## Facts

- Christine A. Wilhelm, diagnosed with a psychotic disorder, believed her husband belonged to a cult and intended to harm their children; she intermittently stopped prescribed medication.
- Wilhelm attempted to drown her five-year-old son and later drowned her four-year-old son in a bathtub; she then called 911 and told responding police she had killed her child.
- Wilhelm received Miranda warnings, invoked her right to counsel, and was represented by an attorney in the pending criminal matter.
- After counsel had attached, two Child Protective Services (CPS) caseworkers—members of a multidisciplinary team organized to assist child-abuse/homicide investigations and prosecutions—interviewed Wilhelm at the jail about the incident.
- Wilhelm made inculpatory statements to the CPS workers that were later introduced at trial through their testimony.
- The prosecution did not serve statutory notice of its intent to use these statements under CPL 710.30.
- A jury convicted Wilhelm of second-degree murder and attempted second-degree murder; she appealed.

## Issues

1. Whether custodial statements elicited by CPS caseworkers after arraignment and invocation of counsel were obtained in violation of the defendant’s right to counsel because the caseworkers functioned as law-enforcement agents.
2. Whether the statements were independently inadmissible because the People failed to provide CPL 710.30 notice for statements made to law enforcement or persons acting under their direction or in cooperation with them.
3. Whether any error in admitting the CPS-elicited statements was harmless.

## Decision

- The Appellate Division reversed the judgment of conviction and remitted for a new trial.
- The court held that, on these facts, the CPS caseworkers acted as agents of law enforcement; questioning the represented defendant outside counsel’s presence violated the right to counsel, requiring suppression of the statements.
- The court also held that the statements were subject to CPL 710.30 notice and should have been precluded because the People failed to give timely notice.
- The court found the erroneous admission of the CPS-elicited statements was not harmless.

## Legal Principles

- Once a defendant’s right to counsel has attached and been invoked in a pending criminal matter, the defendant may not be questioned in counsel’s absence by police or by persons functioning as their agents.
- Government personnel not ordinarily viewed as law enforcement may be treated as law-enforcement agents when their questioning is tied to coordinated investigative/prosecutorial efforts with police and prosecutors.
- CPL 710.30 requires pretrial notice when the People intend to offer a defendant’s statement made to a public servant engaged in law-enforcement activity, or to a person acting under law-enforcement direction or in cooperation with law enforcement; failure to provide notice requires preclusion of the statement.
- Admission of statements bearing on the defendant’s mental state and intent may warrant reversal where the appellate court cannot conclude the error was harmless.

## Conclusion

The court ordered a new trial because CPS caseworkers, acting in cooperation with law enforcement, questioned a represented defendant in custody after counsel had attached, and the resulting admissions were admitted at trial without required CPL 710.30 notice; the combined constitutional and statutory errors were not harmless.


People v. Wilhelm, 34 A.D.3d 40, 822 N.Y.S.2d 786 (N.Y. App. Div. 3d Dep’t 2006)