
    The People of the State of New York, Respondent, v Angel Claudio, Appellant.
    Argued June 9, 1983;
    decided July 7, 1983
    
      POINTS OF COUNSEL
    
      Albert A. Gaudelli for appellant.
    Appellant Claudio’s Sixth and Fourteenth Amendment constitutional rights were violated by the sheer ineptness and downright incompetence of counsel that caused his 16-year-old client to be arrested and prosecuted for murder. (People v Donovan, 13 NY2d 148; Escobedo v Illinois, 378 US 478; People v Baldi, 76 AD2d 259; People v Settles, 46 NY2d 154; McMann v Richardson, 397 US 759; People v Bennett, 29 NY2d 462; People v Droz, 39 NY2d 457; Jackson v Denno, 378 US 368; People v Shinkle, 51 NY2d 417; Berger v United States, 295 US 78.)
    
      John J. Santucci, District Attorney (< Joseph Fisch, Joseph J. Hester and Deborah Carlin Stevens of counsel), for respondent.
    I. The alleged ineffectiveness of appellant’s retained counsel, who advised him before and at the time of his noncustodial confession, did not violate appellant’s rights to counsel under the United States Constitution. (Miranda v Arizona, 384 US 436; Massiah v United States, 377 US 201; Cuyler v Sullivan, 446 US 335; Scott v Illinois, 440 US 367; Brewer v Williams, 430 US 387; Kirby v Illinois, 406 US 682; Argersinger v Hamlin, 407 US 25; Coleman v Alabama, 399 US 1; United States v Wade, 388 US 218; Gideon v Wainwright, 372 US 335.) II. The alleged ineffectiveness of appellant’s retained counsel, who advised him before and at the time of his noncustodial confession, did not violate appellant’s rights to counsel under the New York State Constitution, (Miranda v Arizona, 384 US 436; Massiah v United States, 377 US 201; Cuyler v Sullivan, 446 US 335; People v Ellis, 58 NY2d 748; People v Beam, 57 NY2d 241; People v Pepper, 53 NY2d 213; Kirby v Illinois, 406 US 682; People v Hobson, 39 NY2d 479; People v Rogers, 48 NY2d 167; People v Bartolomeo, 53 NY2d 225.) III. The exclusion of appellant Claudio’s confession is not the appropriate remedy for a claim of ineffective assistance of counsel. (Weeks v United States, 232 US 383; Wolf v Colorado, 338 US 25; Mapp v Ohio, 367 US 643; Terry v Ohio, 392 US 1; United States v Calandra, 414 US 338; Stone v Powell, 428 US 465; Burdeau v McDowell, 256 US 465; United States v Janis, 428 US 433; People v McGrath, 46 NY2d 12; Michigan v Tucker, 417 US 433.)
   OPINION OF THE COURT

Chief Judge Cooke.

The question presented by this appeal is whether defendant’s confession to police, made in a noncustodial setting before a criminal prosecution had commenced, must be suppressed as the product of the ineffective assistance of defendant’s retained counsel. This court concludes that suppression of statements made at such an early stage of an investigation is not required, because defendant’s Sixth Amendment right to counsel had not yet attached.

In the early morning hours of May 15, 1980, a 16-year-old high school student returning from a prom was robbed and fatally shot on a Queens street. Four days later, as the result of an anonymous tip, police went to the home of defendant Angel Claudio, who was also 16 years old. Defendant, accompanied by his stepmother, went to the precinct station house at the officers’ request. He stated that he had been at home sleeping at the time of the murder, and was allowed to leave.

On May 21,1980, defendant called the law firm of Heller & Heller, whose listing he had come across in the telephone directory. Attorney Mark Heller returned the call and met with defendant and defendant’s cousin the following morning. Defendant retained Heller to represent him in connection with the shooting. Heller and defendant, after a discussion, determined that defendant would surrender to the Queens County District Attorney. Defendant and Heller offered sharply differing accounts at the suppression hearing of what Heller advised his client to say to the authorities. The finding of the courts below, which is supported by the record, was that Heller did not explain the seriousness of the charges defendant might face or his available defenses. The lawyer told defendant that the best course of action was to surrender, and that the lawyer might be able to obtain probation or parole without jail time if defendant did so.

When defendant and his attorney arrived at the District Attorney’s office, the lawyer was told by a prosecutor that there was insufficient evidence to charge defendant unless he confessed. He was also informed that there would be no plea bargain. The lawyer did not ask whether defendant was wanted by the police. The courts below found that, after further conversations with representatives of the District Attorney’s office, Heller advised his client to make a statement. With his attorney present, defendant was interviewed by the authorities and made extensive inculpatory admissions, resulting in his arrest.

