
    The People of the State of New York, Respondent, v Jorge Marrero, Appellant.
    Argued June 6, 1980;
    decided July 8, 1980
    
      POINTS OF COUNSEL
    
      Susan C. Thon and William E. Hellerstein for appellant.
    The police and prosecutor violated appellant’s right to counsel when they obtained an uncounseled waiver of that right and uncounseled statements from him although they knew he had been surrendered to the police by an attorney (US Const, 5th, 6th, 14th Arndts; NY Const, art I, §§ 5, 6). (People v Hobson, 39 NY2d 479; People v Carl, 46 NY2d 806; People v Tompkins, 45 NY2d 748; People v Buxton, 44 NY2d 33; People v Pinzon, 44 NY2d 458; People v Arthur, 22 NY2d 325; People v Taylor, 27 NY2d 327; People v Hetherington, 27 NY2d 242; People v Ermo, 47 NY2d 863; People v Ramos, 40 NY2d 610.)
    
      Eugene Gold, District Attorney (Richard E. Mischel of counsel), for respondent.
    Appellant’s motion to suppress his incriminating statements made to Detective Bernard McSweeney and Assistant District Attorney Bruce Cutler was properly denied. (People v Settles, 46 NY2d 154; Kirby v Illinois, 406 US 682; Brewer v Williams, 430 US 387; Moore v Illinois, 434 US 220; Escobedo v Illinois, 378 US 478; People v Ramos, 40 NY2d 610; People v Donovan, 13 NY2d 148; People v Failla, 14 NY2d 178; People v Friedlander, 16 NY2d 248.)
   OPINION OF THE COURT

Wachtler, J.

The question on this appeal is whether the police may question an individual in the absence of counsel when they know that the defendant was represented by counsel at the time of arrest, but did not know that the attorney had only agreed to arrange the defendant’s surrender to the police.

The defendant, believing he was sought by the police in connection with a homicide investigation, consulted an attorney. At the defendant’s request the attorney contacted the police, learned that they were looking for the defendant, and arranged for his surrender. The police went to the attorney’s office and took the defendant into custody. At the police station the defendant was advised of his rights, waived them and, after being questioned by the police and an assistant prosecutor, made incriminating statements without the assistance of counsel.

A pretrial motion to suppress the statements was denied after a hearing. The defendant was then tried and convicted. The Appellate Division modified the sentence in the interests of justice, but otherwise affirmed.

On this appeal the defendant claims that the statements should have been suppressed. Relying on People v Hobson (39 NY2d 479) and related cases, he argues that the police should not have questioned him in the absence of counsel. In Hobson we held (at p 481): "Once 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 right to counsel in the absence of the lawyer”. The People urge that this principle is not applicable here because the defendant was not represented by counsel at the time of the police interrogation. They note that the trial court found that the lawyer had only agreed to assist the defendant by contacting the police and arranging the surrender at which time his services terminated.

Subsequent to our decision in Hobson we have attached little significance to the contractual arrangements between the defendant and his attorney in determining whether the defendant’s right to counsel has been violated during custodial interrogation (but see People v Taylor, 27 NY2d 327, decided prior to Hobson). Once an attorney has appeared on the defendant’s behalf we have refused to allow the police to rely on arguable ambiguities in the attorney-client relationship in order to justify police questioning of the defendant without the attorney being present (see, e.g., People v Ramos, 40 NY2d 610). We have indicated that if the police are uncertain as to the scope of the attorney’s representation, the defendant should not be questioned (People v Coleman, 42 NY2d 500, 507). Indeed we have recently held that the prohibition against custodial questioning of a defendant in the absence of his attorney may extend to crimes other than those for which the attorney was expressly retained or appointed (People v Rogers, 48 NY2d 167).

