In People v Lopez (_NY3d_, 2011 NY Slip Op 01316 [2/22/11]) the Court of Appeal, considerered whether the right to counsel, as set forth in People v Rogers (48 NY2d 167 [1979]), was violated by police interrogation of a defendant in custody in Pennsylvania pending prosecution on Pennsylvania charges, who wasrepresented by a Pennsylvania attorney who had entered that case was lawful where the police, where the police, having never asked, did not knwo that the defendant had counsel By a 4-3 vote the Court held the officer should have been deemed chargeable with knowledge of that representation and entry.
The majority explained that
Permitting a police officer to remain deliberately indifferent — avoiding any inquiry on the subject notwithstanding the nature of the custodial charges and the likelihood that a lawyer has entered the matter — in order to circumvent the protection afforded by Rogers is not only fundamentally unfair to the rights of the accused, it further undermines the preexisting attorney-client relationship that serves as the foundation of the Rogers rule. A contrary holding would allow a police officer who is fairly certain that an attorney is involved in the custodial matter to flout Rogers by claiming that he was not fully confident about a lawyer’s involvement. For these reasons, we hold that an officer who wishes to question a person in police custody about an unrelated matter must make a reasonable inquiry concerning the defendant’s representational status when the circumstances indicate that there is a probable likelihood that an attorney has entered the custodial matter, and the accused is actually represented on the custodial charge.
