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State of New York

Court of Appeals

MEMORANDUM

This memorandum is uncorrected and subject to 

revision before publication in the New York Reports.

No. 59 SSM 5

The People &c.,

 Respondent,

 v.

Malik Dawson, 

 Appellant.

Submitted by James A. Bartosik, Jr., for appellant.

Submitted by Emily Schultz, for respondent

MEMORANDUM:

The order of the Appellate Division should be affirmed. 

Once a defendant in custody unequivocally requests the assistance of counsel, the 

right to counsel may not be waived outside the presence of counsel (see People v Glover, 
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87 NY2d 838, 839 [1995]). But “[a] suggestion that counsel might be desired; a 

notification that counsel exists; or a query as to whether counsel ought to be obtained will 

not suffice” to unequivocally invoke the indelible right to counsel (see People v Mitchell, 

2 NY3d 272, 276 [2004], citing People v Roe, 73 NY2d 1004 [1989]; People v Fridman,

71 NY2d 845 [1988]; People v Hicks, 69 NY2d 969 [1987]). Furthermore, “[w]hether a 

particular request is or is not unequivocal is a mixed question of law and fact that must be 

determined with reference to the circumstances surrounding the request including the 

defendant’s demeanor, manner of expression and the particular words found to have been 

used by the defendant” (Glover, 87 NY2d at 839). 

Here, there is support in the record1for the lower courts’ determination that 

defendant—whose inquiries and demeanor suggested a conditional interest in speaking 

with an attorney only if it would not otherwise delay his clearly-expressed wish to speak 

to the police—did not unequivocally invoke his right to counsel while in custody. That 

mixed question of law and fact is therefore beyond further review by this Court (id.; see 

Mitchell, 2 NY3d at 276). Defendant’s remaining contentions are without merit.

1 As the dissent recognizes, there is no official transcript of the videotaped conversation 

between the police and defendant, but even the dissent’s self-transcribed account reflects 

record support for the lower courts’ findings.
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WILSON, J. (dissenting):

A week after an alleged sexual offense occurred, the police arrested 19-year-old 

Malik Dawson. It is clear from videotaped record of the interrogation that Mr. Dawson 

unequivocally and repeatedly asked to contact his lawyer. Instead, he was never given the
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chance to do so, and eventually consented to waive his Miranda rights. If the video were 

not part of a sealed record, you could see this for yourself. Instead, you will have to bear 

through what my transcription of the video shows. Because Mr. Dawson clearly requested 

counsel, any subsequent waiver of his Miranda rights, without counsel present, was invalid 

(see People v Cunningham, 49 NY2d 203, 207 [1980]). The majority’s holding vitiates the 

privilege against self-incrimination, right to counsel and due process that our Court has 

scrupulously guarded through protections deliberately greater than those afforded under 

the federal Constitution. Regrettably, today’s decision is merely the latest in a string in 

which we disregard the clear meaning of a defendant’s words by applying a standard of 

verbal precision even jurists find hard to meet. 

I.

About a week after an alleged sexual assault occurred, the police arrested Malik 

Dawson. He was brought to the police station in handcuffs where police took his phone, 

shackled his leg to a chair, and instructed him to sit and wait in a small room. He was not 

informed of why he had been brought to the police station or what the police wanted to talk 

about. After waiting alone for close to two hours, a detective entered the room. Mr. Dawson 

asked, “What’s going on?” The detective responded, “I know you want to figure this out 

and why you’re down here and I want to explain it to you, but before I could do that, you’re 

in a police station, OK.” The detective asked, “Have you ever heard of Miranda rights?” 

Mr. Dawson answered, “No.” The detective then asked, “So you ever watch Cops, Law 

and Order, anything like that?” Mr. Dawson responded, “Yeah, I’ve seen a couple of them.” 

The detective then said, “You know, when they interview people they have to inform them 
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of their rights. These are your Miranda rights.” Mr. Dawson said, “Oh, the right to remain 

silent?”

The Detective then read a set of standard Miranda rights to Mr. Dawson, including 

the right to counsel. After that, the questioning proceeded as follows:

Detective: “Do you understand each of your rights?”

Dawson: “Yeah, definitely. I just wish that I’d memorized my lawyer’s number. 

He’s in my phone. Is it possible for me to like call him or something?” 

Detective: “Do you want your lawyer here?” 

