author: Graffeo, J. Smith, J. Jones, J.

text:
    [950 NE2d 473, 926 NYS2d 840]
    The People of the State of New York, Appellant, v Robert Franov, Respondent.
    Argued March 24, 2011;
    decided May 10, 2011

      POINTS OF COUNSEL

      Richard A. Brown, District Attorney, Kew Gardens (Linda Cantoni and John M. Castellano of counsel), for appellant.
    “Dominion and control” is not an indispensable element of unauthorized use of a vehicle; moreover, defendant’s acts of breaking into the car and stealing its light control module were sufficient to prove that he “exercise[d] control over” or “otherwise used” the car. (People v McCaleb, 25 NY2d 394; People v Roby, 39 NY2d 69; Matter of Raquel M., 291 AD2d 155, 99 NY2d 92; People v Rivera, 82 NY2d 695; People v Johnson, 71 AD2d 692; People v Luter, 150 AD2d 391; Matter of Garfield H., 185 AD2d 846; People v Wynn, 177 AD2d 1016; People v Gray, 154 AD2d 547; Matter of Javier F., 3 AD3d 493.)

      Judah Maltz, Kew Gardens, for respondent.
    Measured by precedent set down by decisions from the Appellate Division, First and Second Departments, in their interpretation of the phrases “exercises control over” “or otherwise uses” in the revised statute, Penal Law § 165.05 (1), respondent’s conviction for the crime of unauthorized use of a vehicle in the second degree was correctly dismissed. (People v Butler, 119 Misc 2d 1071; People v McCaleb, 25 NY2d 394; People v Roby, 39 NY2d 69; People v Wynn, 177 AD2d 1016; People v Gray, 154 AD2d 547; Matter of Ruben P., 151 AD2d 485; Matter of Archangel O., 157 AD2d 729; Matter of Javier F., 3 AD3d 493; Matter of Jose C., 52 AD3d 253; People v Pride, 26 Misc 3d 1214[A], 2010 NY Slip Op 50095[U].)
   OPINION OF THE COURT

Graffeo, J.

The issue raised by this appeal is whether defendant’s conviction for unauthorized use of a vehicle in the second degree is supported by legally sufficient evidence. We conclude that it is.

On the afternoon of November 28, 2006, two uniformed officers were patrolling a residential area of Flushing, Queens County. One of the officers observed defendant Robert Franov exit the driver’s side door of a Lincoln Town Car, holding a small black box. Defendant began walking in the direction of the officers but, upon seeing them, dropped the box to the ground and continued to walk. The officers stopped defendant and recovered the discarded item, which turned out to be a computerized automobile light control module. Upon examination of the automobile, they noticed that the driver’s side door lock was broken and the dashboard had been ripped apart, exposing the internal wiring. The officers arrested defendant and recovered a screwdriver, rachet and four sockets from his pants pocket. Defendant neither owned nor had permission or authority to use the car.

Following his arrest, defendant was indicted for unauthorized use of a vehicle in the second degree (Penal Law § 165.06), criminal mischief in the third degree (Penal Law § 145.05 [2]), criminal possession of stolen property in the fifth degree (Penal Law § 165.40) and possession of burglar’s tools (Penal Law § 140.35). A jury convicted him of all four counts. Defendant appealed, arguing, as relevant here, that the proof was legally insufficient to sustain his conviction for unauthorized use of a vehicle in the second degree.

The Appellate Division modified the judgment by vacating the conviction of unauthorized use of a vehicle in the second degree and the sentence imposed thereon, and otherwise affirmed (71 AD3d 914 [2d Dept 2010]). The court held that the trial evidence as to that count was legally insufficient, reasoning that “defendant’s momentary presence in or about a vandalized automobile cannot, without more, provide the basis for finding that he exercised dominion and control over the vehicle as required to support a conviction for unauthorized use of a vehicle in the second degree” (id. at 915).

A Judge of this Court granted the People leave to appeal (15 NY3d 804 [2010]), and we now reverse and reinstate the conviction.

A person is guilty of third-degree unauthorized use of a vehicle — a class A misdemeanor — when, “[k] no wing that he does not have the consent of the owner, he takes, operates, exercises control over, rides in or otherwise uses a vehicle” (Penal Law § 165.05 [1]). Under Penal Law § 165.06, a person is guilty of second-degree unauthorized use of a vehicle, a class E felony, when he or she commits the crime of third-degree unauthorized use of a vehicle as defined in Penal Law § 165.05 (1) and has been previously convicted of that crime within the preceding 10 years. At issue here is whether defendant’s conduct fell within the scope of the statute.

The People claim that the evidence was legally sufficient to establish that defendant committed second-degree unauthorized use of a vehicle because a rational jury could have found that defendant exercised control over or otherwise used the Town Car by breaking into it, damaging the interior and taking an automotive part. Defendant, and our dissenting colleagues, argue otherwise, contending that the Appellate Division properly vacated the unauthorized use conviction on legal sufficiency grounds as the crime should be limited to instances in which the person charged had the means and intent to operate the vehicle.

Our analysis begins with former Penal Law § 1293-a, the predecessor to Penal Law § 165.05. Section 1293-a made it a felony for a person, without the consent of the owner, to “take, use or operate ... an automobile.” We narrowly construed this provision in Matter of Diane S. (18 NY2d 973 [1966]), determining that the statute was inapplicable to a defendant who was a passenger in a vehicle because, even though she knew the vehicle had been taken without the owner’s permission, she had not been involved in the asportation.

In 1965, the Legislature decided to broaden the reach of the unauthorized use statute by enacting Penal Law § 165.05, which replaced section 1293-a. Two phrases were added by section 165.05 (1) — “exercises control over” and “rides in” — and the clause “or otherwise uses” was placed at the end of the specifications of enlarged prohibitions (L 1965, ch 1030). The new statutory construction clearly indicated that the Legislature sought to address more than “joyriding” or there would not have been a need to insert the amended language. In addition, the Legislature reduced the classification of the offense from a felony to a class A misdemeanor.

We first had occasion to address the expanded language of Penal Law § 165.05 in People v McCaleb (25 NY2d 394 [1969]). In McCaleb, and its companion case People v Gibbs, the defendants were each found in different parked automobiles that had been taken and moved without the permission of their owners. McCaleb was apprehended while sitting in the vehicle’s rear seat with the engine turned off and a key in the ignition. Gibbs was sleeping in the front passenger seat of a car with the engine running. Both automobiles had been reported as stolen. McCaleb and Gibbs asserted that they could not be convicted of unauthorized use of a vehicle under Penal Law § 165.05 because the statute was intended to punish only joyriding, as was its precursor, former section 1293-a.

On appeal in McCaleb, we rejected these arguments. We contrasted the statute’s new language with former section 1293-a, observing that the inclusion of additional proscriptions “indicates that a broader range of conduct was being prohibited” (25 NY2d at 399). Turning first to the term “uses” in Penal Law § 165.05 (1), we determined that “[i]ts independent meaning is underscored by its inclusion in the extended phrase ‘or otherwise uses,’ ” and that the modifier “otherwise” serves the purpose of “broadening” the meaning of the term (id.). We then focused on the scope of the phrase “exercises control over,” stating:

“The exercise of control is not limited to a moving vehicle, for otherwise it would be largely synonymous with ‘operates,’ or covered by ‘riding’. Thus barring the owner or others from entry into the car might constitute such control, as might the temporary use of the vehicle, or its motor, for a purpose accomplished while the vehicle remains or has become stationary. Moreover, by lowering the grade of crime from felony ... to misdemeanor, the Legislature, understandably, included conduct less serious than that covered by the old statute and there treated as larceny” (id.).

Based on the more expansive language incorporated into Penal Law § 165.05, we concluded that the conduct of McCaleb and Gibbs fell within its ambit.

We revisited Penal Law § 165.05 in People v Roby (39 NY2d 69 [1976]), a case where the defendant was seated in the passenger seat of a stolen vehicle and his companion was in the driver’s seat trying to put a key in the ignition when the arresting officer approached. There, the defendant attempted to distinguish McCaleb on three grounds, claiming that he was in the car for only a short time; the motor was not running nor was the key in the ignition; and the car was not recently stolen so as to give rise to the inference that he was involved in the theft. We found these distinctions unpersuasive and affirmed the conviction. First, we stated that “[t]here is no minimum time limit for unauthorized occupation” (id. at 71). Second, we viewed the evidence of the codefendant’s attempt to use the key as parallel to the conduct in McCaleb. Finally, we held that the statute does not require any evidence of theft, and such “fact is absolutely immaterial to the quantum of proof necessary to establish commission of the crime of unauthorized use of a vehicle” (id.).

Reading McCaleb and Roby together, it is evident that, unlike the narrower provision from which it was derived, Penal Law § 165.05 is not limited to joyriding or situations in which the vehicle is actually driven. Moreover, although the defendants in McCaleb and Roby each had the ability to operate the automobiles in question, thus evincing control, we did not hold — as the dissent now would — that operability was a sine qua non of the crime of unauthorized use of a vehicle. Indeed, in McCaleb we recognized that a person may exercise control over a vehicle by “barring the owner or others from entry into the car” or temporarily using it “for a purpose accomplished while the vehicle remains . . . stationary” (25 NY2d at 399). Notably, Penal Law § 165.05 itself contains no operability or movement prerequisite. We therefore cannot agree with defendant’s contention, accepted by the dissent, that a person may not be convicted of unauthorized use of a vehicle unless the accused had the ability and intent to operate it.

On the other hand, entry alone is not enough under the statute, which expressly requires some degree of control or use. The inadvertent entry into a vehicle mistaken for one’s own would not constitute this crime — something more is needed since the statute contains a knowledge component. Whether denominated as exercising control over or otherwise using a vehicle, we conclude that a violation of the statute occurs when a person enters an automobile without permission and takes actions that interfere with or are detrimental to the owner’s possession or use of the vehicle. Measured against this standard, the evidence adduced at trial was legally sufficient to sustain defendant’s conviction of unauthorized use of a vehicle.

