Chief Judge Lawrence H. Cooke An Era of Progression in New York State

By Jaime M. Collins Albany Law School, Class of 2016 Prof. Vincent Bonventtre Court of Appeals Intensive Seminar

I. Introduction This paper takes a look at some of the many landmark decisions written by Chief Judge Lawrence H. Cooke. Undeniably, many of his decisions have had a lasting impact on the New York Court of Appeals. The first part of this paper is a brief introduction to Chief Judge Cooke’s journey to the court. The second part is an examination of his landmark decisions, divided into three parts: first, an analysis of those decisions written by Chief Judge Cooke regarding a defendant’s fundamental right to counsel; second, an analysis of vehicle searches and a comparison to the Supreme Court’s rulings on the same

topic; and third, an analysis regarding due process. Chief Judge Cooke authored all of the cases that will be discussed. The paper closes with a few concluding observations.

II. Cooke’s Path to Chief Judge Chief Judge Cooke was originally from Monticello, New York.1 After graduating from Monticello High School, he attended Georgetown University and later Albany Law School, graduating in 1938.2 Prior to his service on the Court of Appeals, Chief Judge Cooke was as a Justice of the Supreme Court, in the Third Judicial District and was later appointed to the Appellate Division of the New York Supreme Court, Third Department, by Governor Nelson A. Rockefeller.3 Chief Judge Cooke was elected to the New York State Court of Appeals in 1974.4 He sat on the New York Court of Appeals from 1975 until 1984, serving as Chief Judge from 1979 until his retirement in 1984.5 Chief Judge Cooke was notorious for invoking the State Constitution in order to hear cases and to afford rights greater than those recognized under the federal Constitution. 6 He was known for attacking court backlogs, promoting civil rights, and fighting to expand the role of women in the courts and the legal profession. 7 He was well

1 Symposium, The

New York Court of Appeals: The Untold Secrets of Eagle Street, 76 ALB. L. REV. 1897, 1909 (2012). 2 William H. Honan, Lawrence H. Cooke, 85, New York Chief Judge, Dies, N.Y. TIMES (Aug. 2000). 3 Id. 4 Joyce Adolfsen & Lou Adolfsen, Lawrence Henry Cooke, available at http://www.courts.state.ny.us/history/legal-history-new-york/luminaries-courtappeals/cooke-lawrence.html. 5 Id., Moynihan, In Honor of Judge Lawrence H. Cooke, 143 Cong Rec S 9734, (1997). 6 Symposium, Supra note 43 at 1909 7 Id.

1

respected and has been regarded by scholars as “a great judge, and about as magnificent a human as God ever created.”8

III. Landmark Decisions A. Right to Counsel There are three cases in which Chief Judge Cooke authored opinions that have been described by Chief Judge Kaye 9 as the “bedrock of New York’s right to counsel long developed independent of the Sixth Amendment.”10 All three cases reversed the lower court opinion. This line of decisions made it clear that the presence of an attorney is fundamental to ensuring fairness, specifically by reducing the imbalance between defendants and state power inherent in the criminal justice system. 11 In People v. Settles,12 Chief Judge Cooke endeavored to protect the rights of criminal suspects’ post-indictment, but prior to arraignment.13 In this case, the defendant

8 E-Mail from Vincent

Bonventre, Associate Professor of Law, Albany Law School, to Jaime Collins, J.D. Candidate 2016, Albany Law School (May 12, 2015) (on file with author). 9 Chief Judge Kaye is also a Monticello native and later became Chief Judge of the New York State Court of Appeals (Steven C. Crane, Judith Smith Kaye, available at http://www.nycourts.gov/history/legal-history-new-york/history-legal-bench-courtappeals.html?http://www.nycourts.gov/history/legal-history-new-york/luminaries-courtappeals/kaye-judith.html) 10 Chief Judge Judith S. Kaye, Chief Judge Lawence H. Cooke, 71 Alb. L. Rev. 1055, 1058 (2009). 11 See Vincent Martin Bonventre, New York’s Chief Judge Kaye: Her Separate Opinions Bode Well for Renewed State Constitutionalism at the Court of Appeals, 67 TEMP. L. REV. 1163, 1180-1183. 12 People v. Settles, 46 N.Y.2d 154 (1978). 13 Id. at 159 (“[A] defendant in a postindictment, prearraignment custodial setting, even though not then represented by an attorney, may not in the absence of counsel waive his right to have counsel appear at a corporeal identification. Hence, any actions taken by the