Dawson: “Right now?”

Detective: “Yeah.”

Dawson: “If I could get a hold of him ‘cause I don’t know his number; it’s in 

my phone.” 

Detective: “OK.”

Dawson: “But you could still tell me what’s going on though, right?.”

Detective: “No, I can’t talk to you if you if you want your lawyer here and you 

already said you did, so let’s, you know what, let’s give him a call.”

Dawson: “And if he don’t answer then can you come talk to me?” 

Detective: “No.”

 

Dawson: “So what happens if he don’t answer?” 

Detective: “Ah, I mean, we’ll, we’ll deal with that if it happens. Let’s hope he 

answers. I mean, from the sound of it, it sounds like you understand your 

Miranda rights and you want your attorney.”

Dawson: [Inaudible]

Detective: Is that, am I understanding that correctly?”
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Dawson: “Well, yeah, I just, to be honest I just really want to know what’s going 

on, you said something about [not discernable], you know, I don’t know what the 

hell happened, what incident happened. I just really want to know what’s going on. 

That’s pretty much it.” 

Detective: “OK.”

Dawson: “That’s all.”

Detective: “OK. So just hang, hang tight for a minute, OK? We’ll get your phone, 

we’ll go from there.”

At that point, the detective left the interrogation room, purportedly to get Mr. 

Dawson’s phone so he could call his lawyer. I have highlighted portions of the questioning 

to show not only that Mr. Dawson clearly asked to contact his lawyer, but also that the 

detective plainly expressed his understanding that Mr. Dawson had asked for counsel to be 

present “right now.” As I explain below, once Mr. Dawson invoked his right to counsel, it 

is legally impossible for him to change his mind unless is lawyer is present when he does 

so. 

What happened next, though, is that Mr. Dawson was not given his phone, was not 

given any means to contact counsel, and no one attempted to contact his counsel on his 

behalf. Instead, less than two minutes later, when the detective next entered, he sat down 

and said, “Here’s the deal, I’m just going to ask you flat out, because we’re in the middle 

of this and this is something we could potentially resolve – do you want your lawyer here 

or do you want to just figure this out?” Mr. Dawson replied, “I really just want to figure 

this out.” The detective administered Miranda warnings again and Mr. Dawson agreed to 

speak to police. The detective then began to question Mr. Dawson about the interaction he 
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had with the victim, which Mr. Dawson initially adamantly maintained was consensual. 

Eventually, after the detective repeatedly urged Mr. Dawson to tell the truth and suggested 

that if Mr. Dawson were to appear contrite, it may help his case, Mr. Dawson penned an 

apology letter to the victim.

Before trial, Mr. Dawson moved to suppress the letter and the statements he made 

at the police station. The suppression court denied the motion, holding that Mr. Dawson’s 

request for counsel was equivocal and that he voluntarily and knowingly waived his 

rights. A jury found Mr. Dawson guilty of sexual abuse in the first degree and he was 

sentenced to 7 years’ incarceration and 10 years’ post-release supervision. The Appellate 

Division affirmed the conviction on the ground that “when the detective asked defendant 

if he wanted his attorney present, defendant was vague, never respond[ing] affirmatively 

or negatively” (195 AD3d 1157, 1158-1159 [3d Dept 2021]). The court explained that 

“[a]t no time did the defendant request his counsel to be present and he acted in a manner 

consistent with a desire to fully and frankly cooperate in providing information to the 

detective” (id. at 1159). Mr. Dawson appeals. 

II.

The right to counsel in New York is robust and one our court has vigilantly guarded 

(see Cunningham, 49 NY2d at 207). Indeed, although “[t]he Right to Counsel Clause in 

the State Constitution is more restrictive than that guaranteed by the Sixth Amendment to 

the United States Constitution (compare, NY Const, art I, § 6, with US Const 6th, 14th 

Amends)...by resting the right upon this State’s constitutional provisions guaranteeing the 

privilege against self-incrimination, the right to assistance of counsel and due process of 
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law we have provided protection to accuseds far more expansive than the Federal 

counterpart” (People v Bing, 76 NY2d 331, 338 [1990]; see also People v Settles, 46 NY2d 

154 [1978]). A key example is our requirement that a suspect in a criminal matter, even 

one not yet charged or arraigned, who requests representation may not be questioned 

further in the absence of an attorney (Cunningham, 49 NY2d at 205, 207). By extension, a 

suspect who has invoked the right cannot voluntarily waive the right to counsel without an 

attorney present (id. at 205). That rule, among other strictures of this State’s right to 

counsel, “breathe[] life into the requirement that a waiver of a constitutional right must be 

competent, intelligent and voluntary” (People v Hobson, 39 NY2d 479, 484 [1976]). 