Here, contrary to the Appellate Division’s characterization, this case involves much more than defendant’s brief presence in an automobile. Considering the evidence in the light most favorable to the People, a rational jury could have found that defendant broke into the Town Car by “popping” out the driver’s side door lock; entered the car without consent; unscrewed and ripped apart the driver’s side dashboard; and stole the vehicle’s light control module. Defendant’s unauthorized entry coupled with multiple acts of vandalism and the theft of a part unquestionably interfered with the owner’s possession and use of the vehicle. Put differently, defendant’s actions constituted a temporary use of the car “for a purpose accomplished while the vehicle remain[ed] . . . stationary” (McCaleb, 25 NY2d at 399). As a result, “there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” (People v Danielson, 9 NY3d 342, 349 [2007] [internal quotation marks and citations omitted]).

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, defendant’s conviction of unauthorized use of a vehicle in the second degree reinstated, and the case remitted to the Appellate Division for consideration of the facts (see CPL 470.25 [2] [d]; 470.40 [2] [b]).

Smith, J.

(concurring). I agree with the result the majority reaches, but do not join its opinion, because the rule it states seems to me less clear than it should be. I would simply reaffirm what we said in People v Roby (39 NY2d 69, 70-71 [1976]), summarizing our holding in People v McCaleb (25 NY2d 394 [1969]): “the statute proscribing unauthorized use of a vehicle (Penal Law, § 165.05, subd 1) makes criminal the unauthorized occupation of another person’s vehicle, without his consent, irrespective of whether or not the vehicle is in motion” (footnote omitted).

Under McCaleb and Roby, someone who enters and occupies someone else’s vehicle “uses” that vehicle within the meaning of Penal Law § 165.05 (1), and if he does so “[k]nowing that he does not have the consent of the owner” he violates the statute. This is not the only possible interpretation of the word “uses” — it could, as the dissent argues, be read to require the “ability” or “means” to operate the vehicle (dissenting op at 66) — but it is the interpretation we chose several decades ago, and I see no reason to change our mind.

The majority seeks a middle ground, saying that “the ability and intent to operate” the vehicle is not required but that “entry alone is not enough” (majority op at 64). The majority would insist on “some degree of control or use,” which it defines as “actions that interfere with or are detrimental to the owner’s possession or use of the vehicle” (id. at 64). But what unauthorized occupancy of a car does not so “interfere”? Does an intruder manifest “control or use” if he talks to a friend while sitting in the car? Smokes a cigarette? Looks out the window for the time it would take to smoke a cigarette? The only example the majority gives of something that would not be prohibited is “inadvertent entry into a vehicle mistaken for one’s own” (id. at 64), but an entry without mens rea is excluded on the face of the statute, which applies only to someone who acts “[k]nowing that he does not have the consent of the owner.”

Perhaps the majority’s “control or use” test is no different in substance from the simple “unauthorized occupation . . . without . . . consent” test of McCaleb and Roby. But if that is what we mean, I think we should say so.

Jones, J.

(dissenting). At issue is whether defendant’s conviction for unauthorized use of a vehicle in the second degree (Penal Law §§ 165.06, 165.05 [1]) was supported by legally sufficient evidence, where defendant did not demonstrate the ability to operate the vehicle or the means to do so. Stated differently, the question is whether the evidence adduced at trial was sufficient to establish that defendant “exercised control over” or “otherwise used” the vehicle within the meaning of the unauthorized use of a vehicle in the second degree statute. Relying primarily on this Court’s decisions in People v McCaleb (25 NY2d 394 [1969]) and People v Roby (39 NY2d 69 [1976]), the majority stated, “[w]hether denominated as exercising control over or otherwise using a vehicle, a violation of the statute occurs when a person enters an automobile without permission and takes actions that interfere with or are detrimental to the owner’s possession or use of the vehicle” (majority op at 64). Applying this standard, the majority held that “the evidence adduced at trial was legally sufficient to sustain defendant’s conviction of unauthorized use of a vehicle” (id. at 64).

Because I believe the majority reads the unauthorized use of a vehicle statute too broadly, and because I believe the statute in question is meant to prohibit a defendant’s unauthorized “use” of the vehicle as a vehicle, I disagree with the majority’s holding that there was legally sufficient evidence to support defendant’s conviction for unauthorized use of a vehicle. Accordingly, I dissent and would affirm the order of the Appellate Division.

McCaleb and Roby are not in conflict with my position. They support it. In McCaleb, and its companion case People v Gibbs, defendant McCaleb was found sitting in the back seat of a stolen car; although the car’s engine was turned off, there was a working key in the ignition (see McCaleb, 25 NY2d at 397). The second defendant, Gibbs, was discovered sleeping in the front passenger seat of a stolen car with the engine running (id.). In remanding both appeals for a new trial, the Court held that the rebuttable presumption contained in Penal Law § 165.05 (1)— that a defendant in a stolen automobile had knowledge that he did not have the vehicle owner’s consent — satisfies due process (id. at 400-401). Further, the Court held that the unauthorized occupation of another’s motor vehicle, without any movement of said vehicle, falls within the ambit of the unauthorized use of a vehicle statute (id. at 399). In reaching this holding, the McCaleb Court logically concluded that the statute’s terms “exercises control over,” “rides in,” and “otherwise uses” should be interpreted broadly to the extent of including passengers to negate any requirement that the statute covers only those involved in the actual taking of the vehicle, or only applies to situations where the vehicle is moving (id.).

Here, the majority points to the McCaleb Court’s recognition that “a person may exercise control over a vehicle by ‘barring the owner or others from entry into the car’ or temporarily using it ‘for a purpose accomplished while the vehicle remains . . . stationary’ ” (majority op at 63, quoting 25 NY2d at 399). In my view, the majority’s reliance on such language is misplaced because the language bears no relation to what happened in McCaleb, Roby (39 NY2d at 71 [defendant was in the front passenger seat of a parked stolen car, while his codefendant was in the driver’s seat attempting to insert a key into the ignition]) or the case at bar. This language supports the McCaleb Court’s statement that “[t]he [statute’s] exercise of control [term] is not limited to a moving vehicle” (25 NY2d at 399 [emphasis added]), a point I do not dispute. In addition, applying the “for a purpose accomplished while the vehicle remains . . . stationary” language leads to an overly broad and vague construction of the statute because the list of potential “purposes” would be virtually limitless. Such a construction would necessarily lead to incongruous results.

In conclusion, pursuant to McCaleb and Roby, “unauthorized use” convictions may only be sustained where the defendant’s presence in a stationary vehicle is coupled with other evidence demonstrating the ability to operate the vehicle or the means to do so. Based on the foregoing, I would hold that for the purpose of legal sufficiency, in order for a lone defendant to come within the unauthorized use of a vehicle statute, evidence must be adduced at trial that he or she, without the authorization of the vehicle owner (and with an intent to operate the vehicle), obtained the means to set the vehicle’s mechanism in operation or possessed tools designed to bypass the vehicle’s ignition system. Without evidence of defendant’s intent and ability to operate the vehicle, the requirements for “unauthorized use” cannot be met.

Chief Judge Lippman and Judges Ciparick and Read concur with Judge Graffeo; Judge Smith concurs in result in a separate concurring opinion; Judge Jones dissents and votes to affirm in another opinion in which Judge Pigott concurs.

Order, insofar as appealed from, reversed, etc.

      . Defendant was previously convicted of third-degree unauthorized use of a vehicle within the 10-year period.

      . The operative language in chapter 1030 of the Laws of 1965 is identical to the current statutory text in Penal Law § 165.05.

      . As originally enacted, the Legislature created only one unauthorized use of a vehicle offense, codified at Penal Law § 165.05 (L 1965, ch 1030). The Legislature subsequently created unauthorized use of a vehicle in the second degree (Penal Law § 165.06) and unauthorized use of a vehicle in the first degree (Penal Law § 165.08), redesignating the crime contained in Penal Law § 165.05 as unauthorized use of a vehicle in the third degree (see L 1982, ch 413).

      . The dissent posits that, under McCaleb and Roby, an unauthorized use conviction “may only be sustained where the defendant’s presence in a stationary vehicle is coupled with other evidence demonstrating the ability to operate the vehicle or the means to do so” (dissenting op at 68). In effect, the dissent would restrict the scope of this crime to joyriding and attempted joyriding. But the dissent’s narrow interpretation disregards the Legislature’s intent to expand the types of conduct proscribed by Penal Law § 165.05 and would read the clause “or otherwise uses” out of the statute. The dissent also ignores our prior construction of that very phrase, in which we emphasized that it has an “independent meaning” and “added importance,” and was intended to “broaden! ]” the provision (McCaleb, 25 NY2d at 399). Further, the dissent’s position leads to incongruous results, under which a person sitting in the back seat with a key may be prosecuted under the statute but a person who enters a car and inflicts considerable damage — precluding the owner from operating the car without first undertaking significant repairs — cannot be charged under the provision. Surely the owner of the vehicle in this case would be justified in viewing the damage caused by defendant as substantially affecting the operability of the car.

      . The concurrence views McCaleb and Roby as holding that the unauthorized entry into a vehicle, without more, is sufficient under the statute. But this would transform the unauthorized use statute into a trespass provision akin to Penal Law § 140.05, which makes it a violation to “knowingly enter! ]” a premises without consent. Penal Law § 165.05, however, does not employ the word “enter.” Rather, it specifically requires “control” or “use.”

      . This appeal provides us no occasion to address the circumstances, if any, under which a person could exercise control over or otherwise use a vehicle without entering it.

