text:
    [809 NE2d 1106, 777 NYS2d 798]
    The People of the State of New York, Respondent, v Anthony A. Lewis, Appellant.
    Argued February 18, 2004;
    decided April 6, 2004
    POINTS OF COUNSEL

      D.J. & J.A. Cirando, Syracuse (John A. Cirando, Lisa M. Cirando, Susan R. Rider and Mickelle A. Olawoye of counsel), for appellant.
    I. The Sirois/Hellenbrand ruling was improper. (People v Geraci, 85 NY2d 359; People v Green, 78 NY2d 1029; People v Gonzalez, 54 NY2d 729; Matter of Holtzman v Hellenbrand, 92 AD2d 405; United States v Thai, 29 F3d 785, 513 US 977; United States v Aguiar, 975 F2d 45; United States v Potamitis, 739 F2d 784, 469 US 918; United States v Mastroangelo, 693 F2d 269, 467 US 1204; Steele v Taylor, 684 F2d 1193, 460 US 1053; United States v Thevis, 665 F2d 616, cert denied sub nom. Evans v United States, 456 US 1008.) II. The search warrant was defective and its execution improper. (People v Taylor, 73 NY2d 683; People v Davis, 36 NY2d 280, 423 US 876; People v Hanlon, 36 NY2d 549; People v Fino, 14 NY2d 160; People v Bigelow, 66 NY2d 417; People v Harper, 236 AD2d 822, 89 NY2d 1094; People v Coles, 275 AD2d 995, 95 NY2d 962; People v Migenis, 167 AD2d 956, 77 NY2d 880; People v Griminger, 71 NY2d 635; Aguilar v Texas, 378 US 108.) III. The evidence was not sufficient to support the jury’s verdict. (People v Bleakley, 69 NY2d 490; People v Blake, 5 NY2d 118; People v Harris, 306 NY 345; People v Way, 59 NY2d 361; People v Benzinger, 36 NY2d 29; People v Cleague, 22 NY2d 363; People v Manini, 79 NY2d 561; People v Francis, 79 NY2d 925; People v Pearson, 75 NY2d 1001; People v Diaz, 112 AD2d 311.) IV Appellant was denied the effective assistance of counsel. (People v Rivera, 71 NY2d 705; People v Robinson, 71 AD2d 1008; People v Baldi, 54 NY2d 137; People v Harris, 131 AD2d 142; People v Session, 34 NY2d 254; Strickland v Washington, 466 US 668; People v Salters, 20 AD2d 731; People v Hobot, 84 NY2d 1021; People v Benn, 68 NY2d 941; People v Bennett, 29 NY2d 462.) V. Officer Palmer’s expert testimony was improper, and served to impermissibly bolster the People’s case. (De Long v County of Erie, 60 NY2d 296; People v Cronin, 60 NY2d 430; People v McCart, 157 AD2d 194; Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140; People v Wright, 283 AD2d 712, 96 NY2d 926; People v Brown, 97 NY2d 500; People v Benedetto, 294 AD2d 958; People v Becraft, 177 AD2d 945, 79 NY2d 853; People v Jackson, 124 AD2d 975; People v Crimmins, 36 NY2d 230.)

      John C. Tunney, District Attorney, Bath, for respondent.
    I. The court’s Sirois/Hellenbrand ruling was correct. (People v Cotto, 92 NY2d 68; People v Geraci, 85 NY2d 359; People v Brown, 95 NY2d 942; People v Berroa, 99 NY2d 134.) II. The search warrant was properly issued. (People Parris, 83 NY2d 342; People v Kirby, 168 AD2d 981; People v Doyle, 222 AD2d 875; People v Carpenter, 213 AD2d 747; People v Allen, 209 AD2d 425; People v Delarosa, 215 AD2d 496; People v Boatswain, 210 AD2d 798; People v Letendre, 94 NY2d 939.) III. The search warrant was properly executed. (People v Villanueva, 161 AD2d 552; People v Givens, 21 NY2d 929; People v Brown, 96 NY2d 80; People v Rivas, 214 AD2d 996.) IV. The verdict was supported by sufficient evidence. V Defendant received meaningful representation. (People v Alfinito, 16 NY2d 181; People v Dunn, 155 AD2d 75, 77 NY2d 19; People v Reliar, 213 AD2d 1063; People v Biller, 270 AD2d 883; People v Harris, 99 NY2d 202; People v Ming Li, 91 NY2d 913; People v Paperno, 54 NY2d 294.) VI. The receipt of expert testimony was appropriate. (People v Brown, 97 NY2d 500; People v Wright, 283 AD2d 712; People v Edwards, 273 AD2d 249; People v Gaynor, 257 AD2d 494, 93 NY2d 970; People v Rivera, 209 AD2d 151; People v Garcia, 196 AD2d 433, 83 NY2d 817; People v Crimmins, 36 NY2d 230.)
   OPINION OF THE COURT

Rosenblatt, J.

On this appeal, we reverse defendant’s conviction because his attorney testified against him at a Sirois hearing (see Matter of Holtzman v Hellenbrand [Sirois], 92 AD2d 405, 415 [2d Dept 1983]).

I.

Defendant was indicted for possessing and selling controlled substances. The charges were based, in part, on the seizure of drugs and paraphernalia pursuant to a search warrant covering defendant’s premises. In addition to the seized evidence, the People planned to introduce testimony from a witness who had bought cocaine from defendant and returned to the premises when the police executed the warrant. The witness signed a statement to that effect.

Shortly after jury selection, the prosecution furnished the defense with a copy of the statement. Within an hour, the witness received a threatening telephone call. The following day, the witness contacted the police and reported that he had been threatened and would not testify. The prosecution brought this to the attention of the court, asserting that defendant was out on bail and behind the threats. The People argued that by threatening the witness, defendant had forfeited his right of confrontation (see People v Cotto, 92 NY2d 68, 76 [1998]; People v Geraci, 85 NY2d 359, 366 [1995]) and that the witness’s statement should therefore be revealed to the jury. In response, defendant’s attorney denied that his client was involved in any witness intimidation. He said he had shared the statement with defendant because he wanted defendant to know of it, but that defendant responded indifferently, dismissing the statement as too recent and unreliable to be of any concern.

