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weighing that the interrogating officer had made a note that the defendant was requesting an attorney
Summary of this case from People v. DawsonOpinion
No. 136.
Argued October 10, 2007.
Decided November 15, 2007.
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of that Court, entered February 2, 2007. The Appellate Division affirmed a judgment of the Niagara County Court (Peter L. Broderick, Sr., J.), which had convicted defendant, upon a jury verdict, of murder in the second degree and criminal possession of a weapon in the third degree.
People v Porter, 37 AD3d 1165, reversed.
Timothy Patrick Murphy, Lockport, for appellant.
Matthew J. Murphy, III, District Attorney, Lockport ( Thomas H. Brandt of counsel), for respondent.
OPINION OF THE COURT
The order of the Appellate Division should be reversed, defendant's motion to suppress statements granted and a new trial ordered.
Whether a particular request for counsel is equivocal presents a mixed question of law and fact. When there is support in the record for the Appellate Division's determination of a mixed question of law and fact, the issue is beyond further review by this Court. Here, however, there is no support in the record for the determination that defendant's request for counsel was equivocal. To the contrary, the only evidence — defendant's words "I think I need an attorney," coupled with the interviewing officer's notation that defendant was "asking for an attorney" — demonstrates an unequivocal invocation of defendant's right to counsel. This is not to say that utterance of the words defendant used would unequivocally invoke the right to counsel in every instance. But on this record, where there were no additional facts upon which a contrary inference could be drawn, further inquiry by the police was not permitted. Defendant's confession, made after police questioning continued, must therefore be suppressed.
Finally, the Appellate Division's finding that the police had consent to search the premises where defendant was located has support in the record and is thus beyond our review.
Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
Order reversed, etc.