People v. Enrique , 566 N.Y.S.2d 201 ( 1991 )

OPINION OF THE COURT

Sullivan, J.

At issue is whether a defendant’s constitutional right to the assistance of counsel was violated by a trial court’s order banning consultation between him and his attorney during a luncheon recess called during the course of defendant’s cross-examination.

The evidence at trial shows that at approximately 10:55 a.m. on February 26, 1986, Police Officer Winfred Maxwell arrived at 155 Audubon Avenue in Manhattan with several other officers, including James Doyle, in response to a request earlier that morning by Sharif Esmat, the manager of the building, to evict squatters, whom he said had guns. Before entering the building, Maxwell again met with Esmat, who introduced him to Jose Vilches, a handyman in the building.

Vilches then led Maxwell, Doyle and the other officers to a basement apartment. As they approached the apartment door, the officers drew their guns, and one of them announced, "police”. Within a matter of seconds, the door was opened by a man, who, after being ordered not to move, allowed the officers into the apartment. As Officer Doyle entered, he saw another man, later identified as Habir Pena, standing approximately 10 to 13 feet away, holding a gun. When Pena stepped out of sight momentarily, the officers moved towards the back of the apartment and observed defendant, standing about a foot away from Pena. An "instant” after being first observed, defendant threw an object, described as a six-inch long, clear plastic bag with a white "brick” inside it, across the room and onto a chair 10 feet away in the adjoining room.

As the other officers placed defendant, Pena and the man who opened the door, Victor Camacho, against the wall, Maxwell recovered the plastic bag, which was found to contain 4% ounces of cocaine. The gun which Officer Doyle had seen in Pena’s hand — a loaded .357 Magnum — was found in a folded-up cot, alongside of which Pena had been standing. Defendant, Camacho, Pena and another occupant of the apartment, Bartolo Della Cruz, who had emerged from a back room where, apparently, he had been sleeping, were all arrested and charged with possessing cocaine. Defendant told the officers that he lived in another apartment in the building.

Defendant testified that he went to the apartment in question to assist Camacho, an "acquaintance”, in finding another apartment. Ten minutes after his arrival, as he was standing at the door about to leave, the police entered and told him, "Don’t move. Put your hands up.” Defendant did not see anyone holding a gun; nor did he at any time possess the bag with the cocaine. Vilches, who testified in defendant’s behalf, confirmed that defendant, whom he had never seen before, was exiting the apartment at the time the police entered and that he was not holding anything in his hands.

During the course of defendant’s cross-examination, at approximately 12:50 p.m., the court declared a luncheon recess, instructing the jurors to return at 2:15 p.m. After the jurors had left, defense counsel asked, "[I]s the Court telling me I can’t speak to [defendant] now, or can I speak to him?” The court responded by advising counsel that it was within its discretion to prohibit consultation and that if he wished "to tell [the court] what you would like to say or how long you would like to say it,” it "might entertain that”. Counsel answered that he would "rather not” reveal that information, whereupon the court ruled that it would not allow him to speak to defendant.

Later, after the luncheon recess, in response to the court’s request for any further comments on its ruling, counsel argued, "[W]e were ready to break for lunch, and I would have had the benefit of some time between ten to one and 2:15 to speak to [defendant].” Counsel then recalled that the court had asked "what I wanted to speak to him about.” Although protesting that he "still [didn’t] want to get into it,” counsel stated that one topic was "strictly a procedural item on how to conduct himself as a witness.” While he had discussed the matter before, counsel stated, he wanted to "reinforce” his instructions "because of the obvious language difficulties.” Counsel then stated that the other matter he wished to discuss was "substantive”, involving "something that [defendant] did testify to earlier but nothing that I am anticipating [will] be raised in the future.” Acknowledging that he was being "a little cryptic”, counsel stated, "[t]hat is the best that I am willing to do at this point”, and took exception to the court’s ruling. The court justified its ruling with the explanation that "counsel cannot impart to his client anything with regard to [an] anticipated line of questioning. I don’t think it is appropriate.” The jurors returned to the courtroom at 2:54 p.m. and defendant’s cross-examination was continued.

The jury found defendant guilty of criminal possession of a controlled substance in the first degree. Among the issues he raises on appeal is the claim that he was deprived of the effective assistance of counsel as a result of the court’s injunction to counsel not to speak to him during the luncheon recess called in the midst of his cross-examination.

