[t]o create and preserve a question of law amendable to appellate review, a defendant in a criminal case normally must raise that issue before the court of original jurisdiction” (People v Cona, 49 NY2d 26, 33).

The Justices who were in the majority at the Appellate Division were of the persuasion, however, that because of the magnitude of the right asserted to have been curtailed, no objection by defendant was necessary to preserve the error for appellate review. We reach a different conclusion. Without in any way depreciating the stature of the constitutionally protected right of a criminal defendant effectively to confer with counsel and not to be deprived of that right of consultation for any substantial period of time (Geders v United States, 425 US 80), we find no justification for departing from the requirement that trial court error (here interference with that right) must be brought to the court’s attention by protest timely made, at least where counsel acting on defendant’s behalf is present and available to register a protest and where the error if called to the court’s attetnion is readily susceptible to effective remedy. In such a setting the registering of an objection would afford the trial court opportunity promptly to rescind any directive violative of the defendant’s right of access to counsel or otherwise to cure the error. Conversely, requiring that the normal, statutorily prescribed protest be made imposes no weighty or unreasonable burden on the defendant whose counsel is at his, side.

The fact of counsel’s presence here at the time of the trespass on defendant’s right to his assistance distinguishes this case from People v Arthur (22 NY2d 325) and People v Felder (47 NY2d 287), on which the Appellate Division relied. It detracts not at all from the significance or worth ascribed to the right to assistance of counsel in each of those cases, as well as a legion of others in this and other jurisdictions of which Gideon v Wainwright (372 US 335) (also relied on by the Appellate Division) is the fountainhead, to take note that in each case cited it was the absence of counsel at the critical time that was determinative. Here an objection voiced by counsel on June 14, 1976, when the trial court first uttered its prohibition against consultation between attorney and client, might well have resulted in a change of the Trial Judge’s ruling and total avoidance of interference with defendant’s constitutional claim. For all that appeared, however, defense counsel found the directives given that day unobjectionable and not adverse to defendant’s interests. In that circumstance, in light of counsel’s acquiescence at a time when correction was possible, defendant could not, in disregard of the statutory requirement of timely protest, thereafter secure appellate review of what transpired when counsel stood mute.

Concluding then, as we do, that protest was required to preserve the issue for appellate review as a question of law, we must determine whether, as the Appellate Division appears to have concluded, counsel’s request to speak with his client before the resumption of his cross-examination on the morning of June 15, 1976, accompanied by an assertion of defendant’s right of access to counsel, served as a sufficient protest, first as to the court’s denial of the request made at that time, then to what had occurred on the previous day.

As to the denial of the request made on June 15 (then articulated by the court to be on the ground that the request was made in the course of defendant’s examination), we have no doubt that counsel entered a sufficient and timely protest and that, had the Appellate Division limited its consideration to that denial of consultation between attorney and client — which it did not — it would have been acting within the scope of its appellate authority to review errors of law, if any.

As to acceptance of the contention that counsel’s request and argumentation on June 15 was a sufficient protest against the prior day’s restrictions (concededly no protest was registered on June 14), we reach a different result. The statement on the following day of counsel’s desire for consultation was too late to have alerted the court to such a desire,' if one existed, on the prior day when counsel was silent in face of the ban on communication between him and his client concerning the latter’s testimony. The therapeutic purpose of the requirement that a protest be registered— to call the court’s attention to and permit it to correct what counsel believes is an erroneous ruling — was by then beyond fulfillment. The effect of the trial court’s explicit ban announced on June 14 had been exhausted by the morning of June 15 as to the period of defendant’s examination on the stand on the 14th and as to the overnight period between June 14 and June 15. Because no timely protest had been registered errors, if any, with respect to rulings of the trial court prior to Tuesday morning, June 15, were not available as predicates for the Appellate Division’s reversal on the law (although they could have been made the premise for a reversal by that court in the exercise of its interest of justice jurisdiction).

Inasmuch as the opinion of the majority at the Appellate Division makes it clear that its reversal on the law was based at least in part, if not principally, on the June 14 rulings, we have no choice but to reverse the order of the Appellate Division and remit the case to that court to permit it, if it deems it appropriate, to exercise its discretionary power to review alleged errors even in the absence of timely objection (People v Cona, 49 NY2d 26, 33, supra). Our review stops at that point and it would be inappropriate for us now to express any opinion as to defendant’s contentions of error with respect to the June 14 rulings of the trial court (People v Cona, supra, p 34).

For the reasons stated, the order of the Appellate Division should be reversed, defendant’s conviction reinstated and the case remitted to that court for consideration in accordance with this opinion.

Meyer, J.

(concurring). I concur in the result though not in the reasoning of the majority, for I disagree with the conception that had an objection been made on the morning of the 15th based on the absence of a right to confer during the overnight recess, the purpose of the objection would then have been beyond fulfillment. It would certainly have been possible, had objection on that basis been made, for a recess to have been taken to allow whatever time was necessary for conference before continuing cross-examination of defendant and in my view, had that been all that was involved in the Trial Judge’s initial ruling on June 15, it would have been an abuse of discretion, having foreclosed overnight conference, not to recess then and there (Geders v United States, 425 US 80, 87-91).

Review of the record discloses, however, that there was a good deal more involved and establishes that the June 15 objection was generated by an issue other than the absence of an overnight conference between defendant and his attorney. The other issue was presented by the last question addressed to defendant by the prosecutor on the afternoon of June 14. It was whether defendant had stated to someone in a bar that he had killed someone on Christmas Eve. Defendant’s attorney’s motion for mistrial was denied, but a sidebar conference revealed that the basis for the question was a tape-recorded call to the 911 police emergency operator, a transcription of which was proffered to the Judge by the prosecutor. At that point court recessed to permit the Trial Judge to look into the legal issue thus presented.

When trial resumed on the morning of the 15th and before defendant was recalled, a further sidebar conference was held during which the Trial Judge, stating that he had satisfied himself on the law, ruled that there was sufficient information in the transcript to form the basis for the question whether defendant had made the statement which the prosecutor had inquired about the night before, but that the prosecutor would be bound by the answer. It was at that point that defendant’s attorney indicated that he would like the opportunity to speak to his client and, the Trial Judge having responded “Not while he’s testifying”, objected that defendant was being denied the right to consult with counsel.

Defendant was then recalled and cross-examination continued. His further testimony revealed that he had in fact talked to his attorney for a few minutes after the court closed on the 14th, though not about “business” because “the court ordered no conversation regarding my testimony.” After cross-examination on other issues defendant was asked whether during the early morning hours of December 26, 1974 he told a person in Bonnanne’s Bar that he was with the victim and that he lost his mind and killed her. Following defendant’s denial, a further sidebar conference was requested on the question whether privilege proscribed cross-examination of defendant concerning a claimed prior inconsistent statement made by defendant to the psychiatrist who examined defendant for the People as to competency, without revealing in the question to whom the statement had been made. At the end of that conference the prosecutor asked to have the 911 transcript marked for identification, a recess was taken and defendant’s attorney again asked and was denied permission to speak to his client during the recess and again objected to defendant’s “being denied an opportunity to speak to me during the recess.” After recess, during a further sidebar conference, the Trial Judge ruled against the statement to the psychiatrist, differentiating it from the 911 caller in that the statement to the psychiatrist was governed by the privilege statute.

At that juncture, without further request from defendant’s attorney, the Trial Judge brought up the application to permit defendant to confer with his attorney, and noting that he had prevented such a conference “while I was researching my decision, while this questioning was going on”, stated that “Now, I have made my determination here you can talk to him.” Defendant’s attorney’s response was “He has some questions he wanted to ask me.” A conference between defendant and his attorney followed during the recess and cross-examination and redirect examination of defendant was then completed.

Apparent from the foregoing is it that defendant’s attorney never (on the 14th or 15th) interposed an objection addressed to his inability to speak to his client during the overnight recess. What he did object to on the 15th was defendant’s not being able to confer with his attorney during the recesses on the morning of the 15th. As to those rulings, however, there was no error since it was well within the Trial Judge’s discretion to proscribe conference when a negative answer by defendant would foreclose the prosecution on the issue. This is not to say that defendant’s attorney in the instant case did not, or that defendants’ attorneys generally will not, realize the impropriety of advising defendant how to answer such a question. Rather, it is to say that it is not error for the Trial Judge in such a situation to make the ruling here made preventing conference until questioning on the issue has been concluded.

