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The People &C v. Ollman Lopez

February 22, 2011


The opinion of the court was delivered by: Graffeo, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Under New York's indelible right to counsel rule, a defendant in custody in connection with a criminal matter for which he is represented by counsel may not be interrogated in the absence of his attorney with respect to that matter or an unrelated matter unless he waives the right to counsel in the presence of his attorney (see People v Rogers 48 NY2d 167 [1979]). In this case, we must determine whether the rule applies even if the interrogator is unaware that an incarcerated defendant is represented by an attorney. We conclude that if it is reasonable for an interrogator to suspect that an attorney may have entered the custodial matter, there must be an inquiry regarding the defendant's representational status and the interrogator will be charged with the knowledge that such an inquiry likely would have revealed.


In early 2002, Hamoud Thabeat was murdered in his Staten Island bodega. The case remained unsolved for some time until an individual came forward and informed the police that defendant Ollman Lopez had shot Thabeat. The informant explained that, shortly after the shooting, he was talking to a group of young men in the neighborhood about this incident. He claimed that, during the conversation, defendant had laughed and stated that he had shot the store owner. The informant further identified defendant (whom he had known for years) from a photo array.

After receiving this information, the investigating officer, Detective Mattei, interviewed one of the young men who had been present during the conversation reported by the informant. This individual recalled that, on the day of the killing, either defendant or Jonah Alston had suggested that they 13 rob a store. Later that day, defendant admitted to his friends that he had shot the store owner. Another acquaintance of defendant who had been with him that day told Mattei that Alston claimed defendant had killed Thabeat and that defendant confirmed that he was the shooter. Based on these interviews, Mattei spoke to Alston, who confessed in a videotaped interview that he had accompanied defendant to the bodega to commit a robbery and that defendant had shot Thabeat. The other young men who cooperated with the police were not involved in the underlying crime.

Detective Mattei eventually learned that defendant was incarcerated in Pennsylvania on a drug charge. The Pennsylvania authorities told Mattei that defendant was in custody because he was unable to post his $10,000 bail. Mattei traveled to the correctional facility where defendant was jailed to speak to him about the Staten Island homicide. Mattei was not informed about the details of the Pennsylvania crime and he did not inquire about them. Unbeknownst to the detective, defendant was represented by an attorney in connection with the Pennsylvania offense.

When allowed to meet with defendant, Detective Mattei issued Miranda warnings to him, advised defendant that he did not want to discuss the Pennsylvania matter and indicated that he was investigating the Staten Island murder. Mattei inquired if defendant wanted to speak to an attorney about the New York case and defendant responded that he did not. In the course of the interview, Mattei played a portion of Alston's taped confession, after which defendant acknowledged that he had been involved in the robbery but claimed that Alston was the shooter. Defendant signed a written statement to that effect.

After Mattei's interview and while defendant remained incarcerated, he discussed his role in the Staten Island murder with another inmate. Defendant disclosed to that inmate that he had shot the deli owner during the botched robbery. Defendant further stated that he told Detective Mattei that his accomplice was the shooter because he planned to use his sister as an alibi witness, intending to claim that he was at her house when Thabeat was shot. The inmate related this conversation to his lawyer and this information was eventually provided to the New York prosecutor handling the Staten Island matter.

For his role in the killing of Thabeat, defendant was indicted for felony murder in the second degree, intentional murder in the second degree, three counts of attempted robbery in the first degree and criminal possession of a weapon in the second and third degrees.*fn1 Defendant moved to suppress his confession to Detective Mattei, asserting that his right to counsel had been violated when Mattei questioned him about the Staten Island murder without first obtaining a waiver of his right to counsel in the presence of his Pennsylvania attorney.

During the suppression hearing, Mattei testified that he did not know that a lawyer was representing defendant on the Pennsylvania charge, nor did he ask about it. Supreme Court denied defendant's motion, concluding that the right to counsel did not attach because Mattei lacked actual knowledge of the attorney's involvement in the Pennsylvania matter. Following a jury trial, defendant was convicted of intentional murder, felony murder, attempted robbery in the first degree and criminal possession of a weapon in the second degree.*fn2 He was sentenced to a prison term of 25 years-to-life.

The Appellate Division affirmed the conviction (65 AD3d 1166 [2d Dept 2009]), holding that, although defendant was represented by a lawyer on the charge for which he was in custody in Pennsylvania, the indelible right to counsel was not implicated because the interviewing detective was not aware that defendant had a lawyer in Pennsylvania. A Judge of this Court granted leave to appeal (13 NY3d 908 [2009]) and we now affirm on different grounds.


Relying on People v Burdo (91 NY2d 146 [1997]), defendant contends that his confession should have been suppressed because he was in police custody when Detective Mattei interviewed him, his indelible right to counsel had attached upon assignment of a lawyer on the Pennsylvania charge and Mattei did not secure a valid waiver of that right before questioning him. The People disagree and maintain that the right to counsel did not attach because Mattei did not have actual knowledge that defendant was represented on the Pennsylvania matter. The People also assert that recognition of a right to counsel under these circumstances will resurrect the discredited "derivative right to counsel" rule of People v Bartolomeo (53 NY2d 225 [1981]).

