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					T TH HE E C CR RI IMMI IN NA AL L L LA AWW N NE EWS S
                                           N E W S                                   Janet DiFiore, District Attorney, Westchester County
                                                                                     Janet DiFiore, District Attorney, Westchester County



                                                                                       I N TH S IIS S U
                                                                                              HIS SSUE
                                                                                            Abuse: Policing
                                                                                       I N TSIDS:IFirst Responders E
                                                                                                  Child Abuse: Investigations
                                                                                                  Mandated Reporting: Requirements
                                                                                                 May, ’S RIGHT TO COUNSEL
                                                                                       NEW YORK STATE2007
                                                                                                 Volume 1, Number 3
                                                                                       LINEUPS AND THE RIGHT TO COUNSEL                      Summer, 2009
                                                                                                                                        Volume 3, Number 1

                                                                                   From The District Attorney’s Desk
                                  L A W




                                                        A criminal defendant’s right to counsel is a cherished right in New York State. "In New York, the
                                                        right to counsel is grounded on this State's constitutional and statutory guarantees of the privi-
                                                        lege against self-incrimination, the right to the assistance of counsel and due process of law”
                                                        and “extends well beyond the right to counsel afforded by the Sixth Amendment of the United
                                                        States Constitution and other State Constitutions" (People v Davis, 75 NY2d 517, 521 [1990]).
                                                        Our State courts have consistently exercised the highest degree of vigilance in safeguarding
                                                        and defending this right. Police agencies and prosecutors’ offices must do the same.
          C R I M I N A L




                                                        When can a law enforcement officer question a suspect without running afoul of that suspect’s
                                                        right to counsel? In many situations, the right is triggered in obvious ways. At other times the
                                                        complexities of this area of law, as well as its evolving nature, may require legal guidance. To
                                                        that end, we devote this issue of the Criminal Law News to the topic of New York’s Constitu-
                                                        tional Right to Counsel Rule. We use two parameters, the case status in terms of whether an
                                                        accusatory instrument has been filed and the defendant’s status in terms of custody, to ana-
                                                        lyze the different circumstances whereby the right to counsel may arise. We have set out some
                                                        practical guidelines, as embodied in key court decisions, to aid front-line law enforcement offi-
                                                        cers in recognizing the various factors and situations that trigger the right or affect the suspect’s
                                                        ability to waive the right to counsel.

                                                        We take this opportunity to stress that the best practice in documenting an interrogation is to
                                                        videotape or digitally record all questioning. A confession is critical evidence and an electronic
                                                        recording protects law enforcement from false allegations or unfair criticism by memorializing
                                                        the voluntary nature of the statement while ensuring the integrity and reliability of the evidence
                                                        for trial.
T H E




                                                        The following pages should be considered broad guidelines, not an exhaustive or comprehen-
                                                        sive explanation of this complicated area of law. Specific situations may require consultation
                                                        with an assistant district attorney so please feel free to call my staff.

                                                                                             ENJOY YOUR SUMMER
                            NEW YORK STATE’S RIGHT TO COUNSEL
The State right to counsel arises from the NY Constitution, article 1, section 6. Once the right to counsel attaches,
it is indelible because interrogation is prohibited unless the right to counsel is waived in the presence of an attor-
ney. So valued is the constitutional right to counsel in this State, it has developed independent of its Federal coun-
terpart (US Constitution, Sixth Amendment) and provides protections beyond those of the Federal right.
I. THE INDELIBLE RIGHT TO COUNSEL ATTACHES WHEN A CRIMINAL ACTION IS FORMALLY COMMENCED
   BY THE FILING OF AN ACCUSATORY INSTRUMENT WITH THE COURT.