To test the People’s claim, the court began a Sirois hearing. The prosecutor called a State Police investigator, who testified that he spoke with the witness. The witness told the investigator that he received a call from an unknown male, telling him he had better not testify, adding that he knew where the witness and his family lived. The threat served its purpose; the witness said he would rather go to jail than testify. With that, the prosecution rested. Defendant then took the stand and acknowledged that his attorney had shown him the statement. He denied, however, conveying or arranging for any threats to the witness. He said he told only one person, “[m]y friend Dale over there,” about the witness’s statement, but did not reveal who the witness was (implying that Dale could not have made the threat because he would not know whom to threaten). Defendant added that the statement was “bogus” and did not worry him.

Both sides told the court they had no other witnesses. The prosecutor then asked to call defendant’s attorney to the stand. Counsel did not object, nor did the court suggest that there was anything improper about the People calling defendant’s attorney as a witness against defendant. The prosecutor asked defendant’s attorney: “Did you tell anybody other than [defendant] about this statement, that is the, either the identity of the declarant or the substance of the statement?” Defendant’s attorney answered no. With that testimony, the prosecution sought to enhance the circumstantial proof against defendant by showing that only defendant was aware of the statement (his attorney testified he told no one else) and therefore was obviously the author of the threats. The prosecutor pointed out that no one other than defendant and his friend knew of the statement and only defendant had something to gain by either delivering or arranging for the threat. The court agreed, placed the blame for the threats at defendant’s doorstep and ruled the witness’s statement admissible.

After a jury found defendant guilty, a divided Appellate Division affirmed defendant’s conviction (305 AD2d 993 [2003]). A dissenting Justice of that Court granted leave to appeal. Defendant challenges his conviction on several grounds. He asserts that the search warrant was not based on probable cause and that it was executed improperly. He also contends that the proof at the Sirois hearing was insufficient as a matter of law for the trial court to have concluded that defendant was responsible for the threat. While we reject these contentions, we agree with defendant, and with the Appellate Division dissenters, that because he was denied effective assistance of counsel, his conviction must be reversed, requiring a new trial.

II.

In reaching this result, we need look no further than People v Berroa (99 NY2d 134 [2002]). There, two defense witnesses testified that the defendant was in Philadelphia when the crime was committed. The prosecutor objected because the defense had not served an alibi notice. In response, the defendant’s attorney stated that the alibi testimony came as a surprise to her as well. Perceiving a problem, the court and the parties discussed the undesirable possibility of the defendant’s attorney being called as a witness to refute the alibi. Confronted with the dilemma, the defendant’s attorney stipulated, before the jury, that when she spoke with the witnesses, neither said anything about the defendant’s having been in Philadelphia at the time of the crime. In reversing the defendant’s conviction, we held that he was denied effective assistance of counsel. The stipulation, we determined, converted the defendant’s attorney into a defense witness who undermined the defendant’s other witnesses.

Here, in effect, much the same happened. Instead of stipulating, defendant’s attorney testified adversely to his client and thereby transformed himself from defendant’s advocate into his adversary. Because defense counsel’s testimony was in conflict with defendant’s position, defendant was denied effective representation. As we pointed out in Berroa, attorneys should withdraw when called to testify against their client on a significant issue. When the prosecution expressed its intention to call defendant’s lawyer as a witness, the lawyer should have objected —or the court itself should have interceded—and raised the potential conflict.

As we stated in Berroa, “when a lawyer is called to testify against the client’s interest the conflict is obvious” (99 NY2d at 140). Here, had the court or the defense attorney pointed out the potential conflict, the prosecutor would have disclosed that he wanted testimony from defendant’s attorney to close the circumstantial loop and prove that only defendant knew of the statement and the identity of the witness. Because counsel’s testimony, however, went unprotested, the prosecutor was able to make his point and, with the help of defense counsel, prevail at the Sirois hearing. Our dissenting colleagues agree that the prosecution should not have been permitted to call defendant’s attorney as a witness at the Sirois hearing but would, at most, order a new Sirois hearing. In our view, a new trial is also required because defense counsel crossed the line when, without protest, he gave testimony against his client. True, the testimony was an addendum to the informal remarks he made earlier, but by testifying, he became a witness for the prosecution. We agree with the dissenters that the testimony was neither earth-shattering nor insignificant (dissenting op at 231). That being so, it is inapt for us to weigh the importance of the testimony and draw fine distinctions as to where on the spectrum of harm it falls. If, as we all agree, the attorney’s testimony had at least some significance, it was enough to rupture the attorney-client relationship not only for the Sirois hearing but for the balance of the trial itself. Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

R.S. Smith, J. (dissenting). I agree that the prosecutor should not have been permitted to call defense counsel as a witness at the Sirois hearing. I do not agree, however, that the error deprived defendant of the effective assistance of counsel at the Sirois hearing. And even if it did, I see no basis for requiring a new trial, as opposed to a new Sirois hearing. I therefore dissent.

The majority opinion states the facts fairly, but I will reemphasize some of them, because I think it is important to understand that Supreme Court, and both counsel, were dealing with an issue of great importance and urgency; and that facts within the knowledge of defense counsel were relevant to that issue. The prosecution claimed that defendant had threatened physical violence against a witness and the witness’s family—a charge which, if true, called for swift action to protect the integrity of the trial. The prosecutor sought not only the admission into evidence of the witness’s written statement, but defendant’s immediate incarceration. Supreme Court was obviously correct in proceeding at once to a hearing to decide the truth or falsity of the charge. This was not a matter that would wait.