2

was indicted for two counts of murder and one count of robbery, but had not yet been arraigned since he was not in police custody. 14 When the police later took the defendant into their custody, he orally agreed to appear in a lineup without an attorney present.15 As a result, two witnesses were able to identify the defendant as the perpetrator and the defendant was ultimately convicted of robbery in the first degree.16 In his decision, Chief Judge Cooke relied on the New York State Constitution to demonstrate how invaluable an attorney is to a criminal suspect: In this State, the right of a criminal defendant to interpose an attorney between himself and the sometimes awesome power of the sovereign has long been a cherished principle. As early as 1777, it had been recognized that even the most intelligent and educated layman lacks the skill and knowledge of the legal system to adequately prepare a defense, no matter how strong it might be. This need, moreover, has been recognized as all the more vital with respect to the unsophisticated, who are often uneducated in the ways of the criminal justice system and unaware of the role counsel can play in protecting their interests.17 Chief Judge Cooke recognized the reality that, without advice from an attorney, the average person – who is not trained as an attorney – is not likely able to make an informed legal decision.18 Chief Judge Cooke strayed away from “[the New York Constitution’s] Federal counterpart” and extended the rights of individuals under the State Constitution.19

police with respect to an indicted but unarraigned defendant which impinge upon his right to counsel may not be used against him at trial.”). 14 Id. at 160 15 Id. 16 Id. at 159. 17 Id. at 160. 18 See Bonventre, supra note 11 at 1182. 19Settles, 46 N.Y.2d at 161.

3

In People v. Rogers,20 Chief Judge Cooke authored another opinion that ensured that, once an attorney has entered the proceeding, the police must cease questioning a suspect unless counsel is present.21 In this case, the defendant was arrested for the robbery of a liquor store.22 When he was taken to the police station, the defendant agreed to speak to the police despite his attorney being absent at the time.23 Approximately two hours later the defendant’s attorney called and instructed the police not to question his client any further.24 The police decided to cease questioning pertaining to the incident at hand, but continued to ask questions on unrelated matters.25 During this time, the defendant made an incriminating statement. The lower court denied the defendant’s motion to suppress and the statement was ultimately used against him at trial, resulting in his conviction.26 This decision was reversed. 27 Chief Judge Cooke made it clear that the Court of Appeals will protect an individual’s right to counsel as well as ensure that a person does not incriminate him or herself due to a of lack of understanding. 28 Even if the specific questioning is unrelated to the reason the person is in police custody, “it cannot be assumed that an attorney would abandon his client merely because the police represent

20 People v. Rogers, 48

N.Y.2d 167 (1979).

21 Id. at

169. 22 Id. at 170. 23 Id. 24 Id. 25 Id. 26 Id. 27

Id. at 175

28 Id. (“This

Court has jealously guarded the individual’s privilege against self-incrimination and right to counsel, demanding that these fundamental rights be accorded the highest degree of respect by those representing the State.”).

