                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: November 12, 2015                     105213
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                       MEMORANDUM AND ORDER

MATTHEW A. SLOCUM,
                    Appellant.
________________________________


Calendar Date:   September 16, 2015

Before:   Lahtinen, J.P., Egan Jr., Devine and Clark, JJ.

                               __________


      Michael J. Mercure, Public Defender, Fort Edward, for
appellant, and appellant pro se.

      P. David Soares, District Attorney, Albany (Jason
Weinstein, New York Prosecutors Training Institute, Inc., Albany,
of counsel), for respondent.

                               __________


Clark, J.

      Appeal from a judgment of the County Court of Washington
County (McKeighan, J.), rendered March 20, 2012, upon a verdict
convicting defendant of the crimes of murder in the second degree
(three counts), arson in the third degree, tampering with
physical evidence, petit larceny and criminal possession of a
weapon in the third degree.

      Defendant was convicted by a jury of shooting and killing
his mother, stepfather and stepbrother in their home in the Town
of White Creek, Washington County, as well as stealing several
items of personal property, including multiple firearms, and
setting fire to the victims' home. The evidence considered by
                               -2-                105213

the jury included, among other things, statements that defendant
made to law enforcement officials on the night of his arrest, as
well as his statement to a social services worker while in jail
following his arrest. Defendant argues on appeal that his
convictions for murder in the second degree were against the
weight of the evidence, an argument we reject (see People v
Romero, 7 NY3d 633, 643-644 [2006]; People v Bleakly, 69 NY2d
490, 495 [1987]).

      Defendant's admissions, together with the testimony of his
girlfriend, Loretta Colegrove, and the forensic evidence,
demonstrate that defendant, with the requisite intent, caused the
death of his mother, stepfather and stepbrother (see Penal Law
§ 125.25 [1]; People v Hamilton, 127 AD3d 1243, 1243 [2015], lvs
denied 25 NY3d 1164 [2015]). While a contrary verdict would not
have been unreasonable in light of defendant's testimony at trial
identifying Colegrove as the shooter, the jury was free to credit
Colegrove's testimony over defendant's testimony (see People v
Stanford, 130 AD3d 1306, 1308 [2015]) and, upon our independent
review, we find defendant's convictions of murder in the second
degree to be supported by the weight of the evidence (see People
v Green, 121 AD3d 1294, 1294-1295 [2014], lv denied 25 NY3d 1164
[2015]; People v Vanderhorst, 117 AD3d 1197, 1198-1200 [2014], lv
denied 24 NY3d 1089 [2014]).1 With that said, however, the
dispositive issue herein is whether the jury should have had
before it all the evidence it did. Inasmuch as we conclude that
defendant was denied his right to counsel during police
questioning, we reverse the judgment of conviction, partially
grant defendant's previously denied motion to suppress, and
direct a new trial.

      It is well settled that a defendant's indelible right to
counsel attaches in two situations; the first being "upon the
commencement of formal proceedings, whether or not the defendant
has actually retained or requested a lawyer," and the second when
"an uncharged individual has actually retained a lawyer in the
matter at issue or, while in custody, has requested a lawyer in


     1
        Defendant does not challenge the legal sufficiency of the
evidence on appeal.
                              -3-                105213

that matter" (People v West, 81 NY2d 370, 373 [1993]). Once a
defendant unequivocally requests counsel, all police questioning
must cease (see People v Jemmott, 116 AD3d 1244, 1246 [2014]).
Further, "[o]nce a lawyer has entered a criminal proceeding
representing a defendant in connection with criminal charges
under investigation, the defendant in custody may not waive his
[or her] right to counsel in the absence of the lawyer" (People v
Hobson, 39 NY2d 479, 481 [1976]; see People v Callicutt, 85 AD3d
1326, 1327 [2011], lvs denied 18 NY3d 992, 993 [2012]).

      On July 13, 2011, the same day the crimes were committed,
defendant fled to New Hampshire with Colegrove and their three-
month-old child, where he was apprehended and arrested later that
evening. Also on that day, but before defendant's arrest,
Michael Mercure, the Washington County Public Defender, sent a
letter to the Washington County District Attorney's office, the
Washington County Sheriff's Department and the State Police2
indicating that defendant had open charges in the Town of
Greenwich, Washington County and, as such, was "a present client
of the Public Defender's [o]ffice and would qualify for
representation on any additional charges against him." The
letter went on to state that Mercure knew defendant was "a person
of interest and/or suspect in a potential arson/homicide in the
Town of White Creek." On this basis, Mercure requested that he
be contacted if defendant was "arrested and/or detained" and he
specifically requested that defendant "not be questioned or
interrogated without counsel present."

