Exercising Your Miranda Rights in New York: Why it is Important to Consider Consulting with Your Criminal Defense Attorney Before Speaking to the Police

As a former prosecutor in the Manhattan District Attorneys Office and as a criminal defense attorney in New York City, I could probably write a book on the stupid things people say when confronted by the police. Maybe they think they are going to talk themselves out of trouble or maybe they are just nervous, but the end result is often the same….they get themselves in deeper water and often end up being placed under arrest. A defendant in Queens County charged with Criminal Possession of a Weapon in the Second Degree (Penal Law 265.03(1) and 265.03(3)), learned this lesson the hard way.

In People v. Virgilio Rodriguez, 2632/08, decided June 23, 2009, police responded to “shots fired.” When they arrived at the location the officers asked what happened and some individuals pointed to the defendant and stated that the officers should ask him. Upon asking the defendant what happened the defendant admitted that he shot off his gun and then voluntarily brought the officers to his office a few feet away and retrieved his gun from the desk drawer. The police placed the defendant under arrest and brought him to the precinct and ultimately central booking. During this time, the family obtained a criminal defense attorney for the defendant and the attorney filed a notice with the court (a letter indicating that the defendant has counsel). Despite this, the police questioned the defendant on video. Ultimately, the defendant’s attorney challenged both the statement at the scene as well as the video statement. Unfortunately for the defendant, the court ruled that his statement was admissible as it was made at the scene voluntarily and while the police where investigating. In a close to literal sense, the defendant shot himself in his foot for opening his mouth at the scene.

What is more interesting is what the court noted about the second statement:

“Regarding the admissibility of the video statement, I believe this case illustrates the inequities between court appointed counsel and retained counsel. The District Attorney of Queens County has instituted a procedure wherein they select certain individuals to be questioned regarding the alleged crime and potential alibis. The protocol in Queens County is that prior to arraignment in criminal court, defendants who have not retained counsel are given assigned counsel from either Queens Law Associates, the Legal Aid Society, or the 18b attorney on call. Therefore, it is only in the rare situation where defendant has retained counsel could a notice of appearance on behalf of that defendant be filed before the case is docketed. Clearly, the importance of the notice filing by retained counsel is that ‘once an attorney has entered the proceeding…a defendant in custody may not be further interrogated in the absence of counsel’ People v. Rogers, 48 N.Y.2d 167 (1979). In the present situation, the defendant, Mr. Rodriguez, was questioned when the district attorney knew or should have known retained counsel had filed a notice. Accordingly, the video taped statements Mr. Rodriguez made at central booking must be suppressed.”

Clearly, there are a lessons and issues that we can take from this case. First, it is often not in your interest to try to talk yourself out of a situation by admitting to a crime or lying about your actions. These statements certainly can damage your likelihood of successfully challenging any case. You risk either giving law enforcement evidence or the ability to obtain evidence that they would not have had but for your admission or you can “lock” yourself into a statement that may not be accurate. Therefore, whether you retain criminal counsel or work with a court assigned attorney, it is advisable to have an in depth conversation with your lawyer prior to any interaction with law enforcement if possible. This is blog entry is in no way advice as to how you should pursue your own criminal case, but the potential ramifications of your actions or statements is something you should consider.

A second issue that is also concerning deals with the court’s assertion that defendants who do not retain counsel are more often spoken to by prosecutors with the intent to obtain admissions. This is due in part because “right to counsel” triggers on the filing of a notice by an attorney that he or she is representing the accused. In cases where a person is indigent, a defense attorney is often not assigned until way after the point were a statement from a defendant would be taken. While I certainly have my own ideas on how to rectify this, defendants should not be treated differently due to their means to hire criminal counsel. In fact, some defendants who are assigned counsel, albeit not at there choosing, get a free attorney who is heads and shoulders above some of their private practice colleagues. Regardless, each of us, affluent, middle class indigent or anything in between, should be afforded the same treatment, respect and rights whether we hire our own attorney or provided one by the courts.

Crotty Saland PC is a New York based criminal defense firm. Founded by two former Manhattan prosecutrs, Crotty Saland PC represents individuals accused of crimes throughout the New York City region.

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