4

that they seek to question on a matter unrelated to the charge on which the attorney has been retained or assigned.”29 People v. Skinner,30 again demonstrated just how important the right of counsel was to Chief Judge Cooke. In this case, the setting was slightly different than that of the previous two. In both Settles and Rogers, the defendant was in police custody during the self-incriminating circumstances. Here, the New York court of Appeals evaluated whether the police are allowed to question a suspect after obtaining counsel, but in a noncustodial setting. 31 Not surprisingly, Chief Judge Cooke answered that inquiry “in the negative.”32 In Skinner, the defendant was a suspect in a murder.33 Prior to obtaining counsel, he had agreed to certain requests made by the police, including a request that he take two polygraph tests.34 Shortly after the second polygraph test, the defendant retained an attorney who advised him not to speak to police without his being present.35 Police served the defendant at his home with an order to show cause why he should not be compelled to appear in a lineup in connection with the investigation. 36 When the defendant appeared to be upset about potentially appearing in a lineup, the detectives asked if there was something that he would like “to get off his chest once and for all.”37

29 Id. at

173.

30 People v. Skinner, 52 N.Y.2d 31

24 (1980).

Id. at 26

32 Id. 33 Id. 34 Id. at 35 Id. at

26–27. 27.

36 Id. 37 Id.

5

The defendant went willingly to police headquarters where he then proceeded to make many self-incriminating statements.38 The lower court held that even though the police knew that the defendant had retained a lawyer, the fact that the questioning was in a noncustodial setting weighed more heavily than the fact that the defendant’s attorney was not present.39 Chief Judge Cooke did not agree with this rationale. 40 Chief Judge Cooke pointed to the rule of non-waivability which is recognized in two lines of decisions: “In one, it has been ruled applicable to a suspect who is represented by an attorney (e.g., People v Rogers, 48 NY2d 167). In the other, it has been made explicit that a waiver by a person against whom formal criminal proceedings have been commenced will be ineffectual in the absence of counsel (e.g., People v Settles).”41 In these cases, Chief Judge Cooke made it clear that the court will not deem an uncounseled waiver of a constitutional right voluntary once the right to counsel has been invoked. 42 There need not be a formal commencement of a criminal action for a suspect

38 Id. 39 Id. at 40

28.

Id. at 26

41 Id. at

28–29. 29 (“We there made ‘clear that an uncounseled waiver of a constitutional right will not be deemed voluntary if it is made after the right to counsel has been invoked’. A request for the aid of counsel by an individual in custody imports clearly that the individual considers himself or herself incompetent to face the power of the State without an attorney's advice. Once an individual expresses the need for counsel he or she stands in the same position as one who has obtained the aid of an attorney and the State may not thereafter seek a waiver in the absence of counsel.”) (quoting People v. Cunningham, 49 N.Y.2d 203, 205, 209–10). 42 Id. at

6

to be protected from questioning without an attorney, whether that suspect is in custody or not.43 In these decisions, the New York State Court of Appeals, and specifically Chief Judge Cooke, have left no room for the police to circumvent a suspect’s right to counsel. Once invoked, there are virtually no instances where the police can justify speaking to a suspect without that suspect’s attorney being present. The Court has recognized this be essential to fairness under the New York State Constitution. These decisions recognize a fundamental right to counsel under the New York State Constitution; one that affords even broader protections than those recognized by the United States Supreme Court.

B. Automobile Searches The Court of Appeals’, and in particular Chief Judge Cooke’s, willingness to provide broader protections for the rights of the accused than the United States Supreme Court extended beyond the right to counsel. Most notably in conflict with federal case law are the Court of Appeals’ decisions relating automobile searches. People v. Belton44 was decided on remand45 following the United States Supreme Court’s decision in New York v. Belton.46 In that case, the Supreme Court had reversed47

43 Id. at

31–31 (“We thus reject the People's argument here that in the absence of formal commencement of the criminal action the defendant could be questioned with impunity following service of the order to show cause simply because he was not in custody at the time of the interrogation. In retaining an attorney specifically in response to repeated police-initiated contacts, defendant unequivocally indicated that he felt himself unable to deal with the authorities without legal assistance.”). 44 People v. Belton, 55 N.Y.2d 49 (1982). 45