No one suggested that defense counsel had any culpable involvement in the alleged threat to the witness, but it was alleged that the threat followed within an hour and a half after the prosecution gave defense counsel the witness’s name. The prosecutor said: “I believed I noticed [defense counsel] and Mr. Lewis in one of the conference rooms. . . . It is my belief that [defense counsel] would have talked to his client about. . . [the witness’s] statement. . . . [0]ther than [defense counsel] and Mr. Lewis, to my knowledge, no one else other than [the witness] knew about this statement.” The inference the prosecutor asked the court to draw was that defense counsel had given the information to the client and the client had misused it. An inquiry into the prosecutor’s allegation had to touch on facts within defense counsel’s personal knowledge.

Defense counsel did not have to say anything about his communications with his client, of course; but he decided to disclose the facts as he knew them. He made an informal and unsworn representation in open court, without any objection from the prosecutor, to the effect that he had told his client about the witness and that the client had been completely unperturbed. On this basis, he argued that there was no reason to believe his client was the source of the threat. This was not an overwhelmingly persuasive argument, but I do not think defense counsel can be criticized—and the majority does not criticize him—for making the argument, or for making the factual disclosure on which it was based. Counsel was doing his best, under difficult circumstances, to present his client to the court as an innocent man with nothing to hide.

The Sirois hearing then proceeded. A police officer described the witness’s report of a threat, and defense counsel called defendant, whose testimony was consistent with the representations made earlier by defense counsel. Defendant also testified that he had nothing to do with any threat. The prosecutor then called defense counsel and asked him a single question— whether he had told anyone other than defendant about the identity of the witness or the substance of the witness’s statement. Defense counsel answered no.

Since neither defense counsel nor the court questioned the calling of defense counsel as a witness, the record does not show the prosecutor’s grounds for seeking this departure from normal procedure. It is possible to construct an argument for what was done, however: since defense counsel had already made factual representations favorable to his client’s cause, it was arguably unfair to let him withhold a less favorable fact; the question the prosecutor asked was relevant, and did not invade the attorney-client privilege; defense counsel’s testimony took place outside the presence of the jury; and it was extremely brief.

The majority implicitly holds, and I agree, that this argument should not prevail. Code of Professional Responsibility DR 5-102 (d) (22 NYCRR 1200.21 [d]) provides:

“If after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer or a lawyer in his or her firm may be called as a witness on a significant issue other than on behalf of the client, the lawyer may continue the representation until it is apparent that the testimony is or may be prejudicial to the client at which point the lawyer and the firm must withdraw acting as an advocate before the tribunal.”

The rule appears to say that an attorney must always withdraw as soon as it is apparent that he must give testimony on a significant issue that is prejudicial to his client. The testimony here was not earth-shattering, but it cannot be called insignificant, and such impact as it had was prejudicial to counsel’s client. Withdrawal was an undesirable solution: it would have caused delay, both in the resolution of the witness-intimidation issue and in the trial itself, and it would have compelled appellant to proceed with a lawyer who arrived on the scene in midtrial. The appropriate course here was to get along without the attorney’s testimony if possible—and it was possible. The single word of testimony the attorney gave was relevant, but it was not vital to a resolution of the witness-intimidation issue.

For this reason, it is my view that defense counsel should have objected when the prosecutor sought to call him as a witness, and Supreme Court should have sustained the objection. But no objection was made, and therefore no error is preserved for our review unless, as the majority holds, the error deprived defendant of his constitutional right to the effective assistance of counsel—a deprivation which is not, for obvious reasons, subject to the rule that it is waived when counsel does not object. (See People v Jones, 55 NY2d 771, 773 [1981].)

What occurred here does not come close to “ineffective assistance” in the ordinary sense. Ordinarily, ineffective assistance occurs only where counsel has not provided “meaningful representation.” (People v Hobot, 84 NY2d 1021, 1022 [1995]; People v Baldi, 54 NY2d 137, 147 [1981].) Even where counsel is subject to a conflict of interest, prejudice—a necessary ingredient of ineffective assistance—“is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ ” (Strickland v Washington, 466 US 668, 692 [1984] [quoting Cuyler v Sullivan, 446 US 335, 350 (1980)].)

The majority does not suggest that these tests are met here, but relies entirely on People v Berroa (99 NY2d 134 [2002]). The majority apparently reads Berroa as creating a per se rule that, wherever a defendant’s attorney is the source of facts adverse to his or her client, the client has been deprived of effective assistance. The majority reads Berroa too broadly.

The error in Berroa was much more serious than the error here, for two reasons: (1) in Berroa, the attorney became, in effeet, a witness before the jury on an issue touching her client’s guilt or innocence; and (2) in Berroa the only facts the attorney provided were adverse to her client. Here, at a hearing outside the presence of the jury on a collateral issue, defense counsel was permitted to make factual representations in support of his client’s cause, and then was required to answer a single question which served to place his representations in context. There was, as I have pointed out above, a legitimate argument that could have been made for requiring defense counsel to testify. Under these circumstances, I do not find that requiring him to testify was so gross a deviation from acceptable practice as to render his assistance to his client at the Sirois hearing “ineffective.”

But even if the majority is correct on that issue, I see no basis for holding that the “ineffective assistance” that the majority finds tainted not only the Sirois hearing, but the whole trial. The testimony defense counsel gave was out of the jury’s presence and had nothing to do with any issue the jury considered. The jury presumably never knew that defense counsel had taken the stand. I find nothing in the record to suggest that defense counsel became a less effective advocate after his testimony. He presented a competent, aggressive defense throughout the trial.

I can only surmise that the majority believes that counsel became ineffective at trial because it thinks the relationship between counsel and his client was irretrievably damaged when counsel became a witness. Since there is no evidence in the record of any damage to the relationship, and since the majority does not direct a hearing on the issue, the majority seems to be creating another per se rule—that no attorney-client relationship can survive an attorney’s testimony against his client, no matter how brief and no matter what the circumstances.

