
    The People of the State of New York, Respondent, v Kenneth West, Appellant.
    Argued March 23, 1993;
    decided June 8, 1993
    
      POINTS OF COUNSEL
    
      Frances A. Gallagher, New York City, and Philip L. Weinstein for appellant.
    I. Appellant was deprived of his right to counsel by the admission into evidence of statements made to a police informant after the police knew that appellant had been represented by counsel at a lineup pertaining to the same matter as the statements. (People v Skinner, 52 NY2d 24; People v Arthur, 22 NY2d 325; People v Hobson, 39 NY2d 479; People v Ellis, 58 NY2d 748; People v Singer, 44 NY2d 241; People v Marrero, 51 NY2d 56; People v Miller, 54 NY2d 616; People v Ramos, 40 NY2d 610; People v Bing, 76 NY2d 331; People v Eddins, 143 AD2d 355.) II. Appellant was deprived of his due process right to a fair trial by the court’s refusal to instruct the jury that the People either must prove that the victim was alive when appellant allegedly fired or that appellant was acting in concert with the person who fired the fatal shot in order for the jury to convict appellant of murder. (People v Dlugash, 41 NY2d 725; People v Steele, 26 NY2d 526; People v La Belle, 18 NY2d 405; People v McLean, 107 AD2d 167, 65 NY2d 758; People v Allah, 129 AD2d 484, 71 NY2d 830.)
    
      Robert M. Morgenthau, District Attorney of New York County, New York City (Mary C. Farrington and Mark Dwyer of counsel), for respondent.
    I. Defendant’s right to counsel was not violated by the tape-recording of his statements by an informant. In any event, the admission of these statements was insignificant considering the strength of the People’s case against defendant. (People v Hauswirth, 89 AD2d 357, 60 NY2d 904; People v Bing, 76 NY2d 331; People v Davis, 75 NY2d 517; People v Samuels, 49 NY2d 218; People v Settles, 46 NY2d 154; People v Cunningham, 49 NY2d 203; People v Hobson, 39 NY2d 479; People v Ellis, 58 NY2d 748; People v Skinner, 52 NY2d 24; People v Colwell, 65 NY2d 883.) II. The Judge was not required to instruct the jury that, in order to convict defendant of murder, it had to find that the victim was still alive when defendant shot him. (People v Dlugash, 41 NY2d 725; People v Allah, 129 AD2d 484, 71 NY2d 830; People v Watts, 57 NY2d 299; People v Cicchetti, 44 NY2d 803.)
   OPINION OF THE COURT

Chief Judge Kaye.

A defendant’s State constitutional right to counsel "indelibly attaches” upon actual representation in a criminal matter. The question before us on this appeal — where defendant’s right to counsel unquestionably attached by virtue of counsel’s representation of him in the matter at issue — is what indelible attachment means in those circumstances.

Defendant, along with twin brothers Michael and Mark Davenport, was part of a drug operation based in a house on West 116th Street in Manhattan. On February 15, 1982, a fight broke out in front of the house during which Sylvester Coleman was shot and killed. On June 30, 1982, the police placed defendant in a lineup in connection with the shooting. Defendant was at that time represented by counsel. The People do not dispute that counsel’s presence was recorded in the police file on this matter, and that counsel instructed defendant was not to be questioned in his absence. The results of the lineup were inconclusive and defendant was not charged at that time.

Some three years later, Michael Davenport was arrested in connection with unrelated crimes, admitted that he was one of the gunmen in the Coleman slaying, identified defendant as another, and signed a cooperation agreement with the District Attorney in exchange for leniency. In December 1985 and January 1986, at the direction of law enforcement officials and in an effort to help his brother, Mark Davenport surreptitiously tape-recorded several conversations with defendant. Before arranging for these conversations, the police made no attempt to determine whether defendant was still represented by his lawyer. In the taped conversations, defendant made statements consistent with guilt, and was thereafter indicted for murder.

Prior to trial, defendant’s attorney — the same attorney who had represented him at the lineup — moved to suppress the taped statements, claiming they were taken in violation of defendant’s right to counsel. The People responded that, more than three years after the lineup, the police had no reason to believe the representation continued, and defendant’s papers did not allege that he was in fact still represented at the time of the tape-recording. Supreme Court summarily denied suppression.

Defendant’s taped statements figured prominently in the prosecution’s trial presentation. The prosecution’s other primary evidence came from three interested witnesses: Mark Davenport, Michael Davenport and Thomas Kelly, a known heroin user and frequent customer of the drug organization. The tape was played during the People’s direct case accompanied by Mark Davenport’s testimony and was replayed during the People’s summation accompanied by an explanation of how it demonstrated defendant’s guilt. Before returning a guilty verdict, the jury twice requested that a portion of the tape be played again and asked for a copy of the cooperation agreement between the District Attorney and Michael Davenport.

The Appellate Division affirmed the conviction, reasoning that the investigation for which defendant had obtained counsel had been terminated and that the taped statements were made as part of a new investigation. The Appellate Division also considered it significant that the taped conversations were noncustodial. We disagree, concluding that the taped statements were taken in violation of defendant’s right to counsel, their use cannot be deemed harmless, and a new trial is required.