Thus I concur in reversal because the June 15 rulings were not erroneous and, the 911 caller issue having been raised immediately before adjournment on the 14th, a ruling proscribing conference concerning defendant’s testimony during the overnight recess would not have been error had one been explicitly made. However, no objection concerning overnight recess having been made on either the 14th or the 15th, I agree that that issue was not preserved and that there must, therefore, be a remittal.

Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler and Fuchsberg concur with Judge Jones; Judge Meyer concurs in result in a separate opinion.

Order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.

      . That the appellate court’s reversal was not predicated solely on what it regarded as an error of law occurring when defendant’s access to counsel was interferred with on the morning of June 15 is apparent from its description of the trial court’s error as one preventing “all meaningful communication between the defendant and his attorney from the morning of June 14, 1976 until some point during the trial on the next day”.

      . In view of the circumstance that the Appellate Division never discretely-ruled on this issue we have no occasion to express any opinion with respect to it.

       We, therefore, could not reach the question whether, if he had, the fact that the Trial Judge’s June 14 ruling was limited to discussion of “your testimony” rather than proscribing talking to the attorney “about anything” (cf. Geders v United States, 425 US 80, 89, n 2) would sufficiently distinguish the instant case from Geders, as the prosecutor argues.


source: Caselaw Access Project

author: Meyer, J. Fuchsberg, J.

license: Public Domain

text:
    In the Matter of Alan I. Greene, an Attorney (Admitted to Practice as Alan Ira Green), Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Argued September 8, 1981;
    decided October 29, 1981

      POINTS OF COUNSEL
    Jeremiah S. Gutman for appellant. I.
    The mailing of advertising fliers to real estate brokers advising them of the availability of the advertising attorney to render services to buyers and sellers at a stated price is not solicitation within the meaning of the statute and code. (Ohralik v Ohio State Bar Assn., 436 US 447.) II. Appellant’s reliance upon Bates and the treatment of Koffler and Harrison require the reversal of the finding of guilt. III. This record is not appropriate for condemnation of appellant. IV. The chimerical character of the State interests to be protected prevents the prohibition propounded.

      Richard E. Grayson for respondent.
    I. Due to appellant’s recent suspension from the practice of law, this appeal should be dismissed as being moot. (Matter of Adirondack League Club v Board of Black Riv. Regulating Dist., 301 NY 219; Matter of Buffalo Creek R. R. Co. v City of Buffalo, 301 NY 595; Matter of Cook, 244 NY 63; Peasley v State of New York, 102 Misc 2d 982.) II. Appellant’s mailing of fliers to real estate brokers constituted solicitation and not advertising and can be regulated under the appropriate statute and rule. (Matter of Koffler, 51 NY2d 140; Virgina Pharmacy Bd. v Virginia Consumer Council, 425 US 748; Ohralik v Ohio State Bar Assn., 436 US 447.) III. The Court of Appeals decision in Matter of Koffler does not require a reversal of the Appellate Division decision in appellant’s case. IV. Appellant’s claim that the finding of the court below of guilt is inappropriate ignores appellant’s previous disciplinary record. V. This is an appropriate case for determination by this court of the potential for abuse that may result when an attorney makes a direct mail solicitation of clients through materials addressed to third parties.

      Richard G. Collins for Four Anonymous Attorneys, amici curiae.

    I. The State cannot impose a total ban on lawyer mailings to realtors in view of alternative methods short of a total ban that can adequately protect its interests. (Matter of Koffler, 51 NY2d 140; Bates v State Bar of Ariz., 433 US 350; Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748; Ohralik v Ohio State Bar Assn., 436 US 447.) II. The State’s attempted ban on constitutionally protected expressions cannot be viewed as a reasonable regulation as to the manner in which the expressions are communicated. (Matter of Koffler, 51 NY2d 140.)
   OPINION OF THE COURT

Meyer, J.

To the extent that section 479 of the Judiciary Law and DR2-103 (A) of the Code of Professional Responsibility proscribe advertising of attorneys’ services by direct mail addressed to real estate brokers, those provisions regulate the manner rather than the content of commercial speech and, the regulations being reasonable and the State having a substantial interest in the protection of clients against potential conflict of interest, are constitutional regulations of such speech. Thus, we answer so much of the question left open in Matter of Koffler (51 NY2d 140, 145, cert den 450 US 1026) concerning third-person mailings as relates to mailings addressed to real estate brokers by holding regulations proscribing such mailings constitutional. The order of the Appellate Division should, therefore, be affirmed, without costs.

Respondent Greene was admitted to the practice of law in New York in 1960. He admitted in his answer to the disciplinary proceeding brought against him by the Grievance Committee for the Ninth Judicial District that “in or about August, 1978 and October, 1978, Respondent caused to be prepared and caused to be mailed approximately one thousand direct mail fliers to real estate brokers in Westchester County and portions of Putnam County” and concedes in his brief before us that he was “hoping by his mailings to move the recipients to remember his availability should the occasion arise when a buyer or seller sought a reference to an attorney in a real estate transaction.” The flier read in pertinent part:

“ALAN I. GREENE offers your client full legal representation on any and all property transactions for just $335. Legal coverage begins with contract and continues through to closing. With 18 years experience, the office of ALAN I. GREENE is fully prepared to expedite all closings and offer competent advice to the buyer and/or seller. Your real estate office will be afforded our full cooperation. With just two hours notice, a contract and all legal documents can be prepared.

“By recommending the services of ALAN I. GREENE, you, the realtor, will save your client time and money — one of the main reasons they called on you!”

Testifying before the Referee, respondent stated that he got no business from the brokers to whom the flier was sent, indeed, that he had gotten a negative response from them.

The Referee, treating the issue as one of law to be decided on the basis of the undisputed facts, found respondent in violation of section 479 of the Judiciary Law and DR 2-103 (A) of the Code of Professional Responsibility, but noted in his report that the fliers had been sent prior to the Appellate Division’s decision in Matter of Koffler (70 AD2d 252) and were mailed in reliance on Bates v State Bar of Ariz. (433 US 350), and that in Koffier the Appellate Division had imposed no sanction.

Petitioner moved for confirmation of the Referee’s report and the disciplining of respondent. Respondent likewise moved “for an order confirming and adopting the report” but asked that he, as had been the attorneys in Koffler, be exonerated. The Appellate Division, noting our reversal in Koffier and reservation of the third-party mailing question, found that the fliers “directly solicited the real estate brokers to refer individuals to the respondent to use the respondent’s legal services in connection with the sale or purchase of real property” as alleged in the petition, and held such a mailing proscribed and not constitutionally protected, but imposed no sanction. The appeal is before us on constitutional grounds (CPLR 5601, subd [b], par 1).

As we noted in Koffler (51 NY2d, at p 143, n 1), the absence of sanction does not affect respondent’s right of appeal from the confirmed finding of a violation. Petitioner argues, however, that the appeal should be dismissed as moot because respondent was on April 9, 1981 suspended from the practice of law, on the basis of Incapacity, and for lack of aggrievement in view of respondent’s motion to confirm. Respondent suggests that the record is not appropriate for decision, that the State interest sought to be protected is not sufficiently defined, and that his mailing is not in-person solicitation such as was condemned by the Supreme Court in Ohralik v Ohio State Bar Assn. (436 US 447). In an amici brief filed on behalf of four attorneys against whom similar charges are pending in the Third Department, it is argued that what is regulated in this instance is not manner of distribution but content. We affirm, though upon somewhat different reasoning than that of the Appellate Division.

I

The arguments for dismissal require little comment. For the same reason that the absence of sanction does not foreclose appeal from the finding of violation, it cannot be said that respondent was not aggrieved by the Appellate Division’s order. Though his motion paper could have been more carefully worded, it clearly asked for “exoneration”, which is inconsistent with the legal conclusion suggested by the Referee. The reference was to hear and report and the facts being undisputed, we construe the motion paper to have requested confirmation of the factual conclusions of the Referee, but not of his conclusion of law.

Nor does respondent’s suspension for incapacity after the Appellate Division decision moot the question, for that suspension, though indefinite in time, was made because of respondent’s inability to participate in a formal disciplinary hearing. Though no sanction has been imposed in the instant proceeding, the finding of violation is a professional stigma that may be considered in determining the discipline to be imposed after formal hearing on the new charges should respondent recover from his incapacity and the result of such a hearing be against him. Even if that were not so, the pendency of four other similar proceedings against amici suggests that the controversy is of a recurring character and should be considered by us rather than dismissed for mootness.