Heller subsequently made a plea through the media for other persons involved in the murder to come forward, and arranged for another young man, Randolfo Maldonado, to surrender after Maldonado contacted him. Both young men were subsequently indicted for murder in the second degree, attempted robbery in the first degree, and criminal possession of a weapon in the second degree. This appeal involves only defendant Claudio.

At the suppression hearing, defendant argued that the performance of Heller, who by that point had been replaced by assigned counsel, had denied defendant effective assistance of counsel. The court agreed and ordered defendant’s statements suppressed. The Appellate Division reversed and denied the motion to suppress, holding that defendant’s Sixth Amendment right to counsel had not attached because formal judicial proceedings had not commenced.

At the outset, it should be noted that all members of this court are in agreement that the performance of defendant’s lawyer was woefully inadequate. The issue to be determined, however, is whether the lawyer’s conduct, coming before the commencement of a criminal prosecution, violated defendant’s right to counsel under the Sixth Amendment.

The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to * * * have the Assistance of Counsel for his defence.” With respect to this right, “[i]t has long been recognized that the right to counsel is the right to effective assistance of counsel” (McMann v Richardson, 397 US 759, 771, n 14; see People v Baldi, 54 NY2d 137, 146). In assessing effective assistance, no distinction is to be drawn between assigned and retained counsel (Cuyler v Sullivan, 446 US 335, 344; People v Aiken, 45 NY2d 394, 401).

Furthermore, the right to assistance of counsel in a criminal proceeding attaches well before the opening of the actual trial. Indeed, more than 50 years ago, the Supreme Court based its reversal in a capital case on the “conclusion that during perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself” (Powell v Alabama, 287 US 45, 57).

In the long line of cases that followed the Supreme Court’s historic decision in Powell, “it has been firmly established that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him” (Kirby v Illinois, 406 US 682, 688, plurality opn of Stewart, J.). The right has been held to attach at arraignment (Powell v Alabama, supra; see White v Maryland, 373 US 59; Hamilton v Alabama, 368 US 52), at a postindictment lineup (United States v Wade, 388 US 218), at a preliminary hearing after arrest but before indictment (Coleman v Alabama, 399 US 1), at a preindictment lineup where defendant’s presence was directed by court order (People v Coleman, 43 NY2d 222; People v Banks, 53 NY2d 819), and when an accusatory instrument has been filed (People v Blake, 35 NY2d 331). The right has been held not to apply to the postarrest, preindictment taking of handwriting exemplars from an accused (Gilbert v California, 388 US 263).

The guiding principle behind the decisions construing the Federal constitutional right to counsel is “that in addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial” (United States v Wade, 388 US 218, 226, supra [emphasis added] [nn deleted]).

It logically follows, therefore, that when no stage, not even an informal one, of a prosecution has been reached, a person has no right to assistance of counsel under the Sixth Amendment. When defendant went to the authorities, they had no intention of arresting him. Indeed, defendant’s lawyer was told that there was insufficient evidence to charge defendant, unless he made a statement. Under these circumstances, an indigent person could not have insisted on appointment of an attorney under the authority of the Sixth Amendment. Inasmuch as defendant would have had no right to insist that a lawyer be provided for him when he talked to the authorities, he should not be rewarded by a suppression order merely because he chose to bring a lawyer who proved valueless.

Contrary to the dissent’s assertion, it is not irrational to draw a line at the commencement of criminal proceedings. It bears emphasis that this line does not blindly decree that the Sixth Amendment right to counsel begins at the courthouse door. From Powell down through the most recent decisions, the courts have remained cognizant of the realities of criminal prosecutions. Yet, all prosecutions must be deemed to start at some time. Unless the Constitution is read to require counsel for all persons — innocent or guilty — at the moment when any crime is committed, a line must be drawn at some later point. The commencement of criminal prosecution is the logical choice. Indeed, before commencement of prosecution, neither law enforcement officials nor the courts have any reason to be aware of the ineffectiveness of a person’s lawyer, or any obligation to remedy such ineffectiveness. Moreover, before a criminal prosecution has begun, the State has no means of ensuring that a person has “the guiding hand of counsel at every step in the proceedings against him” (Powell v Alabama, 287 US 45, 69, supra).

People v Smith (59 NY2d 156) does not stand for a contrary proposition. In Smith, the defendant alleged that his lawyer provided ineffective assistance by advising him to speak to authorities at a meeting set up with he lawyer’s agreement. The meeting was arranged in connection with a prosecution in Schenectady County, on which the defendant had already been indicted. Thus, with respect to the meeting, the defendant’s Sixth Amendment right to counsel had attached. The statements made at this meeting were later used at his trial on other charges in Albany County. The defendant sought suppression on the ground that he was denied effective assistance of counsel at the meeting with Schenectady County officials. Therefore, the fact that the alleged ineffective assistance occurred before criminal proceedings had begun in Albany County was not germane. The defendant’s right to effective assistance had already attached by virtue of the Schenectady County indictment. Thus, in Smith, this court did not construe the Sixth Amendment as applying to a lawyer’s actions before commencement of any criminal prosecution.