I.

The State right to counsel is a " 'cherished principle’, rooted in this State’s prerevolutionary constitutional law and developed 'independent of its Federal counterpart.’ ” (People v Harris, 77 NY2d 434, 439 [quoting People v Settles, 46 NY2d 154, 160-161].) "The 'highest degree of [judicial] vigilance’ is required to 'safeguard’ it.” (People v Harris, 77 NY2d, at 439 [quoting People v Cunningham, 49 NY2d 203, 207].)

The State right to counsel attaches indelibly in two situations.

First, the right attaches indelibly upon the commencement of formal proceedings, whether or not the defendant has actually retained or requested a lawyer (see, e.g., People v Samuels, 49 NY2d 218; People v Settles, 46 NY2d 154, supra; People v Di Biasi, 7 NY2d 544; see also, Kirby v Illinois, 406 US 682 [parallel Federal right]). Underlying this principle— the "Di Biasi line of cases” — is a recognition that once formal proceedings have commenced, the character of the matter changes from investigatory to accusatory. The right to counsel both protects the accused in dealing with the coercive power of the State and insures that any waiver of the right will be knowing and intelligent (People v Settles, 46 NY2d, at 163-164).

Second, the right to counsel attaches indelibly where an uncharged individual has actually retained a lawyer in the matter at issue or, while in custody, has requested a lawyer in that matter (People v Skinner, 52 NY2d 24, 26; People v Cunningham, 49 NY2d 203, 209; People v Hobson, 39 NY2d 479, 481; People v Arthur, 22 NY2d 325, 329). The rationale underlying this "Hobson line of cases” is much the same as that underlying the Di Biasi line of cases (see, People v Hobson, 39 NY2d, at 485-486). Suspects under the Hobson line have manifested their belief that they cannot alone deal with the State’s coercive power. The right to counsel helps to equalize the balance and assure that any waiver is knowing and intelligent (People v Skinner, 52 NY2d, at 29-32; People v Cunningham, 49 NY2d, at 207-208; People v Hobson, 39 NY2d, at 484). Additionally, the right protects against undue interference with any existing attorney-client relationship (see, e.g., People v Skinner, 52 NY2d, at 29-30).

A. Representation by Counsel in the Matter at Issue

This case concerns the second situation — in particular, indelible attachment of the right to counsel by actual representation in the matter at issue. We agree unanimously that defendant’s right to counsel attached indelibly when counsel entered his appearance at the lineup and instructed the police not to question his client. We differ as to the significance of that right.

The majority, applying long-settled law, concludes that indelible attachment of the right to counsel means that a suspect cannot be questioned about the matter without counsel, and that defendant’s right was violated by the covert interrogation. The dissent, drawing a new distinction, concludes that where the right to counsel arises from representation in a matter, no violation results from covert police questioning about the same matter unless defendant establishes that the attorney-client relationship existed at the moment of questioning. A brief review confirms that the dissent’s purported distinction is without basis.

The rule that an uncharged represented individual cannot be questioned without counsel originated in the context of custodial interrogation, and was explicitly premised on grounds identified in Di Biasi: the need to protect accuseds against the coercive power of the State and promote knowing and intelligent waivers (see, People v Hobson, 39 NY2d, at 485-487). The Hobson rule additionally protected the attorney-client relationship from undue interference (id., at 484). After Hobson, we recognized that the right to counsel attached where an uncharged suspect in custody asked for a lawyer (People v Cunningham, 49 NY2d, at 208). We reasoned that an individual in custody who expressed the need for counsel stood in the same shoes as one who had actually retained counsel for protection against the State — both having manifested an inability to deal with the State without counsel on the matter in issue — and the State cannot thereafter seek a waiver outside counsel’s presence.

We next applied the principle to noncustodial questioning (People v Skinner, 52 NY2d, at 28). In Skinner, the defendant was initially questioned immediately after a murder, and then repeatedly questioned over the next few months, prompting him to retain an attorney who instructed the police not to question his client. After a hiatus of approximately two years, the police served the attorney with an order compelling defendant to appear in a lineup, whereupon the attorney again instructed the police not to question his client in his absence. Nonetheless, the police personally served defendant with the order and at the same time asked defendant if he wanted to tell them anything, whereupon defendant made incriminating statements.

We granted suppression of defendant’s statements. We concluded that even in a noncustodial setting, by retaining an attorney in response to police-initiated contacts about a particular matter, defendant manifested his belief that he was unable to deal with the coercive power of the authorities without legal assistance and the State could not derogate that right by subjecting the individual to questioning (People v Skinner, 52 NY2d, at 32). Further, the questioning interfered with the attorney-client relationship (id., at 32).

In People v Knapp (57 NY2d 161, 174, cert denied 462 US 1106), the police — as here — used an informant to obtain uncounseled statements from defendant. Applying Skinner, we reaffirmed the prohibition against noncustodial questioning of a represented suspect even where the suspect did not know the State was questioning him.