II

The proscriptions, the constitutionality of which is in issue, are found in section 479 of the Judiciary Law and DR2-103(A) of the Code of Professional Responsibility. The former reads: “It shall be unlawful for any person or his.agent, employee or any person acting on his behalf, to solicit or procure through solicitation either directly or indirectly legal business, or to solicit or procure through solicitation a retainer, written or oral, or any agreement authorizing an attorney to perform or render legal services, or to make it a business so to solicit or procure such business, retainers or agreements”. The latter, as amended on April 29, 1978, provides: “A lawyer shall not solicit employment as a private practitioner of himself or herself, a partner or an associate to [sic] a person who has not sought advice regarding employment of a lawyer in violation of any statute or court rule. Actions permitted by DR 2-104 and advertising in accordance with DR 2-101 shall not be deemed solicitation in violation of this provision.” DR 2-104 (C) permits a lawyer to “accept employment which results from participation in activities designed to educate the public to recognize legal problems, to make intelligent selection of counsel or to utilize, available legal services”, but the section is not otherwise germane.

The effect of our Koffler decision and of the Supreme Court decisions referred to in that opinion and in this is to leave the rule declared by the Legislature in section 479 of the Judiciary Law, free to operate in areas not affecting constitutionally free speech (Belli v State Bar of Cal., 10 Cal 3d 824, application for stay den 416 US 965). Though amendment of the section might clarify the intention of the Legislature as a source, co-ordinately with the judiciary, of the public policy governing the conduct of lawyers, the absence of such amendment leaves no vacuum. The section remains effective except as constitutionally proscribed.

The Code of Professional Responsibility is, however, an enactment of the New York State Bar Association rather than the Legislature or any court. Its provisions have been incorporated by reference in the rule defining professional misconduct (22 NYCRR 603.2, 691.2, 806.2, 1022.17) adopted by each of the Appellate Divisions pursuant to statute (former section 216 of the Judiciary Law) and con-tinned in effect by section 13 of chapter 156 of the Laws of 1978. The specific provisions of the code dealing with advertising have also been adopted as a rule by each of the Appellate Divisions, with the minor change referred to in footnote 2 above (22 NYCRR 603.22, 691.22, 806.15, 1022.16). But the code cannot, either directly or through incorporation in a court rule, amend or limit a statute adopted by the Legislature (People v La Carrubba, 46 NY2d 658, 663; see Matter of Weinstock, 40 NY2d 1, 6). Thus, even if DR 2-104 were broad enough in language to be deemed to authorize third-party direct mail generally (which, in our view, it is not), it would not limit the effect of section 479 of the Judiciary Law, as a bar to such advertising. In light of that fact and of the limiting phrase (“in violation of any statute or court rule”) in the first sentence of DR 2-103 (A), the questions before us are, therefore, reduced to whether as a matter of statutory construction section 479 of the Judiciary Law, proscribes third-party mailings and, if so, whether such a proscription is constitutionally permissible.

The statutory construction question is answered, in essence, by our holding in Koffler (51 NY2d, at p 146) that “'[n]ot all solicitation is advertising, though all advertising either implicitly or explicitly involves solicitation” and by the words “directly or indirectly” contained in section 479. Direct mail advertising addressed to real estate brokers is, as respondent conceded and the Appellate Division found, direct solicitation of the brokers to refer clients to respondent, and, thus, indirect solicitation of clients by respondent.

Ill

Because overbreadth analysis does not apply to commercial speech (People v Mobil Oil Corp., 48 NY2d 192, 199) and because laws regulating the time, place or manner of speech stand on a different footing from laws restricting speech because of its subject matter or content (Linmark Assoc, v Willingboro, 431 US 85, 93; Police Dept. of Chicago v Mosley, 408 US 92, 95), we turn first to consideration of respondent's flier.

Our conclusion is that it is the manner rather than the content of the speech in issue which brings it into conflict with the statute. While its last paragraph specifically asks that respondent be recommended to clients of the brokers receiving the flier, the necessary implication of the transmittal to the brokers of the information contained in the first quoted paragraph is that respondent seeks by sending the flier to the broker to have clients of the broker referred to him for legal work. This is conceded by respondent’s brief and would, in any event, necessarily follow from the fact that a real estate broker is one “who, for another and for a fee * * * sells * * * exchanges, buys or rents * * * an estate or interest in real estate” (Real Property Law, § 440; see Executive Law, § 292, subd 14). In short, were the fourth sentence of the first quoted paragraph and the last paragraph of the flier omitted, the statute would proscribe it nevertheless. It is, thus, the manner of advertising the service to respondent’s potential clients rather than the fact that the flier explicitly asks for recommendations that runs it afoul of the statute (see Eaton v Supreme Ct. of Ark. Committee on Professional Conduct, 607 SW2d 55 [Ark], cert den 450 US 966).

Nor can it be said, as was held in Linmark (supra) that though as applied to respondent it restricts but one method of communication, the restriction is nonetheless related to content. Linmark’s conclusion was based upon the ineffectiveness of alternatives to a “For Sale” sign, the absence of a prohibition of lawn signs bearing other messages, and the lack of a detrimental secondary effect on society. Here, respondent concedes that his letter to brokers, like the newspaper advertisement in Koffler, was ineffective, whereas direct mail to clients, permitted under Koffler and shown in that case to be productive, is the more fruitful option. Here, also, though under familiar principles of jurisprudence we limit our ruling to third-party mailings to brokers, the statutory language prohibits all third-party mailings, not just mailings to brokers. Finally, there is, as hereafter demonstrated, a detriment to society in the potential conflict of interest that may be generated when those in need of legal services are approached indirectly through a broker. The restriction imposed upon respondent neither is, nor should it be construed to be, one upon content. And as a regulation of the manner of speech, control of which in light of the governmental interest to be served, the lack of effectiveness of the medium and the more effective available alternatives, must be deemed reasonable, the statute as applied to respondent is constitutional (Matter of Koffler, supra, at p 150; Consolidated Edison v Public Serv. Comm., 447 US 530, 535-536; Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748, 771).

But if we were to construe the statute as addressed to content, our conclusion would be no different. As we noted in Koffler (51 NY2d, at p 147), Central Hudson Gas v Public Serv. Comm. (447 US 557, 566) establishes- four criteria: (1) Is the speech misleading or related to unlawful activity? (2) Is the governmental interest sought to be protected substantial? (3) How directly does the regulation advance that interest? (4) Is there a less restrictive alternative?

The Grievance Committee makes no contention that the flier is misleading. And though section 479 has its genesis in section 270-a of the Penal Law of 1909, it is not speech as activity but the activity to which the speech relates (here, legal services in relation to the purchase or sale of a house) with which this portion of the criteria is concerned. Neither deception nor unlawfulness can sustain application of the statute to respondent’s flier, therefore.

There is, however, a substantial governmental interest in preventing conflicts of interest in attorney-client relationships which the statute directly protects and for which there is no adequately protective less restrictive alternative. The Supreme Court has many times recognized as a proper and substantial governmental interest the prevention of conflicts of interest (Matter of Primus, 436 US 412, 436 [“serious likelihood of conflict of interest”] ; Ohralik v Ohio State Bar Assn., 436 US 447, 461, n 19, supra [“we cannot say that the pecuniary motivation of the lawyer who solicits a particular representation does not create special problems of conflict of interest”], and see id., at p 464, n 22; NAACP v Button, 371 US 415, 443 [“serious danger * * * of professionally reprehensible conflicts of interest which rules against solicitation frequently seek to prevent”]; see, also, Mine Workers v Illinois Bar Assn., 389 US 217,223-224). Though the potential for conflict played a part in sustaining the speech limitation only in Ohralik, the reason it was held insufficiently present in the other cases was the absence of monetary stakes for the union or other community group, whose collective activity was undertaken to assure meaningful access to the courts.