One final point merits mention. There is no indication in the record that the ineffectiveness of defendant’s lawyer was in any way induced, encouraged, or abetted by the police or District Attorney. The authorities were frank and complete in the information they provided to the attorney. The lawyer’s failure to diligently protect his client’s interests can be laid at no one else’s doorstep.

In conclusion, defendant’s statements were induced by the faulty advice of his lawyer, but it does not follow that they must be suppressed. Defendant’s right to effective assistance of counsel under the Sixth Amendment had not attached, because criminal proceedings against him had not commenced.

Accordingly, the order of the Appellate Division should be affirmed.

Jones, J.

(dissenting). In this case of first impression, I cannot agree that, for no reason other than that it occurred prior to the commencement of the criminal action, this defendant has no constitutional right to relief for what unquestionably was gross ineffective assistance of counsel which may well lead to his conviction. The factual circumstances of the case are detailed in the majority opinion. Both courts below, the People in our court, and the majority do not dispute that the conduct of defendant’s retained counsel constituted such ineffective representation as to call for judicial remedy had it occurred after the formal initiation of criminal proceedings.

The majority mistakenly equates a defendant’s constitutional right to effective representation by counsel with his right to be free from impairment of his right to counsel by the police or the prosecutor. The cases on which the majority relies all involve issues in the latter category — police or prosecutorial interference with a defendant’s constitutional right to counsel; none addresses the constitutional right of a defendant to effective assistance of counsel, wholly independent of any activity on the part of the People. There can be no doubt that a defendant’s right to be free from police and prosecutorial interference arises at the stage identified in the majority opinion. That circumstance, however, is not determinative of the stage at which a defendant’s right to effective assistance of counsel arises. Two quité different aspects of the right guaranteed by the Sixth Amendment are involved; that both are sometimes imprecisely referred to under the general rubric of a “right to counsel” should not be permitted to obscure the essential differences between the two.

It is acknowledged that the constitutional right to representation by counsel is the right to representation by effective counsel (Cuyler v Sullivan, 446 US 335, 344; McMann v Richardson, 397 US 759, 771, n 14; People v Baldi, 54 NY2d 137), and that the constitutional right to effective assistance of counsel extends to retained as well as assigned counsel. In Cuyler v Sullivan (446 US 335, supra), the Supreme Court of the United States considered the nature of the constitutional right to counsel and whether it extended to retained counsel. As to the latter issue it wrote: “A proper respect for the Sixth Amendment disarms petitioner’s contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel. We may assume with confidence that most counsel, whether retained or appointed, will protect the rights of an accused. But experience teaches that, in some cases, retained counsel will not provide adequate representation. The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant’s entitlement to constitutional protection. Since the State’s conduct of a criminal trial itself implicates the State in the defendant’s conviction, we see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers.” (Cuyler v Sullivan, 446 US 335, 344-345, supra [nn omitted]). We have similarly rejected arguments based on a distinction between retained and assigned counsel (People v Aiken, 45 NY2d 394, 400-401).

In addressing the broader issue of the nature of the constitutional right to be represented by counsel, Justice Lewis F. Powell, Jr., writing for a unanimous court in Cuyler, recognized that the constitutional right to counsel is implicated because it is State action that leads to a defendant’s ultimate conviction, whether in consequence of a trial or a plea, and held “that inadequate assistance does not satisfy the Sixth Amendment right to counsel made applicable to the States through the Fourteenth Amendment”. (446 US, p 344.) Nothing in the opinion suggests that the right to effective assistance arises only after criminal proceedings have been commenced. Nor has any court heretofore so held. To’ the contrary, as recently as in People v Smith (59 NY2d 156) our court entertained and after careful consideration rejected contentions that the defendant’s conviction in Albany County Court should be reversed because of ineffective assistance of retained counsel prior to the institution of any charges in Albany County. In that case, as in the present, the claimed ineffective representation was the attorney’s advice to the defendant to give statements to law enforcement authorities.

On principle a line of demarcation, as to ineffective assistance of counsel, fixed at the initiation of the criminal action makes no sense other than that it happens to be the critical point when it is claimed that activity on the part of the police deprived the defendant of his constitutional right to the presence of counsel. Nothing can be envisioned which could be more disastrous than, as here, such incompetence of representation, when the defendant was no more than a suspect and no criminal proceeding had even been commenced, as all but to assure his conviction. The panoply of constitutional protections to which defendant is entitled during the investigatory stage and later in the prosecutorial stage, both pretrial and at trial, may have been effectively frustrated. If, as the Supreme Court and this court have recognized, a defendant is entitled to competent representation by retained counsel, once counsel has been engaged such right must extend to representation at any stage of the events where incompetency may contribute significantly to his ultimate conviction.

