SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

436 

KA 13-02247 

PRESENT: SCUDDER, P.J., PERADOTTO, VALENTINO, AND WHALEN, JJ.

 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

STACEY CASTOR, DEFENDANT-APPELLANT. 

 

J. SCOTT PORTER, SENECA FALLS, FOR DEFENDANT-APPELLANT. 

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL

OF COUNSEL), FOR RESPONDENT. 

 

Appeal, by permission of a Justice of the Appellate Division of

the Supreme Court in the Fourth Judicial Department, from an order of

the Onondaga County Court (Joseph E. Fahey, J.), dated December 5,

2013. The order denied the motion of defendant pursuant to CPL

440.10. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from an order denying her motion

pursuant to CPL 440.10 seeking to vacate the judgment convicting her

of, inter alia, murder in the second degree (Penal Law § 125.25 [1]),

in connection with the murder of her husband (decedent) by antifreeze

poisoning, and attempted murder in the second degree (§§ 110.00,

125.25 [1]), in connection with the attempted murder of her daughter

by poisoning by prescription medication and alcohol. Defendant moved

to vacate the judgment pursuant to CPL 440.10 (1) on the ground that

her indelible right to counsel attached when the attorney she hired to

probate decedent’s purported will communicated with police with

respect to the request that defendant and her daughters provide their

fingerprints as part of the investigation of decedent’s death, which

was believed to be a suicide. Defendant alleged that the attorney

therefore “entered” the investigation of decedent’s death and thus

that her indelible right to counsel attached (see People v Grice, 100

NY2d 318, 320-321). Defendant therefore alleged that a statement she

made to police two years later was taken in violation of her right to

counsel and should have been suppressed, and that the admission of the

statement at trial was not harmless error. 

On a prior appeal, we concluded that County Court erred in

summarily denying the motion, and we reversed the order and remitted

the matter for a hearing on the issue whether the attorney represented

defendant in connection with a criminal investigation, or solely with
-2- 436 

KA 13-02247 

respect to the civil matter regarding decedent’s estate (People v

Castor, 99 AD3d 1177, 1183, lv denied 20 NY3d 1010). We conclude that

the court properly determined, following the hearing on remittal, that

defendant failed to meet her burden of establishing that her indelible

right to counsel attached when counsel for decedent’s estate spoke to

the police (see generally People v Augustine, 89 AD3d 1238, 1239-1240,

affd 21 NY3d 949). 

The evidence established that defendant was the personal

representative of the estate (see Castor v Pulaski, 117 AD3d 1552,

1553-1554), and that the attorney’s representation of her was only

with respect to her role as personal representative of the estate. 

The attorney testified that at no time did he know that defendant was

a suspect in decedent’s death, which he believed to have been a

suicide; that he identified himself as the attorney for decedent’s

estate in his communications with the police; and that he would not

have given defendant advice related to a criminal investigation

because to do so would be a conflict of interest with his role as the

attorney for the estate. It is well established that, although “an

attorney-client relationship formed in one criminal matter may

sometimes bar questioning in another matter in the absence of counsel

. . . , a relationship formed in a civil matter is not entitled to the

same deference” (People v Lewie, 17 NY3d 348, 361; see People v

Foster, 72 AD3d 1652, 1653-1654, lv dismissed 15 NY3d 750). 

Entered: May 1, 2015 Frances E. Cafarell

Clerk of the Court