Not only is there an absence of associational activity in the instant case, but also there are present the pecuniary interests of both the attorney and the broker. Moreover, since the broker is in direct contact with his prospect (the lawyer’s potential client), there is present also the in-person solicitation element which Ohralik found sufficient to sustain regulation against constitutional attack. Of importance in Ohralik's determination were the lack of sophistication of the usual client, the pecuniary interest of the solicitor, the difficulty or impossibility of obtaining reliable proof of what occurred in such an encounter (436 US, at pp 464-466). Those factors made permissible “prophylactic measures whose objective is the prevention of harm before it occurs” (id., at p 464). The same presumed lack of sophistication, pecuniary interest and difficulty of proof are present here. Moreover, in-person solicitation discourages the comparison shopping which is the very heart of the concept behind dissemination of information concerning legal services: to assure “informed and reliable decisionmaking” (Bates v State Bar of Ariz., 433 US 350, 364, supra; see Reich, Preventing Deception In Commercial Speech, 54 NYU L REV 775, 801, 804; Worsham, Solicitation By Attorneys: A Prediction And A Recommendation, 16 Houston L Rev 452, 468-471).

Nor, as Ohralik makes clear (and Primus confirms [436 US, at p 434]), is it required that there be “actual proved harm to the * * * individual” (436 US, at p 464). “[T]he absence of explicit proof or findings of harm or injury is immaterial” (id., at p 468); “the potential for overreaching * * * inherent in * * * in-person solicitation” (id.) is enough to justify such a regulation (see Note, Attorney Solicitation Clients, 7 Hofstra L Rev 755, 773-774).

Measuring against that background, we conclude that even as content regulation section 479 should be held constitutional. The possibility that the lawyer’s view of marketability of title may be colored by his knowledge that the referring broker normally will receive no commission unless title closes, the improbability that the attorney will negotiate to the lowest possible level the commission to be paid to the broker who is an important source of business for him (or suggest to the client that he do so), the probability that the lawyer will not examine with the same independence that he otherwise would the puffery that the broker has indulged in to bring about the sale are examples of the conflict potential to be protected against. Nor can we agree with the Supreme Court of Kentucky (Kentucky Bar Assn. v Stuart, 568 SW2d 933 [Ky]) that the filing with the overseeing agency of a lawyer’s solicitation letter to brokers, adequate though it may be to protect against any evils of direct mail addressed to clients (Matter of Koffler, 51 NY2d 140, 150, supra), is adequate protection against the conflict of interest problems involved in attorney mailings to brokers. It is one thing for a disciplinary system to police the language in client direct mail advertising and quite another to expect that anything approaching proper oversight can be accomplished simply by the filing of a copy of a broker letter when the client relationship results not from the letter but from the intermediation of the broker.

For the foregoing reasons, the order of the Appellate Division should be affirmed, without costs.

Fuchsberg, J.

(dissenting). The petition of the Grievance Committee, respondent on this appeal, should be dismissed.

Whatever the prescriptions of professional “etiquette” and institutional preferences may have been in the past, the Supreme Court, final arbiter of First Amendment issues, has declared that the constitutional protection accorded commercial speech will no longer abide unreasonable restrictions on the advertising of information calculated to serve “individual and societal interests' in assuring informed and reliable decisionmaking” concerning the price and availability of at least “routine legal services” (Bates v State Bar of Ariz., 433 US 350, 364, 384; Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748). Essentially on this basis, in Matter of Koffler, sweeping aside the Appellate Division’s “artificial distinction between solicitation and advertising”, and undeterred by section 479 of our Judiciary Law, we upheld a lawyer’s mail solicitation of potential clients (51 NY2d 140, 143). Now, abandoning this high road, the majority, hypothesizing excesses and ignoring less restrictive means by which these may be avoided, upholds a total ban on a lawyer’s mailings to realtors. In my view, on the analysis which follows, this absolute prohibition must be regarded as so unreasonable a restraint on communication as to constitute an abridgment of First Amendment rights.

Preliminarily, to move most quickly to the heart of the matter, it may be well to point to three considerations with which the majority perforce has had to agree. One is that the Code of Professional Responsibility is subordinate to the provisions of section 479 of the Judiciary Law and that this statute, in turn, must defer to our Constitutions, State and Federal. A second is that, since Bates, lawyer advertising, though it “implicitly or explicitly involves solicitation”, may no longer be proscribed per se (Koffler, supra, at p 146); rather, in Koffler, in the course of upholding the validity of direct mail advertising of the nature and price of legal services offered to homeowners as prospective clients, we recognized the validity of this postulate. A third, this time factual, is that the contents of the appellant Alan I. Greene’s fliers were not false, deceptive or misleading in any way.

These noted, we express disagreement, with the majority’s reading of Ohralik v Ohio State Bar Assn. (436 US 447) as an out-and-out “condemnation” of all in-person solicitation (p 122). True, it held that a State Bar could constitutionally discipline a lawyer for soliciting clients “in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent” (Ohralik, supra, at p 449). It is a mistake, however, to assume from this general language that the limitation was a wide-ranging one. For Ohralik’s words are self-limiting and, significantly, were uttered in the context of a congerie of facts surrounding an extreme episode of oppressive and overreaching importuning of the hospitalized victim of an accident. That the court intended no blunderbuss declaration ruling out all direct solicitation, whether essayed in person or by mail, becomes apparent too from its concurrent determination in Matter of Primus (436 US 412). Handed down with Ohralik, Primus held a solicitation letter dispatched by an attorney employed by the American Civil Liberties Union sheltered by the First Amendment. So deciding, the court did more than comment that the ACLU litigates both “as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public” (Primus, supra, at p 431). It also made the point, relevant here, that, if anything, “the fact that there was a written communication lessens substantially the difficulty of policing solicitation practices that do offend valid rules of professional conduct” (Primus, supra, at pp 435-436).

In Koffler, we emphasized that interdiction of letters addressed to potential clients would cut across the “strong societal and individual interest in the free dissemination of truthful price information * * * in our free enterprise system” (Koffler, supra, at p 146). Oddly, the majority now recoils from this reasoning when letters are addressed to real estate brokers whom, after all, buyers or sellers of real property conceivably may be expected to consult on the choice of a lawyer. Absent any record data, empirical or otherwise, to warrant this departure from the spirit of our earlier declaration, it offers no more than direful speculation, which, I respectfully suggest, reflects perhaps unconscious, but nevertheless impermissible, obeisance to the tastes and traditions of a pre-Bates yesteryear. (See Kentucky Bar Assn, v Stuart, 568 SW2d 933 [Ky], supra [letters to real estate agencies merely stating the price of routine legal services and the qualifications of the attorneys not in-person solicitation].)

It cannot be gainsaid that a mailing to third parties contemplates interaction between their recipients and potential clients. But, in principle, what Greene sought by resort to this more targeted, and presumably more cost-efficient, mail medium was simply to heighten the chances that the concededly fair and truthful message he wished to convey would come to the attention of those to whom it would be most useful, a perfectly sensible and acceptable, even “indispensable”, objective (Bates, supra, at p 364).

Needless to say, any referral system is highly dependent upon the availability of information about an attorney. Moreover, a paramount reason for the Supreme Court’s support of a lawyer’s right to advertise was its recognition that, in a time when mobility and urbanization had become an integral part of our social climate, pre-Baies referral practices, attuned as they were to the far more fixed fashions of an essentially “small-town society”, in which “reputational information” could be expected to be common knowledge, no longer was adequate (Bates, supra, at pp 374-375, n 30; see Cheatham, Availability of Legal Services: The Responsibility of the Individual Lawyer and of the Organized Bar, 12 UCLA L Rev 438, 440; Meserve, Our Forgotten Client: The Average American, 57 ABA J 1092; cf. Zaldin v Concord Hotel, 48 NY2d 107, 112).

Consequently, I find it difficult to understand how the majority, in face of our prior acceptance of the right to advertise by direct mail, can equate Greene’s restrained use of that medium with the vexatious in-person solicitation at which Ohralik strikes (see p 128). For, at its worst, Greene’s conduct, even if we were to disregard its salutary candor and written form, cannot be said to have differed in spirit and intent, for instance, from the exposure to potential clients and potential recommenders that many lawyers, with full propriety, attempt to achieve by carefully structuring their social and community associations (see Bates, supra, at p 371). Nor can it be said that Greene’s mode of communication suffers by comparison, in morality or accountability, with the far more amorphous collection of contacts with the coterie of friends, relatives, business or social acquaintances and former clients who-constitute the main source to which most lawyers engaged in private practice look for referrals.