                                                                                             HAS THE INDELIBLE
                            CASE STATUS                            DEFENDANT’S STATUS        RIGHT ATTACHED?
                                                                    Either custodial or
      An accusatory instrument has been filed with the court.          noncustodial                 Yes


Once an accusatory instrument is filed with the court, thereby commencing the formal criminal action, the indelible
right attaches to the criminal matter which is the subject of the accusatory instrument (People v Di Biasi, 7 NY2d
544 [1960]; People v Settles, 46 NY2d 154 [1978]; People v Samuels, 49 NY2d 218 [1980]). This indelible right is
similar to the Federal right to counsel arising from the US Constitution, Sixth Amendment (Kirby v Illinois, 406 US
682 [1972]). “The initiation of judicial criminal proceedings…is the starting point of our whole system of adversary
criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the
adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with
the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal
law. It is this point, therefore, that marks the commencement of the criminal prosecutions to which alone the ex-
plicit guarantees of the Sixth Amendment are applicable” (id. at 659-690). This indelible right to counsel attaches
whether the defendant is in custody or not.
THE KAZMARICK RULE: When a defendant is arrested upon a filed accusatory instrument but counsel has not yet
entered those proceedings, the police may still question the defendant on a wholly different and unrelated criminal
matter for which he is not represented (People v Kazmarick, 52 NY2d 322 [1981]). What are related criminal
matters? The Court provides this definition: Where two criminal matters are so closely related transactionally, or in
space or time, that questioning on the unrepresented matter would all but inevitably elicit incriminating responses
regarding the matter in which the indelible right to counsel has attached, interrogation on the unrepresented crime
is prohibited even in the absence of direct questioning regarding the crime in which the right to counsel has at-
tached (People v Cohen, 90 NY2d 632 [1997]).
Examples: In People v Miller (54 NY2d 616 [1981]), the defendant was represented by counsel when the prosecu-
tor unsuccessfully sought a court order for a lineup in a rape investigation. One year later, with the rape investiga-
tion still ongoing, a second rape victim identified the defendant to police as her assailant by providing the license
plate of the stolen car he had used during the crime. Defendant was found sleeping in the stolen car and arrested.
He was charged with possession of the stolen car and arraigned. He was not actually represented by counsel at
that arraignment. Thereafter, police questioned defendant about all three crimes and he made incriminating state-
ments about all three. His statements relating to the stolen car were suppressed because defendant’s right to
counsel had indelibly attached upon the filing of the accusatory instrument with the court. His statements relating
to the first rape were suppressed because when the attorney had represented defendant in connection with the
court order for a lineup, his indelible right to counsel had attached with respect to the first rape investigation. And
his statements concerning the second rape were suppressed because the interrogation was “an integrated whole”
and the questioning about the stolen car was “so interrelated and intertwined” with and “not fairly separable from”
the questioning about the second rape, thereby violating his right to counsel which had indelibly attached by the
filing of the accusatory instrument on the stolen car case.