The reasons advanced at the Appellate Division for holding that remedy is to be given only for ineffective assistance of counsel which occurs after a criminal proceeding has been commenced are unpersuasive. That court appears mistakenly to have concluded that a defendant’s right to relief in consequence of ineffective assistance of counsel is somehow predicated on a failure of the court or of the prosecutor at the time to have protected him from the incompetence of his attorney. Reference is made to the fact that “cases which examine the effectiveness of counsel involve situations in which the State, usually through its Judges, has failed in its duty to oversee the criminal process and to discern and prevent ineffective representation” (85 AD2d 245, 257), that the standard for determining ineffective assistance is based on “the assumption that Judges on the pretrial or trial level will police the competence of lawyers practicing before them”, that “[t]his factor of judicial involvement is not present in a case such as this”, and that it cannot “be argued that the District Attorney had an obligation to assess the competency of counsel’s advice” and that even if such obligation be assumed in an extreme case, “in this case the District Attorney did not know that Heller was giving incompetent advice” (p 258). Although it is true that the court, and perhaps the prosecutor in extreme instances, has the obligation to protect the defendant from representation by his counsel which is perceived at the time to be incompetent (see People v Medina, 44 NY2d 199, 207), the constitutional right to representation by competent counsel is self-standing, to be protected independent of misconduct on the part of the People. Determination of the merit of the defendant’s claim is made on review by an appellate court and depends on the character and circumstances of the particular representation, unrelated to whether the trial court erred in failing to perceive the incompetence or to remedy it if perceived. The application for judicial remedy in this case is not grounded on any claim of default or error on the part of the court or the prosecutor.

It becomes apparent that opportunity for judicial oversight is not the basis for granting relief when it is observed that relief is granted after a criminal proceeding has been commenced if there has been unacceptable incompetence in the pretrial stages (see, e.g., People v Smith, 59 NY2d 156, supra) or prior to plea (see, e.g., Tollett v Henderson, 411 US 258, 266-268; McMann v Richardson, 397 US 759, 768-771, supra) notwithstanding that in such instances there has been no opportunity or occasion for either the court or the prosecutor to know at the time of such incompetence. Thus, in my view the Appellate Division was in error in concluding that defendant was entitled to no relief because “the alleged incompetence occurred at a time where there was no opportunity or possibility of contemporaneous judicial intervention” (p 259).

Because I perceive no sound reason for holding that the right to effective assistance of counsel arises only with the commencement of judicial proceedings and, on the contrary, am of the opinion that to draw such a line of demarcation not only is irrational in view of the nature and substance of the constitutional right to be represented by counsel but operates to deny defendant his constitutional right, I would reverse the order of the Appellate Division and, accepting the determination of both courts below that the representation in this instance was indeed ineffective, remit the case to the Appellate Division to determine the appropriate remedy to be granted defendant in the circumstances.

Judges Jasen, Wachtler and Simons concur with Chief Judge Cooke; Judge Jones dissents and votes to reverse in a separate opinion in which Judge Meyer concurs.

Order affirmed. 
      
      . Defendant asserts only a violation of the Sixth Amendment of the United States Constitution, as applied to the States through the Fourteenth Amendment. Defendant does not claim before this court, nor did he do so at the suppression hearing or before the Appellate Division, that his right to counsel under the State Constitution has been violated. Therefore, this court has no occasion to consider the application of the State Constitution to defendant’s situation.
     
      
      . In light of the indisputably noncustodial setting in which defendant’s statements were made, Miranda v Arizona (384 US 436) and its progeny are not implicated.
     
      
      . The right to effective "assistance of counsel can be no broader than the right to counsel on which it is based.
     
      
      . In the present case adjudication with respect to deprivation of defendant’s right to effective assistance of counsel must be made at a preliminary stage of the criminal action. It remains later to be determined whether defendant will be convicted and if so whether in consequence of a trial or a plea.
     
      
      . The asserted ineffective assistance of counsel with respect to what later became the Albany County charges occurred during negotiations for disposition of charges for which defendant had been indicted in Schenectady County.
     
      
      . The majority appears to have adopted this rationale in part (p 562).
     
      
      . To suggest, as the Appellate Division appears to (85 AD2d, at p 257), that prior to the commencement of judicial proceedings the obligation of the authorities to refrain from questioning a suspect outside the presence of his attorney is discharged by the mere presence of an attorney, although accurate, is immaterial; that proposition again refers only to deprivation of a defendant’s constitutional rights by the police. The remedy for ineffective assistance of counsel at any stage of the proceedings, by sharp distinction, is predicated on the fact of ineffective assistance, not on the failure of the court or the People to have detected it.
     