Thus, it is clear that "indelible attachment” has a common foundation and significance whether the right arises from the commencement of formal proceedings or actual representation in the matter at issue. Once a suspect has obtained representation in the matter at issue, the suspect in a real sense has "activated his constitutional right to interpose an attorney between himself and the overwhelming power of the State.” (People v Skinner, 52 NY2d, at 32.)

A suspect whose right has indelibly attached has no obligation to keep the police informed as to the status of the attorney-client relationship. Should the police wish to question defendant without counsel on the same matter after the right has attached, it is as a rule their burden to determine whether representation continues (People v Marrero, 51 NY2d 56, 59).

In Marrero, the defendant was represented by counsel only for the purposes of arranging surrender and was not actually represented during police questioning. Nonetheless, since defendant’s indelible right to counsel attached when his attorney first appeared, his statements were suppressed:

"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 * * * We have indicated that if the police are uncertain as to the scope of the attorney’s representation, the defendant should not be questioned * * * 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.” (Id., at 59 [citations omitted].)

B. Representation by Counsel in Other Matters

An entirely different situation exists when the defendant is unrepresented in the matter at issue but has counsel in an unrelated matter. Then, the question is whether a right to counsel attaches in the matter at issue simply by virtue of defendant’s representation in the unrelated matter. These cases, which are the core of the dissent’s new rule, are plainly inapposite here.

Initially, a suspect represented in an unrelated matter could be questioned about matters in which the suspect was not represented (see, People v Taylor, 27 NY2d 327, 330-332). That rule proved difficult to apply, however, where questioning on the unrepresented matter overlapped with questioning on represented matters. In People v Ermo (47 NY2d 863), for instance, we suppressed statements made on an unrepresented matter that were obtained by police exploitation of statements made on charges where defendant was represented by counsel (see also, People v Carl, 46 NY2d 806). Thereafter, in People v Rogers (48 NY2d 167), we held that once an attorney had entered a proceeding, thereby signifying that the police should cease questioning, a defendant in custody on that matter could not be further interrogated in the absence of counsel, whether or not the interrogation concerned the represented matter (id., at 169; see also, People v Bing, 76 NY2d 331, 340, 350).

It is the Rogers right that is solely "concerned with protection of an existing attorney-client relationship” (People v Robles, 72 NY2d 689, 698 [emphasis added]; compare, dissenting opn, at 383). Indeed, under Rogers, a right to counsel in a matter in which defendant is not represented arises in the first instance only because of defendant’s actual representation in another matter. Therefore, if the representation in the other, unrelated matter ceases prior to questioning in the matter at issue, the Rogers right does not attach (People v Robles, 72 NY2d, at 698; People v Kazmarick, 52 NY2d 322). Likewise, if at the time of questioning, the accused is not actually represented in the unrelated matter — for example, if the right to counsel had attached solely because of the commencement of formal proceedings — no Rogers right arises. It is in this context only that we concluded: "[s]imply put, the legal fiction of representation indulged by the [Di BiasiJ line of cases is not tantamount to the actual or requested representation protected by the Rogers-Cunningham line.” (People v Kazmarick, 52 NY2d, at 328; see also, People v Ruff, 81 NY2d 330 [decided today]; People v Rosa, 65 NY2d 380, 385; compare, dissenting opn, at 383.)

After Rogers, a broader rule developed that prohibited police questioning whenever a defendant had counsel in a unrelated matter (see, People v Bartolomeo, 53 NY2d 225, 232, overruled People v Bing, 76 NY2d, at 341-342). Like Rogers, this right was derivative and dependent on the actual existence of an attorney-client relationship. Unlike Rogers, the Bartolomeo right could attach without police awareness of the unrelated representation. From the start, therefore, the Bartolomeo right was problematic (see, People v Bing, 76 NY2d, at 341-342).

Under Bartolomeo, the police were obliged to inquire whether a suspect was represented in any unrelated matter of which they had knowledge. Failing such inquiry, the police were bound by what such inquiry would have revealed — meaning the derivative right could attach without actual knowledge that the suspect was represented by counsel at all. Indeed, that was the case in Bartolomeo itself, where the police questioning defendant had no knowledge of his representation in an unrelated matter, yet were charged with having violated defendant’s derivative right (People v Bartolomeo, 53 NY2d, at 230-232).

Recognizing the potential breadth and undue societal cost of Bartolomeo, we first confined the rule. We required inquiry only where the police had actual knowledge of the prior pending charge (People v Bertolo, 65 NY2d 111, 117; People v Fuschino, 59 NY2d 91, 98). We permitted the police to accept at face value a defendant’s claim that he was not represented (People v Lucarano, 61 NY2d 138, 145). We placed on defendant the burden of proving the existence of the representation giving rise to the derivative attachment (People v Rosa, 65 NY2d 380, 386-387). Ultimately, however, we concluded that the societal cost could not be justified, and overruled Bartolomeo (People v Bing, 76 NY2d, at 349).