I see no justification for such a rule, which reflects a tenderness toward the attorney-client relationship quite at odds with the approach taken in a number of other cases. This Court has held that the relationship may survive where a defendant’s attorney informs the court that defendant perjured himself (People v DePallo, 96 NY2d 437 [2001]); where an attorney, seeking to support an insanity defense, testifies that his client has confessed to prior murders (People v Baldi, 54 NY2d 137 [1981]); where defendant’s attorney had previously represented the chief prosecution witness (People v Lombardo, 61 NY2d 97 [1984]); and where the attorney had simultaneously represented an informer who turned out to be providing information about the defendant (People v Harris, 99 NY2d 202 [2002]). It seems plain to me that the impairment of the attorney-client relationship here did not exceed, or even equal, the impairment in the cases I have just cited, and therefore I do not see any reason why defense counsel in this case could not continue to represent appellant at the trial.

In sum, I conclude that appellant was not deprived of effective assistance of counsel. Since I believe that the evidence of his involvement in the threat to the witness was sufficient under the applicable legal standard and that his other claims of error are insubstantial, I dissent from the reversal of his conviction.

Chief Judge Kaye and Judges G.B. Smith, Ciparick and Graffeo concur with Judge Rosenblatt; Judge R.S. Smith dissents in a separate opinion in which Judge Read concurs.

Order reversed, etc.

      . See Code of Professional Responsibility DR 5-102 (d) (22 NYCRR 1200.21 [d]); People v Paperno, 54 NY2d 294, 299-300 (1981); Prince, Richardson on Evidence § 6-114, at 324 (Farrell 11th ed).

      . Where the failure to object is the basis for a claim of ineffective assistance of counsel, that claim, by its very nature, will ordinarily be made for the first time on appeal (see People v Jones, 55 NY2d 771, 773 [1981]).

      . The dissent in the Appellate Division states that by his remarks the prosecutor “[i]n effect . . . became a witness at the Sirois hearing” and should have been disqualified (305 AD2d 993, 996 [2003]). I disagree. The prosecutor’s statement was merely an explanation of why he was requesting a Sirois hearing. The evidence on which the prosecutor relied at the hearing was the testimony of a police officer. The consequences for the efficient conduct of trials will be severe if every prosecutor who makes factual representations outside the jury’s presence to explain the basis for an application to the court must be disqualified as a “witness.”

      . There is no need to consider here whether, in an extreme case, an exception might be made to the rule that an attorney must withdraw if he must give testimony prejudicial to his own client. Certainly, such exceptions should be rare if they exist at all. But it might be possible to imagine a case in which the need for the attorney’s testimony was so compelling, the consequences of disqualifying the attorney so disastrous, and the prejudice to his client from the testimony so slight, that an exception to the rule could be made. This is not such a case.


source: Caselaw Access Project

author: Graffeo, J. Ciparick, J. (dissenting).

license: Public Domain

text:
    [810 NE2d 415, 778 NYS2d 133]
    The People of the State of New York, Respondent, v Corey Jones, Appellant.
    Argued February 19, 2004;
    decided April 6, 2004

      POINTS OF COUNSEL

      Legal Aid Society, New York City (Kerry Elgarten and Laura R. Johnson of counsel), for appellant.
    I. The lineup identification testimony should have been suppressed as the tainted fruit of a Payton violation. (Payton v New York, 445 US 573; People v Harris, 77 NY2d 434; People v Conyers, 68 NY2d 982; People v Johnson, 66 NY2d 398; People v LaFontaine, 92 NY2d 470; People v Romero, 91 NY2d 750; People v Goodfriend, 64 NY2d 695; United States v Leon, 468 US 897; Nardone v United States, 308 US 338; Murray v United States, 487 US 533.) II. The photographic identification procedure was unduly suggestive since it contained the photos of only three men, on 8V2 by 11 inch pieces of paper headed “mugshot pedigree” and further, of the three, appellant was the only one whose appearance was at all consistent with the described robber. (People v Jackson, 98 NY2d 555; People v Chipp, 75 NY2d 327; People v Adams, 53 NY2d 241; United States v Wade, 388 US 218; Simmons v United States, 390 US 377; People v Gee, 99 NY2d 158; United States v Wiseman, 172 F3d 1196; United States v Sanchez, 24 F3d 1259; United States v Rosa, 11 F3d 315; People v Grate, 130 AD2d 590.)

      Charles J. Hynes, District Attorney, Brooklyn (Scott J. Splittgerber and Leonard Joblove of counsel), for respondent.
    I. The Payton violation did not warrant suppression of the subsequent lineup identifications, because the lineup identifications were not the product of the Payton violation. (Payton v New York, 445 US 573; New York v Harris, 495 US 14; People v Medina, 161 Misc 2d 484; People v Burr, 70 NY2d 354; People v Arnau, 58 NY2d 27, 468 US 1217; People v Rogers, 52 NY2d 527, 454 US 898; People v Blake, 35 NY2d 331; People v Hawkins, 55 NY2d 474, 459 US 846; People v Hobson, 39 NY2d 479; People v Conyers, 68 NY2d 982.) II. The photographic identification procedure was not unduly suggestive. (People v Jackson, 98 NY2d 555; People v Evans, 94 NY2d 499; People v Chipp, 75 NY2d 327, 498 US 833; Neil v Biggers, 409 US 188; People v Adams, 53 NY2d 241; Stovall v Denno, 388 US 293; People v Berrios, 28 NY2d 361; People v Williams, 143 AD2d 162; People v Ludwigsen, 128 AD2d 810; People v Rahming, 26 NY2d 411.)
   OPINION OF THE COURT

Graffeo, J.

The issue in this appeal is whether the State Constitution prohibits the introduction in evidence of eyewitness lineup identifications, where the lineup was conducted after police arrested defendant at his residence without a warrant or consent to enter, in violation of Payton v New York (445 US 573 [1980]; see People v Levan, 62 NY2d 139 [1984]). Under the circumstances of this case, we conclude that the exclusionary rule does not require the suppression of the identification evidence.

In October 1998, a woman was accosted in her apartment building by a man who followed her onto an elevator. The man confronted her, stated that he had just been in a shootout and asked for money so he could flee from the area. When the woman refused, the man tore a chain from her neck, took her watch and put his hand in her pocket. The assailant fled after the woman began spraying him with Mace.

