Decision Day

The Fourth Department handed down its decisions today, with a (relative) glut of interesting criminal decisions (and at least one partial reversal!). Leading the list of noteworthy decisions is Judge Kehoe's opinion in People v Wardlow, KA 02-02295, where the Court held (apparently for the first time in New York) that "the deprivation of a defendant's right to counsel at a pretrial suppression hearing is subject to constitutional harmless error analysis." (Id. at 5.) The facts of Wardlaw are relatively straightforward: 1) the trial court erred in allowing defendant to proceed pro se at his Huntley hearing, 2) the statement attributed to defendant (essentially denying guilt) was not suppressed, 3) the trial evidence of defendant's guilt was overwhelming. On these facts, the Fourth Department held that it would not make sense to reverse and remit for a de novo suppression hearing "because, even if the statements should have been suppressed, any error is harmless beyond a reasonable doubt." (Id. at 3.)

What makes this opinion interesting is that the Court of Appeals has skated up to the edge of this issue a few times, but has never held that denial of right to counsel at suppression is subject to harmless error analysis (indeed, Judge Kehoe's opinion in Wardlaw cites to and discusses these opinions). That would seem to leave the Court of Appeals' holding in People v Hilliard (73 NY2d 584)as controlling precedent, where the Court held that a harmless error analysis does not apply to an affirmative denial of the constitutional right to counsel. (Hilliard, 73 NY2d at 587.) Absent the Court of Appeals itself revisiting this issue (which it has expressly declined to do so far), it would seem the Fourth Department is arguably bound by Hilliard not to apply a harmless error analysis to the denial of right to counsel, regardless of what stage the deprivation occurs.

I haven't had time to fully digest this decision (or thoroughly review the Court of Appeals precedent on the issue), but it seems at first blush as if the Fourth Department is getting out ahead of the Court of Appeals on this issue. Of course, the decision also reinforces the Fourth's strict application of 'harmless error' doctrine.

More on the other interesting decisions from this packet soon.