      Bruce Hamilton, an investigator with the Washington County
Sheriff's Department, and John Ogden, a State Trooper, traveled
to New Hampshire to interview defendant at the state-owned
facility where he was being detained. Prior to their departure
for New Hampshire, a meeting was held at which the District
Attorney instructed Hamilton and Ogden that, despite Mercure's
letter, they could interrogate defendant until he asked for an
attorney. Before commencing the interrogation, Hamilton told


    2
        The letters to the District Attorney and the Sheriff were
sent by fax and regular mail while the letter to the State Police
was sent by regular mail.
                              -4-                105213

defendant that he was aware that defendant was represented by the
Public Defender's office on a different charge and asked
defendant "if he felt that he should have an attorney or if he
wanted to be represented by the Public Defender's office," to
which defendant responded, "Yeah, probably." Likewise, Ogden
recalled Hamilton asking defendant "if he intended or expected to
use [the Public Defender's office] to represent him" with respect
to the current charges and that defendant had replied, "Yeah,
probably." In response to Hamilton's further inquiry as to
defendant's satisfaction with the legal representation afforded
by the Public Defender's office, defendant indicated displeasure
at the resolution of an old case. Hamilton and Ogden then handed
defendant a Miranda rights form, had him sign it and proceeded to
question defendant about the instant crimes. Neither officer
showed defendant Mercure's letter, nor did they inform him of its
existence.

      "A defendant's request for an attorney will invoke his or
her indelible right to counsel if the request is unequivocal, an
inquiry which is a mixed question of law and fact that must be
determined with reference to the circumstances surrounding the
request including the defendant's demeanor, manner of expression
and the particular words found to have been used by the
defendant" (People v Higgins, 124 AD3d 929, 931 [2015] [internal
quotation marks and citations omitted]; see People v Glover, 87
NY2d 838, 839 [1995]). "The relevant inquiry is whether a
reasonable police officer would have understood the statement in
question as a request for an attorney" (People v Jemmott, 116
AD3d at 1247 [citation omitted]), and a statement that is "merely
a forewarning of a possible, contingent desire to confer with
counsel rather than an unequivocal statement of [a] defendant's
present desire to do so" is not sufficient to invoke the right to
counsel (People v Higgins, 124 AD3d at 931).

      On appeal, the People contend that defendant's statement –
namely, "Yeah, probably" – did not unequivocally invoke his right
to counsel. We disagree. The word "probably" is defined as
"very likely" or "almost certainly" (Merriam—Webster Online
Dictionary, http://www.MerriamWebster.com/dictionary/probably).
It is difficult to conceive of circumstances where "probably"
would mean "no," particularly here, where the police knew that
                              -5-                105213

defendant was currently represented, albeit on unrelated charges,
and also knew that counsel was so clearly attempting to protect
his current client's constitutional rights. Defendant's demeanor
and tone when saying "Yeah, probably" was his simple expression,
in everyday language, that he was not competent or capable to
deal with the officers' questioning. Thus, based on the
particular circumstances herein, a reasonable police officer
would have understood that defendant's statement was a request
for counsel, requiring questioning without representation to
cease (see People v Jemmott, 116 AD3d at 1247).3

      Even if a reasonable officer could have interpreted "Yeah,
probably" to be equivocal, the unique circumstances presented
herein – namely, the existence of Mercure's letter – created a
situation where Hamilton and Ogden were required to inquire
further to see if the indelible right to counsel had attached and
to "insure that the defendant's right to be represented by
counsel be protected" (People v Callicutt, 85 AD3d at 1328
[internal quotation marks and citation omitted]). "Any arguable
ambiguities in the attorney-client relationship cannot be seized
by [law enforcement] as a license to play fast and loose with
this precious right" (id. [internal quotation marks and citations
omitted]; see People v Lopez, 16 NY3d 375, 380-381 [2011]; People
v Ramos, 40 NY2d 610, 618 [1976]). To be clear, we understand
the constraints of our case law prohibiting us from finding that
Mercure's letter, in and of itself, constituted a formal
appearance by counsel because it did not communicate that Mercure
represented defendant with respect to the murders/arson. As
such, we must find that this letter alone did not invoke
defendant's right to counsel (see People v Pacquette, 17 NY3d 87,
97 [2011]; People v Grice, 100 NY2d 318, 322-324 [2003]; People v
Arthur, 22 NY2d 325, 329 [1968]). However, our concern here is
focused on the fact that, rather than clarifying whether
defendant wanted Mercure's representation on the current charges,
Hamilton and Ogden instead engaged in an irrelevant and brief


    3
        Our holding that defendant invoked his right to counsel
renders discussion of the adequacy of defendant's waiver of his
Miranda rights academic (see People v Esposito, 68 NY2d 961, 962
[1986]).
                              -6-                105213

discussion of defendant's past experiences with the Washington
County Public Defender's office. They did not offer defendant a
telephone, the ability to communicate with the Public Defender's
office or even inform him of Mercure's letter.4 Their inquiry
into defendant's satisfaction, or lack thereof, with his attorney
in an earlier case did not equate to compliance with the mandates
set forth in Lopez and its progeny, and it was improper for
Hamilton and Ogden to rely on defendant's voiced dissatisfaction
to skirt his right to counsel. In light of their knowledge of
Mercure's letter, by not asking the simple follow-up question of
whether defendant wanted Mercure's representation at that time,
Hamilton and Ogden infringed upon defendant's right to counsel
(see People v McLean, 109 AD3d 670, 677-678 [2013, McCarthy, J.,
dissenting], affd 24 NY3d 125 [2014]). Therefore, defendant's
indelible right to counsel attached when he said, "Yeah,
probably."