For New York’s “indelible” right to counsel to attach, “the invocation of counsel by 

an uncharged defendant...must be unequivocal” (People v Mitchell, 2 NY3d 272, 276 

[2004]). Whether a request “is or is not equivocal” is a mixed question of law and fact “that 

must be determined with reference to the circumstances surrounding the request including 

the defendant’s demeanor, manner of expression and the particular words found to have 

been used by the defendant” (People v Glover, 87 NY2d 838, 839 [1995]). Reviewing an 

Appellate Division determination of a mixed question of law and fact, we look only for 

support in the record; “[w]hen there is support in the record...the issue is beyond further 

review by this Court” (People v Porter, 9 NY3d 966, 967 [2007]). 

A request for counsel is equivocal when it is “unambiguously negated” at the same 

time that it is asked (People v Glover, 87 NY2d 838, 839 [1995]), or when the request is 

posed as a question such as “[s]hould I speak to a lawyer” (People v Hicks, 62 NY2d 969, 

970 [1987]). Similarly, a suspect’s mention of lawyer or “suggest[ion] to the police that 
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[the person] might consult a lawyer” is equivocal (People v Rowell, 59 NY2d 727, 730 

[1983]). Nor, finally, is a mere suggestion “that counsel might be desired” sufficient to 

unequivocally invoke the indelible right to counsel (Mitchell, 2 NY3d at 276) [holding a 

mother’s mention of her son – the suspect’s – lawyer did not unequivocally inform the 

police of his request for counsel]). 

However, an unequivocal request does not require “magic words” (Mitchell, 2 

NY3d at 276). We have found statements to police to be unequivocal even when suspects 

have used conditional language or spoken without absolute confidence about their desire 

for representation. In People v Harris, we upheld the Appellate Division’s determination 

that the defendant’s statement “I think I want to talk to a lawyer” was unequivocal (93 

AD3d 58, 60 [2d Dept 2012] [emphasis added], affd 20 NY3d 912 [2012]). In People v 

Esposito, the defendant told police, “I might need a lawyer” (68 NY2d 961, 962 [1986] 

[emphasis added]). We held the statement “constituted a request for counsel” (id.). Finally, 

in People v Porter, we reversed the Appellate Division’s determination that the defendant’s 

statement to police “I think I need an attorney” was insufficient to unequivocally inform 

the police of his desire for counsel, determining the record could support no other 

reasonable interpretation of the request (People v Porter, 9 NY3d 966, 967 [2007] 

[emphasis added]). 

The Appellate Division has distilled this inquiry to a determination of whether a 

reasonable police officer in the circumstances would understand the statement to be a 

request for an attorney, which we have approved (see e.g. Harris, 93 AD3d at 62, affd 20 

NY3d 912 [2012]). Although this is an “objective” test, we have considered the reaction of 
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law enforcement to a defendant’s statement or to similar language as strong record 

evidence a request was or was not unequivocal (see e.g., Porter, 9 NY3d at 967 [weighing 

that the interrogating officer had made a note that the defendant was requesting an 

attorney]). Indeed, in Harris, we upheld the Appellate Division’s finding that the 

defendant’s request was unequivocal, in which the court noted “crucially, [the investigating 

officer] clearly understood what the defendant was requesting, as evidenced by the fact that 

he terminated the interview” (Harris, 93 AD3d at 69 [emphasis added]). 

Here, Mr. Dawson unequivocally invoked his right to counsel – the record supports 

no other conclusion. As is clear from the quoted portion of the colloquy with the detective, 

he twice said he wanted to call his lawyer, and the detective twice expressly stated that he 

understood Mr. Dawson had asked to call counsel and therefore the detective could no 

longer speak to Mr. Dawson. Additionally, the detective then told Mr. Dawson to wait 

while the detective retrieved Mr. Dawson’s phone so he could call counsel.