Surely, whether a third party’s recommendation of a lawyer to a consumer of legal services has been generated by personal cultivation of or a chance acquaintance with the recommender or whether the recommender’s awareness of the lawyer’s availability stemmed from the lawyer’s correct employment of contemporary mail or media channels, common sense teaches that there is no basis for attributing greater risks of the occasional unprofessionalism or over-commercialization, which in this imperfect world will at times occur in any quarter, to the latter rather than the former. Little wonder then that the Supreme Court has dubbed arguments which focus on fears of this character too “dubious” to survive constitutional scrutiny (see Bates, supra, at pp 369-379).

Specifically, to recite them verbatim, the suppositions on which alone we are asked to conclude that the demons of conflict of interest will be let loose are that “the lawyer’s view of marketability of title may be colored by his knowledge that the referring broker normally will receive no commission unless title closes” or that the lawyer will not make efforts to “negotiate to the lowest possible level the commission to be paid to the broker” or that “the lawyer will not examine with the same independence that he otherwise would the puffery that the broker has indulged in to bring about the sale” at p 129). But, even if these cynical conjectures reflected anything more than occasional vagaries, it would be outlandish for the fears the committee entertains to form the predicate for punishing facially innocent mail communications with brokers while ignoring the fact that, if the fears were founded, they would be at least as pertinent to lawyers who, enjoying personal or professional relationships with brokers, are far, far, more likely to become the beneficiaries of such referrals and the inheritors of the hobgoblins of client betrayal which, so unaccountably and so unevenly, appear to concern the committee. Artificial distinctions of this sort are not only indefensible, but are just the sort of things which unwarrantedly sap public confidence in the legal system.

The nature of Greene’s alleged assault on the ethical standards now seen in fuller perspective, we proceed to match the mailing of his fliers against the criteria so lately set out by the United States Supreme Court in Central Hudson Gas v Public Serv. Comm. (447 US 557, 564-566). Reiterating the court’s position that commercial speech is subject to a State’s reasonable time, place and manner regulation (Consolidated Edison v Public Serv. Comm., 447 US 530, 536), that case erected a four-part analysis for testing whether a particular State regulation goes too far.

Applying the test, initially we must say whether the speech in question is misleading or related to an unlawful activity, for then it is entitled to no protection. This hurdle it easily overcomes. As indicated earlier, it is agreed that the speech here did not offend either requirement.

Secondly, we must-decide whether the regulation generally is in furtherance of a substantial State interest. This too need not detain us. Since the possibility of deceptive or unethical conduct always exists in the abstract at least, a legitimate State interest may be said to exist.

This brings us to the third level of inquiry, i.e., evaluation of “the directness of relation of regulation to purpose” (Matter Koffler, 51 NY2d 140, 148, supra). For the reasons more fully detailed above, the regulation here did not measure up. Greene’s mailings involved no professional trespass. Not all lawyer mailings invite the ethical departures the committee envisaged. Such departures certainly are not the inevitable result of all direct mail advertising. The one before us only concerned information about price and availability and, as such, was in accord with Ethical Consideration 2-8 of the Code of Professional Responsibility of the American Bar Association (see, also, New York’s Code of Professional Responsibility EC 2-8 in McKinney’s Cons Laws of NY, Book 29, § 500 to end, pocket part [1980-1981], p 45). Disseminating this information serves a useful rather than a harmful individual and societal function. The Supreme Court has “declined to uphold regulations that only indirectly advance the state interest involved” (Central Hudson Gas v Public Serv. Comm., 447 US 557, 564, supra). The regulation here, therefore, was unreasonable, and, consequently, must fall on that account.

Finally, we determine whether less restrictive measures were available to the State. For the regulatory technique may not be disproportionate to the interest served. Obviously, since the communication here was not a transitory oral one, but made by mail, a filing requirement or one that calls for an appropriate disclaimer might have been an available and practical alternative (see Bates, supra, at p 384; Koffler, supra, at p 150; Kentucky Bar Assn. v Stuart, supra, at p 934; ABA Proposed Draft of Model Rules of Professional Conduct, rule 7.2, subd [b], and Comment). Yet, the committee offered no adequate explanation for failing to engage these or other lesser methods by which to assure that the regulatory scheme was not more extensive than necessary to serve the governmental interest at stake. Instead, imposing an unwarranted absolute prohibition, it chose a means unreasonably and insufficiently related to the purpose to be served.

It follows that the order of the Appellate Division should be reversed and the petition dismissed.

Judges Jasen, Gabrielli, Jones and Wachtler concur with Judge Meyer; Judge Fuchsberg dissents and votes to reverse in an separate opinion in which Chief Judge Cooke concurs.

Order affirmed.

      . As originally adopted by the New York State Bar Association, DR2103(A) used the word “recommend” rather than “solicit” in its first line. Moreover, it did not include the present second sentence or the last eight words of the first sentence.

      . The petition refers also to the Rules of the Appellate Division without specific reference to any rule. Rule 691.22 (22 NYCRR 691.22) deals with “Advertising and publicity by attorneys”, but is not considered further because not referred to by either court below and not otherwise germane to the discussion which follows. DR2-101, referred to in DR2-103(A), is, except for the substitution of “lawyer” for “attorney”, identical with rule 691.22.

      . The brief of amici states that their experience was the same.

      . Accord Allison v Louisiana State Bar Assn. (362 So 2d 489 [La] [solicitation through employer of employee participants in a prepaid legal services plan]) ; contra State Bar Grievance Administrator v Jaques (407 Mich 26 [solicitation of tort claims through union agent] ) ; Kentucky Bar Assn. v Stuart (568 SW2d 933 [Ky] [attorney’s letter to real estate broker]; and see Figa, Lawyer Solicitation Today And Under The Proposed Model Rules of Professional Conduct, 52 Col L Rev 393, 404). It is questionable whether Jaques would be applied to a situation such as the present (see Wall v Attorney-General, 409 Mich 500, 550). Both Jaques and Stuart may be distinguished on the ground that neither discussed potential conflict of interest, but to the extent that they cannot be so distinguished we decline to follow them.

      . “[S]uch speech should not be withdrawn from protection merely because it proposed a mundane commercial transaction * * * The listener’s interest is substantial: the consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue” (Bates, supra, at pp 363-364; cf. Fuchsberg, Commercial Speech: Where It’s At, 46 Brooklyn L Rev 389, 391).

      . Section 479 of the Judiciary Law, effective September 1, 1967, anteceded Bates by 10 years and has not been amended in the intervening years.

      . Earlier, a similar conclusion was reached by the New York State Bar Association Committee on Professional Ethics in its opinion No. 507: “[I]t seems clear to us in this era of direct-mail advertising that an advertisement * ** * does not become an improper solicitation merely because it is placed in the recipient’s mail box by a postman rather than a newsboy”.

      . (See, generally, Kentucky Bar Assn, v Stuart, 568 SW2d 933 [Ky] ; Bishop v Committee on Professional Ethics & Conduct of Iowa State Bar Assn., 521 F Supp 1219; Andrews, Birth of A Salesman: Lawyer Advertising and Solicitation 61-68; Brosnahan and Andrews, Regulation of Attorney Advertising: In the Public Interest?, 46 Brooklyn L Rev 423; Comment, Three Years Later: State Court Interpretation of the Attorney’s Right to Advertise and the Public’s Right to Information, 45 Mo L Rev 562.)

      . Koffler’s recognition of this characteristic (supra, at p 145, n 2) did not suggest a preordained result (compare our footnote with footnote 25 in Virginia Pharmacy, 425 US 748, 773, supra, and the Supreme Court’s ensuing holding in Bates).

      . Greene’s fliers were mailed to all brokers in a circumscribed area — Westchester County, where he resided and practiced, and portions of adjoining Putnam County. It was no more than logical for him to reason that an untargeted mailing to the adult members of a population of well over a million would not only have been wasteful but prohibitively expensive.

      . The venerability of referrals as a source of clients has been recognized also in Ohralik (supra, at p 465, n 24); the New York Code of Professional Responsibility (EC2-8); and the American Bar Association’s Proposed Draft of Model Rules of Professional Conduct (rule 7.2, subd [c]).

      . In the same vein, the Grievance Committee, to justify its condemnation of the attorney, goes so far as to find cause for complaint in the argument that the respondent, whose fliers did not indicate the slightest inclination to split fees, would also “deceive the realtor, who will believe if a person is referred to the attorney, he, the realtor, will obtain something in return for the referral, when in fact he will not”. To this, of course, the short answer is that frustration of any real estate agent (or any other referrer of a client) who may entertain such an expectation would be a testimonial to the unswerving probity and ethics of the lawyer, who in any event, is held to DR 2-103 (B), which specifically states: “A lawyer shall not compensate or give anything of value to a person * * * as a reward for having made a recommendation resulting in employment by a client”. It may not be remiss to add that even the realtors seem to be too freely belabored, since the record establishes that none of the recipients of the defendant’s flier responded at all, much less improperly.