The Sixth Amendment of the US Constitution provides that in all criminal prosecutions the accused shall enjoy the right "to have the Assistance of Counsel for his defence.” The Supreme Court, in interpreting that right, has noted that a defendant in a criminal proceeding "requires the guiding hand of counsel at every step in the proceedings against him.” (Powell v Alabama, 287 US 45, 69; see also, Argersinger v Hamlin, 407 US 25, 31-37; Gideon v Wainwright, 372 US 335, 343-345.) That the opportunity for unimpeded discourse between lawyer and client is an essential element of the right to counsel is too obvious to require extended discussion. Yet, as courts have recognized, the right to counsel with one’s attorney is not absolute; it may be reasonably restricted to enable a court, in its discretion, to control the conduct of a trial. (See, People v Hilliard, 73 NY2d 584, 586; see also, People v Narayan, 58 NY2d 904, 906.)

The Supreme Court, as recently as 1989, and in an earlier 1976 case, has defined the limit of the scope of that discretion. In Geders v United States (425 US 80 [1976]), the court reversed a conviction based on a trial court’s ban of all consultation between the defendant and his lawyer during a 17-hour overnight recess between the defendant’s direct and cross-examination, holding that such an order "impinged upon [the defendant’s] right to the assistance of counsel guaranteed by the Sixth Amendment.” (Supra, at 91.) Recognizing a trial court’s concern with the possibility of improper influence on the defendant-witness’s testimony, the court suggested a number of ways, "short of putting a barrier between client and counsel for so long a period as 17 hours,” to deal with the problem (supra, at 89). Expressly left unanswered, however, was the question of whether a ban on consultation during a "brief routine recess” in the course of a defendant’s testimony would be permitted. (Supra, at 89, n 2, 91.)

That question was reached in Perry v Leeke (488 US 272 [1989]), which held that a ban on consulting with anyone, including his attorney, during a 15-minute afternoon recess, called at the conclusion of a defendant’s direct examination, did not violate his Sixth Amendment right to the assistance of counsel. In upholding the trial court’s exercise of discretion in imposing the ban, the court justified its holding not out of any concern that defense counsel would engage in unethical "coaching” (supra, at 281-282), but, rather, in recognition of the danger that even an ethical consultation would assist a defendant in regaining "a poise and sense of strategy” (supra, at 282) that an uncounselled defendant would not. Such consultation, "even if we assume no deceit on the part of the witness”, it held, would interfere with effective cross-examination, which depends on the ability "to punch holes in a witness’ testimony at just the right time, in just the right way.” (Supra, at 282.) Thus, cross-examination of an uncounselled witness was "more likely to lead to the discovery of truth” than one in which a witness is permitted, in the course thereof or between direct and cross-examination, to consult with his attorney. (Supra, at 282.)

In holding that a defendant witness "has no constitutional right to consult with his lawyer while he is testifying”, the court noted that the rationale for the rule is one applicable to all witnesses. (488 US, at 281.) "It is a common practice”, the court observed, "to instruct a witness not to discuss his or her testimony with third parties until the trial is completed.” (Supra, at 281.) When a defendant chooses to assume the role of a witness, he " 'places himself at the very heart of the trial process’ ” (supra, at 283, quoting United States v DiLapi, 651 F2d 140, 151 [Mishler, J., concurring], cert denied 455 US 938) and subjects himself to the rules, generally applicable to othér witnesses, that serve the truth-seeking function of the trial. (488 US, at 282.) Distinguishing between a long recess where the defendant’s right "to unrestricted access to his lawyer for advice on a variety of trial-related matters” is controlling, notwithstanding that any discussions between them "will inevitably include some consideration of the defendant’s ongoing testimony”, and a short recess where "it is appropriate to presume that nothing but the testimony will be discussed”, the court held that in the latter situation "the testifying defendant does not have a constitutional right to advice.” (Supra, at 284.)

Defendant, citing Geders (supra), argues that, Perry (supra) notwithstanding, the Supreme Court has sanctioned a ban on consultation with counsel only in instances where such consultation would "interfere with the orderly and expeditious progress of the trial” (425 US, at 92 [Marshall, J., concurring]). Geders did not, as defendant would have it, so narrowly limit the availability of a ban on consultation. Indeed, he implicitly concedes as much by citing, not the court’s opinion in Geders, but the concurrence as authority for the interpretation he advances. As a matter of fact, the court in Geders expressly noted that it was limiting its holding to prohibiting overnight bans on attorney consultation "about anything” and leaving open the question of limitations imposed in other circumstances (425 US, at 91); in Perry, it was equally careful to note that it was resolving an issue that had been expressly left open in Geders. (488 US, at 280.)