     Page 2
                             NEW YORK STATE’S RIGHT TO COUNSEL
In People v Cohen, supra, defendant was a suspect in a burglary in which three firearms were stolen. The police were
informed by an attorney that he represented defendant on the burglary matter. Six months later, one of the stolen
guns was used in a murder. The same officers who had been informed that defendant was represented by counsel in
the burglary matter, questioned him about both the burglary and the murder until defendant confessed. The Court
held that the confession was obtained in violation of defendant’s right to counsel because the police had “purposely
exploited concededly impermissible questioning” in order to obtain a confession in the unrepresented matter, utilizing
the interrelated nature of the crimes. The Court did say that if police had carefully engaged in discrete questioning
about the murder, the questioning “would not have been wholly barred,” even though the two crimes were “interrelated
and intertwined” and “not discrete and separable.”
In People v Rivera (277 AD2d 470 [2000]), the defendant and a codefendant were charged with robbery and repre-
sented by counsel. The defendants subsequently murdered the victim to prevent her from testifying against them.
Defendant’s right to counsel was not violated when police obtained a statement from him in which he implicated him-
self in the murder, because the police had carefully confined their questioning to the new crime. Unlike Cohen, the
police did not exploit any impermissible questioning, and the robbery and murder charges were “not so interwoven in
terms of their temporal proximity and factual interrelatedness that any interrogation concerning the victim’s disappear-
ance would almost necessarily elicit statements pertaining to the robbery.”
In People v Tucker (30 AD3d 312 [2006]), defendant, represented by counsel on an assault charge, made incriminat-
ing statements about a murder which occurred 11 months after the assault. “The fact that the cases involved the
same victim or that the earlier crime provided a motive for the later crime did not make the two crimes related such
that representation on the assault precluded defendant from effectively waiving his right to counsel regarding the new
crimes.”
DELAY IN ARRAIGNMENT: CRIMINAL PROCEDURE LAW 140.20 (1); the prompt-arraignment statute, states that
a person arrested without a warrant must without unnecessary delay be processed and brought before a local criminal
court, and an accusatory instrument charging him/her with a crime must be filed. A defendant whose arraignment is
unnecessarily delayed has meaningful remedies under state law, including release from custody and, if the undue de-
lay affected the voluntariness of a confession, suppression (People v Holland, 48 NY2d 861, 862-863 [1979]). The
statute does not by its terms or by implication create a right to counsel (People v Ramos, 99 NY2d 27 [2002]).
Nor does a deliberate delay of arraignment of a defendant for the purpose of obtaining a confession trigger the State
constitutional right to counsel. Upon arrest, a person must first be given Miranda warnings and if the person chooses
to remain silent or otherwise invokes the right to counsel, all interrogation must cease. If law enforcement officials
deliberately delay the filing of an accusatory instrument and the arraignment to procure a confession, that fact has a
substantial bearing on a claim of involuntariness (People v Alex, 265 NY 192, 195 [1934]; People v Ramos, supra).
The length of the delay is not the determinative factor, particularly where a defendant has been duly advised of his
Miranda rights and waives them in his/her initial interview with police, is not continuously interrogated during the period
of delay, and is not deprived of food, water or rest.
Reasons for the delay in arraignment, such as the need to continue the police investigation, examine the crime scene,
gather the defendant’s pedigree information, acquire the defendant’s criminal history or otherwise explain the proce-
dures that are involved before a defendant is arraigned may be used to rebut any claim of involuntariness. For exam-
ple in People v Bryan (43 AD3d 447 [2007]), a case involving multiple burglaries and sexual assaults, the delay was
justified as the police were involved in the investigation of several similar incidents and much of the delay in arraigning
the defendant was attributed to the time needed to arrange and conduct a lineup and contact the witnesses to the
crimes being investigated. And in People v Williams (297 AD2d 325 [2002]), the police were involved in investigating
and interviewing two other suspects involved in the same homicide. Much of the delay in arraigning this defendant
was attributed to the thorough investigation in which the police engaged regarding those other suspects and the con-
flicting versions of events given by them.


                                                                                                              Page 3
                           NEW YORK STATE’S RIGHT TO COUNSEL
II. THE INDELIBLE RIGHT TO COUNSEL ALSO ATTACHES WHEN A PERSON IN CUSTODY UNEQUIVOCALLY
    REQUESTS TO SPEAK TO AN ATTORNEY.

                                                                                                  HAS THE INDELIBLE
                            CASE STATUS                                 DEFENDANT’S STATUS        RIGHT ATTACHED?
    No accusatory instrument has been filed with the court.
    Defendant unequivocally asks for a lawyer.                               Custodial                   Yes

