People v. Nealer, 56 N.Y.2d 149 (1982)

A suspect whose right to counsel has attached for a prior crime is not immune from questioning, outside the presence of counsel, regarding a new crime, and evidence obtained during such questioning is admissible if not otherwise obtained in violation of the suspect’s rights.

Summary

Nealer was convicted of second-degree murder. While awaiting trial, he attempted to bribe a witness to change his testimony. The witness, acting as a police agent, met with Nealer and obtained incriminating statements. Nealer argued that his right to counsel was violated because the witness elicited these statements without his lawyer present after his right to counsel had attached on the murder charge. The New York Court of Appeals affirmed the conviction, holding that the right to counsel does not shield a defendant from investigation into new crimes, and the questioning was legitimately related to the new crime of attempting to suborn perjury.

Facts

Robert Davis was shot and killed at a bar. Witnesses identified the assailant as “Tommy,” a 6’3″ black male wearing a red-checked jacket, known to frequent the bar and reside at the Alexandria Hotel. Police identified “Tommy” as Nealer based on a prior arrest record. Police proceeded to Nealer’s hotel room without a warrant, arrested him, and seized a red-checked jacket and bullets matching those used in the crime. While incarcerated awaiting trial, Nealer’s wife approached a witness to the shooting, suggesting Nealer would “help him out” if he recanted his statement to the police. The witness informed the police, who instructed him to visit Nealer in prison and pretend to cooperate with the bribe offer. During the visit, Nealer offered the witness $300 to perjure himself.

Procedural History

Nealer was indicted for second-degree murder. Following a jury trial, he was convicted. The Appellate Division upheld the conviction. Nealer appealed to the New York Court of Appeals, arguing that his right to counsel was violated and that his warrantless arrest was unlawful.

Issue(s)

1. Whether Nealer’s right to counsel was violated when a police agent elicited incriminating statements from him regarding a new crime (attempted bribery) while he was awaiting trial for murder and his right to counsel had already attached for the murder charge.
2. Whether Nealer’s warrantless arrest in his home violated the Fourth Amendment.
3. Whether the loss of stenographic notes from summations and the jury charge denied Nealer due process of law.

Holding

1. No, because the right to counsel does not immunize a defendant against investigation into a new crime in progress.
2. No, because exigent circumstances justified the warrantless arrest.
3. No, because Nealer failed to demonstrate prejudice resulting from the missing notes since he did not claim any specific errors occurred during those portions of the trial.

Court’s Reasoning

The Court reasoned that while Nealer’s right to counsel had attached for the murder charge, this right does not extend to shield him from investigation into new crimes. The witness was acting as a police agent to investigate Nealer’s attempt to suborn perjury, a separate and distinct crime. The Court cited People v. Ferrara, noting that the right to counsel cannot be used as “a shield * * * to immunize one represented by an attorney against investigative techniques that capture a new crime in progress.” The police investigation into the bribery attempt was not a pretext to circumvent Nealer’s rights on the murder charge; the questioning was legitimately related to the new crime. Regarding the warrantless arrest, the Court relied on the trial court’s finding of exigent circumstances based on the gravity of the crime, Nealer’s possession of a gun, and the likelihood of escape. Finally, the Court found that the loss of stenographic notes did not prejudice Nealer, as he did not allege any specific errors during the summations or jury charge. The court noted that the right to appeal a criminal conviction is a “fundamental right”, and the state must provide a record of trial sufficient to enable a defendant to present reviewable issues on appeal (People v Rivera, 39 NY2d 519, 522).