Another woman was robbed under similar circumstances later that month. While she and her children were entering an elevator in their apartment building, a man approached her, claimed that he had been in a shootout and shot someone, and declared that he “needed cab fare to get away.” After the woman told him that she couldn’t help him, the man reached under his jacket and apologized to her, stating “I wouldn’t do this, if I didn’t have to, but I’m desperate.” Although the woman initially refused to give him anything, she eventually handed over $30. When the man tried to reach into her pocket, the woman slapped his hand away. Placing his hand on the shoulder of her child, the man told the woman not to make him do “nothing [he didn’t] want to do.” He then ripped a necklace from the woman and demanded her earrings. She gave him one but tossed the other onto the floor of the elevator. The man picked up the earring and fled from the elevator.

Eventually the victim of the second robbery met with a detective who arranged for her to view computerized mug shot photographs. She examined six photographs at a time for approximately 20 minutes, but did not find anyone who resembled the man that robbed her. The detective then produced three additional photographs that he printed from the computer. The woman identified one of the men—defendant—as her assailant. Based on that identification, defendant’s photograph was inserted into a six-person photographic array that was shown to the victim of the first robbery. She also identified defendant as the man who accosted her.

Having probable cause to believe that defendant was the perpetrator of both robberies, but without obtaining an arrest warrant, the detective and several police officers went to the apartment where defendant lived with his mother. When defendant’s mother answered the door, the detective told her that he was looking for her son. She left the front door open as she went back into the apartment to find defendant. The police officers followed her inside, located defendant and placed him under arrest. Approximately five hours later, police placed defendant in a lineup and the two robbery victims separately identified him.

Defendant was subsequently indicted for a variety of crimes stemming from the two incidents, including two counts of robbery in the first degree. He moved to suppress identification evidence at trial, claiming that the photographic identification procedure employed with the second victim was unduly suggestive. Defendant also argued that because the police entered his home without consent or an arrest warrant in violation of Pay-ton v New York (445 US 573 [1980]), the lineup identifications should be suppressed as the tainted product of the illegal entry.

Supreme Court denied the motion to suppress identification evidence, initially determining that the photographic identification procedure was not unduly suggestive. The court further ruled that, although the police had violated the Payton rule when they entered defendant’s home and arrested him in the absence of consent or a warrant, the lineup identifications did not stem from the Payton violation and, as such, suppression was not warranted. Supreme Court adhered to its decision upon reargument.

After the presentation of evidence at trial, including the victims’ in-court identifications of defendant and testimony concerning the lineup identifications, defendant was convicted of one count of robbery in the first degree relating to the second incident. The jury, however, was unable to render a unanimous verdict on the charges related to the first robbery. The Appellate Division affirmed defendant’s conviction and a Judge of this Court granted leave to appeal.

As a threshold matter, it is undisputed that the arrest of defendant in his home, although supported by probable cause due to the victims’ photographic identifications, was effectuated unlawfully. The Fourth Amendment clearly “prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest” (Pay-ton v New York, 445 US at 576) in the absence of “exigent circumstances” (Kirk v Louisiana, 536 US 635, 638 [2002]). Here, the People never argued that an emergency justified the warrantless entry and Supreme Court expressly found that defendant’s mother did not provide consent before the police entered the residence. Because the People do not challenge Supreme Court’s undisturbed findings of fact, we accept that a Payton violation occurred.

The primary question before us is whether the exclusionary rule bars the People’s use of lineup identifications conducted in the absence of counsel subsequent to an arrest made in violation of the Payton doctrine. In People v Harris (77 NY2d 434 [1991]), we held that the Search and Seizure Clause of the State Constitution generally requires the suppression of incriminating statements elicited during a custodial interrogation conducted without counsel following a Payton violation. We are now asked to determine whether the rationale of Harris carries equal strength in post -Payton lineup identification situations.

The resolution of this issue requires an examination of the factual and procedural context of Harris in our Court, both before and after the United States Supreme Court reviewed the case. In our initial decision, we concluded that the Federal Constitution required suppression of “any verbal statements obtained as a direct result of an unlawful invasion” unless the statements were attenuated from the Payton violation (People v Harris, 72 NY2d 614, 619 [1988]). The Supreme Court, however, ruled that suppression was unwarranted and reversed (New York v Harris, 495 US 14, 21 [1990]). The Court explained that the exclusionary rule was inapplicable “because the rule in Pay-ton was designed to protect the physical integrity of the home; it was not intended to grant criminal suspects . . . protection for statements made outside their premises where the police have probable cause to arrest” (id. at 17). Thus, under the Fourth Amendment of the Federal Constitution, evidence procured after the police leave an arrestee’s residence is not considered to be “the product of’ a Payton violation (id. at 19).

On remand, we considered whether suppression was necessary under article I, § 12 of the State Constitution—the provision prohibiting unlawful searches and seizures. We determined that the “State Constitution requires that statements obtained from an accused following a Payton violation must be suppressed unless the taint resulting from the violation has been attenuated” (77 NY2d at 437). The justification for a more protective rule was rooted in the unique protections guaranteed by New York’s Right to Counsel Clause, which is “ ‘far more expansive than the Federal counterpart’ ” (id. at 439, quoting People v Bing, 76 NY2d 331, 339 [1990]). We noted that “[u]nder both Federal and State law, the right to counsel attaches once criminal proceedings have commenced” and, of particular relevance, in New York “criminal proceedings must be instituted before the police can obtain a warrant” because CPL 120.20 requires an accusatory instrument to be filed before an arrest warrant may be issued (People v Harris, 77 NY2d at 439, 440). In this state, therefore, the indelible right to counsel attaches whenever an arrest warrant is issued and the “police may not question a suspect in the absence of an attorney” (id. at 440). Due to this prohibition on interrogation without counsel that arises when a defendant is arrested under the authority of a warrant, we recognized that police in our state may have an incentive “to violate Payton . . . because doing so enables them to circumvent the accused’s indelible right to counsel” (id.). Thus, we held that the exclusionary rule applies to statements elicited after a Payton violation in order to deter law enforcement from violating one constitutional protection (unreasonably entering and seizing an accused in the home) for the purpose of circumventing another (the indelible right to counsel).

