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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 218
The People &c.,
            Respondent,
        v.
Raul Johnson,
            Appellant.




             Ellen O'Hara Woods, for appellant.
             Itamar J. Yeger, for respondent.




SMITH, J.:
             Here, as in People v McLean (___ NY3d ___ [2014]), we
consider a case in which a defendant, charged with one crime,
sought to obtain leniency by providing information about a
second, unrelated crime.    Here, as in McLean, defendant was
ultimately charged with committing the second crime, and the

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People offered in evidence statements defendant made to the
police when the lawyer who represented him in the first case was
not present.
            In McLean, the first case was over when defendant was
questioned, and the lawyer who had handled that case told the
police that the representation had ended.   We held there that the
defendant's right to counsel was not violated.     Here, the first
case, and the lawyer's representation of defendant in it, were
continuing when defendant was questioned about the second case.
We hold that under these circumstances, there was a violation of
defendant's right to counsel.
                                  I
            Defendant was arrested for burglary.   He told one of
the arresting officers that he had information about an earlier
crime, a stabbing in a supermarket parking lot.    This led to a
meeting on October 12, 2007 attended by defendant; by John
Schwarz, the lawyer representing defendant in the burglary case;
and by police officers and an assistant district attorney.    The
meeting began with the signing of a so-called "Queen-for-a-Day"
agreement, in which defendant agreed that he would "fully and
truthfully respond to any and all questions" the police put to
him, and the People agreed that any statement responsive to any
such question "will not be used as direct evidence in any
prosecution brought" against defendant, except one for perjury or
contempt.   The agreement said that it would be "null and void" if


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defendant violated any of its terms.
          During the October 12 meeting, defendant told the
police and the assistant district attorney that a friend of his,
Sunny Bajwa, had admitted to defendant that he stabbed a man at
the supermarket.   Defendant said that the stabbing happened while
he was in jail, but the police checked the dates and found that
defendant had been released ten days before the stabbing.   After
extensive questioning, the police were skeptical of some aspects
of defendant's story, but nevertheless concluded that he would be
a useful cooperating witness.   They asked him if he would be
"wired up" to talk to Bajwa, and defendant agreed.
          In January of 2008, defendant was released from jail
with the People's consent.   On April 19, 2008, defendant, with no
lawyer present, met with two police officers and made the
statements that are in issue here.
          Schwarz, defendant's lawyer, acknowledged that he knew
before the April 19 meeting that the police would be in touch
with his client.   Schwarz testified that it was his understanding
that defendant "would present himself and be wired up."   He added
that he did not believe that defendant "was going to be
interrogated by any law enforcement personnel."   The police
testified that they viewed the meeting as a session to plan for
the recorded conversation between defendant and Bajwa.
          At the meeting the officers and defendant talked at
length about the supermarket stabbing, and defendant's version of


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events changed several times.   He began by saying that he was not
present at the stabbing, but was told about it.   Then he said
that he witnessed it from across the street.   When an officer
said that it did not seem possible to see from across the street
what defendant claimed to have seen, defendant admitted that he
was on the same side of the street as the supermarket.
          Defendant continued with a long narrative about what he
claimed to have seen, interrupted by occasional questions from
the police.   As he told his story, defendant, according to the
police testimony, began to seem "more uncomfortable," and said
that "at no time was he closer than 20 feet" to the incident.     As
his apparent discomfort increased further, an officer asked him
what was bothering him, to which his answer was: "I'm afraid I'm
not going to go home today."    The officers reassured him that he
would, and defendant then admitted that, during the encounter, he
had punched the victim.   Asked if he stabbed him, defendant said
no, but after going on with his description he changed his story
once more, saying that he stabbed the victim in the chest with a
knife.
          At this point, the police officers interrupted the
conversation to consult their supervisor.   When they returned to
the interview room, they read defendant his Miranda rights.
Defendant agreed to continue talking to them and did so.
Eventually, his latest version of the stabbing was reduced to a
typed statement, which he signed.   There is no evidence that any


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effort was made, at any time on April 19, to contact defendant's
lawyer.
           Defendant was allowed to go home on April 19, but he
was later arrested and charged with attempted murder and assault.
Supreme Court denied his motion to suppress his April 19
statements, and defendant was convicted of both crimes.     The
Appellate Division affirmed, concluding that the police officers
"were not barred from questioning the defendant about the
stabbing despite the fact that he was represented by counsel on a
pending burglary charge, as the two charges were unrelated"
(People v Johnson, 100 AD3d 777, 778 [2d Dept 2012]).      A Judge of
this Court granted leave to appeal (21 NY3d 1005 [2013]), and we
now reverse, suppress defendant's statements, and order a new
trial.
                                II
           Defendant argues that the People's use of the
statements he made on April 19 violated both the agreement that
he signed on October 12 and his right to counsel under New York
law.   The October 12 agreement does not help him.   It says on its
face that it "shall be null and void" if defendant violates any
of its terms -- and he obviously violated the requirement that he
respond "truthfully" to all police questions.   We agree with
defendant, however, that the April 19 police questioning was
inconsistent with his right to counsel.




