        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

436
KA 13-02247
PRESENT: SCUDDER, P.J., PERADOTTO, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STACEY CASTOR, DEFENDANT-APPELLANT.


J. SCOTT PORTER, SENECA FALLS, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Onondaga County Court (Joseph E. Fahey, J.), dated December 5,
2013. The order denied the motion of defendant pursuant to CPL
440.10.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from an order denying her motion
pursuant to CPL 440.10 seeking to vacate the judgment convicting her
of, inter alia, murder in the second degree (Penal Law § 125.25 [1]),
in connection with the murder of her husband (decedent) by antifreeze
poisoning, and attempted murder in the second degree (§§ 110.00,
125.25 [1]), in connection with the attempted murder of her daughter
by poisoning by prescription medication and alcohol. Defendant moved
to vacate the judgment pursuant to CPL 440.10 (1) on the ground that
her indelible right to counsel attached when the attorney she hired to
probate decedent’s purported will communicated with police with
respect to the request that defendant and her daughters provide their
fingerprints as part of the investigation of decedent’s death, which
was believed to be a suicide. Defendant alleged that the attorney
therefore “entered” the investigation of decedent’s death and thus
that her indelible right to counsel attached (see People v Grice, 100
NY2d 318, 320-321). Defendant therefore alleged that a statement she
made to police two years later was taken in violation of her right to
counsel and should have been suppressed, and that the admission of the
statement at trial was not harmless error.

     On a prior appeal, we concluded that County Court erred in
summarily denying the motion, and we reversed the order and remitted
the matter for a hearing on the issue whether the attorney represented
defendant in connection with a criminal investigation, or solely with
                                 -2-                           436
                                                         KA 13-02247

respect to the civil matter regarding decedent’s estate (People v
Castor, 99 AD3d 1177, 1183, lv denied 20 NY3d 1010). We conclude that
the court properly determined, following the hearing on remittal, that
defendant failed to meet her burden of establishing that her indelible
right to counsel attached when counsel for decedent’s estate spoke to
the police (see generally People v Augustine, 89 AD3d 1238, 1239-1240,
affd 21 NY3d 949).

     The evidence established that defendant was the personal
representative of the estate (see Castor v Pulaski, 117 AD3d 1552,
1553-1554), and that the attorney’s representation of her was only
with respect to her role as personal representative of the estate.
The attorney testified that at no time did he know that defendant was
a suspect in decedent’s death, which he believed to have been a
suicide; that he identified himself as the attorney for decedent’s
estate in his communications with the police; and that he would not
have given defendant advice related to a criminal investigation
because to do so would be a conflict of interest with his role as the
attorney for the estate. It is well established that, although “an
attorney-client relationship formed in one criminal matter may
sometimes bar questioning in another matter in the absence of counsel
. . . , a relationship formed in a civil matter is not entitled to the
same deference” (People v Lewie, 17 NY3d 348, 361; see People v
Foster, 72 AD3d 1652, 1653-1654, lv dismissed 15 NY3d 750).




Entered:   May 1, 2015                          Frances E. Cafarell
                                                Clerk of the Court