Here, as in Harris, we are again confronted with the “interplay between the right to counsel rules established by New York law and the State’s search and seizure” protections (id.). Relying on Harris, defendant argues that suppression of the lineup evidence is necessary to remove any incentive the police have to violate Payton—namely, the benefit of obtaining a lineup identification in the absence of counsel on behalf of a defendant. The People claim that suppression is unwarranted because, unlike the post -Payton statements at issue in Harris, application of the exclusionary rule to lineups would have little or no deterrent effect on police conduct and the role of counsel at a lineup is less active than the participatory function of counsel during custodial interrogation.

The exclusionary rule “was originally created to deter police unlawfulness by removing the incentive” to disregard the law, but also “serves to insure that the State itself, and not just its police officers, respect the constitutional rights of the accused” (People v Payton, 51 NY2d 169, 175 [1980]; see United States v Leon, 468 US 897, 906 [1984]). Nevertheless, “[t]he heavy sanction exacted by the exclusionary rule” (People v Martinez, 37 NY2d 662, 670 [1975])—“the price paid by society in particular cases for the greater value of deterring future police wrongdoing” (People v Burr, 70 NY2d 354, 362 [1987], cert denied 485 US 989 [1988])—“has never been considered a fundamental right . . . requiring automatic application” every time the police infringe upon federal or state constitutional protections (People v Young, 55 NY2d 419, 425 [1982], cert denied 459 US 848 [1982]).

Whether the rule should apply “depend[s] ‘upon a balancing of its probable deterrent effect against its detrimental impact upon the truth-finding process’ ” (id., quoting People v McGrath, 46 NY2d 12, 21 [1978], cert denied 440 US 972 [1979]). But, “it has never been enough to show that evidence must be suppressed simply because it was discovered subsequent to an file-gal arrest” (People v Rogers, 52 NY2d 527, 535 [1981], cert denied 454 US 898 [1981]). Rather, the prosecution must have “somehow exploited or benefited from its illegal conduct” such that “there is a connection between the violation of a constitutional right and the derivative evidence” obtained by the police (People v Burr, 70 NY2d at 362; see United States v Crews, 445 US 463, 471 [1980] [exclusionary rule applies to “evidence (that) is in some sense the product of illegal governmental activity”]).

Our Harris rule is premised on the venerable principle that an arrestee has an absolute right—guaranteed by both the Federal and State Constitutions—to remain silent during custodial interrogation, and when the indelible right to counsel has attached, it cannot be waived in the absence of counsel (see e.g. People v Grice, 100 NY2d 318, 320-321 [2003]). But a person lawfully in custody does not have a concomitant right to refuse to participate in a lineup (see People v Hawkins, 55 NY2d 474, 486 n 5 [1982], cert denied 459 US 846 [1982]). Regardless of whether the police arrest a suspect on the street or obtain a warrant and make an arrest in a residence, neither the arrestee nor counsel has the authority to prevent a lineup as long as the police had probable cause for the arrest. While an accused, in consultation with counsel, can decide whether to make a statement to the police, it is the police who alone decide whether a lineup will occur, select the procedure that will be used, determine when and where the identification is held, and choose the other persons who, along with the suspect, will be included in the lineup. Thus, the underlying purpose of the “fruit of the poisonous tree doctrine”—to “preclude[ ] the use of evidence which would not have been obtained had the illegal search or seizure not occurred”—will not always be served when lineup identifications are at issue (Kamins, New York Search and Seizure, at 13 [14th ed 2004]). Here, allowing evidence of the lineup identifications to be admitted does not put the People “in a better position than [they] would have been in if no illegality had transpired” (Nix v Williams, 467 US 431, 443 [1984]) since the requisite “connection between the violation of a constitutional right and the derivative evidence” is absent (People v Burr, 70 NY2d at 362).

Furthermore, it is well established that there are distinctions between the role of counsel at a custodial interrogation compared to a lineup. Certainly, although “the assistance of counsel is not completely valueless” during a corporeal viewing (People v Hawkins, 55 NY2d at 486), the benefits of counsel’s presence at a lineup are more limited than at an interrogation (see People v Hobson, 39 NY2d 479, 485 [1976]; People v Blake, 35 NY2d 331, 337 [1974]). Stated another way,

“[d]uring interrogations, counsel may take an active role on behalf of his client, both in advising a suspect on whether to remain silent and in counseling a suspect on whether to answer particular questions once the right to remain silent has been waived .... In contrast, during a lineup counsel plays the relatively passive role of an observer .... Counsel may not actively advise his client during the lineup itself” (People v Hawkins, 55 NY2d at 485 [citations omitted]; see also People v Settles, 46 NY2d 154, 165 [1978]).

Another important factor is that the police had probable cause to arrest defendant, unlike in the cases relied on by defendant— People v Dodt (61 NY2d 408 [1984]) and People v Gethers (86 NY2d 159 [1995]). When the police arrest an individual on less than probable cause, the authorities are unreasonably and unconstitutionally exercising custody over the person and may not lawfully force the individual to participate in a lineup (People v Dodt, 61 NY2d at 417). In Payton scenarios, however, the police have probable cause to arrest and, as such, it is only the means of effecting the arrest that are unlawful, not the detention itself. Hence, unlike a lineup arising from an arrest without probable cause, a lineup subsequent to a Payton violation is not an “identification [that] follow[s] directly from the illegal . . . detention of [the] defendant” (People v Dodt, 61 NY2d at 417), nor can it be said that “the police exploited the illegal [entry] in such a way as to establish that it was the [entry] which produced the challenged” lineup identifications (People v Rogers, 52 NY2d at 535). Here, the identifications of defendant were not “the product of’ the Payton violation (United States v Crews, 445 US at 471; New York v Harris, 495 US at 19) but of the police having probable cause to believe that defendant was the perpetrator of the robberies based on the photographic identifications by the two victims. Due to the lack of a causal relationship between the Payton violation and the lineup identifications in this case, the lineups were not the “fruit of the poisonous tree.”

