A person's right to counsel indelibly connects to a matter upon any among 3 triggering events (1) entry or keeping of counsel on the matter; (2) start of a 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 guidelines noted above, any declaration intentionally generated from that individual by the cops without counsel present is subject to suppression and any consent to search acquired without counsel present is invalid. In New York the right to counsel indelibly connects to a matter on any among the 3 activating occasions: (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 acknowledged that the New York right to counsel rule under the New York State Constitution Short Article 1 Area 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 constitutional and statutory guarantees of the privilege versus self-incrimination, the right to the assistance of counsel, and due procedure of law.
Distinctions between the right to counsel rules under New York State law and federal law.
A crucial distinction between the right to counsel under the New York guideline and the federal guideline is that under the federal rule, a defendant maintains the power to waive the right to counsel without very first conferring with his lawyer if the offender has any discussions with the police and if the defendant devoted a voluntary and understanding waiver of his right to counsel; in New York one might not waive the right to counsel without first conferring with a lawyer even if voluntary as well as if the defendant starts the discussion.
In addition, in New York City, a defendant for whom counsel has actually interceded might not waive counsel without counsel existing, even if the suspect has no concept that a lawyer has actually been obtained for him, as long as the authorities do. Under the federal guideline if the accused does not know about counsel's intervention he might waive the right to counsel without counsel being present or having provided with counsel.
The general rule in New York is that somebody that is held in custody on a criminal matter where a lawyer has gotten in that matter, then the indelible right to counsel has actually attached and the individual being held may not waive the right to counsel with regard to that matter unless he has actually conferred with an attorney.
In addition, a person held in custody on a criminal matter, where counsel has actually entered, he might not validly waive the right to counsel on any other matter, even if it is unassociated to the matter upon which counsel has gotten in. When an accused 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 unassociated or related to the topic of the representation.
Recently, the New York City Court of Appeals has discovered that even if it is reasonable for an interrogator to suspect that an attorney might have entered the custodial matter, there need to be a query regarding the accused's representational status and the interrogator will be charged with the understanding that such a questions likely would have revealed.
Especially, the Court of Appeals has also held just recently that where a criminal accused is being held and is represented by counsel in an earlier Family Court matter that the enduring right to counsel does not attach by virtue of an attorney-client relationship in a Family Court or other Civil proceeding. The Court of Appeals stated that while an attorney-client relationship formed in one criminal matter may often bar questioning in another matter in the lack of counsel, a relationship formed in a civl matter is not entitled to the exact same deference.
The New York Court of Appeals has acknowledged that the New York right to counsel guideline under the New Psychologist Perth York State Constitution Short Article 1 Area 6 is much broader than the federal right to counsel rule under the U.S. Constitution's Sixth Modification. In New York, the right to counsel is grounded on this State's statutory and constitutional warranties of the privilege against self-incrimination, the right to the support of counsel, and due process of law. The right to counsel is so revered in New York that it might be raised for the very first time on appeal.