      . We also reject defendant’s suggestion that he should not be prosecuted for second-degree unauthorized use of a vehicle because his actions are also punishable under other provisions, such as third-degree auto stripping (Penal Law § 165.09). Absent a contrary legislative intention, “overlapping in criminal statutes, and the opportunity for prosecutorial choice they represent, is no bar to prosecution” (People v Robinson, 95 NY2d 179, 184 [2000] [internal quotation marks and citation omitted]; see also People v Mattocks, 12 NY3d 326, 333-334 [2009]).

      . Penal Law § 165.06 provides:

        “A person is guilty of unauthorized use of a vehicle in the second degree when . . .
      “[h]e commits the crime of unauthorized use of a vehicle in the third degree as defined in subdivision one of section 165.05 of this article and has been previously convicted of the crime of unauthorized use of a vehicle in the third degree as defined in subdivision one of section 165.05 or second degree within the preceding ten years.”
      Penal Law § 165.05 (1) provides:
      “A person is guilty of unauthorized use of a vehicle in the third degree when . . .
      “[k]nowing that he does not have the consent of the owner, he takes, operates, exercises control over, rides in or otherwise uses a vehicle. A person who engages in any such conduct without the consent of the owner is presumed to know that he does not have such consent.”

      . The Court explained:
      “There is a ‘fair’ ‘natural’ and ‘rational’ connection between the fact that a car is being used without permission of its owner, and the presumption that those in the car, driver and passengers alike, are aware they do not have permission. The likelihood of innocent use or occupation of a ‘stolen’ vehicle is minimal, and in the rare instance could he easily explained, presenting no more than a light burden [on the defense] of going forward to make such explanation” (McCaleb, 25 NY2d at 400-401).

      . The First and Second Departments have similarly held that a defendant’s presence in a parked vehicle, without evidence of ability to operate the vehicle or means to do so, is insufficient to establish unauthorized use of a vehicle (see e.g. Matter of Jose C., 52 AD3d 253 [1st Dept 2008]; Matter of Javier F., 3 AD3d 493 [2d Dept 2004]; People v Gray, 154 AD2d 547 [2d Dept 1989]).


source: Caselaw Access Project

author:
Ciparick, J.
      Graffeo, J.

license: Public Domain

text:
    [950 NE2d 126, 926 NYS2d 390]
    The People of the State of New York, Appellant, v Marcos A. Fernandez, Respondent.
    Argued April 27, 2011;
    decided June 2, 2011

      POINTS OF COUNSEL

      D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for appellant.
    The trial court did not abuse its discretion as a matter of law by prohibiting the defense from offering testimony from family members regarding the child victim’s reputation in their “family” for truth and veracity as the “family” was neither sufficiently large nor diverse enough and thus the defense failed to lay a proper foundation. (People v Hanley, 5 NY3d 108; People v Pavao, 59 NY2d 282; People v Bouton, 50 NY2d 130; People v Hinksman, 192 NY 421; People v Hopkins, 56 AD3d 820; People v Carter, 31 AD3d 1167; People v Streitferdt, 169 AD2d 171; People v Young, 7 NY3d 40; People v Patterson, 93 NY2d 80; People v Welch, 71 AD3d 1329.)

      Cynthia Feathers, Saratoga Springs, for respondent.
    The Third Department properly held that defendant’s absolute right to present witnesses regarding the reputation of the complainant for being untruthful was violated, where the witnesses knew her reputation in the community of a large, close-knit, extended family. The error was not harmless, so there must be a new trial. (People v Pavao, 59 NY2d 282; Michelson v United States, 335 US 469; People v Barber, 74 NY2d 653; People v Hanley, 5 NY3d 108; People v Crimmins, 36 NY2d 230; People v Hinksman, 192 NY 421; People v Van Gaasbeck, 189 NY 408; People v Bouton, 50 NY2d 130; People v Colantone, 243 NY 134; People v Boyd, 50 AD3d 1578, 11 NY3d 785.)
   OPINION OF THE COURT

Ciparick, J.

The issue raised by this appeal is whether County Court improperly deprived defendant of his right to present testimony that complainant had a bad reputation in the community for truth and veracity. We hold that the trial court’s decision to exclude such testimony on foundational grounds was an abuse of discretion as a matter of law.

In April 2008, a grand jury charged defendant with course of sexual conduct against a child in the first and second degrees (Penal Law § 130.75 [1] [a]; § 130.80 [1] [a]), rape in the first degree (Penal Law § 130.35 [3]), sexual abuse in the first and second degrees (Penal Law § 130.65 [3]; § 130.60 [2]), and endangering the welfare of a child (Penal Law § 260.10 [1]). The indictment alleged that from August 2005 to December 2005, defendant, who was 17 years old at the time, engaged in sexual conduct with complainant, his then eight-year-old niece. During the relevant time period, defendant resided with his parents, Juan Collazo and Ramona Fernandez, at their home. The allegations set forth in the indictment purportedly took place there, inside defendant’s second-floor bedroom.

Defendant proceeded to trial before a jury, which heard conflicting testimony concerning the events in question. Complainant, age 11 at the time of trial, testified that, between August and December -2005, she visited defendant’s home more than five times. Her visits to defendant’s home typically coincided with weekends and holidays when other members of her family, including complainant’s older sister, gathered. Complainant explained that although Ramona Fernandez was her biological great aunt, she referred to her as her grandmother. She similarly called Collazo her grandfather.

On direct examination, complainant recounted that, on at least three occasions between August and December 2005 (but possibly more), she and defendant were alone in his upstairs bedroom. Complainant recalled that, during the first incident, defendant pushed his dresser in front of the bedroom door, undressed himself, and removed her clothing. While complainant sat on his bed, defendant touched and kissed every intimate part of her body. Defendant also allegedly inserted his penis into complainant’s mouth, vagina, and buttocks. Complainant testified that defendant instructed her not to tell anyone about the events that had just transpired. She felt threatened by defendant’s admonition and was afraid that defendant would hurt her if she disclosed what had happened.

Complainant’s testimony regarding other purported encounters, however, was much less precise. For example, while complainant asserted definitively that defendant disrobed himself and removed her underpants in a second incident, she could not remember any other details. She estimated that the two were alone in defendant’s bedroom for about five minutes when her older sister knocked on the door and asked for defendant. After repeatedly knocking for about a minute, complainant’s sister, who also testified at trial, entered the room and observed defendant run behind the door and noted that he was not wearing a shirt. Complainant’s sister also saw complainant lying in defendant’s bed underneath the covers with only her face exposed.

Sometime after December 2005, complainant composed a letter to defendant, which the court admitted into evidence, expressing her anger and hatred toward him. In the letter, complainant wrote, in part, “Why did you hurt me when I was younger? Why did you do that to me? Why did you pick me?” Complainant testified that she was uncertain whether defendant received her letter, but that her intent in writing the letter was to confront him. In the summer of 2007, complainant, for the first time, confided in her sister and cousins. Complainant acknowledged that these family members initially did not believe her. Several months later, in early 2008, she also told her parents and one of her aunts about defendant’s alleged sexual abuse. She informed the jury that her reason for not coming forward sooner was that she feared her father would no longer allow her to visit her grandparents.

Defendant, on the other hand, testified that complainant had visited his home on only two occasions between August and December 2005, once for Thanksgiving and once on Christmas. For Thanksgiving, defendant recollected that there was an “entire house full” of relatives and that complainant spent the weekend there. Defendant highlighted that he never had occasion to be alone in his upstairs bedroom during the Thanksgiving holiday weekend. At Christmas, defendant recounted that complainant merely stopped by the house to retrieve her presents and did not stay overnight. Defendant denied that he had engaged in any sexual conduct with complainant. Moreover, he explained that his parents had a house rule, which prohibited a child from going upstairs unless he or she had to use the bathroom, in which case, the child had to advise an adult. Finally, defendant described that complainant was not “the easiest person for me to deal with” and “bothersome.”

Defendant’s parents also testified on his behalf. They corroborated defendant’s testimony that the only two times complainant visited their home during the period alleged in the indictment was during the Thanksgiving and Christmas holidays. Collazo and Ramona Fernandez also confirmed that they generally did not permit any of the children who visited their home to go upstairs. In addition to their factual testimony, defense counsel sought to introduce testimony from both Collazo and Ramona Fernandez that complainant — whom they considered their granddaughter — had a reputation for untruthfulness among their family and family friends. To that end, Collazo testified that he had known complainant for all of her life and that he had regular contact with her. Collazo also testified that he had heard practically all 25 to 30 members of his family, many of whom he identified, discuss complainant during the time he knew her. Although he could not specify the number of conversations that he overheard, he was aware of complainant’s reputation for truthfulness among the family. When defense counsel asked Collazo to state that reputation, County Court sustained the People’s objection to this question on the ground that defense counsel had not laid a proper foundation.

Similarly, Ramona Fernandez testified that she knew complainant since birth and that all of her family members, including her sisters and nieces, watched her grow up. She explained that her family and family friends “always talk[ed] about the children” when they were around and that, at times, they specifically discussed complainant’s reputation for truthfulness. Again, when defense counsel asked the witness to state what that reputation was, the People objected and argued both improper foundation and that complainant’s family members and friends did not constitute “a community at all.” County Court sustained the objection, precluding further testimony.

The jury convicted defendant of first and second degree sexual abuse and endangering the welfare of a child, but acquitted him of the more serious charges of first degree rape and first and second degree course of sexual conduct against a child. Defendant moved to set aside the verdict pursuant to CPL 330.30, contending that the trial court erred in precluding the defense from eliciting testimony regarding complainant’s reputation in the community for truth and veracity.

In a written decision, the trial judge denied the motion and adhered to his evidentiary rulings at trial, reasoning that “because . . . defendant did not establish the ‘quality’ of the community member [s’] associations with [complainant], he failed to establish[ ] the reliability of his proposed witnesses’ testimony or lay a foundation for its introduction into evidence.” (2009 NY Slip Op 33256[U], *3.) Following the court’s denial of defendant’s CPL 330.30 motion, he was sentenced to an aggregate term of four months jail followed by 10 years probation. Pending appeal, defendant applied for a stay in the execution of his sentence, which the Appellate Division granted.