Moreover, we have acknowledged that “corporeal lineups, properly conducted, generally provide a reliable pretrial identification procedure and are properly admitted unless it is shown that some undue suggestiveness attached to the procedure” (People v Chipp, 75 NY2d 327, 335 [1990], cert denied 498 US 833 [1990]). As an added measure of protection to the accused, “the People have the initial burden of establishing the reasonableness of the police conduct” (People v Jackson, 98 NY2d 555, 559 [2002]), as well as “the lack of any undue suggestiveness in a pretrial identification procedure” (People v Chipp, 75 NY2d at 335). And, if the suggestiveness of a lineup is called into question,

“it is important to remember that . . . the resolution of this issue will not come down to a credibility contest between the accused and the police. . . . [W]ith each lineup identification there will be an eyewitness who can be examined and cross-examined at the Wade hearing and at the trial as to whether any improper conduct was resorted to. In this sense, lineups are fundamentally different from interrogations and thus the protective devices surrounding each may be different” (People v Hawkins, 55 NY2d at 486 n 4 [emphasis in original]).

In addition, law enforcement authorities have an extremely meaningful deterrent not to violate Payton—the Harris rule itself, which renders any uncounseled, unattenuated incriminating statements inadmissible at trial (77 NY2d at 440). Other disincentives exist as well, such as the possibility of a federal civil suit brought under 42 USC § 1983 against the arresting authority premised on the violation of a clearly established Fourth Amendment right (see e.g. Loria v Gorman, 306 F3d 1271, 1283-1284 [2d Cir 2002]; see also Wilson v Layne, 526 US 603, 609-611, 614-615 [1999]). Because the law already incorporates existing protections that sufficiently minimize “incentivéis] to the police to violate” Payton and “the consequences flowing from the police illegality” have a minimal impact on lineup identifications (People v Harris, 77 NY2d at 438), we hold that the State Constitution does not require the suppression of evidence of a lineup identification made after an arrest based on probable cause but in violation of Payton. Based on this determination and because we have concluded that the lineups in this case were not the “fruit of the poisonous tree,” we have no reason to address the parties’ arguments regarding the attenuation doctrine. Supreme Court therefore properly admitted evidence of the lineup identifications of defendant.

Finally, Supreme Court’s determination that the pre-arrest photographic identification procedure was not unduly suggestive, undisturbed by the Appellate Division, is supported by record evidence and is therefore beyond our powers of review (see e.g. People v Jackson, 98 NY2d at 559).

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

Ciparick, J. (dissenting).

Because Supreme Court erred as a matter of law when it denied suppression of a lineup identification procedure conducted after an illegal arrest made in violation of Payton v New York (445 US 573 [1980]) and in the absence of counsel, I respectfully dissent.

Defendant was charged with two unrelated robberies, which were tried jointly. Both victims testified as to lineup procedures. One victim made an in-court identification of defendant as the perpetrator. Defendant was convicted of one count of first degree robbery and the jury hung on the charges related to the second robbery.

Prior to trial, defendant moved to suppress evidence of the lineup procedure and any prospective in-court identification by the two complainants. The issues of probable cause, the legality of the arrest, and the suggestiveness of the identification procedures employed by the police—both the photo array and the resulting lineup—were the subject of a combined Dunaway/ Payton/Wade hearing conducted by Supreme Court.

The hearing court made certain findings which are undisturbed by the Appellate Division. Supreme Court first found that there existed probable cause to make the arrest because defendant had been identified by both witnesses at separate photographic identification procedures. Second, the court found that the warrantless, nonconsensual entry into defendant’s home to effect his arrest constituted an intentional Payton violation. Third, it concluded that neither the photo identification procedures nor the lineup were unduly suggestive. Finally, the court concluded that the lineup identifications were sufficiently attenuated from the illegal arrest and on that basis denied suppression.

It is well settled that under both the Federal and State Constitutions, the right to counsel attaches upon the commencement of criminal proceedings. In New York, however, CPL 120.20 requires an accusatory instrument to be filed before an arrest warrant may issue. Thus the indelible right to counsel attaches when an arrest warrant issues (see People v Harris, 77 NY2d 434, 440 [1991]). Here, the warrantless arrest of defendant resulted in a violation of his state constitutional right to counsel, which is “far more expansive than the Federal counterpart” (People v Bing, IQ NY2d 331, 339 [1990] [citations omitted]). To deter police from circumventing this right to counsel by bypassing the warrant procedure and illegally arresting a defendant in his home, we have traditionally employed the sanction of the exclusionary rule, precluding the admission of evidence acquired as a result of such a violation (see Harris, 77 NY2d at 440). Were this evidence to consist of incriminating statements made by defendant after a Payton violation, the majority would agree under Harris that such statements would be subject to suppression if the taint were not sufficiently attenuated.

Defendant asks us to apply this same rule in the context of identification evidence—here a lineup—procured as a result of an illegal arrest. In effect, defendant requests that we extend our holding in Harris to apply to these circumstances. Harris addressed the suppression of a statement elicited after a Payton violation, and we held that the exclusionary rule applied. Defendant posits that there is no logical reason to conclude that a different result is warranted when the right to counsel at a lineup is thwarted—as here by means of a Payton violation—as opposed to when a similar violation occurs at a custodial interrogation. To adopt any other rule, defendant contends, is inconsistent with the rationale of Harris. I agree.

The rule proposed by the People and adopted by the majority today shifts the emphasis from the illegal warrantless entry into a person’s home to a probable cause analysis. It employs the balancing test of deterrent effect against impact upon the truth-finding process and finds in favor of the truth-finding process, creating a distinction—warranting a different result from Harris—“between the role of counsel at a custodial interrogation compared to a lineup” (majority op at 243).

