Court of Appeals to review whether deprivation of right to counsel at suppression subject to harmless error analysis

The Court of Appeals has granted leave to review the Fourth Department's decision in People v Wardlaw (18 AD3d 106), where the Fourth Department held that deprivation of a defendant's right to counsel at a suppression hearing was subject to harmless error analysis. At the time the decision was handed down, I noted that it seemed the Fourth Department was getting a little ahead of itself, because the Court of Appeals had previously ruled that deprivation of the right to counsel was fundamental error not subject to harmless error analysis regardless of when the deprivation occurs. See my previous posts on Wardlaw here and here. I am glad to see the Court of Appeals has decided to take a look at the issue.

The Court of Appeals will also review the Fourth Department's decision in People v Pacer (796 NYS2d 787), where the Fourth found that an affidavit of mailing was "testimonial" under Crawford v Washington and thus not admissible unless the declarant is subject to cross-examination. See my previous post on Pacer here.