1.16 - 2. Rogers Is Inapplicable To Noncustodial Questioning

JurisdictionNew York

2. Rogers Is Inapplicable to Noncustodial Questioning

Rogers applies only to custodial interrogation.46 A defendant is not denied his right to counsel when, represented on an unrelated, pending criminal case, he makes admissions regarding his commission of a burglary to an accomplice in a telephone conversation that is tape-recorded by police with the accomplice’s consent.47 Since he was not in custody, “defendant’s right to counsel had not attached under the New York State Constitution at the time of the telephone conversation.”48 The Court approvingly cited reasoning, which found:49

There is no sound basis for extending the Rogers rule to preclude noncustodial questioning about unrelated matters. Where the questioning is in a noncustodial setting, the State exerts no “overwhelming” “coercive influence.” . . . And where the questioning concerns matters unrelated to those on which he is represented by counsel, the State does not interfere with the defendant’s representation, nor does it breach the ethical rule proscribing direct communication, on the subject of the representation, with persons represented by counsel. 50


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