Id. at 55

7

an earlier decision of the Court of Appeal’s holding that the evidence obtained from the search should be suppressed. 48 In Belton, the defendant was pulled over by a New York State Trooper for speeding.49 The trooper smelled marijuana and saw an envelope on the floor of the car.50 After having discovering marijuana in the envelope, the officer placed the driver and the passengers, all of whom were standing outside the car, under arrest.51 The trooper then searched the vehicle. 52 During the search, the officer the zippered pocket of a jacket located in the back seat of the car and found that it contained cocaine. 53 In its first decision in the case, the Court of Appeals held that cocaine found in the pocket of a zippered jacket should be suppressed since introducing it as evidence violated the defendant’s Fourth Amendment rights under the United States Constitution.54 The case was appealed to the United States Supreme Court , which reversed the Court of Appeals, holding that the search of a concealed container was not a violation of a person’s Fourth Amendment rights.55 The Supreme Court stated that the search was proper because it came incident to a lawful arrest, and found no need “to consider the ‘automobile exception.’”56 The case was remanded to the Court of Appeals which

46 New

York V. Belton, 453 U.S. 454 (1981). Id. at 463. 48 People v. Belton, 55 N.Y.2d at 51. 49 Id. 50 Id. 51 Id. 47

52

Id.

53 Id. 54 Id. at 55 Id. at

51–52. 52.

56 Id.

8

refused to adopt this reasoning.57 Instead, the Court of Appeals held that the “search which followed defendant's lawful arrest was permissible under the State Constitution under the automobile exception to the warrant requirement.”.58 Here, Chief Judge Cooke interpreted the law more narrowly than the United States Supreme Court: Thus, by way of contrast, a motorist stopped for a traffic infraction may not be searched unless when the vehicle is stopped there are reasonable grounds for believing the driver guilty of a crime, as distinct from a traffic offense. However, a valid arrest for a crime authorizes a warrantless search—for a reasonable time and to a reasonable extent—of a vehicle and of a closed container visible in the passenger compartment of the vehicle which the arrested person is driving or in which he is a passenger when the circumstances give reason to believe that the vehicle or its visible contents may be related to the crime for which the arrest is being made (as possibly containing contraband or as having been used in the commission of the crime) or there is reason to believe that a weapon may be discovered or access to means of escape thwarted.59

Under the Supreme Court version of Belton, a suspect who has been placed under arrest – and thus poses no physical threat to the officer – may still have their vehicle searched under the guise of preventing them from grabbing a weapon or trying to destroy evidence.60 By contrast, in the Court of Appeals version of Belton, Chief Judge Cooke recognized that possibility of a suspect posing a physical threat to a police officer is

57

Id.

58 Id. 59 Id. at

54. York v. Belton, 453 U.S. 454, 465, (1981) (“[I]t is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule.”). This is probably extremely unlikely that after a person is arrested and in handcuffs, that that arrestee will somehow jump back into the car, and grab a weapon to then harm the officer. It is more likely that once a suspect is in custody of the officer, the items in the vehicle pose no further threat. 60 New

9

greatly reduced once that suspect has been placed under arrest.61 The Court of Appeals, while altering the final outcome in the case, made a much more rational decision than that of the Supreme Court.

C. Due Process In Sharrock v. Dell Buick-Cadillac,62 the Court of Appeals considered whether the New York State Lien Law empowering garage operators to conduct an ex parte sale of a bailed vehicle violated the due process clause of the New York State Constitution.63 This case arose when the plaintiff’s husband took her 1970 Cadillac to Dell BuickCadillac (“Dell”) to have a new engine (that he had purchased elsewhere) installed. 64 The negotiated fee for the work to be performed by Dell was $225.65 The plaintiff’s husband was advised by Dell’s manager to withhold payment until after the installation was completed.66 This engine was defective, and the plaintiff’s husband agreed to buy a new engine instead.67 Once the new engine was delivered to Dell, Dell told the plaintiff that the engine would not be installed until he paid the $225 owed from the original transaction. 68 The plaintiff’s husband could not pay at that time.69 Shortly thereafter, he ended up in the hospital preventing him from further dealings with Dell. 70