Mr. Dawson’s statements do not inquire if having a lawyer would be a good idea, 

nor do they merely inform the police that Mr. Dawson may consult a lawyer or that he has 

a lawyer retained for a different matter (cf. Rowell, 59 NY2d at 730; Hicks, 62 NY2d at 

970; Mitchell, 2 NY3d at 276). Rather, in response to being read his Miranda rights, and 

asked if he understood those rights, Mr. Dawson said that he had a lawyer and asked if it 

would be possible to call that person, whose number was located in his (confiscated) 

personal phone. Moreover, as in Porter and Harris, in which the interviewing police 

officers documented their understanding that the defendants had unequivocally requested 

counsel, here the interrogating detective twice stated that he understood Mr. Dawson to be 
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invoking his right to counsel and told Mr. Dawson he was suspending the interrogation to 

retrieve Mr. Dawson’s phone to enable a call to counsel. Finally, Mr. Dawson’s interest in 

knowing what was going on, particularly why he had been detained, and for how long he 

would be kept at the police station just hours before he was expected at work, does not in 

any way diminish the clarity of his request for counsel: a defendant can simultaneously 

want to know the charge against him and to be represented by counsel. 

Nor does Mr. Dawson’s phrasing render his request for counsel equivocal. In the 

days before cellular phones, if Mr. Dawson had said, “If I could get a hold of him by using 

one of your phones,” or “if you would allow me to call him,” we could hardly conclude 

that Mr. Dawson was suggesting that he did not really want to contact his lawyer – just that 

he was unsure if he would be allowed to. Likewise, Mr. Dawson’s phrasing of his reiterated 

request as “is it possible for you to like call him or something” does not indicate any lack 

of desire to call his lawyer, but rather a lack of certainty about whether he could contact 

the lawyer directly or perhaps the police would have to make the initial contact for him. 

His phrasing is less equivocal than the phrasing we have previously held unequivocal in 

Harris, where the defendant said “I think I want a lawyer” – which suggests some 

uncertainty about the desire to contact a lawyer, not the practical ability to do so (93 AD3d 

at 60). Similarly, we held the request in Esposito unequivocal even though the defendant 

said “I might need a lawyer” (68 NY2d at 962), which again expresses some uncertainty 

about the defendant’s desire for representation – not his concern that he might not be 

allowed or able to contact the lawyer. If the conditional language in those cases was 
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insufficient to render the request equivocal, a fortiori Mr. Dawson’s statements here are 

unequivocal.

The context of Mr. Dawson’s statement is also germane to determining its clarity. 

Mr. Dawson phrased his first request in response to the detective’s reading of Miranda

warnings that expressly identified Mr. Dawson’s right to counsel, followed by the 

detective’s query as to whether Mr. Dawson understood each of those rights. Mr. Dawson’s 

first response is wholly unambiguous in context. The Miranda warnings did not address 

the situation in which he found himself: he had a lawyer, wanted to contact the lawyer, but 

had not memorized his lawyer’s phone number and the only means he had of accessing it 

was in his personal phone, which the police had confiscated. How else could he inquire as 

to the possibility of exercising his right other than to first ask if he could call his lawyer 

and then, having not received a direct response to that question, ask if the police could call 

for him, using the number found in his personal phone? Under our settled caselaw and any 

colorable view of the interrogation video, Mr. Dawson’s request for counsel was clear, and 

no waiver outside of counsel’s presence could occur.

III.

There is a further reason why the evidence obtained through interrogation of Mr. 

Dawson should be suppressed. The interrogation here “vitiated or at least neutralized the 

effect” of the Miranda warnings issued to Mr. Dawson (People v Dunbar, 24 NY3d 304, 

316 [2014]). In Dunbar, we held invalid a practice in in which police would, in prearraignment interviews, in addition to the administration of normal Miranda warnings, 

provide a preamble (24 NY3d 304, 308 [2015]). The preamble informed individuals this 
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was their “opportunity to tell [their] story” and the only chance to do so before going before 

a judge (id. at 308). We held such a preamble “undermined the subsequentlycommunicated Miranda warnings to the extent that [defendants] were not adequately and 

effectively advised of the choice the Fifth Amendment guarantees against selfincrimination . . . before they agreed to speak with law enforcement authorities (id. at 308, 

citing Missouri v Seibert, 542 US 600, 611 [2004], quoting Miranda, 384 US at 467 

[internal quotation marks omitted]). 

