1.13 - C. Entry By Counsel In The Case

JurisdictionNew York

C. Entry by Counsel in the Case

Counsel’s entry into a criminal case or investigation on behalf of a suspect “is premised on the actual appearance or communication by an attorney . . . or the attorney’s professional associate.”34 This bright-line rule ensures that

counsel’s involvement is reliably communicated to the police as soon as possible, thereby preventing an interrogation from continuing on the basis of what a particular police officer may consider to be ambiguous or untrustworthy information provided by a relative or friend of the suspect, or some other third party. Although it is conceivable that a third party could reliably impart knowledge of counsel’s involvement to the police, it would be unreasonable to require the police to cease a criminal investigation and begin a separate inquiry to verify whether the defendant is actually represented by counsel. Direct communication by an attorney or a professional associate of the attorney to the police assures that the suspect has actually retained a lawyer in the matter at issue. 35

Where police are aware that an attorney represents a suspect on the matter about which they wish to question him, no questioning can take place unless counsel is actually present at the time of the questioning.36 If an attorney informs police that he or she represents a suspect on a given matter, no questioning, whether custodial or noncustodial, can take place regarding that matter in his absence.37 Counsel is not required to personally appear at or telephone the actual precinct where a suspect is being held in custody. A call to headquarters or a conversation with an officer of the same department as the interrogating officer is legally sufficient, presumably because the attorney may not know exactly where the suspect is being held.38 However, “a lawyer may not prevent the police from questioning a suspect by communicating only with law enforcement agencies not involved in the investigation.”39

Once an attorney has informed police of his representation on a matter the representation does not lapse. Thus, even where police did not question a suspect until 42 months after counsel’s notification of representation, the suspect’s statement was suppressed since it was not made in counsel’s presence.40 The state constitutional right to counsel at the pre-accusatory, investigatory stage of the proceedings does not, “except in the most unusual circumstances,” guarantee the right to effective assistance of counsel.41 It...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT