The opinion of the court was delivered by: Smith, J.
This opinion is uncorrected and subject to revision before publication in the New York Reports.
We have held that, where a defendant's statement to law enforcement authorities is obtained in violation of his right to counsel, the use of that statement against defendant at trial is an error that may be raised on appeal, even if the issue was not preserved. Appellate review of such an unpreserved error is available, however, only when the error is established on the face of the record. Here, the record is inadequate, and we therefore cannot review the right to counsel issue.
Defendant pleaded guilty to a sixteen count indictment charging him with various crimes, including two counts of murder in the second degree, relating to the fatal shooting of Leonder Goodwin on January 27, 2002. On appeal from his conviction, he challenges County Court's refusal to suppress, after a Huntley hearing, statements he made at a meeting with two police officers in December 2006. At the Huntley hearing, defendant argued that his statements were involuntary, but made no claim that he had been deprived of his right to counsel. He raised a right to counsel claim for the first time in the Appellate Division, which declined to consider it, saying that while the lack of preservation "does not necessarily foreclose defendant from raising this issue on appeal," the record here "is bereft of material evidence sufficient to permit appellate review of this claim" (People v McLean, 59 AD3d 861, 864 [3d Dept 2009]). A Judge of this court granted leave to appeal, and we now affirm.
Defendant's argument that he was deprived of his right to counsel is based on the record of the Huntley hearing. That record shows that no lawyer was present at the December 2006 meeting when defendant described his role in the Goodwin homicide to two detectives. However, defendant had talked about the same crime to the same detectives three years earlier, in October 2003, in the presence of his lawyer, Stephen Kouray. At that time defendant was awaiting sentencing on an unrelated robbery charge, and had entered a cooperation agreement to supply information about the Goodwin murder in exchange for the chance of a more favorable sentence on the robbery. Defendant claims that his right to counsel indelibly attached at or before the 2003 meetings, and that he therefore could not be questioned again on the same subject in 2006 without a waiver of that right in counsel's presence (see People v Arthur, 22 NY2d 325 ; People v West, 81 NY2d 370 ).
Arthur held that "[o]nce an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant's right to counsel" (22 NY2d at 329). West expressed the same rule by saying that "the right to counsel attaches indelibly where an uncharged individual has actually retained a lawyer in the matter at issue" (81 NY2d at 373-374). The parties here dispute whether, at the time of the 2003 meetings, Kouray had entered "the proceeding" or was retained in "the matter at issue" -- i.e., whether he then represented defendant in connection with the Goodwin homicide. The People say that Kouray represented defendant only in the robbery case, and was involved in discussions of the murder case only as it affected defendant's robbery sentence; defendant says that this is a spurious distinction, and that Kouray was representing him in both matters. We conclude that we may not resolve the dispute, because the failure to raise the issue in the trial court has resulted in an inadequate record.
We recognized in Arthur that right to counsel claims are excepted from the general rule that unpreserved issues cannot be reviewed on appeal (22 NY2d at 329 "[The failure to object . . . on right to counsel grounds is not fatal since we are concerned with the deprivation of a fundamental constitutional right"]). In support of our holding we cited People v McLucas (15 NY2d 167, 172 ), where we endorsed the proposition "that no exception is necessary to preserve for appellate review a deprivation of a fundamental constitutional right." Though this sweeping statement is no longer good law (see People v De Renzzio, 19 NY2d 45, 50 ; People v Thomas, 50 NY2d 467, 473 ), we have continued to follow the holding of Arthur that claims like the one made in this case need not be preserved (People v Kinchen, 60 NY2d 772, 773  ["a claimed deprivation of the State constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved by having been specifically raised in a suppression motion or at trial"]; People v Samuels, 49 NY2d 218, 221 ; People v Ermo, 47 NY2d 863, 865 ; but cf. id. at 865-866 [Jasen, J., concurring]; see also People v Ramos (99 NY2d 27, 30 ). On this appeal, no party asks us to depart from this line of cases, and we do not do so.
The Arthur exception to the preservation requirement, however, has an important limitation, which we find decisive here. As we said in Ramos, the rule "authorizing review of unpreserved constitutional right-to-counsel claims" has been applied "only when the constitutional violation was established on the face of the record" (99 NY2d at 37). Similarly, in Kinchen we explained that the exception to the preservation requirement "does not . . . dispense with the need for a factual record sufficient to permit appellate review" (60 NY2d at 773-774). We held the record inadequate in Kinchen because, among other reasons, there was no proof in the record "that defendant was represented by counsel in connection with . . . any pending charge" (id. at 774).
We now make clear that the lack of an adequate record bars review on direct appeal not only where vital evidence is plainly absent, as in Kinchen, but wherever the record falls short of establishing conclusively the merit of the defendant's claim. Simple fairness, and respect for orderly procedure, require this stringent approach. 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 the People may not elicit evidence that is crucial to a decision on the issue; and, even if all the evidence is before it, the trial court may have no reason to make findings of fact relevant to the right-to-counsel claim. 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 record created at the Huntley hearing here does not provide an adequate basis for review. We assume, without deciding, that the evidence presented at the hearing would support a holding that Kouray was defendant's lawyer in connection with the homicide, and that therefore the indelible right to counsel attached. Even on that assumption, we cannot say that no evidence the People might have presented would lead us to hold otherwise. The officers who testified at the hearing were not asked, and did not say, what they knew, and what conclusions they drew, about defendant's relationship with his lawyer. Kouray himself, as the Appellate Division pointed out, did not testify. (We do not consider a later affirmation by Kouray, not part of the record, which was submitted to the Appellate Division with defendant's brief.) We will not speculate on precisely what evidence from the officers, from Kouray or possibly from other sources might serve to rebut any showing that defendant's right to counsel was violated. We are satisfied that such a rebuttal is not impossible, and that is enough to make review on direct appeal inappropriate in this case.
Accordingly, the order of the Appellate Division should be affirmed.
Because I believe defendant's conviction was obtained in violation of his right to counsel, I respectfully dissent.
Defendant was questioned on two occasions concerning a homicide which occurred in 2002. He was first questioned in 2003 in the presence of his attorney. He gave a detailed statement concerning the murder.*fn1 He was again questioned in 2006 by the same detective but without counsel being present.*fn2 In 2006, defendant was convicted of numerous charges on a plea of guilty. His plea followed a Huntley Hearing after which the court ruled that the statement made to the investigating detective in 2006 could be used against him at his trial. Based on these facts, the issue presented here is whether defendant was represented in this matter when he was first questioned in 2003. As will be demonstrated below, defendant's plea was obtained in violation of his rights (including the right to counsel) as it was based on a statement made without his attorney being present.
At the outset, I agree with the majority's statement of settled law that if defendant was represented by counsel during the initial questioning in 2003 then the subsequent interrogation in 2006 without his attorney being present, was in violation of his rights (see People v Arthur, 2 NY2d 325 ; People v West, 81 NY2d 370 ). There is no dispute that defendant was represented by counsel when he was questioned on a homicide in 2003. There is, however, some dispute as to whether at the time of the first statement he was represented on the robbery to which he had already pled guilty, on the murder which was under investigation, or both. Relying on People v Kinchen (60 NY2d 772 ), the majority concludes that the record is inadequate to establish whether this defendant was in fact ...