The Appellate Division, with two Justices dissenting in part, reversed the judgment of conviction and sentence. As a threshold matter, the court concluded that defendant’s conviction for second degree sexual abuse must be reversed and that count of the indictment dismissed because it was “an inclusory concurrent count of the one charging him with sexual abuse in the first degree” (People v Fernandez, 74 AD3d 1379, 1380 [3d Dept 2010]). The court further held that “County Court improperly precluded [defendant] from presenting testimony of two family members regarding the complainant’s reputation in their family for untruthfulness” (id.). Specifically, the court reasoned that, contrary to the trial court’s conclusion, the testimony elicited from Collazo “provided an adequate foundation for the reputation testimony” (id. at 1381). Moreover, the court noted that the trial court erred in precluding Ramona Fernandez’s testimony “on the basis that the family was not a community for purposes of reputation testimony” (id.). Finally, the Appellate Division observed that the error in precluding such testimony was not harmless since the People’s case hinged on complainant’s credibility (see id.).

The dissenting Justices agreed that the second degree sexual abuse count was an inclusory count warranting reversal and dismissal, but would have affirmed the judgment of conviction and sentence with respect to the first degree sexual abuse and endangering the welfare of a child counts. The dissenters opined that the trial court did not “abuse[ ] its discretion in ruling that the foundational testimony of the proposed character witnesses was insufficient to allow admission of reputation evidence in this case” (id. at 1382). A Justice of the Appellate Division granted the People leave to appeal (15 NY3d 780 [2010]), and we now affirm.

We have long held that “a party has a right to call a witness to testify that a key opposing witness, who gave substantive evidence and was not called for purposes of impeachment, has a bad reputation in the community for truth and veracity” (People v Pavao, 59 NY2d 282, 290 [1983]). Indeed, a “trial court must allow such testimony, once a foundation has been laid, so long as it is relevant to contradict the testimony of a key witness and is limited to general reputation for truth and veracity” (People v Hanley, 5 NY3d 108, 112 [2005]). The purpose of this rule is to “ensure[ ] that the jury is afforded a full picture of the witnesses presented, allowing it to give the proper weight to the testimony of such witnesses” (id.).

In People v Bouton (50 NY2d 130 [1980]), we rejected the notion that one’s community was restricted to “one’s residential neighborhood” (id. at 140 [internal quotation marks omitted]). Rather, we observed that “[a] reputation may grow wherever an individual’s associations are of such quantity and quality as to permit him to be personally observed by a sufficient number of individuals to give reasonable assurance of reliability” (id. at 139 [emphasis added]). For example, we have concluded that a witness’ bad reputation for truth and veracity at his place of employment “can be probative and reliable” (Hanley, 5 NY3d at 113; see also Bouton, 50 NY2d at 139 [an individual “might be better known in the community of his employment and in the circle of his vocational fellows, where opportunities to evidence the traits at stake may occur with greater frequency than in the environs of his dwelling place, nestled in the anonymity of a large city or suburb”]; cf. People v Colantone, 243 NY 134, 139 [1926] [finding “individual and independent dealings” insufficient foundation for the admissibility of general reputation evidence]).

Once the party seeking admission of reputation evidence has laid the proper foundation, it is for the jury to evaluate the credibility of the character witnesses who testify, and to decide how much weight to give the views reported in their testimony. While a “reasonable assurance of reliability” (Bouton, 50 NY2d at 139) is necessary for a proper foundation, such reasonable assurance exists where the testifying witnesses report the views of a sufficient number of people, and those views are based on sufficient experience with the person whose character is in question. Reputation evidence may be reliable within the meaning of Bouton, but still questionable from a credibility standpoint. This possibility, however, is not a proper basis for exclusion of reputation evidence. Reliability — whether a character witness has established a proper basis for knowing a key opposing witness’ general reputation for truth and veracity — is a question of law for the court. By contrast, the credibility of such character witness — whether that witness is worthy or unworthy of belief or is motivated by bias — is a factual question for the jury. We caution that a trial court should not use reliability as a ground for excluding evidence it believes is not credible.

Applying these principles, we begin by emphasizing that the material issue at trial was complainant’s credibility. After all, complainant’s testimony regarding the sexual abuse was the only proof adduced by the People to establish that defendant sexually abused complainant. To undercut complainant’s version of events, defendant sought to introduce evidence, through his parents, that complainant had a bad reputation for truth and veracity among her family. Until today, we have never had occasion to decide whether family and family friends could constitute a relevant community for purposes of introducing testimony pertaining to an opposing witness’ bad reputation for truth and veracity. Assuming the proper foundation has been laid, we conclude that family and family friends can constitute a relevant community for such purpose.

Here, Collazo and Ramona Fernandez’s respective testimony laid the proper foundation for reputation evidence. Collazo testified that he had known complainant since her birth and that they were members of the same large extended family, comprising approximately 25 to 30 people. Collazo identified many of these family members and indicated that his entire family knew complainant. Collazo overheard discussions among them concerning complainant and was aware of her reputation for truthfulness in the family. Likewise, Ramona Fernandez explained that she had known complainant since her birth and that she, along with many of her other family members and friends, witnessed complainant grow up. She further testified that all her family members and family friends often discussed complainant and that she was present during such conversations. Like Collazo, she testified that she was aware of complainant’s reputation for truthfulness among this group. We conclude that this foundational testimony more than adequately formed the basis for admitting into evidence further testimony pertaining to complainant’s bad reputation for tmth and veracity in the community (see Hanley, 5 NY3d at 113).

Nevertheless, the People argue (and our dissenting colleagues agree) that County Court did not abuse its discretion in precluding this reputation evidence because Collazo and Ramona Fernandez’s testimony would have been inherently unreliable, given their purported bias in favor of defendant. But under our precedents, the presentation of reputation evidence by a criminal defendant is a matter of right, not discretion, once a proper foundation has been laid. We observe that both witnesses had familial relationships with defendant as well as complainant. Indeed, complainant referred to the witnesses as her grandparents and routinely visited their home. In fact, complainant testified that she refrained from telling her father about defendant’s alleged sexual conduct in fear that he would no longer permit her to see her grandparents.

Thus, had the court admitted this reputation testimony into evidence, we agree with the Appellate Division that the People could have explored whether Collazo and Ramona Fernandez actually exhibited a bias in defendant’s favor through the cross-examination of these witnesses. County Court’s decision to exclude this evidence deprived the jury from undertaking a meaningful assessment of complainant’s credibility. Since complainant’s credibility was the central issue for the jury to resolve, County Court’s failure to admit evidence related to complainant’s bad reputation for truth and veracity cannot be considered harmless. Defendant, therefore, is entitled to a new trial.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed.

Graffeo, J.

(dissenting). In this child sex abuse case, defendant Marcos Fernandez sought to introduce testimony at trial that complainant, his young niece, had a poor reputation in their family for veracity. The trial court barred the evidence for lack of a proper foundation based, as relevant here, on its determination that the family was not a reliable community for purposes of establishing a reputation. Following defendant’s conviction on three counts, the Appellate Division reversed and ordered a new trial (74 AD3d 1379 [2010]), concluding that defendant was entitled to present such evidence, and a majority of this Court now affirms that ruling. Because I believe that the trial court did not err in precluding defendant’s proffered reputation testimony under the circumstances of this case, I respectfully dissent.

As the majority correctly recounts, it is well settled that a witness may be impeached by evidence of a bad reputation in the community for truth and veracity “once a foundation has been laid” (People v Hanley, 5 NY3d 108, 112 [2005]). We have cautioned, however, that a proper foundation for such evidence requires a showing that the proposed testimony has a “reasonable assurance of reliability” (People v Bouton, 50 NY2d 130, 139 [1980]). It is on this point that I diverge from the analysis of the majority.

Typically, the reliability inquiry focuses on whether the associations of the witness whose credibility is at stake “are of such quantity and quality as to permit him to be personally observed by a sufficient number of individuals” (id.). But the identity of the “community” is also relevant to a court’s determination of admissibility (see Hanley, 5 NY3d at 113 [the community must be “probative and rehable”]). We have held that a witness’s reputation in a number of different settings can be probative, including reputations formed in a residential neighborhood (see People v Van Gaasbeck, 189 NY 408, 418-419 [1907]); the business community (see Bouton, 50 NY2d at 140); a vocational school or army post (see People v Colantone, 243 NY 134, 137-138 [1926]); and, most recently, a place of employment (see Hanley, 5 NY3d at 113). Notably, however, no New York case has ever addressed whether the family of a witness can constitute a reliable community, particularly the family of a pre-adolescent child witness.

Other jurisdictions have been wary of treating families as communities for purposes of introducing testimony regarding a witness’s reputation for untruthfulness. In fact, courts have repeatedly held that it is proper to exclude evidence sought to be offered by relatives because “the inherent nature of familial relationships often precludes family members from providing an unbiased and reliable evaluation of one another” (State v Gregory, 158 Wash 2d 759, 805, 147 P3d 1201, 1226 [2006]; see also State v Ricker, 770 A2d 1021, 1024 [Me 2001] [trial court committed no error in preventing testimony of family members as to the reputation of the sexual abuse victim, defendant’s niece, for untruthfulness within the family]; Adcock v Commonwealth, 702 SW2d 440, 445 [Ky 1986] [“(A) witness cannot testify as to general reputation based solely upon what family members have stated to him or in his presence. General reputation in the community may be entirely different from the regard in which he is held by family members. It is only general reputation about which testimony can be received”]; Gonzalez v State, 871 So 2d 1010, 1011 [Fla Dist Ct App 2004], review denied 886 So 2d 226 [Fla 2004] [“A person’s family is too narrow a segment of the community to be the source of reputation testimony”]; State v Berry, 2002 WL 31757250, *1, 2002 Iowa App LEXIS 1302, *2 [Ct App 2002] [“A crucial foundational requirement for such testimony is that the reputation must be not among a limited group such as a family, but that of a general cross-section of the community where the witness lives or works”]).

