People v. McLean, 17 N.Y.3d 118 (2011)
An unpreserved claim of a right to counsel violation may be reviewed on appeal only when the violation is established conclusively on the face of the record.
Summary
McLean pleaded guilty to murder. On appeal, he argued that his statements to police in 2006 should have been suppressed because his right to counsel had indelibly attached in 2003 when he discussed the same crime with the same detectives in the presence of his lawyer. The Court of Appeals affirmed the Appellate Division’s order, holding that while right to counsel claims can be raised even if unpreserved, appellate review is only available if the violation is clear on the record. Because the record was insufficient to establish conclusively that the attorney represented him in the homicide case, the Court declined to review the claim.
Facts
Leonder Goodwin was fatally shot on January 27, 2002. In October 2003, McLean, awaiting sentencing on an unrelated robbery charge, met with detectives and his lawyer, Steven Kouray, to discuss the Goodwin murder in exchange for a more favorable sentence. In December 2006, McLean again met with the same detectives without Kouray present and made statements about his role in the homicide. McLean was subsequently indicted on 16 counts, including two counts of second-degree murder for Goodwin’s death.
Procedural History
McLean moved to suppress his 2006 statements, arguing they were involuntary. County Court denied the motion after a Huntley hearing. McLean raised a right to counsel claim for the first time in the Appellate Division, which declined to consider it due to an insufficient record. The Court of Appeals granted leave to appeal.
Issue(s)
Whether an unpreserved claim of a right to counsel violation can be reviewed on appeal when the record does not conclusively establish the violation.
Holding
No, because the record must conclusively establish the right to counsel violation for appellate review of an unpreserved claim.
Court’s Reasoning
The Court of Appeals acknowledged the exception to the preservation rule for right to counsel claims, citing People v. Arthur, which states that once an attorney enters a proceeding, police cannot question the defendant without counsel present unless there is an affirmative waiver in the attorney’s presence. However, the Court emphasized that this exception applies only when the constitutional violation is “established on the face of the record” (People v. Ramos, 99 NY2d at 37). The Court found the record inadequate because it was not clear whether Kouray represented McLean in the homicide case in 2003, or only in the robbery case. The Court stated: “Where the right to counsel claim is not raised in the trial court, neither the People nor the trial judge have reason to know that it is in the case… Thus where the record does not make clear, irrefutably, that a right to counsel violation has occurred, the claimed violation can be reviewed only on a post-trial motion under CPL 440.10, not on direct appeal.” The Court declined to speculate on what evidence the People might have presented to rebut the claim, noting that the officers were not asked about their understanding of Kouray’s role and that Kouray himself did not testify. The Court concluded that the absence of conclusive proof of a violation precluded appellate review.