      . Since, from the record here, mail communications may not be very productive of referrals, the fears may be academic as well as groundless. Greene received no referrals in response to his flier. The four amici, from another part of the State, fared no better.

      . This is not intended as an indorsement of the procedures mentioned, either in isolation or in preference to other methods. Rather, mention is made of these measures merely to demonstrate that less restrictive regulatory means are available or can be developed.


text:
    The People of the State of New York, Appellant, v Joseph Baldi, Respondent.
    Argued September 16, 1981;
    decided October 29, 1981

      POINTS OF COUNSEL

      John J. Santucci, District Attorney (Barry A. Schwartz and Charles N. Walsh of counsel), for appellant.
    Defendant was afforded effective assistance of counsel. (People v Wood, 12 NY2d 69; People v Garrow, 51 AD2d 814; People v Aiken, 45 NY2d 394.)

      Lynn W. L. Fahey and William E. Hellerstein for respondent.
    I. Respondent was denied his constitutional right to the effective assistance of counsel when his assigned attorney repeatedly stepped out of the role of his advocate to assist the prosecution or act as “friend of the court”, and when he failed to render representation of an “assistive nature” through failing to pursue suppression of damaging evidence or prepare adequately for trial, abandoning viable defenses, and eliciting highly prejudicial matter. (Anders v California, 386 US 738; Douglas v California, 372 US 353; Ellis v United States, 356 US 674; People v Emmett, 25 NY2d 354; People v Gonzalez, 47 NY2d 606; People v Rosario, 9 NY2d 286; People v Duke, 58 AD2d 31; People v Bell, 48 NY2d 933; People v Bennett, 29 NY2d 462; People v La Bree, 34 NY2d 257.) II. Respondent’s June 21 re-enactments of the Januszko homicide must be suppressed since they resulted from his uncounseled waiver of his right to counsel when he was represented by counsel on a pending indictment and specifically alerted the police to the existence of that case. (People v Rogers, 48 NY2d 167; People v Bell, 50 NY2d 869; People v Cunningham, 49 NY2d 203; People v Arthur, 22 NY2d 325; People v Pinzon, 44 NY2d 458; People v Ramos, 40 NY2d 610; People v Coleman, 42 NY2d 500.)
   OPINION OF THE COURT

Chief Judge Cooke.

An attorney who presents a well-grounded but unsuccessful defense will not later be held to have provided ineffective assistance of counsel, and thus a defendant will not be entitled to a vacatur of his conviction on such basis.

Joseph Baldi was convicted after separate trials for unrelated crimes committed nine months apart. The first judgment, entered November 24,1974, convicted defendant of attempted murder, burglary in the second degree, and felonious possession of weapons. The second judgment, entered January 16, 1975, convicted defendant of murder in the second degree. The Appellate Division, Second Department, reversed both convictions on the ground that Baldi was denied the effective assistance of counsel. The People appeal from the order of reversal. The Appellate Division’s order is now reversed.

I

The facts are taken from testimony at the two trials and the pretrial suppression hearing.

In the early hours of September 5, 1971, police received a prowler complaint in Queens. While investigating, two officers saw Joseph Baldi walking down the sidewalk at 5:00 A.M. When asked by Officer John Hamberger what he was doing in the area, Baldi responded that he had just left his girlfriend and was on his way to work. Dissatisfied with defendant’s answers to further questions, Officer Hamberger asked for identification. Baldi reached for his pocket as though to take out his wallet, but instead produced a pistol, pointed it at the officer’s chest, and pulled the trigger. Fortunately, the gun misfired and the officers wrestled Baldi to the ground and disarmed him.

Baldi was handcuffed, arrested, and placed in the police car. After being read the Miranda warnings, he was searched. Live ammunition was found in the gun, which was operable, and more ammunition was found in defendant’s jacket. In addition, there were found in Baldi’s wallet a license, registration, and Social Security card belonging to a woman who lived nearby. Defendant claimed he had found the items on the street. Subsequent investigation revealed that the woman’s handbag, found the next dáy in a trashcan, had been stolen from her dining room table earlier that night.

Legal Aid Society representation was provided for Baldi. He was indicted in December, 1971, for, among other charges, attempted murder of a police officer, burglary, and possession of a weapon. The defendant, however, was found to be incompetent to stand trial after examination at Kings County Hospital. From there, Baldi was sent to Mid-Hudson State Hospital and then to Creedmoor State Hospital. In February, 1972, Baldi was released from Creedmoor without notice to the District Attorney or the court.

On June 17,1972, at about 3:30 A.M., 15-year-old Deborah Januszko was fatally stabbed through her open bedroom window as she slept. On June 20, at about 5:00 A.M., Detective Donald Palmer spotted Baldi while staking out the Januszko neighborhood. Baldi identified himself and stated that he was attending a trade school in the area.

After investigating Baldi’s story, Palmer went with another officer to Baldi’s apartment for more information. At around 12:15 A.M., of June 21, Palmer met Baldi in the building’s hallway, identified himself, and asked if Baldi would come to the homicide squad for questioning. As related by Palmer at a subsequent suppression hearing, defendant immediately mentioned the earlier charge concerning the attempted murder of the police officer, apparently assuming that Palmer’s interest concerned that incident. Palmer asked what had happened in- that case and defendant responded, according to Palmer’s testimony, that “he went to — or was sentenced to Creedmoor State.” When defendant asked whether Palmer knew about the charge, Palmer’s only response was that the officers were there to investigate the Januszko slaying. No further inquiries were made into Baldi’s statement or whether he had an attorney. Prior to this conversation, Palmer was personally unaware of the first charge or arrest.

At Palmer’s request, Baldi allowed the police to enter his apartment. Among other things, they found a number of knives and sexually explicit magazines. In response to the detective’s renewed request, Baldi agreed to accompany the officer to the police station.

At the station, Baldi received a full recitation of his Miranda rights. The defendant acknowledged that he understood all the warnings and answered questions put to him by Detective Angelo Lamardo. Aftr Lamardo reviewed some preliminary matters, the magazines and knives found in Baldi’s apartment were brought into the interrogation room. Lamardo began thumbing through one of the magazines and making deprecatory remarks about the models; Baldi defended them, stating that they were not degenerates and then reached out to touch the photographs. Baldi’s knives were placed before him and more questions asked, leading to a specific inquiry about the Januszko slaying. Baldi went into a trance-like state and pantomimed the stabbing. During the night, he did this twice more in the station house, each time explaining his actions in response to Lamardo’s questions. After each of the three re-enactments, defendant fell to the floor and had to be assisted to his feet. Finally, around 5:30 A.M., he was taken to the Januszko home, where he once again acted out the killing. This time, he did not collapse after he re-enacted the crime. Baldi was returned to the police station and charged with murdering Deborah Januszko.

On June 22, 1972, Sidney Sparrow was assigned as counsel for Baldi on the Januszko murder charge. At some later date, Sparrow also assumed Baldi’s defense on the earlier charges.

Thereafter, Sparrow learned that the police believed Baldi possibly was responsible for other unsolved burglary-murders that had occurred in Queens over several years. On July 7 and 14, Baldi was questioned by Lamardo in the presence of Sparrow, other detectives, and two county psychiatrists. In these interviews, Baldi again confessed to the Januszko slaying, and also confessed to three other murders as well as 10 assaults on women. At the July 7 meeting, Baldi went into the same sort of trance as on June 21 and described his acts as though occurring at that moment. At the second of these interrogations, Baldi was hypnotized by a psychiatrist and this time described his acts as occurring in the past.

On July 8, 1972, Baldi was indicted for the Januszko murder. On July 18, he was indicted for the three other murders to which he had confessed. No trial on any of the indictments was held until late 1974. During the interim, Baldi was examined on three occasions and found competent to stand trial. Sparrow accepted these findings without demanding a hearing.