In providing a rationale for not following Perry (supra) in the circumstances presented here, defendant urges the very reasons that supported the court’s holding there, namely, so that the defendant and his lawyer can discuss potentially inconsistent testimony and the lawyer can assist the defendant, who may be "intellectually or emotionally ill equipped” in confronting "surprise information” or a "withering” cross-examination. In that regard, he argues that as a constitutional guarantee the right to counsel is qualitatively indistinguishable from the right to confront witnesses, which, as Perry recognized, immunizes the defendant witness in a criminal case from physical sequestration, while nondefendant witnesses may be excluded from the courtroom to prevent them from hearing other witnesses’ testimony. (488 US, at 281-282.) It is indeed ironic that defendant casts his argument in such terms, since he would surely argue that he had been denied his right of confrontation were his cross-examination of a prosecution witness punctuated with restorative consultation between the witness and prosecutor. As is clear from a reading of Perry, the court based its decision on a principle of basic fairness, i.e., once a defendant exercises his right to testify, he should generally be subject to the same truth-seeking rules as are applied to other witnesses.

Faced with the obvious inequity of asserting a right unavailable to other witnesses, defendant is compelled to focus his attack on the value of rules enhancing the efficacy of cross-examination. Thus, in contradistinction to Perry (supra), he argues that, "assuming no deceit on the part of the witness,” effective cross-examination "will obscure the truth — not enhance it, because the flustered truth teller is more vulnerable to cross-examination than is the calm truth teller.” This novel and purely subjective view, at odds with the generally accepted notion that cross-examination is "beyond any doubt the greatest legal engine ever invented for the discovery of truth” (5 Wigmore, Evidence § 1367, at 32 [Chadbourn rev 1974]; accord, Pointer v Texas, 380 US 400, 404; People v Chin, 67 NY2d 22, 27-28), is hardly justification for allowing a defendant to blunt the potential for effective cross-examination by consultation with his attorney while he is testifying.

In the instant case, it is significant that the trial court imposed an absolute ban on consultation only after affording counsel the opportunity to identify the subjects he wished to discuss with his client. Moreover, the court indicated that it had imposed the ban only because it would be inappropriate for counsel to discuss defendant’s impending cross-examination. In so doing, the court made it clear that, based on counsel’s response, it was prepared to change its ruling. Thus, counsel would have had to understand that if he identified a topic other than defendant’s testimony the ban would have been, to that extent, modified. In Perry, the court expressly sanctioned employment of such a compromise. (488 US, at 284, n 8.)

In fact, though, counsel’s response amply demonstrated that the court’s concerns were justified. Counsel first stated that he wanted to discuss the "procedural” matter of how defendant should "conduct himself as a witness,” a matter squarely within that area of consultation that trial courts may ban during a limited recess, i.e., allowing a defendant witness the opportunity "to regroup and regain a poise and sense of strategy that the unaided witness would not possess” (Perry v Leeke, supra, 488 US, at 282). Counsel then conceded that he wished to speak to defendant about "something that [defendant] did testify to earlier,” i.e., the very substance of defendant’s testimony. Although he "anticipated]” that the subject would not be raised again, it seems fairly obvious that counsel had no such assurance. If he had, there would hardly have been any need to discuss the matter further with defendant. Thus, the colloquy between court and counsel merely served to confirm that counsel wished only to discuss defendant’s testimony with him, a matter as to which defendant had no right to confer while he was testifying. The court’s ruling, therefore, had a firmer basis than the mere presumption, which Perry found to be sufficient, that a discussion of defendant’s testimony would take place during the afternoon recess.

The dissent, citing People v Narayan (58 NY2d 904, 906, supra), argues that the right to counsel may not be restricted "unless the court expressly tailors the limitation to prohibit only discussion relating to the point upon which the defendant was being examined when the recess was announced”. Narayan did not so hold. The Court of Appeals, adopting language from the concurring opinion in its earlier review of the case, stated, " 'it is not error for the Trial Judge in such a situation to make the ruling here made preventing conference until questioning on the issue has been concluded’ ” (supra, at 906, citing People v Narayan, 54 NY2d 106, 117 [Meyer, J., concurring] [emphasis added]). We find no warrant to extend that narrow ruling into the broad principle that any restriction on the right to confer must be limited to the point on which the defendant was being examined at the time the recess was called.

