A person's right to counsel indelibly attaches to a matter upon any one of three triggering occasions (1) entry or maintaining of counsel on the matter; (2) beginning 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 connects based upon among the three rules listed above, any declaration intentionally elicited from that person by the police without counsel present undergoes suppression and any grant search obtained without counsel present is invalid. In New york city the right to counsel indelibly connects to a matter on any one of the three activating occasions: (1) Request for counsel while in custody; (2) Commencement of prosecution on the matter (normally begins by filing of accusatory instrument); (3) Entry or retaining of counsel on the matter.
The New York Court of Appeals has actually acknowledged that the New York right to counsel guideline under the New York State Constitution Short Article 1 Section 6 is much broader than the federal right to counsel guideline under the U.S. Constitution's Sixth Change. In New York, the right to counsel is grounded on this State's constitutional and statutory warranties of the opportunity against self-incrimination, the right to the help of counsel, and due process of law.
Differences in between the right to counsel rules under New York State law and federal law.
A crucial difference in between the right to counsel under the New york city rule and the federal guideline is that under the federal rule, a defendant keeps the power to waive the right to counsel without first consulting his attorney if the defendant has any conversations with the police and if the accused committed a voluntary and understanding waiver of his right to counsel; in New York one might not waive the right to counsel without first consulting a lawyer even if voluntary and even if the offender initiates the conversation.
Furthermore, in New York, an accused for whom counsel has interceded might not waive counsel without counsel existing, even if the suspect has no idea that an attorney has actually been obtained for him, as long as the police do. Nevertheless, under the federal rule if the offender does unknown about counsel's intervention he may waive the right to counsel without counsel existing or having consulted counsel.
The basic rule in New York is that somebody that is held in custody on a criminal matter where an attorney has actually entered that matter, then the Perth Psychological Services enduring right to counsel has connected and the individual being held may not waive the right to counsel with regard to that matter unless he has actually conferred with a lawyer.
Furthermore, an individual held in custody on a criminal matter, where counsel has gotten in, he may not validly waive the right to counsel on other matter, even if it is unrelated to the matter upon which counsel has actually entered. When an offender is represented on a charge for which he is being held in custody, he may not be questioned in the absence of counsel on any matter, whether associated or unrelated to the subject of the representation.
Just recently, the New York City Court of Appeals has discovered that even if it is reasonable for an interrogator to think that a lawyer may have gotten in the custodial matter, there must be a questions regarding the accused's representational status and the interrogator will be accuseded of the knowledge that such a questions likely would have revealed.
Especially, the Court of Appeals has also held just recently that where a criminal offender is being held and is represented by counsel in an earlier Family Court matter that the indelible right to counsel does not connect by virtue of an attorney-client relationship in a Family Court or other Civil proceeding. The Court of Appeals specified that while an attorney-client relationship formed in one criminal matter might in some cases disallow questioning in another matter in the absence of counsel, a relationship formed in a civl matter is not entitled to the exact same deference.
The New York Court of Appeals has actually recognized that the New York right to counsel guideline under the New York State Constitution Article 1 Section 6 is much more comprehensive 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 statutory and constitutional guarantees of the opportunity against self-incrimination, the right to the support of counsel, and due procedure of law. The right to counsel is so revered in New York that it may be raised for the very first time on appeal.