In October, 1974, Baldi was tried by jury on the indictment arising from the September, 1971 incident involving the police officer. Baldi pleaded not guilty and not guilty by reason of insanity. The defense theory, other than factual innocence, was that defendant was schizophrenic, having two or more personalities. The defendant took the stand and denied the events as testified to by the arresting officers. On direct examintaion by Sparrow, Baldi also denied committing or confessing to the crimes he had described in the July, 1972 interviews. Sparrow took the stand himself, with the consent of both the Assistant District Attorney and the court, and testified in detail to what he had observed during these interviews, recounting his client’s admissions to the murders and assaults. Sparrow also testified that on June 22, 1972, the day after defendant’s arrest for the Januszko murder, he visited the defendant at Kings County Hospital where Baldi was being held for examination. Sparrow described Baldi as shuffling along without lifting his feet, speaking in grunts and in a barely audible voice, and unable to hold Sparrow’s business card when placed in his hand, apparently unaware of its presence. Expert testimony was also presented to establish Baldi’s insanity and inability to comprehend the nature and consequences of his acts. Baldi’s defense failed and he was convicted for attempted murder of a police officer, burglary in the second degree, and felonious possession of weapons. Baldi received consecutive sentences for his crimes.

In early November, 1974, a Huntley hearing was held to determine whether Baldi’s statements at any of the three examinations would be admissible at his murder trial. Again, Sparrow took the stand. Concerning the circumstances under which he allowed defendant to be interviewed, disputed by the Assistant District Attorney, Sparrow testified that, after being informed of Baldi’s possible involvement in other murders, Sparrow agreed to the interviews on the understanding that nothing said by the defendant would be used against him. Sparrow, in support of the claim of involuntariness by reason of insanity, also testified to Baldi’s appearance when they first met on June 22, as well as to Baldi’s conduct at the July, 1972 examinations. At the conclusion of the hearing, the Judge ruled that the June 21 confession was voluntarily made and thus admissible against the defendant. As to the other statements, although the court did not expressly find an agreement had actually been made, it noted Sparrow’s expertise in criminal law and reliance on his understanding of the arrangement in ruling that Baldi’s constitutional rights would be violated if his July, 1972 statements were used against him. Consequently, the Judge suppressed the confessions made on July 7 and 14, 1972.

In late November, 1974, Baldi pleaded not guilty by reason of insanity to the Januszko murder and was tried without a jury. Baldi again took the stand and denied killing Deborah Januszko or recalling his confession. Some very general remarks were also elicited by Sparrow on direct examination about the July, 1972 interviews, basically to the effect that defendant did not recall that he had admitted committing other assaults or murders. Sparrow, again with no objection from the prosecutor or the court, also took the stand. On direct, he testified only as to Baldi’s dazed appearance and unusual behavior on June 22 and his general demeanor at the July interviews. On cross-examination, Sparrow testified that Baldi had confessed to other murders, but that Baldi recalled only that Sparrow told him after the examinations what he had done, not the confessions and re-enactments. Expert testimony as to Baldi’s mental state was also presented. The court found the June 21 confession to be voluntary, the defendant sane at the time of the Januszko killing, and guilty of second-degree murder. Baldi was sentenced to an indeterminate term of 25 years to life.

Baldi obtained new counsel and appealed to the Appellate Division, arguing that his sanity had not been proven beyond a reasonable doubt and that Sparrow’s conduct was such that it denied defendant the effective assistance of counsel. Although the proof-of-sanity question was decided against defendant, a majority of the Appellate Division determined as a matter of law that Baldi had been denied the effective assistance of counsel and ordered both judgments of conviction reversed.

The People were granted leave to appeal to this court. They argue that Sparrow’s conduct at both trials was an innovative defense tactic, not an incompetent or ineffective performance. In response, defendant maintains that Sparrow’s actions were not reasonably competent. Defendant also urges, apparently for the first time, that his June 21 confession was improperly admitted at his murder trial because his waiver of counsel was ineffective in the absence of counsel assigned to represent him on the pending attempted murder charge. We conclude that defendant was accorded effective assistance of counsel, but that his other argument presents a question warranting further review.

II

The right to the effective assistance of counsel is guaranteed by both the Federal and State Constitutions (US Const, 6th Arndt; NY Const, art I, § 6). What constitutes effective assistance is not and cannot be fixed with yardstick precision, but varies according to the unique circumstances of each representation (see People v. Droz, 39 NY2d 457).

This court has not articulated an inflexible standard, applicable to all cases, against which an attorney’s effectiveness will be measured. Indeed, in Droz, this court concluded only that the defendant’s representation, under all the circumstances presented, could not be considered “adequate or effective in any meaningful sense of the words” (39 NY2d, at p 463). In People v Aiken (45 NY2d 394), the court recognized that there have developed two different standards appropriate for reviewing an attorney’s effectiveness. The traditional standard has been whether the attorney’s shortcomings were such as to render the “ Trial a farce and a mockery of justice’ ” (id., at p 398, quoting People v Brown, 7 NY2d 359, 361, cert den 365 US 821; People v Bennett, 29 NY2d 462, 467; People v Tomaselli, 7 NY2d 350, 354). A newer, stricter standard, developed predominantly in the Federal courts (see, e.g., United States v Fessel, 531 F2d 1275; United States v Elksnis, 528 F2d 236; United States v Toney, 527 F2d 716, cert den 429 US 838; United States v De Coster, 487 F2d 1197), is whether the attorney exhibited “reasonable competence” (45 NY2d, at pp 398-399). The Aiken court did not choose one standard over the other, concluding rather that the attorney’s conduct was considered effective under either (id.).

Our most critical concern in reviewing claims of ineffective counsel is to avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis. It is always easy with the advantage of hindsight to point out where trial counsel went awry in strategy. But trial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness. So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaninful representation, the constitutional requirement will have been met (see People v Jackson, 52 NY2d 1027; People v Aiken, 45 NY2d 394, supra; cf. People v Bell, 48 NY2d 933; People v Droz, 39 NY2d 457, supra).

Defendant urges that numerous instances establish Sparrow’s ineffectiveness. His argument focuses primarily on five areas of alleged inadequacy by Sparrow: (1) the failure to pursue Baldi’s claim of actual innocence in the first trial; (2) the handling of both defense and prosecution expert witnesses; (3) Sparrow’s testifying at the two trials and the Huntley hearing, as well as his summations; (4) Sparrow’s role in bringing about the July 7 and 14, 1972 interrogations; and (5) the quality of effort made to suppress Baldi’s June 21 confession. It is concluded that Sparrow’s performance as a whole cannot be said to have denied defendant the effective assistance of counsel. When considered in context, all but the fourth item involve tactical decisions concerning a difficult and innovative defense.

As to the contention that Sparrow did not strenuously pursue the factual-innocence defense, it should be noted that counsel reasonably could have urged his client’s factual innocence, or his insanity, or both. The factual-innocence defense itself was weak. It is true that Sparrow had his client’s claims that when the officers approached him he was carrying only a .22 caliber starting pistol and that he had found the property later discovered to have been stolen. Baldi, however, had made incriminating statements after his arrest. And the prosecution had two police officers who had seen — in fact, had been the targets of — Baldi’s attack and had seized live ammunition from him. The circumstantial evidence of burglary was also very strong. Defendant thus faced a formidable case against him. Certainly, it would not be ineffective assistance if an attorney tried to plea bargain for his client under such circumstances. Just as an attorney whose client offers a weak alibi defense may choose as a matter of strategy to adopt another tack (see People v Ford, 46 NY2d 1021), so, too, an attorney is not required to argue factual innocence at the expense of a stronger defense. In addition, Sparrow did argue the innocence defense to the jury, pointing out the weaknesses in the People’s case.

From all that appeared, Sparrow indeed had a much stronger defense in the claim that his client was insane at the time of the crimes. Baldi had been found incompetent to stand trial when first arrested in September, 1971. His subsequent conduct after the arrest for the Januszko slaying demonstrated a continuing mental imbalance. All of the expert witnesses agreed that to some degree Baldi was mentally unfit, if not legally insane.

Contrary to defendant’s contention, Sparrow’s handling of the expert’s testimony was not unreasonable. As to his own witness, Dr. Harry La Burt, Sparrow did not contradict the psychiatrist, but sought only to clarify the doctor’s testimony for the jury. Nor is there merit to defendant’s claim that Sparrow failed to press the prosecution’s psychiatric witness, Dr. Daniel Schwartz, about his subordinates’ diagnoses made in September, 1971, which comported with Dr. La Burt’s evaluation and contradicted Dr. Schwartz’ analysis. In fact, Sparrow explored this issue in depth while cross-examining Dr. Schwartz, a veteran of hundreds of criminal trials, but was unable either to shake the doctor’s criticism of his less experienced colleagues’ diagnoses or to induce him to modify his own conclusion as to Baldi’s condition.