Once a suspect in custody requests the assistance of counsel, he/she may not be questioned further in the ab-
sence of an attorney (People v Cunningham, 49 NY2d 203 [1980]). Whether or not a request by a defendant in
custody is unequivocal is determined by all the circumstances including the defendant's demeanor, manner of ex-
pression, and the particular words used by the defendant. In Cunningham, the defendant, who was in custody
and advised of his Miranda warnings, agreed to speak with the police and did so for 2 1/2 hours but made no in-
criminating statements. The defendant was then informed that he was formally being placed under arrest for mur-
der and was again given Miranda warnings. The defendant told the police that he was unwilling to sign a waiver of
his constitutional rights and that he wished to consult with an attorney. In response to this request, the police offi-
cers told defendant that he would be permitted to speak with an attorney after he had been “booked” and ar-
raigned. The interview was then terminated and defendant was placed in a jail cell. About 3 hours later, defen-
dant called police officers to his cell and told them that he wished to make a statement. When he was taken from
his cell, defendant once again balked, reiterating his desire to consult with a lawyer. The police immediately cut
off the questioning and started to return defendant to his jail cell. As they proceeded through the public waiting
room on the way back to the cell, defendant spotted his wife, who had been sitting in the police station ever since
her husband had been arrested earlier that evening. Defendant asked for and received permission to confer with
her in private for a few moments. When he emerged from the conversation, defendant indicated that he had
changed his mind and was now willing to speak with the police without the aid of an attorney. Thereafter, defen-
dant signed a pre-printed form waiving his constitutional rights and made the inculpatory statements which were
eventually suppressed by the Court. The Court held that the first unequivocal request for an attorney triggered the
indelible right to counsel and the defendant could not waive the right in the absence of counsel [id. at 206-207].
An example of an equivocal request can be found in People v Glover (87 NY2d 838 [1995]). The defendant in
custody was questioned regarding a murder investigation. He talked freely with police until they confronted him
with a blood-stained T-shirt that was recovered outside of his apartment. At that point, defendant informed the
police that he wanted to call a friend to get a lawyer. The officer asked for the number, and defendant said to call
his mother instead. Then, as the officer was about to dial the number, defendant said, “Hang up the telephone. I
do not want a lawyer. I’ll talk to you.” Thirty to 60 seconds passed from the time defendant first said that he
wanted to call a friend and the time when he said he did not want a lawyer. The Court found the custodial request
by the suspect for a lawyer to be equivocal and the subsequent interrogation proper.
Other examples of an equivocal request: In People v Pierre (309 AD2d 570 [2003]), after the arresting officer ad-
ministered Miranda warnings and asked defendant if he would answer questions, defendant stated that he wanted
to wait to speak with a judge. The Court held that this was not an unequivocal invocation of either his right to
counsel or his right to remain silent and found defendant's subsequent statements, made hours later after re-
newed Miranda warnings, admissible. In People v Thompson (271 AD2d 555 [2000]), the defendant's question to
a detective concerning whether or not he should call his lawyer, after he showed the detective his lawyer's busi-
ness card, was held to not constitute an unequivocal invocation of the right to counsel which would prevent further
police interrogation.


    Page 4
                            NEW YORK STATE’S RIGHT TO COUNSEL
                                                                        DEFENDANT’S       HAS THE INDELIBLE
                              CASE STATUS                                  STATUS         RIGHT ATTACHED?
     No accusatory instrument has been filed with the court.
     Defendant unequivocally asks for a lawyer.                         Noncustodial              No