The dissent distorts our precedents by suggesting that defendant must prove actual representation "at the time of interrogation” (dissenting opn, at 384 and 385). The issue in the cases cited by the dissent for such a requirement — People v Rosa (65 NY2d 380), People v Kinchen (60 NY2d 772), People v Kazmarick (52 NY2d 322, supra), People v De Mauro (48 NY2d 892) and People v Jones (114 AD2d 974) — was whether the right to counsel had attached at all in the matter about which defendant was questioned. Each defendant in those cases asserted that the right attached because he was actually represented at the time of interrogation; indeed, in all but De Mauro the asserted representation was in an unrelated case. The quoted words "at the time of interrogation” did not add a timing requirement to the law, but simply addressed those defendants’ assertions as to when their right attached. No such dispute is presented here.

Thus, the cases relied on by the dissent are plainly inapposite. They are concerned only with whether the right to counsel attached in the first instance. Here we have no such concern. There is no question that defendant was represented in the matter at issue, and no question that his right to counsel attached indelibly.

II.

Applying the relevant precedents to the facts at hand, we conclude that defendant’s right to counsel was violated when the police sent an informant to surreptitiously record incriminating statements about the counseled matter without regard to their knowledge that defendant had a lawyer in the case. Unlike Skinner, where the police notified counsel that their investigation was resuming after a two-year break, here the police sidestepped counsel, whose appearance was reflected in their files. Law enforcement officials, however, could not sidestep defendant’s constitutional rights by failing to inquire whether the attorney-client relationship continued with respect to the very matter under investigation (see, Skinner, 52 NY2d, at 32, n 3).

The People argue that they were justified in assuming the relationship ceased because more than three years had elapsed from counsel’s appearance. Mere passage of this period of time, however, did not eradicate defendant’s indelible right. Indeed, several of our right to counsel cases, including Skinner itself, involved questioning that arose after an extended hiatus (see, People v Miller, 54 NY2d 616, 618 [one year]; People v Skinner, 52 NY2d, at 27 [two years]; People v Singer, 44 NY2d 241, 249-251 [three years]). Nor is it material that the 1985 investigation was considered by the People "for all intents and purposes, a new investigation.” Defendant’s right to counsel cannot turn on police characterization of their own investigation of a particular crime. Absent some indication that the representation had ceased, the police could not question defendant concerning the very matter as to which they knew he had a lawyer (see, People v Marrero, 51 NY2d 56, 59, supra).

Our holding does not establish a new standard of strict liability (dissenting opn, at 388), but follows on the established proposition that law enforcement officials who know that a right to counsel has indelibly attached may not question individuals on that matter without counsel. The fundamental premise, of course, is that the right to counsel has attached in the first instance — whether by the commencement of formal proceedings, by actual representation, or by a suspect’s request for counsel while in custody.

It is indeed the dissent that seeks to open a new byway in the law, relying on cases dealing with a derivative right to urge that indelible attachment means something different when it arises from actual representation in a matter. The dissent’s new standard unduly derogates the cherished right to counsel, allowing the police to question a client even immediately after learning of representation in the matter, gambling that the attorney-client relationship may have terminated, with the legality of their actions tested (if at all) only after the fact. We have never condoned such a "license to play fast and loose with this precious right” (People v Ramos, 40 NY2d, at 618). It is indeed the antithesis of our declared commitment to safeguard the right to counsel with the highest degree of vigilance.

We therefore conclude that the police were not free to disregard counsel’s instruction. Should the police have desired to question after defendant’s right had attached, it was their burden to determine whether the attorney-client relationship had terminated.

Contrary to the dissent’s repeated assertion, we do not hold that the right to counsel is interminable. This is not a case where the police, at the time they arranged for secret tape-recordings, had any reason to believe that a known attorney-client relationship in the matter had ceased. If indeed it had been shown that defendant’s lawyer had died, been disbarred, withdrawn, or terminated the relationship because of a conflict of interest (dissenting opn, at 390), the case would be a different one. No such proof was offered. In fact, the same lawyer represented defendant at the lineup and the suppression hearing. The People advance only the passage of three years to justify their surreptitious questioning of defendant about the same crime despite counsel’s instruction. Whether other circumstances might permit such questioning is not before us.

Accordingly, the order of the Appellate Division should be reversed, defendant’s motion to suppress the tape-recorded statements granted, and a new trial ordered.

Simons, J.

(dissenting). It would seem self-evident that unless defendant was represented by an attorney at the time, the police could not have been guilty of interfering with an attorney-client relationship by questioning him. The majority holds, however, that an attorney-client relationship, once established, is indelible and will be presumed to continue indefinitely. Unless the police prove that they knew the relationship had ended, any interrogation by them "unduly derogates the cherished right to counsel” (majority opn, at 380).

But a right must exist before it can be protected, cherished or, for that matter, derogated. Thus, in my view, our inquiry should start with a determination of whether the defendant had any rights at the time of the interrogation, not on what police thought at the time of questioning. If he was represented at the time, the tapes should be suppressed; if he was not, then his motion should be denied. Asking him to establish at the suppression hearing that he had counsel when questioned places little burden on him and is consistent with our precedents. Inasmuch as defendant has not even claimed that he was represented at the time of the interrogation, much less proved it, I would affirm.

