Are Statements Made by a Defendant Who Is Not In Custody to An Investigator Admissible In Criminal Prosecution ?

In People v. Mancini (213 AD2d 1038 [4th Dept 1995], lv denied 85 NY2d 976 [1995]), the Court held that statements made to a child protective services investigator were properly admitted in criminal prosecution where the defendant was not in custody when he made the statements to the investigator. It must also be noted that the defendant is not claiming that his physical and/or mental condition was impaired to any degree by his confinement at the Sullivan County Jail nor by his interviewer. The more perplexing issue is, even though the defendant was not the subject of custodial interrogation, must his statements to the caseworker be suppressed because he was charged with a felony crime, arraigned on a felony complaint and was represented by counsel on those charges and the interviewing caseworker who was aware of counsel's representation could obtain information which would ultimately be shared with law enforcement and the prosecution. The right to counsel once a defendant has been charged to be present at any interrogation by public servants so indelibly attaches that it cannot even be waived in the absence of counsel. See: People v. Rogers, 48 NY2d 167 [1979]; People v. Hobson, 39 NY2d 479 [1976]; People v. Peoples, 80 AD2d 722 [4th Dept 1981] [felony complaint had been filed against the accused]; People v. Walls, 74 AD2d 833 [2d Dept 1980] [felony complaints had been filed against the accused]; People v. Samuels, 49 NY2d 218 [1980]. Furthermore, it is so fundamental that it is not subject to a harmless error analysis and may even be raised for the first time on appeal. (People v. Hilliard, 73 NY2d 584 [1989]; People v. Sanders, 56 NY2d 51 [1982].)