In a noncustodial setting, if a suspect makes an unequivocal request for counsel, the police must cease all interro-
gation. However, a suspect who has requested counsel when not in custody may subsequently waive that right in
the absence of counsel if an attorney has not entered the case and the criminal proceedings have not begun. This
was the holding in People v Davis (75 NY2d 517 [1990]). In Davis, the police responded to the scene of a murder
in a barn on a farm where the defendant, Brenda Davis, and her cousin, James Davis, lived. The murdered victim
was James Davis’ girlfriend. Both the defendant and her cousin at first told the police that the victim died after she
fell from a woodpile. That same afternoon, after autopsy results indicated that the victim died from internal injuries
sustained during a sexual assault, James Davis, while at the Sheriff’s office, admitted to police that he and the de-
fendant had physically and sexually tortured the victim over a two day period.
At 9:00 PM that same day, police returned to the farm to speak with the defendant. Although the defendant was not
in custody, the police advised her of her Miranda rights which she indicated she understood. Defendant agreed to
answer their questions, but when confronted with her cousin’s admissions, she told police she did not want to talk
to them without a lawyer, thereby unequivocally invoking her right to counsel. Police continued their interview dur-
ing which she made several incriminating statements (which were later suppressed). Before police left the farm-
house that evening, they told defendant that they would contact her the next day. Defendant replied that she
hoped that they would come back the next day to talk to her.
The next day when the police returned to the farmhouse, the defendant was not there but she left a note for police
telling them where they could find her. Police met defendant at her sister’s house and asked her to accompany
them to the Sheriff’s office. She voluntarily agreed to accompany them. Thereafter she was placed in police cus-
tody. The defendant was advised numerous times of her Miranda rights which she waived orally and in writing.
Defendant then gave the police a written and videotaped confession. The Court held that the defendant’s invoca-
tion of her right to counsel while she was not in custody was not indelible and therefore the right could be waived
the next day in the absence of counsel.
Though a suspect who has invoked the right to counsel when not in custody may subsequently waive that right be-
fore an attorney enters the matter and if an accusatory instrument has not been filed, it is still necessary to show
that the subsequent waiver of the right to counsel is voluntary. Relevant factors include whether police reminded
the suspect of the earlier request for counsel before obtaining an express present waiver, whether the suspect was
fully apprised of his/her constitutional rights before invoking the right to counsel, whether the suspect initiates fur-
ther communication with police after having invoked the right to counsel, and whether there is a significant break in
the interrogation during which time the suspect has had a reasonable opportunity to contact an attorney.
In People v Rowell (59 NY2d 727 [1983]), before an accusatory instrument had been filed and while defendant was
not in custody, the police informed the 19-year-old defendant during a telephone conversation that a date had been
arranged for him to take a polygraph which defendant had agreed to take a few days earlier. The defendant told
police that he was going to Manhattan to meet his mother and see an attorney. He did not state his purpose for the
visit to the attorney. On the date of the scheduled polygraph test three days later, the police asked defendant how
his visit to the attorney went and defendant replied that he did not see the attorney and was still willing to take the
test. Defendant thereafter made incriminating statements. The Court held that defendant’s right to counsel did not
attach as the noncustodial assertion was equivocal, finding it significant that defendant was free for two weeks
while the police investigated the case, that he could consult with competent adults during that period, and that he
did not seek the assistance of an attorney.

                                                                                                              Page 5
                             NEW YORK STATE’S RIGHT TO COUNSEL
III. THE INDELIBLE RIGHT TO COUNSEL ALSO ATTACHES WHEN AN ATTORNEY WHO IS OBTAINED TO REP-
     RESENT THE SUSPECT ENTERS THE MATTER UNDER INVESTIGATION.
                                                                                                 HAS THE INDELIBLE
                           CASE STATUS                                 DEFENDANT’S STATUS        RIGHT ATTACHED?
    No accusatory instrument has been filed with the court.          Either custodial or non-
    Defendant has obtained a lawyer in the matter.                   custodial                          Yes

An individual who has obtained counsel specifically on the matter under investigation may not be interrogated on the
very same subject even in a noncustodial setting after defendant's attorney has instructed the police not to question
defendant in his absence (People v Skinner, 52 NY2d 24 [1980]). A suspect whose right has so indelibly attached
has no obligation to keep the police informed as to the status of the attorney-client relationship. Should the police
wish to question defendant without counsel on the same matter after the right has attached, it is their burden to de-
termine whether the representation continues or has been terminated (People v West, 81 NY2d 370 [1993]). Mere
passage of time will not eradicate defendant's indelible right. Nor is it material that a later investigation is considered
“for all intents and purposes, a new investigation.” Defendant's right to counsel cannot turn on police characteriza-
tion of their own investigation of a particular crime. In West, the defendant’s right to counsel in a murder case indeli-
bly attached in 1982 when counsel appeared at a lineup involving defendant and instructed the police not to ques-
tion his client in his absence. The right was violated when the police sent an informant in 1985 and 1986 to surrepti-
tiously tape-record the defendant who made incriminating statements about the case.
The right to counsel is triggered by a direct communication by an attorney or a professional associate of the attorney
to the police that the defendant is represented and should not be questioned. This rule of law assures the police
that the suspect has actually obtained a lawyer in the matter at issue and justifies the immediate cessation of an in-
terrogation (People v Grice, 100 NY2d 318 [2003]). The attachment is not dependent upon the existence of a formal
retainer agreement, or a requirement that counsel be physically present at the location where his/her client is, or a
requirement that the attorney inform a specific police officer in charge of investigation, as the attorney can give no-
tice of representation by calling the general information number at the police station.
                                                                                                 HAS THE INDELIBLE
                             CASE STATUS                                  DEFENDANT’S STATUS     RIGHT ATTACHED?
   No accusatory instrument has been filed with the court.                                                No
   A third party tells police that an attorney is representing the       Either custodial or      if the defendant
   defendant who is in custody on the matter.                            noncustodial                 is an adult