I

Defendant was charged with murder after the execution style shooting of Sylvester Coleman, a stranger to him, outside a New York City apartment building. He shot Coleman in the head in a fit of anger because Coleman had parked on the street in a place defendant had "reserved” for his own use to sell drugs. Shortly after the murder, the police apprehended defendant and placed him in a lineup. The record indicates that he was represented by counsel at the lineup and that counsel told the police, at that time, not to question his client. Neither defendant nor his codefendants were identified, however, and the investigation languished.

More than three years later the police obtained the cooperation of Michael Davenport, a participant in the crime, and used him to question defendant and tape the inculpatory statements now challenged. Defendant was not charged with the crime and was not in custody at the time the tapes were made.

Whether these statements should be suppressed depends on whether the defendant was represented by an attorney when he made them. Because that factual issue was not resolved at the suppression hearing, the question becomes one of who had the burden of proof: defendant, to show he was represented at the time, or the People, to show that he was not.

II

A

First, under our cases defendant’s right to suppression depends on whether he was represented by counsel at the time he was questioned by police.

It is now well established that when a right to counsel has attached, it may not be waived by a defendant in the absence of counsel (see, People v Robles, 72 NY2d 689, 695; People v Arthur, 22 NY2d 325, 329). The decisions fall generally into two distinct categories. The first, originating with People v Di Biasi (7 NY2d 544), precludes questioning of the accused— without regard to whether counsel has been retained or assigned — upon the commencement of formal adversary proceedings (People v Robles, supra, at 696; People v Samuels, 49 NY2d 218; People v Settles, 46 NY2d 154). The second, derived from People v Hobson (39 NY2d 479), precludes questioning where the suspect in an investigation, prior to formal proceedings, has invoked the right to counsel by retaining counsel (see also, People v Robles, supra; People v Bartolomeo, 53 NY2d 225; People v Rogers, 48 NY2d 167). Related to the Hobson line are those cases growing out of People v Cunningham (49 NY2d 203) in which the uncharged suspect has requested counsel. We recognized a defendant’s right to counsel in those circumstances because the protection afforded to the attorney-client relationship would be hollow if police could prevent an individual from establishing such a relationship.

The Hobson line of cases rests on a different premise than the Di Biasi line. The Di Biasi rule protects the abstract right to counsel. Whether an attorney has been retained or not, we have recognized the need to protect those accused of a crime from the "coercive power of the State” and have barred uncounseled questioning unless the right has been waived with counsel present (People v Settles, supra, at 164). In the Hobson line of cases, however, it is not the abstract right to counsel that is protected — that arises only when formal adversary proceedings have commenced — but the actual attorney-client relationship (People v Hobson, supra, at 484). In Hobson cases, it is the client’s "right to the continued advice of a lawyer, already retained or assigned” that requires the law’s protection and forecloses uncounseled interrogation (id., at 485 [emphasis added]). Were the rationale for Hobson simply the need to combat the coercive power of the State, there would be no need to tie the attachment of the right to the entry of counsel into the matter, for the problem of undue coercion during a police investigation surely exists — indeed, more profoundly exists — for the defendant who has never spoken to an attorney.

We first made the distinction between the abstract right to counsel, which is crucial to a Di Biasi case, and an existing attorney-client relationship, which is the critical element in a Hobson case, in People v Kazmarick (52 NY2d 322, 328). We stated there that "[T]he right to counsel and representation by counsel are not the same thing * * * Simply put, the legal fiction of representation indulged by the [Di Biasi] line of cases is not tantamount to the actual or requested representation protected by the [Hobson] line.” Any doubts about the requirement of ongoing representation in cases like the present one were put to rest in People v Robles, where we said that the Hobson line of cases is "concerned with protection of an existing attorney-client relationship” (supra, at 698 [emphasis added]).

We have accepted that principle both in the old Bartolomeo cases (see, People v Bartolomeo, 53 NY2d 225, supra, overruled People v Bing, 76 NY2d 331), where the right to counsel was derived from an unrelated pending charge, and in cases where the representation was invoked specifically for the crime under investigation (see, People v Ramos, 40 NY2d 610, 618 ["Since we find that the defendant was represented by counsel at the time of * * * interrogation, it follows that the prosecution’s interrogation * * * was impermissible”] [emphasis added]). In short, the right to counsel in a Di Biasi case exists, absent a counseled waiver, so long as there are adversarial proceedings against the defendant; the right to counsel in a Hobson case, such as the one before us, exists only so long as there is an attorney-client relationship (People v Rosa, 65 NY2d 380; People v Singer, 44 NY2d 241, 251; and see, People v Mann, 60 NY2d 792, 794; People v Hoff, 110 AD2d 782, 783, lv denied 65 NY2d 981; People v Rapinett, 113 AD2d 959; People v Abdullah, 108 AD2d 817, cert denied 474 US 919). The two concepts should not be "simplistic[ly] lump[ed]” together (People v Kazmarick, supra, at 327). If no attorney-client relationship exists, there is no need to condition police questioning on a counseled waiver.