I share these concerns and would hold that a family is too insular and self-interested a grouping to provide a reliable community under our jurisprudence. The circumstances of this case well illustrate the inherent problems in characterizing a witness’s family as a “community.” The evidence defendant offered to impeach the reputation of the child complainant — who was only eight years old at the time of the crime — was to be given by defendant’s parents, Juan Collazo and Ramona Fernandez. It goes without saying that there is •a keen danger of blatant bias when a defendant’s parents are called to give testimony pertaining to the reputation of their son’s accuser.

These concerns are only magnified where, as here, the reputation of a young child is at issue. Children are dependent on their families for support and guidance, care and protection, and acceptance and affection — all factors essential to the emotional well-being of a child. It is questionable whether even an older adolescent could weather this form of public criticism from close relatives impugning his or her character and trustworthiness within the family unit. But, clearly, the trust relationship necessary for healthy child development is seriously eroded when a young girl eventually discovers that she has been labeled a liar and a troublesome child by the very individuals she views as her “grandparents.” And to what end? Are we to believe that a jury will alter its view of the facts because a defendant’s parents testify on a topic as subjective as a child complainant’s reputation for truth or veracity? I believe jurors will readily comprehend the inherent and unavoidable bias presented by a parent providing such testimony on behalf of a son or daughter accused of having committed a crime.

Every defendant is entitled to present a defense, and the veracity of complainant was undoubtedly of paramount concern to the defense in this case. I am not, therefore, suggesting that a child should not be the subject of reputation testimony. But there are numerous other community sources capable of providing testimony regarding a child’s veracity and behavioral problems that are not of dubious reliability, would carry more credibility with a jury, and are not as likely to unjustifiably damage the child’s psychological well-being. Teachers, pediatricians, school psychologists, neighbors, coaches, troop leaders or any person in a relevant community who has consistent and meaningful contact with a child can potentially address the child’s reputation for truthfulness. In the search for truth, we need not sever whatever remains of the child’s emotional dependence on close relatives or encourage an intrafamily battle of biased witnesses.

For all of these reasons, I believe that the trial court in this case was warranted in determining that the requisite “reasonable assurance of reliability” (Bouton, 50 NY2d at 139) was lacking. In reaching the opposite conclusion, the majority establishes a troubling precedent under which a trial judge commits reversible error by not allowing a defendant’s parent to testify that a child complainant in a sex abuse case has a reputation in the defendant’s family for not telling the truth. I cannot subscribe to such a rule nor do I think it is compelled by our precedents.

Consequently, I would reverse the order of the Appellate Division, insofar as it is appealed from, and remit to the Appellate Division for consideration of the facts and issues raised but not decided on the appeal to that court.

Judges Read, Smith, Pigott and Jones concur with Judge Ciparick; Judge Graepeo dissents and votes to reverse in a separate opinion in which Chief Judge Lippman concurs.

Order, insofar as appealed from, affirmed.

      . On appeal to this Court, the People do not challenge the Appellate Division’s dismissal of the second degree sexual abuse count.

      . The dissent’s position that, as a matter of law, “a family is too insular and self-interested a grouping to provide a reliable community” (dissenting op at 80) is an unwarranted departure from our precedent. Whether a particular association constitutes a community is an assessment that ought to be made on a case-by-case basis. As already noted, the inquiry in determining whether reputation evidence should be admitted into evidence is whether “an individual’s associations are of such quantity and quality as ... to give reasonable assurance of reliability” (Bouton, 50 NY2d at 139). Complainant’s associations with her 25-to-30-person family and family friends meet this test.


author: Smith, J.

text:
    [950 NE2d 135, 926 NYS2d 399]
    Anthony Marraccini, Appellant, v John Ryan et al., Respondents, et al., Defendants.
    Argued May 4, 2011;
    decided June 2, 2011

      POINTS OF COUNSEL

      Friedman, Harfenist, Kraut & Perlstein LLP, Purchase (Jonathan D. Kraut, Steven Jay Harfenist and Andrew C. Lang of counsel), for appellant.
    The Second Department incorrectly concluded that Anthony Marraccini was not a licensed home improvement contractor since the issuance of the license to Marraccini, doing business as Coastal Construction, is both the legal and functional equivalent of issuing the license to Marraccini individually. (B & F Bldg. Corp. v Liebig, 76 NY2d 689; AlSullami v Broskie, 40 AD3d 1021; J.G. Cerasuolo Constr., Inc. v Tyler, 35 AD3d 376; Price v Close, 302 AD2d 374; Callos, Inc. v Julianelli, 300 AD2d 612; Holiday Point Realty Co. v Kemper Corp., 118 AD2d 545; Parks v Steinbrenner, 115 AD2d 395; Trustees of the Mason Tenders, Dist. Council Welfare Fund, Pension Fund, Annuity Fund & Training Program Fund v Faulkner, 484 F Supp 2d 254; Cusano v Horipro Entertainment Group, 301 F Supp 2d 272; Victor Auto Parts v Cuva, 148 Misc 2d 349.)

      Brodsky & Peck, Harrison (Robert A. Brodsky and David J. Peck of counsel), for respondents.
    I. Appellant’s argument respecting the legal effect of the Appellate Division’s order was not made in the lower court and should not be considered. (Boles v Dormer Giant, Inc., 4 NY3d 235; Duffy v County of Chautauqua, 207 AD2d 1034; Piersa, Inc. v Rosenthal, 72 AD2d 593; J.G. Cerasuolo Constr., Inc. v Tyler, 35 AD3d 376; Flax v Hommel, 40 AD3d 809; AEC Bldg. Assoc. v Crystal, 246 AD2d 496.) II. The Appellate Division’s decision and order had no effect on the legal status of assumed names. It simply followed the well-settled law that home improvement jobs must be done in the name on the contractor’s license or he forfeits his right to recover. (J.G. Cerasuolo Constr., Inc. v Tyler, 35 AD3d 376; Racwell Constr., LLC v Manfredi, 61 AD3d 731; Flax v Hommel, 40 AD3d 809; AEC Bldg. Assoc. v Crystal, 246 AD2d 496; Piersa, Inc. v Rosenthal, 72 AD2d 593; Dartmouth Plan v Valle, 117 Misc 2d 534.)
   OPINION OF THE COURT

Smith, J.

We hold that a licensed home improvement contractor who enters into a contract using a name other than the one on his license is not barred from enforcing the contract unless the other party is deceived or otherwise prejudiced by the misnomer.

Plaintiff, Anthony Marraccini, filed a certificate with the Clerk of Westchester County on May 19, 1993, saying that he was transacting business under the name “Coastal Construction Development.” The following day, Marraccini applied to the Westchester County Department of Consumer Protection for a home improvement license. He designated his ownership as “Individual,” but wrote “Coastal Construction Development” after “Name of Company,” and did not fill in the blank for a “D/B/A” name. After “Name of Applicant (President or Owner)” he wrote “Anthony Marraccini.” The license was issued to Coastal Construction Development. Marraccini’s own name does not appear on the license, but it is undisputed that Marraccini and Coastal are not separate legal entities. Thus Marraccini was personally licensed to do a home improvement business, though under a name other than his own.

Eleven years later, in 2004, Marraccini did construction, rehabilitation and maintenance work for defendants, John and Pam Ryan. In dealing with the Ryans, Marraccini used his own name, not Coastal Construction Development. The record does not show why he did not use the company name, but there is no indication that he was trying to or did deceive the Ryans. It is undisputed that, if the Ryans had gone to the Department of Consumer Protection Web site and searched for “Anthony Marraccini,” they would have found his license, which was indexed under both names.

After the work was done, a dispute arose between Marraccini and the Ryans over whether he had been fully paid, and Marraccini brought this lawsuit against them. The Ryans moved for summary judgment on the ground, among others, that Marraccini was not licensed to do home improvement business in his individual name. Supreme Court denied the motion, but the Appellate Division reversed and dismissed the complaint (71 AD3d 1100 [2010]), observing that, by doing business in his own name and not the name on his license, Marraccini violated Westchester County Administrative Code § 863.319 (1) (b). We granted leave to appeal (15 NY3d 799 [2010]), and now reverse.

Marraccini may indeed have violated section 863.319 (1) (b) of the County Code, which says in relevant part: “It shall be a violation to . . . [c]onduct a home improvement business in any name other than the one in which the person is licensed.” The County Code provides civil and criminal penalties, not to exceed $1,000, for such a violation (Westchester County Code § 277.171 [1]; § 277.181). Repeat violators may incur larger fines, and imprisonment for up to 15 days (id,.). The County Code does not, however, say that a violator is barred from bringing suit under a contract entered into under the wrong name. The question here is whether New York common law imposes such a sanction.

We conclude that it does not. The forfeiture of the right to be paid for work done is an excessive penalty for what seems to have been an inadvertent and harmless violation of the County Code. The case would be different if Marraccini had no license at all. B & F Bldg. Corp. v Liebig (76 NY2d 689, 693 [1990]) holds that a contractor who was unlicensed at the time a contract was executed or work performed may not maintain a cause of action. We see no reason, however, to extend the strict rule of B & F Bldg. Corp. to the much less serious violation at issue here.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and defendants’ motion for summary judgment denied.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones concur.

