PEOPLE, & C., RESPONDENT, v. JOSE CARRACEDO, APPELLANT.
1997 N.Y. Int. 73.
May 6, 1997
1 No. 80 (1997 NY Int. 73)
Decided May 6, 1997
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Andrew C. Fine, for Appellant.
Peter D. Coddington, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
During a pre-trial suppression hearing, the trial court directed
defendant not to communicate with his counsel about "the case" during
an overnight recess that commenced in the middle of defendant's
testimony on cross-examination. Defendant was subsequently convicted
of murder in the second degree. Relying on Geders v United States (425
US 80) and People v Enrique (165 AD2d 13, affd 80 NY2d 869), the
Appellate Division ruled that the ban placed on defendant's
communication with his attorney violated defendant's Sixth Amendment
right to counsel. To remedy that violation, the court held the appeal
from the judgment of conviction in abeyance and remitted to Supreme
Court for a new suppression hearing to be held. Two Justices dissented
from that ruling on the ground that the proper remedy would have been
to grant a new trial. The new hearing was subsequently held, and the
suppression court determined that the subject evidence should not be
suppressed. The Appellate Division, with the same two justices
dissenting, then affirmed the judgment of conviction and sentence. One
of the dissenting Justices granted defendant permission to appeal to
this Court.
As a threshold matter, given that the People are not the appealing
party in this matter, we are unable to review the propriety of the
Appellate Division's determination that the ban on communication
during the overnight recess constituted a Sixth Amendment violation as
the People request (see CPL 470.35(2)(b)). That is true because if the
People were to prevail here on the merits of that claim, this Court
"would in essence be affording affirmative relief to a nonappealing
party, (which) we are not empowered to do" (People v Carpenito, 80
NY2d 65, 68). Accordingly, proceeding as we must from the position
SNIPPETS:
This memorandum is uncorrected and subject to revision before publication in the New York
During a pre-trial suppression hearing, the trial court directed defendant not to communicate
Relying on Geders v United States and People v Enrique (165 AD2d 13, affd 80 NY2d 869), the
To remedy that violation, the court held the appeal from the judgment of conviction in
The Appellate Division, with the same two justices dissenting, then affirmed the judgment of
As a threshold matter, given that the People are not the appealing party in this matter, we
That is true because if the People were to prevail here on the merits of that claim, this
We reject defendant's contention that he was entitled to a reversal of his conviction and a
defendant has not established that the hearing violation created even a potential for
However, defendant does not claim that any such real opportunities were completely foreclosed
Defendant also contends that reversal is warranted because the court failed to impose a
Although the trial court here denied defendant's request to impose a sanction, under the
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