The most interesting decision handed down by the Fourth this term is People v Wardlaw, 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." (Wardlaw, KA 02-02295 at 5.) In my first post on Wardlaw on the day it was handed down, I noted that it appeared the Fourth Department was getting a little ahead of itself, as there existed Court of Appeals precedent that ruled a violation of the right to counsel is not subject to any type of harmless error analysis, regardless of what stage that deprivation occurs. Upon further review, it seems even more clear that Wardlaw makes new law in direct contrast with existing Court of Appeals precedent.
The problematic case for the Fourth Department here is People v Hilliard (73 NY2d 584). In Hilliard, the facts were summarized by the Court of Appeals as follows:
Defendant was arrested August 7, 1985 and arraigned later that day by the local Town Justice. While being arraigned, defendant continually failed to comply with the Judge's orders to quiet down. As a result, he was found in contempt of court and the Judge ordered his counsel not to have contact with him for a period of 30 days following arraignment.
(Hilliard, 73 NY2d at 586.)
After noting a previous decision (People v Felder) where the Court refused to apply any type of harmless error analysis to "the denial of the constitutional right to counsel", the Court in Hilliard likewise refused to apply a harmless error analysis to the deprivation of the right to counsel suffered by Hilliard. (Id.) The Court of Appeals refused to apply the harmless error doctrine even though the denial of right to counsel occurred at a pre pre-trial stage--defendant was represented at arraignment and at every other court proceeding before the lower court. In so holding, the Court of Appeals recognized that "there are some errors which are so serious that they operate to deny defendant's fundamental right to a fair trial. In such cases the reviewing court must reverse the conviction and grant a new trial, without evaluating whether the errors contributed to the defendant's conviction." (Id.)
The Fourth Department in Wardlaw correctly noted that the Court of Appeals has shown signs of revisiting Hilliard, but none of the cases cited in Wardlaw actually address whether the denial of the right to counsel can ever be harmless. The closest the Court of Appeals has come is People v Slaughter; from that decision:
The People also argue that the hearing court's failure to warn defendant about the dangers of proceeding pro se was harmless error. Again, we disagree. Assuming, without deciding that harmless error analysis applies here (cf. People v Hilliard, 73 NY2d 584, 587 [harmless error doctrine does not apply to an affirmative denial of the constitutional right to counsel]), we hold that defendant's ineffective waiver was not harmless.
Thus, while Slaughter certainly suggests that the Court of Appeals would entertain the type of reasoning used by the Fourth Department in Wardlaw, it is hard to escape the fact that Slaughter also expressly acknowledges that the current state of Court of Appeals precedent, as embodied in Hilliard, mandates that "harmless error doctrine does not apply to an affirmative denial of the constitutional right to counsel." (Slaughter, 78 NY2d 485, 492.) The Fourth Department frames its Wardlaw decision as addressing "the issues that the Court of Appeals declined to decide in People v Slaughter"--however, the Fourth is hardly writing on a blank slate here. As Slaughter itself expressly recognizes, the Court of Appeals has addressed this issue once before in Hilliard, and found "harmless error doctrine does not apply to an affirmative denial of the constitutional right to counsel." (Slaughter, 78 NY2d at 492.) Until the Court of Appeals sees fit to revisit and refine Hilliard, that is the law. The Fourth Department's decision in Wardlaw presumes to do what only the Court of Appeals has the authority to do--that is, revisit establish Court of Appeals precedent and change it.