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            Defendant relies on the rule, long established in New
York, that "[o]nce an attorney enters the proceeding, the police
may not question the defendant in the absence of counsel unless
there is an affirmative waiver, in the presence of the attorney,
of the defendant's right to counsel" (People v Arthur, 22 NY2d
325, 329 [1968]).   The People respond that this rule does not
apply here because the "proceeding" in which the police
questioned defendant on April 19 -- their investigation of the
supermarket stabbing -- was one that no attorney had entered.
Schwarz, in the People's view, represented defendant only in the
burglary case, about which he was not questioned.
            We do not find this a viable distinction.   The stabbing
investigation cannot be neatly separated from Schwarz's
representation of defendant in the burglary case.   Defendant had
pinned his hopes for a favorable result in the burglary case on
his cooperation with the police investigation of the stabbing.
Under these circumstances, Schwarz's duty to his client required
him to concern himself with both cases.
            Schwarz was not, of course, retained to defend the
stabbing case: before the April 19 meeting, defendant had not
been charged with the stabbing, and no such charge seemed likely.
But Schwarz's obligation in defending the burglary case included
an obligation to be alert to, and to avert if he could, the
possibility that defendant's cooperation would hurt rather than
help him.   No responsible lawyer in Schwarz's situation would


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concern himself with the burglary case alone, indifferent to the
disaster that might strike defendant if he incriminated himself
in the stabbing.
           We therefore conclude that defendant's right to counsel
encompassed his conversations with police about the stabbing, as
long as those conversations were part of an effort to obtain
leniency in the burglary case in which Schwarz represented him.
Thus, unless the right to counsel was waived, the police should
not have questioned defendant about the stabbing in his lawyer's
absence.   This conclusion does not conflict with our holding in
McLean, where the police interviewed the defendant after the
first case was over, and where the lawyer who represented the
defendant in the first case assured the police that that
representation was at an end (see McLean, ___ NY3d at ___).
                                III
           The People argue, in the alternative, that defendant
validly waived his right to be represented by counsel at the
April 19 meeting.   Unquestionably, where a defendant in one case
seeks to obtain leniency by cooperating with the police in
another, a limited waiver of the right to counsel to permit that
cooperation would be normal and appropriate.   In this case,
however, there simply was no such waiver.   And if there had been,
the waiver could hardly have encompassed that part of the police
interrogation that took place after the police knew that
defendant himself was likely to be prosecuted for the stabbing.


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             While it is true that Schwarz knew that defendant would
meet with the police on April 19, he denied knowing that
defendant would be "interrogated."       Perhaps, knowing that
defendant was to be "wired up" to talk to Bajwa, Schwarz should
have assumed that there would at least be some conversation
between defendant and the police as to what defendant and Bajwa
would talk about.    But a waiver of the right to counsel cannot be
inferred just from an assumption that a lawyer may or may not
have made.    In situations like this, the police should request an
express waiver by the client, with the lawyer's express consent,
preferably in writing.    Where both the lawyer and the client
think that cooperation is in the client's best interests, such a
waiver should not be hard to get.    Here, for example, a waiver
could have been, but was not, made part of the cooperation
agreement signed on October 12.
             Even if we could find, on this record, a waiver
sufficient to authorize the police to interview defendant as a
potential witness and informant, that waiver could not have
extended to everything that happened here.      The record shows that
there was a clearly defined moment when the police learned -- to
their great surprise, according to their testimony -- that
defendant had actually stabbed the victim.      At that point, they
interrupted the meeting, talked to their supervisor, and gave
Miranda warnings.    Even if the police had reason to think that,
until that moment, they were interviewing defendant with his


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lawyer's approval, they could hardly have thought that the lawyer
would consent to a further interview, with defendant as a target
of the investigation.   At the point where they interrupted their
interview, the police should have called Schwarz, and proceeded
no further with their questioning of defendant until and unless
defendant waived his right to counsel in Schwarz's presence.
           Accordingly, the order of the Appellate Division should
be reversed, defendant's statements suppressed, and a new trial
ordered.