Sparrow’s taking the stand was consistent with and strengthened the insanity defense. By testifying, Sparrow was able to introduce evidence not only that his client had committed a large number of sexually based assaults and murders, re-enacting crimes while in a trance, and thereby manifesting a lack of moral sensibility (see People v Wood, 12 NY2d 69; People v Garrow, 51 AD2d 814), but also that defendant could not recall making these admissions before a number of witnesses. This testimony helped to lay the foundation for the expert witnesses who appeared later. True, Sparrow contradicted his client, but did so for a proper purpose — the establishment of the insanity defense. Nor was there impropriety in Sparrow’s remarks in summation, during which he understandably declined to vouch for his client’s credibility, but argued the weaknesses in the State’s case and emphasized defendant’s insanity.

While much of what has been said is equally applicable to both trials, it should be noted that Sparrow’s role as a witness at the murder trial was far less involved than in the earlier proceedings. In the second trial, Sparrow downplayed the details of the crimes admitted in the July confessions both in examining Baldi and in his own direct testimony, which Sparrow limited to Baldi’s appearance and behavior at their meetings in June and July, 1972. Having concluded that Sparrow’s conduct at the attempted-murder trial did not deny defendant effective assistance of counsel, certainly Sparrow’s more limited role at the second trial does not amount to ineffectiveness.

Sparrow’s participation in the July 7 and 14, 1972 examinations superficially raises a more serious question of effectiveness. Given the resulting controversy as to what occurred, undeniably it would have been better for Sparrow to have obtained from the Assistant District Attorney a written agreement not to use Baldi’s statements against him. As later events unfolded, however, Sparrow’s participation lost all significance. Following the Huntley hearing, all the statements were apparently suppressed on the strength of Sparrow’s testimony. Under the circumstances, defendant’s objection to Sparrow’s actions amounts to no more than a challenge to his effectiveness in the abstract. Defense counsel should be diligent in safeguarding a client’s rights, but it would be remiss to declare that an attorney is ineffective if he assists the police by permitting the interrogation of a client who is promised immunity with respect to other crimes.

Nor was Sparrow’s conduct at the Huntley hearing objectionable. He was a witness to defendant’s dazed condition and unusual appearance at King’s County Hospital on June 22, the day after Baldi’s arrest. In fact, the hearing Judge himself stated that he believed Sparrow would be violating the Code of Ethics if he failed to testify. Additionally, as noted, the Judge’s decision on the suppression motion suggests that the testimony by Sparrow strongly persuaded the Judge that there had been an agreement between Sparrow and the Assistant District Attorney.

Defendant also attacks Sparrow’s failure at the Huntley hearing to produce psychiatric testimony about Baldi’s condition following his arrest. While it may have been wiser as a matter of tactics to produce an expert, Sparrow’s conduct of the hearing certainly does not evince an inadequate effort to suppress the June 21 confession. Sparrow elicited the interrogating officer’s testimony that when Baldi confessed, he had a “vacant stare”, “glassy eyes”, and did not speak in a “normal voice”. Sparrow himself testified as to Baldi’s condition on June 22. Finally, Sparrow again raised the voluntariness issue at the murder trial itself and did produce considerable expert testimony. All in all, it cannot be said that Sparrow’s omission, at worst a questionable tactical decision, established an inadequate attempt to suppress.

In a more general challenge, defendant argues that, when Sparrow took the stand in all the proceedings, defendant was left without counsel at critical stages of the criminal process. It is true that, under some circumstances, • a defendant has been denied effective assistance of counsel when his attorney testified in court (see People v Kennedy, 22 NY2d 280; People v Rozzell, 20 NY2d 712). Those cases are distinguishable, however, in that counsel there was requested by the court to testify in such a manner as to represent the State rather than the defendant. In contrast, counsel here decided to take the stand to further the defense. At all times, he remained in the courtroom and was seeking to protect his client’s interests.

Sparrow, faced with his client’s admissions to a series of heinous crimes as well as his client’s behavior during all of the interviews, had strong grounds to believe that the defendant was legally insane. He could therefore properly conclude that the best tactical approach would be one of concentrating on the insanity issue while presenting other exculpatory evidence such as Baldi’s claim of factual innocence.

The defense presented by Sparrow is accepted in the law. That a defense attorney, in attempting to establish insanity, adduced testimony as to the defendant’s other crimes is not unknown in this State (see People v Wood, 12 NY2d 69, supra [Assistant District Attorney testified] ; People v Garrow, 51 AD2d 814, supra [defendant testified]). We are not confronted here with an attorney who presents a new defense unknown to the law and who then fails to explain the essence of the defense (see People v Bell, 48 NY2d 933, supra). Nor did counsel engage in conduct unsupportable as a defense tactic, such as joining in a motion which not only incriminated his client, but contradicted the only defense theory proffered (id.).

Sparrow made a valiant effort to establish his client’s lack of criminal responsibility. Not only was expert testimony presented, but counsel also offered lay testimony of direct observations of the defendant’s unushal behavior. Some of Sparrow’s tactics were daring and innovative. Hindsight should not escalate what may have been a few tactical errors into ineffective assistance of counsel (see People v Jackson, 52 NY2d 1027, supra).

Sparrow put all his 40 years’ experience to work for Baldi and produced a vigorous and competent defense. While taking the stand had the potential for irreparable harm, overall, Sparrow handled the matter professionally and consistently with the defense theory of insanity. His professional conduct cannot be said either to have been unreasonable or to have made a farce and mockery of the trial. Thus, it simply cannot be said as a matter of law that defendant was denied effective assistance of counsel. It is concluded, therefore, that the Appellate Division erred in reversing defendant’s convictions on this ground.

Ill

There remains, however, defendant’s other argument in support of reversal of his second-degree murder conviction — that he was denied counsel at his interrogation on June 21 and thus that his confession should have been suppressed. It is undisputed that, when arrested for the Januszko murder, defendant was actually represented by counsel on the pending unrelated attempted murder charge and that defendant mentioned this charge to Detective Palmer prior to interrogation. Under the law of this State, Baldi’s waiver of counsel in the absence of his attorney may have been ineffective (see People v Bartolomeo, 53 NY2d 225).

There are, however, factual questions that cannot be resolved as a matter of law on this record. As the right-to-counsel issue was raised for the first time in this court and the Appellate Division has not had an opportunity to consider the matter, further proceedings are required.

JV

Since the Appellate Division erred in concluding as a matter of law that defendant was denied effective assistance of counsel, reversal of that court’s order is appropriate as to both judgments. Further proceedings are required, however, for the Appellate Division has not yet invoked its power to review questions of fact or to exercise its discretion. The case, therefore, should be remitted for such review, including review of the suppression issue, and any corrective action thereafter deemed appropriate. The Appellate Division may determine that the present record is inadequate to decide the right-to-counsel issue as to thq second conviction so that a further hearing on defendant’s motion to suppress on the murder charge is required. In the event that suppression is ultimately denied after such hearing and no new trial is required on any other grounds, a new judgment should be entered so as to preserve the defendant’s right to have the suppression determination reviewed.

Accordingly, the order of the Appellate Division should be reversed, and the case remitted for further proceedings in accordance with this opinion.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchs-berg and Meyer concur.

Order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.

      . Sparrow’s continued representation of Baldi upon determining that he would testify raises a question of ethics (see DR 5-101, 5-102). As the Appellate Division noted, Sparrow testified in Baldi’s presence that he had discussed with his client what he was about to do. Here, Sparrow was faced with the desirability of adducing this evidence, but, other than himself, had only hostile witnesses through which to present these events. Furthermore, there is some evidence that defendant was wary of strangers and trusted Sparrow, so that Sparrow’s withdrawal as counsel might have been ill-advised. Consequently, under all the circumstances, it cannot be said as a matter of law that Sparrow’s conduct in this regard was either unethical or ineffective.

      . While the scope of the court’s order is unclear, the People concede in their brief that defendant’s July confessions to Januszko’s murder were also suppressed. No attempt was made to introduce those statements at trial.

      . Baldi’s interrogation on June 21 did nothing to prejudice his rights as to the first indictment. Consequently, his conviction for attempted murder, burglary, and possession of weapons is unaffected by the right-to-counsel issue.