People v. Ferrara, 54 N.Y.2d 478 (1981)
The right to counsel does not extend to protecting an individual from investigative techniques that capture the planning or solicitation of a new crime, even if the individual has retained counsel in connection with the investigation of earlier, separate criminality.
Summary
Ferrara, under investigation for nursing home fraud and represented by counsel, was recorded offering kickbacks to a nursing home operator (Sreter) cooperating with the prosecution. He was subsequently indicted for perjury based on his grand jury testimony denying such activities, which contradicted the recordings. The New York Court of Appeals held that the recordings were admissible, finding no violation of Ferrara’s right to counsel. The court reasoned that the right to counsel is a shield, not a license to commit new crimes, and does not extend to protecting individuals engaged in planning or executing new criminal activity, even if they have retained counsel for a separate, ongoing investigation.
Facts
Defendant Ferrara, co-owner of a linen supply company, was investigated for paying kickbacks to nursing homes. He appeared before a grand jury twice, with immunity, denying any kickback schemes. After retaining counsel, the prosecutor learned that Ferrara’s former employer also engaged in kickbacks, strengthening the perjury case. Simultaneously, nursing home operator Sreter, facing criminal charges, agreed to cooperate with the prosecution. Sreter informed the prosecutor that Ferrara’s company serviced one of his nursing homes. Sreter then met with Ferrara, who, unaware that Sreter was cooperating with the authorities and equipped with a recording device, offered Sreter kickbacks to obtain business for another nursing home owned by Sreter. Ferrara assured Sreter such deals would not be revealed and that he was very careful in conducting illicit transactions. Ferrara was then called before a third grand jury and again denied making kickback arrangements with Sreter, leading to his indictment for perjury.
Procedural History
Ferrara was indicted on four counts of perjury. He moved to dismiss the indictment and suppress the Sreter conversations, which was denied. After a jury trial, he was acquitted on one count but convicted on the other three. The Appellate Division affirmed the conviction, and Ferrara appealed to the New York Court of Appeals.
Issue(s)
Whether the prosecutor violated Defendant’s right to counsel by arranging to record conversations between Defendant and a cooperating witness, during which Defendant offered a kickback, after Defendant had retained counsel in connection with a Grand Jury investigation into prior, separate alleged criminal activity.
Holding
No, because the right to counsel does not extend to protecting an individual from investigative techniques that capture the planning or solicitation of a new crime, even if the individual has retained counsel in connection with the investigation of earlier, separate criminality.
Court’s Reasoning
The Court of Appeals distinguished this case from Massiah v. United States and United States v. Henry, where post-indictment admissions obtained through informants were used to convict defendants of prior crimes. Here, the perjury had not yet occurred, and no charges had been filed. The court emphasized that use of undercover operatives to investigate criminal activity prior to the commission of the charged crime does not violate the Sixth Amendment. The court also distinguished People v. Skinner, where the defendant was represented by counsel specifically on the matter about which he was questioned. The court stated that the right to counsel is meant to be “a shield against what may well be the coercive influences of the State,” not “to immunize one represented by an attorney against investigative techniques that capture a new crime in progress.” The court emphasized that Ferrara initiated the offer of kickbacks to Sreter. The court declined to recognize a right to the presence of counsel while an individual commits, plans, or solicits the commission of a new crime merely because the individual has retained counsel during the investigation of earlier criminality. The court reasoned that extending the right to counsel to these circumstances would distort the rule’s purpose.