The majority, contending otherwise, finds that right to counsel remains regardless of whether representation continues, because the right is "indelible”. But the right to counsel is said to be indelible, once it attaches, only insofar as it cannot be waived except in counsel’s presence. That definition of "indelible” was first stated in People v Settles (46 NY2d 154, 165, supra [which involved defendant’s waiver of counsel at a postindictment lineup]) and has been accepted universally in our decisions until today. The term has never before been construed to mean that the right cannot be terminated, either by the end of proceedings in a Di Biasi case or by the withdrawal or termination of the attorney in a Hobson case. Moreover, the concept of indelibility has no relevance here because this is not a waiver case. The issue is not whether defendant can make an uncounseled waiver but whether a right to counsel exists. The majority now holds, however, that indelible attachment means that a suspect cannot be questioned without counsel even if the right to counsel had terminated at the time of questioning (majority opn, at 374). It does not cite any authority to support that definition and the result cannot be squared with People v Robles (supra [indelible right terminates on dismissal of charge]), People v Davis (75 NY2d 517 [indelible right terminates when defendant does not hire counsel]), People v Rosa (supra [indelible right terminates on attorney’s withdrawal]), People v Singer (supra [dispositive issue is whether representation continued at questioning]), and doubtless many other cases.

B

In addition to requiring a continuing attorney-client relationship, our cases also place the burden of proving continued representation on the defendant when suppression is sought.

Working from the rationale of Kazmarick, we made explicit in People v Rosa (65 NY2d 380, 387, supra) that in Hobson cases "it is the defendant’s burden to show that he was, in fact, represented by counsel * * * at the time of interrogation” (see also, People v Kinchen, 60 NY2d 772, 774; People v De Mauro, 48 NY2d 892, 893; People v Rapinett, 113 AD2d 959, supra; People v Jones, 114 AD2d 974).

Because the majority does not read People v Rosa to hold that the indelible right to counsel ends when the lawyer withdraws, it is helpful to recount at some length the facts and the holding of the Court in that case. In Rosa defendant was convicted of murdering a Manhattan grocer, and the question was whether his inculpatory statements to the Manhattan police had to be suppressed. He claimed they did because he was represented by counsel at the time. He based his claim on an attorney-client relationship established on an unrelated Brooklyn charge. The Appellate Division granted the motion to suppress, assuming that because adversarial proceedings had commenced in Brooklyn the right to counsel had attached there and defendant’s derivative right to counsel attached in the Manhattan investigation also (80 AD2d 527). Shortly thereafter we decided People v Kazmarick (supra), which discredited the Appellate Division’s rationale, and accordingly the People moved for reargument. They correctly contended that under Kazmarick there could be no right to counsel in Manhattan based solely on a Di Biasi claim arising from the Brooklyn proceedings. The Appellate Division granted reargument and remanded the matter for a hearing to determine if defendant was actually represented in Brooklyn at the time he was questioned in Manhattan (81 AD2d 766).

The hearing record established that, to the knowledge of the Manhattan police, a Legal Aid attorney had appeared for defendant at arraignment and the preliminary hearing on the Brooklyn charges on January 20; that at the conclusion of the Brooklyn proceedings defendant’s attorney requested the court to appoint another lawyer for defendant because of a conflict of interest; and that the court granted the request. It was never established at the hearing whether the Legal Aid lawyer believed that he was immediately relieved when the court granted the motion or whether he believed he represented defendant until the new lawyer filed a notice of appearance. The Manhattan detective did not ask, nor was he advised, whether defendant was represented when he questioned him on January 26.

On this evidence, the Appellate Division accepted the very argument defendant makes here: that inasmuch as defendant was once represented, the representation continued unless the People proved it had terminated (see, People v Rosa, 99 AD2d 963, 964, and concurring opn of Lynch, J., at 965). We reversed, finding the Appellate Division had erred in two respects. First, we held the court had improperly placed the burden of disproving representation on the People, rather than requiring the defendant to prove representation, and, second, that the court had improperly assumed that because defendant had once been represented, representation continued at the time of the Manhattan questioning (People v Rosa, 65 NY2d, at 384, supra).

Thus, contrary to the majority’s statement (majority opn, at 379), the critical issue in Rosa was not whether defendant’s right to counsel had attached before he was questioned. Manifestly it had. Counsel appeared for him at arraignment and during a preliminary hearing and then asked to be relieved because of a conflict. During the time defendant was represented, his right to counsel had indelibly attached on both matters and the critical issue was whether the representation had terminated. If it continued, the police would have been chargeable with knowledge of the representation and the motion to suppress should have been granted.

We held, in the language quoted above, that the burden of proving the existence of an attorney-client relationship rested on defendant, and since he had failed to establish that he was represented at the time the Manhattan police questioned him, his motion to suppress should have been denied. The Kinchen, De Mauro and Jones decisions, cited above, support the legal proposition that the burden rests on defendant to establish that a right to counsel existed at the time of the interrogation. They were decided on a failure of proof basis. Obviously, if the burden of proving nonexistence of an attorney-client relationship were on the People, suppression would have been granted.

