As noted in other blog posts, in the State of New York, where the defendant in a criminal case, unequivocally requests to speak to a criminal defense lawyer, police must stop the interrogation. Critically, the demand for a criminal defense lawyer must be clear. As a result, under New York State Law, the right to a criminal attorney does not attach when a suspect merely states he has an “appointment with a criminal lawyer,” or where the defendant in a criminal case indicates he “might want a criminal lawyer.”
Here, it is clear the suspect was in custody, being interrogated, and the suspect clearly stated he did not want to talk to police anymore and wanted to speak to a defense lawyer. Under New York law, that should be enough to trigger the right to a criminal lawyer which makes later questions by New York police unlawful, unless the inquiry fits within a few limited exceptions which are not relevant here.
However, in this criminal case, another question is presented: After the right to a criminal lawyer is triggered, what if, later in the criminal case, the defendant decides he does not want a criminal defense lawyer? After the accused revokes his wish for an attorney, can his prior statement be used against him? Specifically, could the prosecutor claim the right was not triggered because the suspect’s request for counsel was disingenuous?
In the State of New York, once a suspect has invoked his or her right to defense counsel, he or she may waive this right in the presence of a magistrate. For the purposes of deciding whether the suspect invoked his right to defense counsel, it is not relevant if the suspect later decided he or she did not want a criminal defense attorney. Under New York law, the proper inquiry, where the accused decides to waive his right to defense counsel, is whether there has been a sufficient inquiry to ensure the accused appreciates the dangers and disadvantages in giving up the right to a criminal lawyer. This inquiry could take place in the presence of a magistrate.
Based on the clear rule recognized by criminal lawyers throughout Buffalo New York, the statement, made by the accused after he triggered his right to a criminal attorney, cannot be part of the Prosecution’s case against the accused.
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