Order, insofar as appealed from, reversed, etc.


author: Read, J. Chief Judge Lippman

text:
    [950 NE2d 489, 926 NYS2d 856]
    The People of the State of New York, Respondent, v Dean Pacquette, Appellant.
    Argued May 3, 2011;
    decided June 7, 2011

      POINTS OF COUNSEL

      Appellate Advocates, New York City (Steven R. Bernhard and Lynn W.L. Fahey of counsel), for appellant.
    When an attorney representing appellant on a Manhattan drug case told Brooklyn homicide detectives waiting to take appellant from a Manhattan courtroom to Brooklyn that appellant was represented by counsel and that they should not question him, appellant’s right to counsel indelibly attached and the statements subsequently taken by the detectives in the absence of counsel must be suppressed. (People v Cunningham, 49 NY2d 203; People v Ramos, 40 NY2d 610; People v Arthur, 22 NY2d 325; People v Hobson, 39 NY2d 479; People v Donovan, 13 NY2d 148; People v Garofolo, 46 NY2d 592; People v Marrero, 51 NY2d 56; People v West, 81 NY2d 370; People v Bing, 76 NY2d 331.)

      Charles J. Hynes, District Attorney, Brooklyn (Solomon Neubort and Leonard Joblove of counsel), for respondent.
    Defendant’s motion to suppress his statements was properly denied because when defendant made those statements, his indelible right to counsel had not attached on this case. (People v West, 81 NY2d 370; People v Grice, 100 NY2d 318; People v Carranza, 3 NY3d 729; People v Davis, 75 NY2d 517; People v Hobson, 39 NY2d 479; People v Steward, 88 NY2d 496; People v Bing, 76 NY2d 331; People v Rosa, 65 NY2d 380; People v Henriquez, 214 AD2d 485; People v Garofolo, 46 NY2d 592.)
   OPINION OF THE COURT

Read, J.

On the evening of April 19, 2007, one man was shot to death and another was wounded (he was shot in the buttocks) in a shooting incident that took place outside an abandoned building on Bainbridge Street in Brooklyn, which had become a hangout for a group of young men. The body of the deceased victim was discovered in the building’s basement, to which he evidently retreated after he was hit. Defendant Dean Pacquette was indicted for second-degree murder (intentional) (Penal Law § 125.25 [1]), second-degree assault (Penal Law § 120.05 [2]), and second-degree weapon possession (two counts) (Penal Law § 265.03 [1] [b]; [3]) in connection with the shooting. He moved to suppress inculpatory statements that he made to the police on the ground that they were obtained in violation of his right to counsel.

At the ensuing Huntley hearing, Detective Alan Killigrew testified that he identified defendant as a suspect because of information he received shortly after the shooting from two eyewitnesses. Then on May 17, 2007, he learned that defendant had been arrested for a drug crime in Manhattan. Detective Richard Amato traveled to Manhattan to “pick up” defendant and bring him to the precinct in Brooklyn for a lineup. Amato found defendant in a holding cell in Manhattan, waiting to be arraigned, and arranged through the New York City Police Department for him to be released temporarily into his custody.

A few hours after Amato arrived at the precinct in Brooklyn with defendant, the police conducted two separate lineups — one for each of the two eyewitnesses. Both eyewitnesses identified defendant. Before these lineups, at about 9:00 p.m., Miranda warnings were issued to defendant, who claimed that he knew nothing about the shooting; after the lineups, Killigrew advised defendant that he was “charged with homicide.” Amato and Detective Erick Parks then escorted defendant back to Manhattan for arraignment for the drug crime. During the ride back, Amato “probably” let defendant know that he had been identified in both lineups.

Upon arrival in Manhattan, Amato spoke to prosecutors to clear defendant’s release on his own recognizance after arraignment so that he could be taken back to Brooklyn. Meanwhile, Parks accompanied defendant to the courtroom. When Amato later joined them, defendant sat between the two detectives in the front row, waiting for his case to be called. At some point before defendant’s arraignment, attorney Daniel Scott was assigned to represent him on the drug charge. While Scott, Amato and Parks agree that they met and spoke in the Manhattan courtroom, their accounts of exactly what was said differ in certain respects.

According to Amato, Scott introduced himself as “the attorney for the arraignment on this case,” meaning “[defendant’s] drug case.” Scott did not indicate that he represented defendant in any other case. Amato “took [Scott’s] business card,” which is how Amato later recalled Scott’s name. When Scott asked Amato if he could speak to defendant “in private,” Amato moved two rows back and Parks slid down the row and away from defendant so as to accommodate this request.

After defendant was arraigned and released on his own recognizance, Amato arrested him “for the homicide.” The detectives then took defendant back to where he had been sitting in the courtroom because “the attorney . . . wanted to speak to him.” Amato testified that he overheard Scott tell defendant that he was “not going across the bridge into Brooklyn to represent him,” and that he didn’t

“represent him in the other case. He represents him in the drug case. He’ll have an attorney for his new case in Brooklyn. He also said, I advise you not to speak to the police because I can’t tell you that you cannot speak to the police but I’m advising you not to.”

Amato added that Scott did not at any time tell him that he was representing defendant on the homicide charge; Amato gave Scott his business card at Scott’s request.

Parks testified that he, Amato and defendant were sitting in the front row of the courtroom waiting for defendant to be arraigned when someone he assumed to be a Legal Aid attorney (whose name Parks did not recall) “approached” defendant and “asked if he could have a moment with” him. He and Amato then “moved [their] position” so as to allow the attorney to interview defendant while they still kept an eye on him. Parks also testified that at some point after the arraignment Amato had a “brief’ conversation with the attorney, and that Amato informed him that he had overheard the attorney tell defendant that “he represented] him on the Manhattan case,” and “doesn’t go over the bridge,” and was “not representing him in Brooklyn, that he’ll represent him in the Manhattan case.” According to Parks, the attorney never told him that defendant was represented by counsel, and never directed him not to question defendant.

Scott testified that when he was assigned to represent defendant in the drug case, he was notified by the clerk of the night court that two Brooklyn detectives had brought defendant to the courtroom. The clerk asked him to expedite the arraignment “because the detectives had brought [defendant] in.” The clerk also alerted Scott to the “agreement between the detectives and the district attorney’s office [for defendant to] be released into the detectives’ custody.” Scott introduced himself to defendant, who was sitting between the two detectives, and gave him his business card. He “may or may not have given” business cards to the detectives, but, in any event, “it was apparent who [he] was and what [he] was doing there.”

Scott did not interview defendant, because “there was no privacy whatsoever.” He simply read the felony complaint and asked defendant if he understood what he was being charged with; there was “no reason to discuss . . . bail because his ROR had . . . previously been worked out.” Scott, who was not on the 18-B panel in Kings County, testified that he “clearly” recalled warning the detectives that defendant “was represented by counsel and that they should not question him.” Similarly, he advised defendant not to “discuss any legal matter with [the detectives] whatsoever.”

Scott denied telling defendant or the detectives that he would not cross over the Brooklyn Bridge; he conceded, however, that he never indicated to defendant that he would be or was considering representing him in the homicide case, although he might have commented that he “would be happy to represent him.” In answers to questions posed by the judge, Scott confirmed that he was not defendant’s attorney for the homicide, and never told the detectives otherwise:

“the court: I just want to be clear, Mr. Scott, did you tell the detectives from Brooklyn who brought [defendant] over for his arraignment in Manhattan that you were representing [defendant] at any time?
Did you tell them that?
“the witness: Yes, I did. Aside from it being—
“the court: Okay.
“the witness: Yes, I said, he is represented by counsel, do not question him.
“the court: As far as the drug case or the homicide case or both?
“the witness: I didn’t specify.
“the court: You didn’t specify. So you had been engaged to represent him as an 18 B for the drug sale case in Manhattan, correct?
“the witness: Correct.
“the court: You had not been engaged by anybody to represent him in the homicide case, correct?
“the witness: Correct.
“the court: And you did not tell the detectives that you were representing him in the homicide case, correct?
“the witness: Correct.”

On the way back to the precinct in Brooklyn, Amato mentioned to defendant that he

“found it kind of funny that this guy was telling [him] that he wasn’t coming to Brooklyn to represent him. I didn’t think it was right. I said, you know what? I said, I wouldn’t look out for you like that. I said, you know what? If you tell us what happened, you know, maybe we can help you out.”

Amato acknowledged that he was “try[ing to] get [defendant] to say exactly what happened the day of the homicide.” Defendant was noncommittal, remarking that “he would have to think about it.” As Parks put it, defendant “had already been in a lineup so he understood what the purpose of going back to the precinct was. We spoke to him about . . . his attorney, that the attorney doesn’t represent him here in Brooklyn. If he’d like to make a statement to Detective Killigrew, that’s his choice.”

Amato and Parks arrived at the precinct with defendant around 1:30 or 2:00 a.m. on May 18, 2007. At about 2:30 a.m., defendant announced to Amato and Killigrew that he wanted to talk about what happened. Amato contacted the assistant district attorney on duty to “make sure that [defendant’s] right to counsel didn’t attach because of the [Manhattan drug] case.” The prosecutor advised Amato that he could speak to defendant “because he [did not] have counsel attached in this case. He [had] counsel attached in the drug case.” Amato related this advice to Killigrew and, after Killigrew reminded defendant that “he was still under the Miranda warnings that we issued earlier,” defendant gave an oral statement, which Killigrew took down.

Defendant admitted to shooting — first with a shotgun, until it jammed, and then with a handgun, until it, too, became inoperable — in the direction of the door at the Bainbridge Street building, causing those standing on the front stoop to scatter or run inside. He claimed that he only meant to scare these hangers-on, one of whom he feared on account of a previous run-in, and had been unaware until the following day that anyone had died. Defendant then repeated substantially the same statement on videotape to an assistant district attorney. At the beginning of the videotaped statement, defendant again waived his Miranda rights; near the end, he answered “no” when asked if he was represented by a lawyer in the homicide case.

In a May 30, 2008 decision and order, the judge denied defendant’s motion to suppress his statements. He reasoned that “[a]ssuming arguendo that Scott told the Detectives not to question Defendant,” that instruction was nugatory because even though “Defendant was represented by counsel on the Manhattan narcotics charges, he was not in custody on those charges, having been released on his own recognizance. Scott did not represent Defendant on the homicide charges, nor did he tell the Detectives that he did.”