New York has long viewed the right to counsel as a cherished and valuable protection that must be guarded with the utmost vigilance (see e.g. People v Harris, 77 NY2d 434, 439 [1991]). Arising from the due process guarantee in our State Constitution, the entitlement to effective assistance of counsel and the privilege against compulsory self-incrimination, the right to counsel is referred to as "indelible" because, once it "attaches," interrogation is prohibited unless the right is waived in the presence of counsel (see People v Bing, 76 NY2d 331, 338-339 [1990]). We have explained that attachment occurs when (1) a person in custody requests the assistance of an attorney or a lawyer enters the case or (2) a criminal proceeding is commenced against the defendant by the filing of an accusatory instrument (see People v West, 81 NY2d 370, 373-374 [1993]). We are concerned only with actual representation for the purposes of this appeal.

When an attorney enters a case to represent the accused, the police may not question the accused about that matter regardless of whether the person is in police custody (see People v West, 81 NY2d at 375). If, however, the police seek to question the suspect about a matter that is not related to the case that the attorney is handling, different rules apply (West, 81 NY2d at 377). In the seminal case of People v Rogers (48 NY2d 167 [1979]), we established that an individual who is in custody for an offense and is represented by counsel on that case may not be questioned about any matter -- related or unrelated to the crime for which there is legal representation -- unless the accused validly waives the right to counsel (see People v Rogers, 48 NY2d at 169). Simply put, the Rogers rule states that the indelible right to counsel activates the moment that an attorney becomes involved (see id. ["once an attorney has entered the proceeding . . . a defendant in custody may not be further interrogated in the absence of counsel"]; People v Steward, 88 NY2d 496, 501 [1996] ["Rogers establishes and still stands for the important protection and principle that once a defendant in custody on a particular matter is represented by or requests counsel, custodial interrogation about any subject, whether related or unrelated to the charge upon which representation is sought or obtained, must cease"]). The issue of the extent of police knowledge was not addressed in Rogers because the interrogating officers in that case had been directly informed by Rogers' lawyer that they could not question him after he was taken into custody (see 48 NY2d at 170).

In People v Burdo (91 NY2d 146 [1997]), we applied the Rogers rule to a situation where the defendant was incarcerated for rape, had been assigned an attorney for that charge and the police were aware of counsel's involvement. The police sought to question the defendant about a missing person -- a matter unrelated to the rape -- and, outside the presence of his attorney, he declined to consult a lawyer about the new matter. We held that Rogers prohibited the police from inquiring about the missing person, specifically noting that, as in Rogers, the police were "fully aware" that the defendant was represented on the matter for which he was in custody (id. at 150). The case now before us is distinguishable from these precedents because Detective Mattei testified that he was not aware that defendant was represented by an attorney on the Pennsylvania drug charge.*fn3

In deciding whether Rogers and Burdo should direct the outcome here, we are mindful of several overarching principles that have guided the development of New York's indelible right to counsel rules. Our jurisprudence in this area "has continuously evolved with the ultimate goal of 'achieving a balance between the competing interests of society in the protection of cherished individual rights, on the one hand, and in effective law enforcement and investigation of crime, on the other'" (People v Grice, 100 NY2d 318, 322-323 [2003], quoting People v Waterman, 9 NY2d 561, 564 [1961]). Consequently, the parameters of the indelible right to counsel are defined "through the adoption of 'pragmatic and . . . simple [ ] test[s]' (People v Failla, 14 NY2d 178, 181 [1964]) grounded on 'common sense and fairness' (People v Bing, 76 NY2d at 339)" (People v Grice, 100 NY2d at 323) in order to "provid[e] an objective measure to guide law enforcement officials and the courts" (People v Robles, 72 NY2d 689, 699 [1988]).

For over three decades, "Rogers has stood as a workable, comprehensible, bright line rule, providing effective guidance to law enforcement while ensuring that it is defendant's attorney, not the police, who determines which matters are related and unrelated to the subject of the representation" (People v Burdo, 91 NY2d at 151). The Rogers rule is eminently straightforward: when an attorney undertakes representation in a matter for which the defendant is in custody, all questioning is barred unless the police obtain a counseled waiver. Rogers therefore requires inquiry on three objectively verifiable elements -- custody, representation and entry (see e.g. People v Burdo, 91 NY2d at 149; People v Steward, 88 NY2d at 502; People v West, 81 NY2d at 377; People v Bing, 76 NY2d at 350). In this case, defendant was in custody pending prosecution on Pennsylvania charges and he was represented by a Pennsylvania attorney who had entered that case. The only remaining question is whether Detective Mattei should have been deemed chargeable with knowledge of that representation and entry. In People v Kazmarick (52 NY2d 322, 328 [1981]), we recognized that there may be circumstances in which "law enforcement officials may [] be chargeable with knowledge that [a] defendant is in fact represented by counsel . . . on an unrelated charge, in such a way as to cut off their rights to interrogate." More recently, we explained that "either actual or constructive knowledge by interrogating police officers suffices to perpetuate the indelible right to counsel once ...

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