The interrogation here offends Dunbar’s rule; indeed, the practice here is worse than 

the one we disapproved there. In Dunbar, the hortatory preamble was given before the

Miranda warnings, thus raising the possibility that the warnings had been diluted. In such 

a circumstance, it would be impossible to know whether, had the warnings been given 

correctly, what the defendant would have chosen to do. Here, in contrast, the warnings 

were given correctly without preamble – and we know that Mr. Dawson chose to invoke 

his right to counsel. Only after he had done so twice, and only after the detective had twice 

expressly acknowledged that Mr. Dawson had done so, and then told Mr. Dawson that he 

would be allowed to call counsel, did the detective then launch into the exhortation we 

found unconstitutional in Dunbar. That is, where the improper exhortation in Dunbar

might have polluted the Miranda warnings, here, it decidedly did. 

Mr. Dawson’s interrogation bears several hallmarks of police practices meant to 

induce the interrogee into making incriminating statements in derogation of the Fifth 

Amendment and New York Constitution’s right to counsel, self-incrimination and due 

process guarantees. First, Mr. Dawson was left isolated in a small room, one leg shackled 
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to a chair, with no information. As the U.S. Supreme Court noted in Miranda, reviewing a 

police instruction manual at the time, a major goal of police interrogation is to 

psychologically manipulate the suspect, largely by isolating the person from friends and 

family and familiar settings and speaking to them alone (Miranda v Arizona, 384 US 436, 

449 [1966]). Although not illegal, the detention set the scene for the proceeding conduct 

and increased its impact. 

Second, the detective, rather than scrupulously adhering to what he clearly 

perceived to be a request for counsel by ceasing all questioning, continued to ask Mr. 

Dawson if he wanted a lawyer. When Mr. Dawson first asked if the police could call his 

lawyer, rather than answering the question, the detective responded by asking again: “Do 

you want your lawyer right now?” After telling Mr. Dawson that he would retrieve his 

phone so that Mr. Dawson could speak to his lawyer, the detective returned less than two 

minutes later, saying: “Here’s the deal, I’m just going to ask you flat out, because we’re in 

the middle of this and this is something we could potentially resolve – do you want your 

lawyer here or do you want to just figure this out?” The effect of the repeated questioning 

about Mr. Dawson’s desire for counsel, even though the officer separately and repeatedly 

affirmed that he understood Mr. Dawson to want his attorney, clearly communicated to Mr. 

Dawson that he would be better off were he to go forward without his attorney. The 

detective’s statement that “this is something we could potentially resolve” – after having 

confirmed Mr. Dawson’s request to contact his counsel – is particularly concerning. The 

statement implied that Mr. Dawson, if he were to abandon his right to counsel, might be 

able to very quickly settle the matter without issue. Of course, nothing could be farther 
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from the reality of police interrogation in general2 or this interrogation in particular – after 

Mr. Dawson agreed to answer questions in order to “know what’s going on” the detective 

proceeded to interrogate him for a length of time before communicating the reason for his 

arrest.3 The detective’s general willingness to communicate to Mr. Dawson what might 

best help his case is fully evident from the entirety of the interview, but particularly when 

the detective suggested to Mr. Dawson that writing an apology letter to the victim would 

be in his best interest. As the detective explained at the suppression hearing, he did not 

require Mr. Dawson to write the letter, but “I told him that it is all in how you handle what 

happens, and that if he is sincere that could potentially benefit him.” Particular in a case 

such as this, where the sole issue was whether the sexual act was consensual, this is exactly 

the type of false legal advice the Miranda court sought to curb and that any lawyer would 

have advised immediately against (Miranda, 384 US at 455 [“When normal procedures 

fail to produce the needed result, the police may resort to deceptive stratagems such as 

giving false legal advice”]). This type of practice is a reason Miranda warnings and the 

exclusionary rule exist. 

IV.

2 See generally James Duane, You Have the Right to Remain Innocent: What Police 

Officers Tell Their Children About the Fifth Amendment (Little A, New York, 2016).

