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When Does The Right To Counsel Attach:

A person’s right to counsel indelibly attached to a matter upon any one of three triggering events (1) entry or retaining of counsel on the matter; (2) commencement of a criminal prosecution of the matter; (3) request for counsel or invocation of the right to counsel concerning the matter while held in custody.

When the right to counsel indelibly attaches based on one of the three rules listed above, any statement deliberately elicited from that person by the police without counsel present is subject to suppression and any consent to search obtained without counsel present is invalid.  In New York the right to counsel indelibly attaches to a matter on any one of the three triggering events: (1) Request for counsel while in custody; (2) Commencement of criminal prosecution on the matter (usually commences by filing of accusatory instrument); (3) Entry or retaining of counsel on the matter.

The New York Court of Appeals has recognized that the New York right to counsel rule under the New York State Constitution Article 1 Section 6 is much broader than the federal right to counsel rule under the U.S. Constitution’s Sixth Amendment.  In New York, the right to counsel is grounded on this State’s constitutional and statutory guarantees of the privilege against self-incrimination, the right to the assistance of counsel,and due process of law.  It extends well beyond the right to counsel afforded by the Sixth Amendment of the United States Constitution and other State Constitutions. The right to counsel is so revered in New York that it may be raised for the first time on appeal.   People v. Davis, 75 N.Y.2d 517.

The Difference Between The Federal Right To Counsel Rule And The New York Right To Counsel Rule

There are several fundamental differences between the right to counsel rules under New York State law and federal law.

A key difference between the right to counsel under the New York rule and the federal rule is that under the federal rule, a defendant retains the power to waive the right to counsel without first conferring with his attorney if the defendant has any discussions with the police and if the defendant committed a voluntary and knowing waiver of his right to counsel; in New York one may not waive the right to counsel without first conferring with an attorney even if voluntary and even if the defendant initiates the discussion.

Additionally, in New York, a defendant for whom counsel has interceded may not waive counsel without counsel being present, even if the suspect has no idea that a lawyer has been procured for him, as long as the police do.  However, under the federal rule if the defendant does not know about counsel’s intervention he may waive the right to counsel without counsel being present or having conferred with counsel.

Related and Unrelated Matters And The Right To Counsel: General Rules

The general rule in New York is that someone that is held in custody on a criminal matter where an attorney has entered that matter, then the indelible right to counsel has attached and the person being held may not waive the right to counsel with regard to that matter unless he has conferred with an attorney.

Additionally, A person held in custody on a criminal matter, where counsel has entered, he may not validly waive the right to counsel on any other matter, even if it is unrelated to the matter upon which counsel has entered.  When a defendant is represented on a charge for which he is being held in custody, he may not be interrogated in the absence of counsel on any matter, whether related or unrelated to the subject of the representation.  People v. Rogers 48 N.Y.2d 167.  

Recently, the Court of Appeals has found that even if it is reasonable for an interrogator to suspect that an attorney may have entered the custodial matter, there must be an inquiry regarding the defendant’s representational status and the interrogator will be charged with the knowledge that such an inquiry likely would have revealed. People v. Lopez 16 N.Y.3d 375.  

Representation In Civil Matters And The Right To Counsel In Criminal Matters.  

Notably, the Court of Appeals has also held recently that where a criminal defendant is being held and is represented by counsel in an earlier Family Court matter that the indelible right to counsel does not attach by virtue of an attorney-client relationship in a Family Court or other Civil proceeding. People v. Lewie 2011 NY Slip Op 04766.  In Lewie the Court of Appeals cited People v. Bing stating that while 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 civl matter is not entitled to the same deference.