In Grice, the Court rejected a claim that a communication from a third party, the father of the suspect in custody, was
sufficient to trigger the attachment of the indelible right to counsel on behalf of an adult defendant. However, a par-
ent or legal guardian of a juvenile offender may invoke the right to counsel on the child’s behalf (People v Mitchell, 2
NY3d 272 [2004]). With respect to the custodial interrogation of juveniles, the CPL and the Family Court Act (FCA)
reflect the constitutional mandate that police must safeguard the rights of juveniles (Haley v Ohio, 332 US 596
[1948]). When a child 13, 14, or 15 is arrested for a designated felony for which he/she can be prosecuted as an
adult i.e., a juvenile offender (Penal Law §30.00), the police must immediately notify the parent or other legally re-
sponsible person of the arrest and the place of detention (CPL 120.90 [7], 140.20 [6], 140.40 [5]). A similar duty is
imposed by the FCA in regard to youths under 16 who are arrested for acts constituting juvenile delinquency (FCA
§§ 301.2 [1], 305.2 [3]). The FCA imposes additional safeguards for juvenile delinquents beyond parental notifica-
tion (People v LaGuerre, 29 AD3d 820 [2006]). JDs may only be questioned in specially designated facilities and
the parent/guardian present, as well as the youth, must be advised of the latter's constitutional rights (FCA §§ 302.5
[4] [b]; 305.2 [7]). The police must also give the person notified of the arrest ample opportunity to be present before
questioning the youth (FCA § 305.2 [4]; Matter of Albert R.,121 Misc2d 636 [1983]).
                                                                                                              Page 6
                           NEW YORK STATE’S RIGHT TO COUNSEL
IV. DERIVATIVE RIGHT DOCTRINE-THE DEFENDANT HAS REPRESENTATION ON AN UNRELATED CRIMINAL
    MATTER

                                                                                                HAS THE INDELIBLE
                        CASE STATUS                               DEFENDANT’S STATUS            RIGHT ATTACHED?

    Defendant is represented on an unrelated pending      Not in custody on the case he has
    matter which may or may not have charges filed.       an attorney
                                                                                                       No
The so-called Rogers rule (People v Rogers, 48 NY2d 16 [1980]) reaffirmed the principle that a defendant repre-
sented by counsel on the charge on which he is held in custody cannot be interrogated in the absence of counsel
on any matter. One year later in 1981, the rule was extended in People v Bartolemeo (53 NY2d 225[1981]) to cre-
ate an indelible right to counsel if a defendant who was placed in custody on a new unrelated matter happened to
be represented in an pending criminal matter for which he was not in custody. This derivative right of counsel aris-
ing from unrelated pending charges for which a defendant is NOT in custody was overruled in 1990 in People v
Bing (76 NY2d 331[1990]). The Bartolemeo extension had effectively provided an unfair dispensation for persistent
offenders who unlike the first time offender, had representation on an unrelated pending charge and thus were im-
munized from police questioning for new crimes committed while the defendants were out on bail on their pending
criminal matters.
If the defendant is released from custody on the matter for which he/she is represented, and is later picked up on a
bench warrant for the same matter, the police may still question the defendant on a wholly unrelated matter at the
time of the new arrest. “A rearrest on a bench warrant, followed by immediate questioning at the police station prior
to any court proceedings or reincarceration on the warrant, is not the type of custody contemplated by the Rogers’
rationale” (People v Clarke, 298 AD2d 259 [2002]).
                                                                                               HAS THE INDELIBLE
                     CASE STATUS                               DEFENDANT’S STATUS              RIGHT ATTACHED?