3 The detective’s subsequent imploring of Mr. Dawson to just tell the truth and work with 

him bears striking similarity to other police strategies described in Miranda, quoting the 

police manual: “The interrogator should respond by suggesting that the subject first tell 

the truth to the interrogator himself rather than get anyone else involved in the 

matter....The interrogator may also add, ‘Joe, I’m only looking for the truth, and if you’re 

telling the truth, that’s it. You can handle this by yourself’” (Miranda, 384 US at 454).
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Mr. Dawson unequivocally requested counsel. The detective repeatedly stated that 

he understood Mr. Dawson to have requested counsel. Why doesn’t the majority? I have 

no good answer, only an observation. Today’s holding is like several others in which our 

Court has imposed a high and unrealistic linguistic burden on criminal defendants – where 

the intent is clear, but some better choice of words can be imagined, often finding 

ambiguity in deferential language. For example, in People v Silburn, the Court upheld the 

Appellate Division’s finding that a defendant’s statement to the trial court “I would like to 

know if I could proceed as pro se” as equivocal because the defendant also requested a 

lawyer be available as an aide (31 NY3d 144, 162 [2018, Wilson, J, dissenting]). In People 

v Duarte, the Court again interpreted the defendant’s statement “I would love to go pro 

se,” despite abundant clarity, as insufficiently clear and unequivocal (37 NY3d 1218 

[2022]. In People v Brown, the Court held the defendant’s agreement to waive his right to 

appeal waived his right to speak at sentencing, despite his clear requests to do so – “Am I 

going to get a chance to talk?” (37 NY3d 940, 941, 943 [2021, Wilson, J., dissenting]). 

Despite our eschewing the need for “magic words” in theory, we seem to require them in 

practice.

The Court’s failure construe defendants’ speech in a commonplace, contextualized, 

or even reasonable manner misapprehends the animating concerns behind our state’s 

expansive guarantees of the privilege against self-incrimination, right to counsel and due 

process. Our hallmark right to counsel cases show deep recognition of the fear and 

intimidation inherent in police interrogation and investigation. We have noted that the 

rights we have recognized in this state not only “preserve the civilized decencies, 
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but...protect the individual, often ignorant and uneducated, and always in fear, when faced 

with the coercive police power of the State” (Hobson, 39 NY2d at 485 [emphasis added]). 

When we announced the rule that an uncharged suspect could invoke the indelible right to 

counsel, we explained the right was grounded in our desire to guard against waiver of 

important constitutional rights “out of ignorance, confusion or fear” (Cunningham, 49 

NY2d at 207 [emphasis added]). It is tragic to develop such a beautifully justified 

constellation of rights – one meant to offset the fear an individual subject to the coercive 

power of the state must inevitably feel – only to dim them because fear affected a person’s 

speech. And when it is not fear that shapes a defendant’s word choice, it is often the custom 

of using the conditional tense when speaking to those in power: adopting a more deferential 

tone with a trial court or the police officers in whose control a defendant’s liberty and 

immediate safety rests may be advantageous.

Penalizing criminal defendants for fearful or deferential speech that otherwise 

clearly articulates their desires is detrimental for those individuals, but also damages the 

integrity of the justice system as a whole. We have recognized:

“the assistance of counsel is essential not only to insure the 

rights of the individual defendant but for the protection and 

well-being of society as well. The right of any defendant, 

however serious or trivial his crime, to stand before a court 

with counsel at his side to safeguard both his substantive and 

procedural rights is inviolable and fundamental to our form of 

justice” (Settles, 46 NY2d at 161).

Indeed, “[t]he danger is not only the risk of unwise waivers of the privilege against 

self incrimination and of the right to counsel, but the more significant risk of inaccurate, 

sometimes false, and inevitably incomplete descriptions of the events described” (Hobson, 
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39 NY2d at 485). Those very concerns led to the initial adoption of Miranda warnings at 

the Federal level (see Miranda, 384 US at 455 n 24 [noting the link between police 

interrogations and false confessions]). 

The People argue that if our Court were to recognize Mr. Dawson’s request that 

police call his lawyer as what it was – a request for his lawyer – the rule would mark the 

end of police interrogation. If so, that would transpire only because any competent lawyer 

would have told Mr. Dawson to remain silent, as is his constitutional right. This Court has 

the power to advance police interrogation by eroding, and eventually wiping away, the 

right to counsel, but should we?

On review of submissions pursuant to section 500.11 of the Rules, order affirmed.

Chief Judge DiFiore and Judges Garcia, Singas, Cannataro and Troutman concur.

Judge Wilson dissents in an opinion, in which Judge Rivera concurs.

Decided April 26, 2022