      In any event, our inquiry continues because "[a] violation
of the indelible right to counsel does not automatically
constitute reversible error. Instead, it is reviewed under the
harmless error doctrine for constitutional violations" (People v
Lopez, 16 NY3d at 386; see People v Dashnaw, 85 AD3d 1389, 1391
[2011], lv denied 17 NY3d 815 [2011]). "Errors of this type are
considered harmless when, in light of the totality of the
evidence, there is no reasonable possibility that the error
affected the jury's verdict" (People v Lopez, 16 NY3d at 386
[internal quotation marks and citations omitted]; see People v
Dashnaw, 85 AD3d at 1391). Here, absent defendant's statements,
the remaining evidence at trial consisted of Colegrove's
testimony that defendant committed the murders, defendant's
testimony that Colegrove committed the murders, forensic evidence
that failed to conclusively establish that defendant committed
the murders, defendant's statements prior to the murders and his
apology letter to his brother, which did not contain an explicit
confession. As it cannot be said that there is no reasonable


    4
        We agree with the People's statement at oral argument
that, although the law does not so require, the best practice
would have been for Hamilton and Ogden to simply have shown
Mercure's letter to defendant.
                              -7-                105213

possibility that the admission of defendant's statements at trial
affected the jury's verdict, County Court committed reversible
error in failing to suppress defendant's statements to the
officers while in custody in New Hampshire (see People v Dashnaw,
85 AD3d at 1392; People v Hilliard, 20 AD3d 674, 679 [2005], lv
denied 5 NY3d 853 [2005]). Accordingly, these statements must be
suppressed.

      Defendant's statements to Robin MacNeil, a child protective
services caseworker with the Washington County Department of
Social Services, were also erroneously ruled admissible. In this
regard, statements made by a defendant, after his or her right to
counsel had attached, to a caseworker undertaking an
investigation on behalf of child protective services will only be
suppressed if the caseworker is acting as an agent of the police
(see CPL 60.45 [2] [b]; People v Cordato, 85 AD3d 1304, 1310
[2011], lv denied 17 NY3d 815 [2011]; People v Wilhelm, 34 AD3d
40, 47-48 [2006]). Relevant factors in determining whether a
caseworker operated as an agent of law enforcement include, "'a
clear connection between the police and the private
investigation[,] completion of the private act at the instigation
of the police[,] close supervision of the private conduct by the
police . . . and a private act undertaken on behalf of the police
to further a police objective'" (People v Greene, 306 AD2d 639,
640-641 [2003], lv denied 100 NY2d 594 [2003], quoting People v
Ray, 65 NY2d 282, 286 [1985]).

      Here, it is undisputed that defendant's right to counsel
had attached before July 19, 2011, the day MacNeil, accompanied
by Hamilton, met with defendant at the Washington County jail in
order to read defendant a child protective report concerning his
child with Colegrove and the alleged murders/arson. As of July
15, 2011, defendant had been assigned counsel, the Washington
County Public Defender's office, and an additional letter from
Mercure had been received by the District Attorney requesting no
further questioning of defendant without counsel present. Prior
to reading the report, MacNeil told defendant that he could
respond if he wanted to and, after she read it to him, defendant
                                 -8-                  105213

declared that Colegrove had nothing to do with it.5 MacNeil
acknowledged that she works closely with the police in these
types of investigations and that, to the best of her
recollection, Hamilton was present in the room as she was
speaking with defendant. Based on the foregoing, we find that
MacNeil was acting as an agent of law enforcement and, therefore,
her questioning also infringed upon defendant's right to counsel.
Thus, as the product of interrogation by a public servant engaged
in law enforcement activity, defendant's statements to MacNeil
were involuntary and should have been suppressed (see People v
Wilhelm, 34 AD3d at 47-48). Conversely, however, defendant's
statements to law enforcement during transport to New York were
voluntary and spontaneous and, as such, properly admitted at
trial (see People v Rivers, 56 NY2d 476, 479-480 [1982]).

      Defendant's argument concerning alleged Brady violations,
as well as his remaining contentions of prosecutorial misconduct
and harsh and excessive sentence, have been rendered academic by
our decision.

         Lahtinen, J.P., Egan Jr. and Devine, JJ., concur.


      ORDERED that the judgment is reversed, on the law, grant
that part of defendant's motion to suppress statements made after
he invoked his right to counsel as set forth herein and all
statements made to Robin MacNeil, and matter remitted to the
County Court of Washington County for further proceedings not
inconsistent with this Court's decision.



                                ENTER:




                                Robert D. Mayberger
                                Clerk of the Court



     5
        Colegrove was given full immunity and testified against
defendant at trial.
