People v. Lennon

In People v. Lennon (243 A.D.2d 495 [2nd Dept. 1997], app. dism. 91 N.Y.2d 942), the defendant was charged with murdering her husband and moved to suppress inculpatory statements on the ground that they were taken in violation of her right to counsel. The facts, as described by the Court, were as follows: "After the defendant agreed to accompany the police to the police station, an attorney who had represented her in past matters telephoned the station and later appeared at the station, after being contacted by the defendant's father. Upon learning that the attorney was on his way to the station, the detective interviewing the defendant conveyed this to the defendant and inquired as to whether she wanted the attorney to represent her. In response to this inquiry, the defendant indicated that he had represented her in the past, spoke disparagingly of him, and stated in no uncertain terms that if she needed a lawyer to represent her in this case, it would not be him. The defendant agreed to speak to the detectives without an attorney, and ultimately admitted murdering her husband." (243 A.D.2d at p. 496.) The Court rejected the claim that the defendant's right to counsel had indelibly attached, noting that "the defendant neither retained counsel on the matter in question nor requested the assistance of counsel but instead made it quite clear that she did not wish to extend her relationship with the attorney to include the matter in question, despite being given the opportunity to have him represent her." ( Id. at p. 497.) In sum, an attorney, after being contacted by the defendant's father, notified the police by telephone that he was representing the accused. The police, prior to questioning the defendant, notified the defendant of counsel's representation of her and she rejected him as her attorney. The Appellate Division held that the right to counsel did not attach because the accused, upon being informed that counsel had appeared on her behalf, rejected counsel's representation of her. The Appellate Division distinguished those cases where the right to counsel attached upon the mere notification to the police, by counsel, that counsel represented the accused. The Appellate Division noted that in those cases "the defendant was never informed that the attorney had contacted the police or appeared at the station, and it was impliedly assumed that an attorney-client relationship existed with regard to the matter in question, and that the defendant would not have rejected the attorney retained by the family." (Id. at 497, 662 NYS2d 821.) The Appellate Division, noting that the right to counsel is a personal right, concluded that the defendant has the right to reject counsel retained by a third party. In People v Lennon (supra), the defendant was informed of counsel's representation of her and, prior to the commencement of any questioning, she rejected counsel's representation. Therefore, the rule that questioning must cease upon counsel's entry into the matter under investigation has not been affected by the decision in Lennon, unless the accused has been informed of counsel's representation and has rejected that representation prior to the commencement of or continuation of questioning.