While defendant now argues that the court’s suggestion that counsel state why he wanted to talk to defendant violated the attorney-client privilege, no such concern was voiced at the time. Counsel merely noted that he was "uncomfortable” about revealing what he wanted to discuss, which is hardly sufficient to preserve defendant’s present complaint. (See, People v De Jesus, 69 NY2d 855, 857.) In any event, the claim is without merit. The privilege, which protects against disclosure of a "confidential communication made between the attorney * * * and the client in the course of professional employment” (CPLR 4503 [a]), is intended to guarantee full and free disclosure, without fear by the client that his confidences will be subsequently revealed to his detriment or embarrassment. (Matter of Priest v Hennessy, 51 NY2d 62, 67-68.) Inasmuch, however, as the privilege is an "obstacle” to the truth-finding process, its invocation should be "cautiously observed” to assure that it is not misused. (Supra, at 68.) In the instant matter, counsel was never asked to disclose any particular communication; he was merely asked to indicate what he wished to discuss with defendant. Absent some explanation as to how the court’s suggestion intruded on the attorney-client relationship, we fail to discern how the attorney-client privilege was implicated, much less violated, either explicitly or in spirit.

Nor do we see any reason why New York courts, in interpreting the State Constitution (art I, § 6), should reject the Federal constitutional standard set forth in Perry (supra). Defendant urges adoption of a State rule that "unless trial counsel is seeking to interfere with the orderly processes of the trial[,] * * * he is entitled, within the bounds of professional responsibility and ethics, to communicate with his client on any subject, at any time during the course of trial irrespective of the fact that an opportunity arises during the course of his testimony.” Defendant, however, fails to offer any convincing reason for establishing a State constitutional rule different from the Federal one; he neither suggests any "interpretative” basis, such as significant distinctions in the text, structure or historical background between the two documents, for construing the Federal and State Constitution provisions differently (see, People v Alvarez, 70 NY2d 375, 378, citing People v P. J. Video, 68 NY2d 296, 302) nor, in arguing that the State provision should "be given a unique reading,” advances any significant "noninterpretive” consideration, such as the "distinctive attitudes” of New York residents toward the right at issue (People v Alvarez, supra, at 378-379).

In this regard, it should be noted that none of the New York cases that have considered the issue of barring consultation between a defendant and his lawyer during the defendant’s testimony have even hinted that the State rule might differ from the Federal. In People v Narayan (54 NY2d 106, 112, supra), for example, the court cited Geders (supra), not any State authority, for the proposition that a ban on consultation could violate a defendant’s constitutional right to confer with his attorney. Insofar as defendant seems to suggest that People v Phillips (77 AD2d 927, 928) established a special State rule, it should be noted that Phillips cited two Federal cases and the court’s initial opinion in Narayan (76 AD2d 604). As is clear from a reading of Phillips, it made no claim of establishing a new and independent State standard.

The luncheon recess declared herein by the trial court is the type of limited interruption during a defendant’s testimony to which Perry (supra), and not Geders (supra), applies. In Geders, the court referred to the trial court’s consultation ban in United States v Leighton (386 F2d 822, 823, cert denied 390 US 1025) — during a luncheon recess — as the type of prohibition on consultation during "a brief routine recess” that was not before the court. (425 US, at 89, n 2.) Since the court had the authority to prohibit consultation between defendant and counsel during a luncheon recess called in the course of defendant’s cross-examination and its ban was imposed only after counsel, who wished to discuss only defendant’s testimony with him, was encouraged to set forth any reason why it should not be imposed, its directive was an appropriate exercise of discretion, which fully respected defendant’s right to the assistance of counsel. This is not to say that a trial court is required to prohibit consultation; rather, as Perry was careful to note, that is a matter for the trial court’s discretion. (488 US, at 284.) If defense counsel gives any indication that consultation is necessary because of some unexpected development or for other valid reasons, it might well be an abuse of discretion to impose a ban during a brief recess.

We have considered defendant’s other contentions and find that they are without merit.

Accordingly, the judgment of the Supreme Court, New York County (Edward McLaughlin, J.), rendered June 24, 1987, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the first degree and sentencing him to an indeterminate term of imprisonment of from 15 years to life, should be affirmed.