    Defendant is represented on an unrelated          In custody on the case he/she
    pending criminal matter.                          has an attorney                                 Yes


The Rogers rule was reaffirmed in 1997 in People v Burdo (91 NY2d 146 [1997]). The Court made clear that a de-
fendant in remand status in a detention facility who is represented by an attorney cannot waive his/her right to
counsel during questioning on any unrelated criminal matters. The defendant in Burdo was in custody at a County
jail pursuant to his arraignment on a pending charge of rape and had been assigned legal representation following
his arraignment. Police investigators went to the jail to question the defendant concerning an unrelated murder
investigation. The officers met with defendant in the library of the jail where he was advised of his Miranda rights.
Defendant stated that he understood his rights and was willing to speak to the officers. The defendant was also
informed that he could terminate the interview at any time and it was agreed that the officers would not question
defendant about the pending rape charges for which defendant was incarcerated. The Court held that under a
plain reading of Rogers, the State was prohibited from questioning the defendant since the defendant had not been
released from custody on the matter for which he was represented by counsel.


              BEST PRACTICE: ELECTRONICALLY RECORD ALL CUSTODIAL INTERROGATIONS.


                                                                                                         Page 7
                             LINEUPS AND THE RIGHT TO COUNSEL
POST ACCUSATORY LINEUPS
Under the Sixth Amendment to the US Constitution, a defendant has the right to have counsel present at a lineup
once an accusatory instrument has been filed (Kirby v Illinois, 406 US 682 [1972]; People v Hawkins, 55 NY2d 474,
[1982]).
INVESTIGATORY LINEUPS
The defendant has no right to counsel under the Sixth Amendment to the US Constitution at a lineup that occurs
prior to the initiation of formal prosecutorial proceedings (Kirby v Illinois, supra, 688-689; People v Hawkins, supra,
482). Similarly, there is generally no independent basis in the State Constitution for requiring counsel at investiga-
tory lineups (People v Wilson, 89 NY2d 225 [1997]). The police do not have an obligation, under either the State or
Federal Constitution, to secure counsel for a suspect who is merely being placed in an investigatory lineup, even
when the suspect requests that counsel be provided.
The right to counsel at an investigatory lineup will attach in either of two circumstances. The first is when counsel
has actually entered the matter under investigation. The second is when a defendant is in custody on an unrelated
charge for which he/she is already represented by counsel. In People v Thomas (76 NY2d 902 [1990]), the defen-
dant was in Riker’s Island on an unrelated charge on which he was represented by counsel. The prosecutor ob-
tained an ex parte order directing defendant's appearance in a lineup in a new matter. The right to counsel attached
to the new case as defendant was in custody on a matter for which he had counsel. Once the right to counsel has
been triggered, the police may not proceed with the lineup without apprising the defendant's lawyer of the situation
and affording the lawyer a reasonable opportunity to appear. A specific request that the lineup not proceed until
counsel is so notified is unnecessary (People v Mitchell, 2 NY2d 272 [2004]). Although a suspect's attorney may not
be excluded from lineup proceedings, the police need not suspend an investigatory lineup in anticipation of the arri-
val of counsel if this would cause unreasonable delay (People v Hawkins, supra, 475-476).

       BEST PRACTICE: LINEUPS SHOULD BE EMPLOYED IN ALL CASES IN WHICH IDENTIFICATION EVIDENCE FROM
          EYEWITNESSES WHO DO NOT KNOW THE DEFENDANTS PRIOR TO THE CRIMES IS CONSIDERED CRITICAL
                 EVIDENCE IN THE CASE. THE COMPOSITION OF THE LINEUP MUST BE PHOTOGRAPHED.




                               THE CRIMINAL LAW NEWS
                                             EDITORIAL BOARD
                                     Valerie A. Livingston, Editor-in-Chief
                                      Laurie Sapakoff, Assistant Editor
                                       John Carmody, Assistant Editor

                                               OF COUNSEL
                            Anthony J. Servino, Second Deputy District Attorney,
                                  Appeals and Special Litigation Division
                              Maryanne Luciano, First Deputy District Attorney,
                                   Legal Counsel to the District Attorney

                                     110 Dr. Martin Luther King Jr. Blvd.
                                           White Plains, NY 10601
                                   Office Website: www.westchesterda.net


     Page 8

				
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