Defendant was tried by a jury before another judge. The two eyewitnesses testified. Killigrew read his transcription of defendant’s statement, and the jury viewed the videotape. Scott was the only witness called by the defense. He again testified that he instructed the detectives not to question defendant. In the following series of questions and answers on cross-examination, however, he once more conceded that he did not represent defendant on the homicide charge at the time defendant gave his statements:

“Q Did you represent [defendant] on the homicide matter in this county, in Brooklyn?
“A I was not assigned to represent him.
“Q That is a simple question. You stood there in Manhattan Criminal Court. You had a conversation.
“When you did that, did you represent this man on the homicide matter that these detectives had a duty and desire to investigate?
“Yes or no?
“A No.”

The jury acquitted defendant of intentional murder (Penal Law § 125.25 [1]) and convicted him of the weapon charge based upon possession of a loaded firearm outside the home or business (Penal Law § 265.03 [3]). The judge subsequently sentenced defendant to 15 years of imprisonment followed by five years of postrelease supervision. Defendant appealed. He argued that his indelible right to counsel had attached because Scott let the detectives know that he was represented by counsel and was not to be questioned, and he challenged his sentence.

In a decision and order dated May 18, 2010, the Appellate Division concluded that comments made by the sentencing court “demonstrated that it improperly considered” the murder count “as a basis for sentencing” (73 AD3d 1088 [2d Dept 2010]), and so vacated the sentence and remitted the matter to Supreme Court for resentencing. The Appellate Division otherwise affirmed, deciding that any error in not suppressing defendant’s statements was harmless because “the evidence of the defendant’s guilt . . . was overwhelming, and there [was] no reasonable possibility that the alleged error might have contributed to [his] conviction” (id.). A Judge of this Court granted defendant permission to appeal (15 NY3d 808 [2010]), and we now affirm.

Defendant urges us to send this case back to the hearing court for the judge to decide whether Scott, in fact, told the detectives that defendant “was represented by counsel and that they should not question him.” In defendant’s view, if Scott made this assertion and gave this direction, the right to counsel indelibly attached, and the statements subsequently given by defendant in the absence of counsel must be suppressed even though Scott did not, in fact, represent defendant in the murder case at the time (or ever, for that matter); or, put slightly differently, defendant contends that Scott’s neglect to “specify” to the detectives whether he represented defendant in “the drug case or the homicide case or both” created an ambiguity causing the indelible right to counsel to attach. We have never held that an attorney may unilaterally create an attorney-client relationship in a criminal proceeding in this fashion, and decline to do so now.

People v Ramos (40 NY2d 610 [1976]), for example, is not “virtually identical” to the situation here, as defendant contends. Ramos, who was wanted by the police in relation to a shooting in Manhattan, was subsequently arrested in the Bronx on a narcotics charge. At the arraignment in the Bronx on the drug matter, Ramos’s attorney proclaimed in open court, in the presence of a detective from Manhattan who was waiting to take the defendant into custody, that “[flor the record, [he had] advised [Ramos] not to make any statements to these police officers who are taking him into custody” (id. at 612). Ramos was then escorted to Manhattan, where he made an incriminating statement to an assistant district attorney. At the outset of this interrogation, he was equivocal about whether he wanted a lawyer — stating, for example, “What I can tell about this here I can tell you myself just like it happened. It can go against me, I would like a lawyer. I can tell you that myself, I hope it don’t go against me, I am trying to get out of this jam” — before finally saying to the assistant district attorney “Go ahead, ask me some questions” (id. at 613).

We held that the statement taken by the assistant district attorney should be suppressed because “the defendant was represented by counsel at the time of his interrogation” (id. at 618) by virtue of “the attorney’s affirmative and direct action” — i.e.,

his statements on the defendant’s behalf in front of the judge in open court — “relative to the interrogation which was about to be commenced in connection with” the shooting (id. at 617). Further, we noted that Ramos’s “specific although perhaps confused request: Tt can go against me, I would like a lawyer’, [gave] testimony to his need and desire for legal advice from a lawyer representing his interests” (id. at 618 [emphasis added]).

Here, by contrast, Scott made no statements during the arraignment on the drug crime even arguably related to the homicide. If he had said in open court that defendant “was represented by counsel and that [the police] should not question him,” the prosecutor (or the judge) would have had the occasion and the opportunity to ask him flat out whether he was defendant’s lawyer in the murder case, as the judge and the prosecutor later did at the Huntley hearing and the trial, respectively. Moreover, there is no ambiguity here, as there was in Ramos, about whether defendant may have intended to invoke his right to counsel before making the inculpatory statements.

Indeed, in People v Marrero (51 NY2d 56, 59 [1980]), the other case principally relied upon by defendant, we equated the defendant’s conduct to “a verbal request for counsel.” Marrero, believing that he was being sought in a homicide investigation, asked a lawyer to contact the police and arrange for his surrender. As a result, the police took Marrero into custody in the attorney’s office with the lawyer present. There was no doubt that the lawyer represented the defendant at that juncture of the homicide investigation. Later at the police station, Marrero made incriminating statements.

We held that the statements should be suppressed, observing that “[b]y consulting a lawyer to contact the police, and then surrendering in the attorney’s office with counsel present, the defendant had manifested his own view that he [was] not competent to deal with the authorities without legal advice” (id. at 59 [internal quotation marks and citation omitted]). Further, we observed that the police did not know about the limited nature of the attorney’s representation. Rather, “[a]ll they knew was that the defendant had sought the assistance of counsel in connection with the charge they were investigating” (id. [emphasis added]; see also People v West, 81 NY2d 370, 380 [1993] [citing Marrero for the proposition that “(a)bsent some indication that the representation had ceased, the police could not question defendant concerning the very matter as to which they knew he had a lawyer” (emphasis added)]). Here, however, nothing about defendant’s conduct suggests that he meant to invoke his right to counsel before he made the statements, and, also unlike the situation in Marrero, Scott had not already conspicuously represented defendant in an aspect of the homicide matter, causing the indelible right to attach.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Lippman

(dissenting). In the decision and order we now review the Appellate Division affirmed portions of a Kings County Supreme Court judgment convicting defendant of criminal possession of a weapon in the second degree. It did so over defendant’s claim that his conviction had been obtained based on an inculpatory statement that should have been suppressed since it was given by him to Brooklyn police detectives in pursuance of an invalid waiver of his right to counsel. Although that claim was fully litigated at a pretrial Huntley hearing, the Appellate Division did not address its merits. It held instead that if it had been error to deny suppression of defendant’s statements, the error was harmless in light of what it viewed as the overwhelming properly received evidence of defendant’s guilt (73 AD3d 1088 [2010]). This Court has now evidently concluded that the evidence was not so overwhelming as the Appellate Division thought and, accordingly, that the validity of defendant’s waiver and ensuing confession should have been determined as a necessary antecedent to affirming the judgment convicting him. Having so concluded, the Court apparently undertakes to do what the Appellate Division did not upon a hearing record which, although well developed, raises certain factual issues not yet resolved by a court with jurisdiction to do so. The testimony from which those issues arise may be briefly summarized.

Daniel Scott, the attorney assigned to represent defendant at his Manhattan arraignment on narcotics charges, testified that, in the presence of the Brooklyn detectives who had escorted defendant to the arraignment, and not privately, he “told [defendant] not to discuss any legal matter with them [the Brooklyn detectives] whatsoever.” He also testified that he separately “advised [the detectives] that Mr. Pacquette was represented by counsel and that they should not question him.” He stated as well that he never told Mr. Pacquette that he would not represent him on the Brooklyn homicide with which he was about to be charged. The Brooklyn detectives, on the other hand, testified that defendant and Scott conferred privately but that portions of the attorney-client exchange were nonetheless overheard by Detective Amato. Amato reported that he heard Scott tell defendant that he would not represent him in his new case in Brooklyn. Amato and his partner Detective Parks both stated that Scott never advised them that defendant was represented by counsel and that they should not question him.

The hearing court did not decide whether Scott did in fact tell defendant in front of the detectives that he was not to speak with them about any legal matters or whether he told the detectives that they should not question his client. Nor did the hearing court decide whether Scott told defendant that he would not represent him in the Brooklyn homicide matter. This was because the court found dispositive Scott’s acknowledgments that he was not ultimately engaged to represent defendant in the homicide and that he did not, in so many words, tell the Brooklyn detectives that he represented defendant in that case.

The majority, although declaring that Scott could not have unilaterally created an attorney-client relationship with defendant respecting the Brooklyn matter, does not go so far as to say that Scott in the course of representing defendant at his Manhattan arraignment could not have effectively signaled his entry into that matter, thus triggering, with respect to the homicide investigation, his client’s indelible right to counsel. That, of course, would not be consistent with our decision in People v Ramos (40 NY2d 610 [1976]), which, on facts remarkably like those at bar, clearly recognizes that a defendant’s attorney is, through “affirmative and direct action relative to [an] interrogation . . . about to be commenced” (id. at 617), capable of precluding an uncounseled waiver of the right to counsel in an unrelated matter, even one in which the attorney does not ultimately represent the defendant. Rather, it appears to be the majority’s position that what Scott said was not adequate to communicate to the detectives his entry into the Brooklyn matter. In taking this position, it must be supposed that the majority assumes for the purposes of its argument that Scott did in fact tell defendant in the detectives’ immediate presence that he was “not to discuss any legal matter with them whatsoever” and that he did not tell defendant that he would not represent him in Brooklyn. It must also be supposed that the majority is assuming, also for the sake of argument, that Scott did instruct the detectives “that Mr. Pacquette was represented by counsel and that they should not question him.”