The important factor in these cases was the police awareness of an attorney’s appearance on the defendant’s behalf, rather than the precise terms of the retainer or appointment. Here, of course, the police were made aware, in the most demonstrable way, of the fact that the defendant was represented by counsel at the time of his arrest. Because of the limited and unusual arrangement the attorney had made with the defendant, that representation may actually have terminated prior to the questioning. But there was no finding that the police were aware of that peculiar arrangement. All they knew was that the defendant had sought the assistance of counsel in connection with the charge they were investigating. If the defendant had verbally expressed a desire to be assisted by counsel during the interrogation, the police would have been precluded from questioning him in the absence of counsel (People v Cunningham, 49 NY2d 203). We see no significant distinction between a verbal request for counsel and the defendant’s conduct in this case. By consulting a lawyer to contact the police, and then surrendering in the attorney’s office with counsel present, the defendant had manifested " 'his own view that he is not competent to deal with the authorities without legal advice’ (Michigan v Mosely, 423 US 96, 110, n 2 [White, J., concurring]).” (People v Cunningham, supra, p 209.)

Accordingly, the order of the Appellate Division should be reversed, the motion to suppress the statements granted and a new trial ordered.

Jasen, J.

(dissenting). I had thought the rule well established that our court is bound by affirmed findings of fact made by the courts below where the record supports such findings. (NY Const, art VI, § 3; see, e.g., People v Bryant, 50 NY2d 949; People v Morales, 42 NY2d 129, 138; People v Paulin, 25 NY2d 445, 449-450; People v Leonti, 18 NY2d 384, 390-391.) Evidently that is no longer the case, as the majority today has chosen to disregard the affirmed finding of fact that counsel had not entered the proceedings when defendant was arrested and brought to the police precinct where he confessed to the crime of murder after he was advised of his constitutional rights. In its stead, the majority has made its own independent finding of fact that "the police were made awafe, in the most demonstrable way, of the fact that the defendant was represented by counsel” (p 59). Even if I were to assume the role of fact finder, as my colleagues have apparently chosen to do, I would conclude that counsel had not entered the proceedings herein, for there is absolutely no evidence in this record that Ivy Blecher, the attorney in question, ever represented appellant in this case. All that the record establishes, as found by the suppression court and affirmed by the Appellate Division, is that “Ivy [Blecher] was consulted by the defendant, the defendant’s father and a mutual friend, oné, Raphael Velasquez, for the sole purpose of determining whether or not the defendant who was interested in turning himself in was wanted by the police, what precinct if any might be seeking the defendant, who was looking for him, the reasons why he was being sought, and that since the defendant had every intention of turning himself in, for Mr. [Blecher] to determine to whom and why.” (Emphasis added.) Once the attorney provided this information and arranged for the police to take the defendant into custody, their limited relationship ended. Indeed, the only legal advice Mr. Blecher gave to defendant was to “get Legal Aid”.

Both defendant and Mr. Blecher, as found by the courts below, were aware of the limited nature of their relationship and that it had terminated before defendant was arrested and questioned at the police precinct. Inasmuch as the parties themselves did not intend to establish an ongoing attorney-client relationship, it is difficult to understand how the police can be held accountable for an alleged violation of such a nonexistent relationship. This is not the kind of situation presented by the Hobson case (39 NY2d 479) and its progeny. In each of those cases, "a lawyer ha[d] entered a criminal proceeding representing a defendant in connection with criminal charges under investigation” (p 481) or had been retained to represent the defendant in some other pending criminal prosecution. Here, there was a specific finding of fact by the suppression court, affirmed by the Appellate Division, that Mr. Blecher did not represent the defendant in connection with any criminal charges, but was merely consulted "for the sole purpose of determining whether or not the defendant * * * was wanted by the police * * * [and] at no time otherwise represented the defendant.” I had always believed that the object of the Hobson rule is to prohibit law enforcement agencies from subverting an established attorney-client relationship by interrogating a defendant who had already exercised his right to counsel. Since the record conclusively indicates, and the courts below found, that there was no attorney-client relationship when defendant was taken into custody and subsequently advised of his constitutional rights in the presence of his father, I would hold that his confession to the murder charged was properly admitted at trial. Consequently, there should be an affirmance.

Chief Judge Cooke and Judges Gabrielli, Jones, Fuchs-berg and Meyer concur with Judge Wachtler; Judge Jasen dissents and votes to affirm in a separate opinion.

Order reversed, etc.  