In Rosa we explained why the burden should rest on defendant in such cases. Representation in criminal matters is rarely a subject of written retainer. Frequently, the relationship is established orally and its continuation is a matter that exists only in the subjective understanding of the attorney and the client. That being so, the defendant, as we noted in Rosa, is in the best position to know whether he is represented at the time of interrogation. Moreover, to shift the burden to the People — as the majority does here — would be to ask them to prove a negative, a requirement the law finds " 'generally unfair’ ” (People v Rosa, supra, at 386). It is also worth noting that in many cases, particularly those involving a lengthy passage of time, it may be difficult or impossible for the police to inquire of the defendant or to search out counsel without jeopardizing their investigation and it may be difficult or impossible for them to obtain a clear answer if they do. Indeed, if the police had inquired of counsel here, he might not have chosen to answer their questions or been able to do so unequivocally because he had represented both defendant and the police informant in the past.

Rosa differs factually from the case before us because Rosa based his unsuccessful claim of a right to counsel on representation in an unrelated pending charge. But the decision closely tracks this case otherwise: Police were aware that at some previous point the right to counsel had attached, but were unsure whether an attorney-client relationship existed at the time of questioning. They did not inquire as to the status of the legal representation but instead proceeded to question the defendant. Both cases involved a Hobson right to counsel, rather than the abstract Di Biasi right to counsel, and thus the right could have been terminated by withdrawal of the attorney or other acts unknown to the police.

If defendant carries his burden at the suppression hearing and shows that he was represented at the time of the questioning, suppression should be granted (People v Rosa, supra, at 385; People v Kazmarick, 52 NY2d 322, 329, supra; and see, People v Bertolo, 65 NY2d 111, 117; People v Lucarano, 61 NY2d 138, 146; People v Fuschino, 59 NY2d 91, 98). But if defendant is unable to prove representation at the time of questioning, no right existed, no violation resulted from the police questioning and suppression should be denied.

Ill

It remains to apply the Rosa principles to the facts of this case.

The record before us shows only that counsel appeared for defendant at the lineup and instructed the police at that time not to question his client. Even now, on the appeal to this Court, defendant has not claimed more. Indeed, counsel asserts that whether defendant was represented at the time he was questioned is irrelevant, that because he had an attorney three years earlier, the police could not question him thereafter without a counseled waiver of his rights regardless whether the relationship continued or not. But that is not what our precedents hold. The attorney-client relationship must exist at the time of questioning and under Rosa and the cases cited above the burden of proving that it continued rested on defendant. Because he failed to sustain that burden in this case, his motion for suppression was properly denied by the hearing court.

It is no answer to suggest, as the majority does, that the police should investigate whether the attorney-client relationship has continued before interrogating a defendant (majority opn, at 376, 379). The question here is what should happen if they do not. Rosa and Bertolo stated a sound, practical answer appropriately tailored to protect a suspect’s right to counsel: If an attorney-client relationship existed at the time of questioning, suppression should be granted. The burden for establishing those facts, as Rosa expressly held, is on the defendant. The majority’s holding, however, departs from those cases and establishes a standard of strict liability: Suppression is automatic if the duty to inquire is ignored, regardless of what an inquiry would discover. I can think of no justification for such a rule. Indeed, the majority’s holding shifts the focus and effect of our right-to-counsel rules from protection of a right to punishment of perceived wrongdoing by police.

IV

Some final observations about the majority opinion are appropriate.

First, the majority relies extensively on People v Knapp (57 NY2d 161, cert denied 462 US 1106) and People v Skinner (52 NY2d 24), but neither of those cases address the issues presented on this appeal. There was no question in either case that the defendant was represented and no need to decide who had the burden of proving representation.

Next, to support its contention that the People had the burden to prove the nonexistence of an attorney-client relationship in Hobson cases, the majority relies on People v Davis (75 NY2d 517, supra). Davis is inapposite because, concededly, the defendant never retained an attorney and the sole burden issue was whether her waiver was voluntary. Rosa, of course, specifically distinguished between the People’s burden on voluntariness and the defendant’s burden on representation, the issue to be decided here (65 NY2d 380, 386, supra).

The majority also relies on People v Marrero (51 NY2d 56) to support its expanded concept of the indelible right to counsel, holding in effect that even though representation may have terminated, the right remains indelible once invoked, and also to support its position that the People had the burden of proving an attorney-client relationship no longer existed. I do not read our decision there to support either point.

