NY1: Starting suppression hearing without defense counsel present, who was in another court, was denial of right to counsel

The trial court started the suppression hearing without defense counsel present because he was in another court in another county. He arrived shortly after it started where the officer had only gotten into background information. Nevertheless, the court finds this was a denial of counsel. People v Strothers, 2011 NY Slip Op 06200 (App. Div. 1st Dept. August 11, 2011):

The right to counsel for an accused person is constitutionally guaranteed at trial and at other critical proceedings such as a pretrial suppression hearing (see People v Carracedo, 214 AD2d 404 [1995]). The deprivation of counsel has been described as absolute and harmful per se (see People v Margan, 157 AD2d 64, 65-66 [1990]). Because of the sanctity of the right to counsel, we need not engage in an analysis as to what transpired in the case during counsel’s absence and whether the evidence received, or matters discussed with the court, were material to the defense. ” The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial'” (id. at 66, quoting Glasser v United States, 315 US 60, 76 [1942]). Thus, we reject the People’s argument that the deprivation here can be overlooked because defendant was unrepresented for only a small portion of the cumulative testimony and that the portion counsel missed covered only background and general information.

The fact that the right to counsel is absolute also renders baseless several of the other arguments advanced by the People. For instance, it is of no moment that counsel, once he did arrive for the hearing, did not preserve the objection that it began without him. Where counsel is not present when the deprivation occurs and so cannot lodge an objection, the issue can be raised for the first time on appeal (Margan at 70). The People offer no support for their position that the presence of codefendants’ counsel, whose clients’ interests they allege were aligned with defendant’s, was an adequate substitute. Evidence that defendant expressly agreed to the representation and waived any conflict, as would be required, is completely absent from this record (cf. People v Torres, 224 AD2d 269, 270 [1996], lv denied 88 NY2d 943 [1996]).

We also reject the People’s contention that the deprivation of counsel here was harmless. The Court of Appeals has held that, where a defendant is deprived of counsel at a suppression hearing, the error cannot be deemed harmless even if one can conclude that the outcome of the hearing would have been the same had counsel been present (see People v Wardlaw, 6 NY3d 556, 559 [2006]). …