61 See, People v. Belton, 55 N.Y.2d

49 at 55 (1982). v. Dell Buick-Cadillac, Inc., 45 N.Y.2d 152 (1978). 63 Id. at 156. 64 Id. 65 Id. 66 Id. 67 Id. 68 Id. 62 Sharrock

10

The plaintiff later received a “Notice of Lien and Sale” stating that Dell had a possessory interest in the car and that if she did not pay the $225, the car would be auctioned. 71 The plaintiff later discovered that $79.95 of the bill was for storage fees, which Dell refused to deduct from the bill. 72 The car was sold at auction to Dell for the sum of $502.73 The plaintiff then commenced suit claiming that the “sale provisions of the Lien Law [were] violative of her due process rights as they authorize public sale of her automobile without affording the opportunity for a hearing.”74 The due process clause of the New York State Constitution expressly states that the State may not “deprive any person of life, liberty or property without due process of law.”75 In his opinion, Chief Judge Cooke examined whether or not the deprivation at hand was the result of State action, or if the sale of the car was the result of purely private conduct not protected by the due process clause.76 Chief Judge Cooke explained that “[f]or State action purposes, there is a fundamental distinction between a statute which, in regulating previously lawful conduct, does nothing more than merely acknowledge its lawfulness and one which authorizes otherwise impermissible or unconstitutional

69

Id.

70 Id. 71 Id. at 72

156-157.

Id. at 157

73 Id. 74 Id. 75 Id. at 76 Id. at

160. 160-163

11

conduct.”77 Here, the statute is what enabled the ex parte sale of the vehicle without affording the owner the opportunity to be heard.78 Thus, New York has done more than simply furnish its statutory imprimatur to purely private action. Rather, it has entwined itself into the debtor-creditor relationship arising out of otherwise regular consumer transactions. The enactment of substantive provisions of law which authorize the creditor to bypass the courts to carry out the foreclosure sale encourages him to adopt this procedure rather than to rely on more cumbersome methods which might comport with constitutional due process guarantees. Indeed, not only does the State encourage adoption of this patently unfair procedure, it insulates the garageman from civil or criminal liability arising out of the sale and requires one of its agencies, the Department of Motor Vehicles, to recognize and record the transfer of title thus enabling the garageman to transfer title to a vehicle he would not otherwise be deemed to own.79 Chief Judge Cooke held this to be a violation of a person’s due process rights under the New York State Constitution.80 The statute allowed the private sale of vehicles by garage owners and thus, by operation of law, deprived vehicle owners of their property without a hearing. This private action, permitted under the law, overlapped with state conduct once state agencies, such as the Department of Motor Vehicles, aided in the depravation of the property by transferring title.81 This was enough to satisfy State action doctrine under the State Constitution.82 Here, Chief Judge Cooke interpreted the statute in a way that ensured that the rights of individuals were protected to the greatest possible extent. VI. Conclusion

77 Id. at

161 was the State which authorized enforcement of the lien by means of ex parte sale of the vehicle without first affording its owner an opportunity to be heard”). 79 Id. at 161-62. 80 Id. at 166. 81 Id. at 161-162 (discussing the involvement of the Department of Motor Vehicles in this statute.). 82 Id. (discussing the involvement of the Department of Motor Vehicles in this statute.). 78 Id. (“[I]t

12

Chief Judge Lawrence Cooke refused to let the United States Supreme Court dictate the decisions of the New York State Court of Appeals. On many occasions, the Cooke Court decided cases on state constitutional grounds, as opposed to simply applying the Supreme Court’s interpretation of the federal Constitution. To that end, the Court of Appeals was able to make decisions that afforded broader safeguards than those available under the United States Constitution. He was not afraid to say that the United States Supreme Court got it wrong and then decide the case on State Constitutional grounds to reach the “correct” conclusion. As a result of Chief Judge Cooke writing decisions that veered left of center, New York’s citizens have been afforded some of the most progressive protections available under state law in the United States.

13