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People v Raul Johnson
No. 218




PIGOTT, J.(dissenting):
           The suppression court, based on the facts before it,
found that there was no connection between the burglary with
which defendant had been charged and the stabbing about which
defendant claimed to have information.   That finding was affirmed
by the Appellate Division (100 AD3d 777, 778 [2d Dept 2012]).
"[W]hen the Appellate Division adopts a trial court's factual
findings and the application of those facts to the applicable
legal principles . . . that determination presents a mixed
question of law and fact that we cannot overturn unless there is
no record support for the trial court's conclusion" (People v
Guay, 18 NY3d 16, 22-23 [2011]).   Because there is record support
for the trial court's determination that the two matters were not
so closely related as to bar the detectives from questioning
defendant about the stabbing, I would affirm the order of the
Appellate Division.
           In August of 2007, attorney John Schwarz was appointed
by the court to represent defendant with respect to the burglary
only.   Defendant, hoping to obtain leniency on that charge,
claimed to have information relative to an unrelated stabbing
that had occurred in 2005.   Schwarz and defendant met with


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detectives and a prosecutor on October 12, 2007 to discuss that
information.    Prior to the meeting, defendant and Schwarz
executed a "Queen for a Day" agreement whereby defendant agreed
to respond truthfully to all questions asked of him.   During that
meeting, defendant implicated a friend in the stabbing.
Defendant stated that he was in jail at the time of the stabbing,
but the prosecutor, upon speaking with a representative from the
jail, learned that defendant had been released ten days before
the stabbing.   Nonetheless, defendant agreed to be "wired up"
while speaking with his friend.
          Six months later, defendant met with detectives and
engaged in a discussion with them about acting as a cooperating
witness against his friend.   Schwarz was aware of the meeting but
did not attend.   As the detectives were questioning defendant
about the stabbing, defendant unexpectedly confessed to it.
After being read his Miranda rights, defendant signed a
typewritten confession.   At no time during this meeting did
defendant ask for an attorney, state that he did not wish to
speak with the detectives, or state that he had retained an
attorney with respect to the stabbing case; nor did Schwarz at
any time indicate that he was representing defendant on any
charges other than the burglary, because there were no charges
pending against the defendant relating to the stabbing.
          The majority acknowledges that Schwarz was not retained
to represent defendant in the stabbing matter, but suggests that


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he had an obligation, as part of his representation of defendant
in the burglary case, to be cognizant of the possibility that
defendant's cooperation on the stabbing case would be deleterious
to defendant (majority op, 6).    I find this conclusion to be
unwarranted and, in any event, of no moment.
           From the point of view of the police, who were
investigating a serious crime committed over two years earlier,
the suppression court found they had no expectation that
defendant was going to do anything other than assist them in that
investigation.   And it is apparent from this record that neither
Schwarz nor defendant was under the impression that Schwarz
represented defendant in the stabbing case.
           The record evidence upon which the suppression court
based its decision supports the finding that, as far as Schwarz
was concerned, once defendant spoke with detectives at the
proffer session in his presence and agreed to wear a wire,
Schwarz's work with respect to the stabbing was finished.
Schwarz even provided the detectives with defendant's cell phone
number so they could contact defendant to arrange a meeting
between themselves and defendant, there being no need for him to
attend.   The suppression court concluded that "[a]s far as all
involved were concerned, there was no matter, other than the
burglary, in which the defendant might be represented or desire
representation."   In light of the fact that there is evidence in
the record supporting that conclusion, we must accord it


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deference.
             The majority states that "[n]o responsible lawyer in
Schwarz's situation would concern himself with the burglary case
alone, indifferent to the disaster that might strike defendant if
he incriminated himself in the stabbing" (majority op, 6-7).
Whether this is a fair characterization of Schwarz's conduct is
not a matter of concern for this Court.       The focus should be on
the conduct of the detectives who, as the suppression court
found, acted properly under the facts and circumstances.
Certainly, the detectives were prohibited from questioning
defendant about the burglary -- a charge for which defendant was
represented -- but they were not prohibited from questioning him
about the stabbing.
*   *   *     *   *   *   *   *    *      *   *   *   *   *   *    *   *
Order reversed, defendant's motion to suppress granted, and a new
trial ordered. Opinion by Judge Smith. Chief Judge Lippman and
Judges Read, Rivera and Abdus-Salaam concur. Judge Pigott
dissents in an opinion.

Decided December 17, 2014




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