In Marrero, the defendant retained a lawyer to arrange his surrender to police. The lawyer agreed to represent him for only that limited purpose. He called the police to his office, surrendered the defendant to them and the police took defendant to the station for questioning without his lawyer. We acknowledged in our decision that the representation had, in all likelihood, terminated before the police questioned defendant, but we nonetheless held that his right to counsel had attached and was violated by the questioning. But we did not arrive at that conclusion by relying on the interpretation of Hobson adopted by the majority. Though the defendant in Marrero contended that the court must presume that an existing attorney-client relationship existed when he was questioned, the same extension of Hobson defendant urges here, we decided the case instead on the basis of People v Cunningham (49 NY2d 203, supra), that the right to counsel exists for those who are without counsel but who have made an unequivocal request to have a lawyer present. Applying that rule in Marrero we construed defendant’s decision to meet police at an attorney’s office as the equivalent of a verbal request for counsel (People v Marrero, supra, at 59).

But more to the point, in Marrero the Court refused to decide whether representation had ceased or not, implicitly recognizing that fact could be critical in Hobson cases, and it did not decide who had the burden to establish the existence of an attorney-client relationship.

I also disagree with the majority on more fundamental grounds. Its decision overlooks the distinction between the abstract right to counsel in a Di Biasi case and the right to counsel arising from actual representation under Hobson. This lumping together of the two concepts may require suppression in future cases when no right of the suspect has been violated. It would not matter, for instance, that the attorney had died, been disbarred, chosen to withdraw, or terminated the relationship because of a conflict of interest. Under the majority’s rule the relationship, once established, would be presumed to continue indefinitely. The majority claims this is not so (majority opn, at 380), but it fails to state clearly how this presumption would be overcome. It first states that if "the police, at the time they arranged for secret tape-recordings, had any reason to believe that a known attorney-client relationship in the matter had ceased,” the questioning would have been proper (majority opn, at 381 [emphasis added]). Thus, the dispositive inquiry seems to be what the police believed at the time of questioning, not the actual state of defendant’s legal representation. Yet, in the same paragraph, the majority states a second standard, one that is quite different: If it had been shown that the relationship had in fact terminated, the questioning would have been proper (majority opn, at 381). The standard thus becomes one not of police knowledge but of actual representation.

The majority does not indicate which of its two standards is actually to be applied by trial courts, but both pose difficulty. If cases like this are to now turn on police knowledge, what the police should have known — rather than actual circumstances, we are returned to the analysis we abandoned for good reason in Bartolomeo. Indeed the majority recognizes the problems posed by the Bartolomeo analysis (majority opn, at 378), yet apparently embraces a similar analysis here. On the other hand, if cases like this are to turn on the People’s ability to prove the termination of representation, it fails to explain why that burden should be placed on the People when in Rosa we found just such a burden unfair. I find neither formulation acceptable and conclude that inasmuch as defendant failed to establish that the attorney-client relationship existed at the time of the conversations with the informant, his motion to suppress was properly denied and the judgment should be affirmed.

Judges Titone, Hancock, Jr., Bellacosa and Smith concur with Chief Judge Kaye; Judge Simons dissents and votes to affirm in a separate opinion.

Order reversed, etc. 
      
      . To be distinguished is a situation, as in People v Davis (75 NY2d 517), where a suspect not in custody requests a lawyer but then does not obtain one. There, the right does not attach both because coercive power is absent and because there is no lawyer-client relationship to impair.
     
      
      . The dissent’s statement that Marrero was not decided on Hobson grounds (dissenting opn, at 389-390) is puzzling, as that case directly follows from Hobson principles (see, People v Marrero, 51 NY2d, at 58-59). The Court refused to decide whether representation ceased because under Hobson it did not matter: the "important factor * * * was the police awareness of an attorney’s appearance on the defendant’s behalf, rather than the precise terms of the retainer or appointment” (Marrero, 51 NY2d, at 59). The reference to Cunningham in Marrero merely points out that either requesting or retaining counsel is tantamount to a manifestation of defendant’s view that he is not competent to deal with the authorities without legal advice that, once expressed, must be respected unless properly waived. (Id.)
      
     
      
      . In this case, neither the interest protected nor the burden imposed bears any resemblance to Bartolomeo (dissenting opn, at 391). Here, the police knew of counsel’s representation and instruction yet arranged for covert questioning of defendant about the very same charge. Prohibiting such questioning protects the right to counsel which was known to have indelibly attached. Bartolomeo, by contrast, required police investigation to determine whether defendant had a right to counsel at all, stemming from unrelated representation of which they might not even be aware. There should be no doubt whatever that the Bartolomeo cases and their underlying rationale are no longer part of our law (see, People v Bing, 76 NY2d, at 350).
     
      
      . The same attorney apparently represented others in the lineup, including Michael Davenport, a codefendant who subsequently became the police informant in this case.
     
      
      . The successor attorney filed a notice of appearance on the day defendant was questioned by the Manhattan police, January 26, but it was unclear whether the notice was filed before or after the questioning and the issue of representation did not turn on the successor attorney’s appearance.
     
      
      . Moreover, contrary to the statement of the majority (see, majority opn, at 375, n 1), Davis’ right to counsel did attach under the rule in People v Cunningham (49 NY2d 203, supra) and statements she made thereafter were suppressed. The question was whether the defendant, having once invoked her right to counsel, could thereafter waive it without counsel being present. We held that she could because she was at liberty, had an extended opportunity to obtain counsel and yet failed to do so.
     