Criminal Law - Right to Counsel - Custodial Criminal Defendant May Not Waive Right to Counsel in the Absence of His Court-Appointed Attorney

This case note examines the New York Court of Appeals' decision in People v. Hobson, 39 N.Y.2d 479, 348 N.E.2d 894, 384 N.Y.S.2d 419 (1976), which held that once a counsel has been engaged in a criminal proceeding a defendant may not waive his right to counsel when his lawyer is not present. The case note discusses the evolution in protection levels afforded defendants in New York as well as in decisions by the United States Supreme Court and suggests that the Hobson decision's impact is enormous as it resurrects two important pro-defendant rules that were previously overruled. The Hobson court revived the rule that excluded post-indictment or post-arraignment incriminating statements made in the absence of counsel and the rule that forbade the waiving of the right to counsel, except in counsel's presence, after counsel has been retained. The case note concludes that New York's trend towards buttressing the criminal defendant's protections is especially noteworthy when viewed against the Supreme Court's decisions placing limitations on defendant's rights.