We have characterized the right to counsel as “a matter of singular concern in New York” (Harris, 77 NY2d at 439). It “is a ‘cherished principle’ worthy of the ‘highest degree of [judicial] vigilance’ ” (People v Ramos, 99 NY2d 27, 32 [2002] [citations omitted]). Where we have previously determined that counsel is constitutionally required, the relative degree of significance of that role—at a lineup as opposed to during police interrogation—is simply irrelevant.

We have recognized “that the application and scope of the exclusionary rule is ascertained by balancing the foreseeable deterrent effect against the adverse impact of suppression upon the truth-finding process” (People v Drain, 73 NY2d 107, 110 [1989], citing People v Harris, 72 NY2d 614, 621-622 [1988]; People v McGrath, 46 NY2d 12, 21 [1978]; People v Boodle, 47 NY2d 398, 404 [1979]). However, “various constitutional rules limit the means by which government may conduct this search for truth in order to promote other values embraced by the Framers and cherished throughout our Nation’s history” (James v Illinois, 493 US 307, 311 [1990]). That the lineup was conducted in violation of defendant’s right to counsel necessarily cuts against any potential benefit to the truth-seeking function. The majority’s holding balances these values in favor of admissibility. I would weigh them in favor of exclusion.

I would apply the Harris rule here where the placement of defendant in a lineup followed directly from a Fourth Amendment Payton violation and would find the lineup to be a suppressible fruit of a poisonous tree. But for defendant’s arrest, there would not have been a lineup. The police had obtained photo identifications of defendant and had knowledge of his address three weeks prior to the unlawful arrest. Nothing prevented them from seeking a warrant. They further violated defendant’s rights by placing him in an uncounseled lineup.

Moreover, there is no record support for the suppression court’s determination that the lineup was attenuated from the arrest (see People v Conyers, 68 NY2d 982, 984 [1986]). In determining whether a suppressible fruit is sufficiently attenuated from the taint of the illegality to exempt it from the exclusionary rule, courts must consider three factors: the temporal proximity between the arrest and the statement; any intervening factors that may break the chain of events; and the purpose and nature of the illegal police conduct (see Harris, 77 NY2d at 440-441; Conyers, 68 NY2d at 983).

The fact that defendant’s photo was on file and had been identified by the witnesses prior to the arrest is irrelevant— serving only to identify defendant as a suspect in the two robberies. Finding that the lineup identification is the result of those previous photographic identifications—establishing probable cause—rather than the Payton violation, fails completely to consider the unlawful arrest and misapprehends the attenuation. The taint from the arrest cannot be attenuated by factors that existed prior to the arrest. Otherwise, suppression of any evidence, including statements, could never be warranted after a Payton violation if the police had probable cause for the arrest. This is clearly not the law, and is in fact the very notion we rejected in Harris. The suppression court here confused an independent source analysis with attenuation. The police had the opportunity to circumvent the attachment of the right to counsel for the purpose of conducting a lineup unencumbered by counsel’s participation, and in fact did so. Neither does the passage of the intervening several hours attenuate the taint of illegality. Nothing happened during that time other than the police calling the witnesses to the precinct and rounding up fillers from a local homeless shelter.

In conclusion, I find a causal relationship between the illegal arrest and the lineup identification. I disagree with the People and the majority that a different rule can be applied to lineups as opposed to custodial interrogations when dealing with right to counsel violations, and that the taint of the Payton violation was attenuated. One purpose of the illegal arrest—indeed, perhaps the only purpose—was clearly to place defendant in a lineup. Here, once the right to counsel attached, defendant had the right to counsel’s presence at the lineup. Finally, there is no support in the record for Supreme Court’s attenuation finding, which was based solely on the previous photo identifications. There was nothing here that cleansed the taint of the warrant-less, nonconsensual seizure of defendant from his home. The lineup evidence acquired as a result of this constitutional violation should have been suppressed. As a result, I would reverse defendant’s conviction and remit for a new trial to be preceded by an independent source hearing.

Judges G.B. Smith, Rosenblatt, Read and R.S. Smith concur with Judge Graffeo; Judge Cipabick dissents and votes to reverse in a separate opinion in which Chief Judge Kaye concurs.

Order affirmed.

      . After the victim of the second robbery identified defendant in court and completed her testimony, defendant absconded and was absent for the remainder of the trial. As a result, the victim of the first robbery had to identify defendant from a photograph.

      . We note, however, that Supreme Court did not ascribe any nefarious intent to the police when they went to defendant’s home. Although defendant’s mother did not expressly consent to entry by the police, by leaving her front door open she arguably gave them the impression that they did not have to wait outside. Moreover, the police did not barge in unannounced or draw their weapons at any time. Because Supreme Court did not find that the police intended to violate Payton, we respectfully disagree with the dissent that the police purposefully violated defendant’s constitutional rights in order to conduct the lineup without counsel (see dissenting op at 248).

      . The Payton rule precluding warrantless arrests in a suspect’s home involves the violation of search and seizure rights under the Fourth Amendment of the United States Constitution (Payton v New York, 445 US at 576). In Harris, this Court framed the issue before it as follows: “whether evidence submitted in support of defendant’s conviction, though admissible under Federal standards, should be suppressed under our State constitutional provision prohibiting unlawful searches and seizures” (77 NY2d at 435). The same issue is presented in this case, except here defendant sought suppression of identification evidence rather than statements made during custodial interrogation.

      . The Right to Counsel Clause, set forth in article I, § 6 of the State Constitution, provides that “[i]n any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions.”

      . The dissent overlooks this important distinction. One of the fundamental concerns in Harris was that a Payton violation could undermine an arrestee’s privilege against self-incrimination (see 77 NY2d at 438-439). Significantly, neither the Fifth Amendment nor its state constitutional counterpart are implicated in lineup identifications (see e.g. United States v Wade, 388 US 218, 221-222 [1967]; People v Wilson, 89 NY2d 754, 758 [1997]).

      . It is for this reason that we disagree with the dissent’s characterization of defendant’s apprehension as an “illegal arrest” (dissenting op at 245, 246, 248; see People v Harris, 72 NY2d at 625-626 [Titone, J., concurring]).