Having made these assumptions in defendant’s favor in lieu of sending the matter back for factual findings that this Court may not make, the majority then says that “Scott made no statements during the arraignment on the drug crime even arguably related to the homicide” (majority op at 96). Even viewed in isolation, simply for their semantic content, Scott’s directives unambiguously communicated to the detectives that his client was not to discuss with them “any legal matter . . . whatsoever” (emphasis supplied) and, accordingly, that “they should not question [defendant]” about any legal matter whatsoever. A homicide is a legal matter.

Even if there were some doubt as to what Scott’s words themselves meant, and really there should be none, the context in which they were spoken could have left absolutely no doubt that Scott was directing the Brooklyn homicide detectives quite specifically not to question defendant about the Brooklyn homicide they were investigating. At the time, all concerned knew that defendant was a suspect in a Brooklyn homicide, and, indeed, Scott was well aware that his client was, by prearrangement, to be immediately returned to the custody of the Brooklyn detectives at the conclusion of his expedited arraignment so that he could be timely arraigned on homicide charges in Brooklyn. Given this scenario, Scott’s concern could not have been principally that defendant would be questioned in his absence about matters pertinent to the New York County drug case, something which his entry as counsel at defendant’s Manhattan arraignment itself precluded, but that he would during the interval before his arraignment on the Brooklyn homicide charges be interrogated and make imprudent admissions with respect to that homicide. Certainly the Brooklyn homicide detectives, who had no interest in defendant’s New York County drug case, would have understood that Scott’s directives to them concerned the case that they were investigating and in which Scott’s client would, in the coming hours, be a natural candidate for custodial interrogation.

Although the majority characterizes Scott’s intercession as an attempt unilaterally to create an attorney-client relationship, defendant was already represented by Scott and no competent defense attorney would simply abandon a client about to be interrogated as a suspect in a homicide. That Scott should have sought to enter the homicide case, if only temporarily to interpose himself between his client and the Brooklyn homicide detectives until formal appointment of counsel at the impending homicide arraignment in Brooklyn, was entirely appropriate. Whether Scott could have effectively accomplished that purpose by admonishing defendant and the Brooklyn detectives as he testified he did, is an inquiry that would seem to be controlled by Ramos.

In Ramos, we held that the statement by the lawyer appearing on Ramos’s behalf at his Bronx arraignment on charges of drug possession — that he had “advised Mr. Santiago [Ramos] not to make any statements to these police officers who are taking him into custody” (40 NY2d at 616) — sufficed to signal to the officers the lawyer’s entry into Ramos’s unrelated Manhattan homicide case, and thereby triggered Ramos’s indelible right to counsel in that case. The admonitions of attorney Scott in this case, both literally and contextually virtually identical to those of Ramos’s attorney, are, if precedent is a constraint upon what we do, entitled to be accorded the same legal effect. Although the majority finds it important that in Ramos the attorney placed his directive on the record, there appears no reason why Scott’s admonitions should be deemed less effective than those of Ramos’s lawyer simply because they were not placed on the record. As we noted in Ramos, the critical inquiry is whether “an attorney has communicated with the police for the purpose of representing the defendant” (id. at 615, quoting People v Arthur, 22 NY2d 325, 329 [1968] [internal quotation marks omitted]). Accordingly, what was crucial in Ramos and what should be here as well is the circumstance, necessarily assumed in appellant’s favor at this juncture, that the defendant’s attorney took “affirmative and direct action relative to [an] interrogation . . . about to be commenced” (id. at 617) “in the presence of the police officer[s] taking [his client] into custody” (id. at 616).

Even if there were some residual ambiguity as to whether Scott in his admonitory statements referred to the Brooklyn homicide, that ambiguity would not redound to the prosecution’s benefit. We were very clear about this in Ramos where we said:

“If, in fact, the prosecution was in doubt as to whether an attorney had entered the proceeding, the burden should rest squarely on it to insure that the defendant’s right to be represented by counsel be protected. The ambiguity of the lawyer’s statement or the manner in which the defendant’s attorney went about representing his client cannot be seized by the prosecution as a license to play fast and loose with this precious right. A defendant’s right to counsel cannot be made to depend on whether in the sole judgment of the prosecution there has been sufficient activity and conduct of a proper character so as to compel a conclusion that the lawyer has entered the proceedings. Nor can we agree with the prosecutor that the defendant has an affirmative burden to point out to the prosecution that an attorney has entered the proceedings on his behalf. To hold otherwise would violate our prior holdings and seriously undermine this constitutionally guaranteed right” (id. at 617-618).

And, in the more recent case of People v Marrero (51 NY2d 56 [1980]), citing Ramos we again emphasized that

“[o]nce an attorney has appeared on the defendant’s behalf we have refused to allow the police to rely on arguable ambiguities in the attorney-client relationship in order to justify police questioning of the defendant without the attorney being present (see, e.g., People v Ramos, 40 NY2d 610). We have indicated that if the police are uncertain as to the scope of the attorney’s representation, the defendant should not be questioned (People v Coleman, 42 NY2d 500, 507)” (id. at 59).

While the majority understands these principles to apply only where the police do not know about the “limited nature of the attorney’s representation” (majority op at 96), it is difficult to understand how that posited condition lends support to its position in this case, since, even if it were true that limited representation could not trigger representational rights, and manifestly it is not, there is no permissible basis for a supposition that the Brooklyn detectives knew, at the time they obtained defendant’s waiver of his right to counsel, about the “limited nature” of attorney Scott’s representation of defendant. Only by making credibility findings on the disputed issues of what was said by Scott to defendant and what Amato overheard, would it be possible to conclude that the Brooklyn detectives had some reliable basis for believing that Scott would not represent defendant in the Brooklyn case. If such a finding is to be made and relied upon in disposing of defendant’s motion, the case should be remitted for that purpose; the finding may not be made in the first instance by this Court and, obviously, what the detectives knew is not appropriately assumed adversely to appellant as a basis for our denial of his appeal and our accompanying statement of the law.

It is also suggested that Ramos and Marrero should not control here because in those cases the defendants manifested a need for legal assistance in the matters being investigated while defendant did not. It is, however, a basic and long-standing principle of our right-to-counsel jurisprudence that, if an attorney has entered a matter, the right to counsel indelibly attaches rendering it irrelevant, in the event of a subsequent uncounseled custodial waiver of the right, whether the defendant was, in interacting with his or her interrogators, not evidently averse to speaking or whether there was some manifestation by the defendant of a need for a lawyer. As we reiterated in People v Hobson (39 NY2d 479, 481 [1976]) and has since been the governing rule of law, “[o]nce a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer.” If Scott entered his client’s homicide case, the uncounseled waiver subsequently obtained from his client in that case was invalid and the confession consequently elicited must be suppressed. Because it is not possible to say on any properly assumed set of facts considered in light of Ramos that Scott did not effectively enter the proceeding, the matter should be remitted so that the factual findings necessary to a proper determination of defendant’s suppression motion can be made.

Defendant would undoubtedly have been protected from making an uncounseled waiver of his right to counsel if he had not by careful prearrangement been “released” from custody on the represented New York County matter to the Brooklyn detectives (who promptly rearrested him). It is questionable whether this artifice should be deemed effective to avoid attachment of the indelible right under People v Rogers (48 NY2d 167 [1979]) where, as here, the detectives were obviously aware of the extant representational relationship, having been present at its inception, and fully intended in the hours after defendant’s “release” to subject him to custodial questioning. But accepting that the “release” of defendant was not a contrivance simply to avoid the triggering of a representational right, it is clear that the situation was one involving great peril to defendant’s legal interests and, accordingly, one which defendant’s lawyer could not treat with indifference as it unfolded before him. Although there may not have been an automatic entitlement to counsel in the homicide case by reason of the unrelated representation in the designedly noncustodial New York County matter, there was, as we have recognized in Ramos, certainly in this situation a need and a corresponding prerogative on the part of the lawyer affirmatively to act to protect his client’s interests. On this record, I do not think it possible for this Court to conclude that he did not do so, indeed, if it were necessary, that he did not do so ‘ ‘conspicuously. ’ ’

Judges Ciparick, Graffeo, Smith and Pigott concur with Judge Read; Chief Judge Lippman dissents in a separate opinion in which Judge Jones concurs.

Order affirmed.

      . Although defendant insists that Scott made these remarks post-arraignment, his hearing testimony is, at best, ambiguous on the matter of timing. As relevant to this point, Scott testified that all his conversation with defendant took place within earshot of the two detectives, and lasted from 5 to 10 minutes “[t]otal,” since “[i]t was just a question of informing [defendant] of the charges, never mind the bail, and advising him not to speak” (emphasis added). He also testified that “in the past” in similar situations he had “asked the judge while we were all in the well of the courtroom” — i.e., during arraignment — “to advise or reinforce the warning or advisement not to question [his] client.”

      . The judge did not submit the assault and other weapon possession count to the jury.

      . On July 21, 2010, Supreme Court resentenced defendant to the same sentence originally imposed.

      . When Ramos agreed to talk to the assistant district attorney, he was well aware that he had earlier made incriminating statements to three Bronx police officers who questioned him about the shooting while he was awaiting arraignment on the drug charge: he told the assistant district attorney “I already talked to detectives, if they got that record already it don’t make no difference” whether he again implicated himself in the shooting (40 NY2d at 613). The admissibility of these statements was not raised on the appeal (id. at 612 n 2).

      . We specifically rejected in Ramos the People’s contention that Ramos’s counsel could not have acted to prevent his prearraignment interrogation in an unrelated murder prosecution because he “never appeared at the defendant’s murder arraignment or any other proceeding in connection with [that] case” (40 NY2d at 617).

      . While the majority urges that if Scott had placed his admonitions on the record the prosecutor or judge might have clarified the extent of his representation of defendant, there was obviously nothing to prevent the detectives from pursuing the matter with Scott directly either at the arraignment or subsequently. As the majority recounts, “Amato ‘took [Scott’s] business card’ ” (majority op at 90).