Graffiti Crimes & Making Graffiti in New York: The “Related Matters” Criminal Defense & Right To Counsel

Although it rears its head in other areas of New York criminal law, violations of a defendant’s right to counsel (right to remain silent) seem disproportionately greater in the area of New York graffiti crimes including Making Graffiti (New York Penal Law 145.60), Criminal Mischief (New York Penal Law 145.00) and Possession of Graffiti Instruments (New York Penal Law 145.65). While I cannot base my opinion on any scientific data, as a New York graffiti crimes criminal defense lawyer, I have litigated and addressed the issues regarding right to counsel numerous times in this specific arena. In fact, one of the New York City District Attorney’s Offices recently dropped five of six cases against our client after I successfully argued that the client’s right to counsel was violated by the New York City Police Department’s Vandalism (Vandal) Squad. The argument was based in the doctrine of “Related Matters.”

In the case mentioned above, our client had been arrested by police after he was allegedly observed with a spray paint can. A person had called indicating someone was in the process of spray painting. Our client was alleged to have made a particular tag at that location. Weeks later, after he was arraigned and had been assigned counsel, but had yet to retain Crotty Saland PC, the Vandal Squad stopped our client on the street and confronted him with photographs. These photographs were of the same alleged tag at other locations. During his street interrogation by about six officers and detectives from the Vandal Squad, our client “admitted” to spraying the tag at the other locations. As a result, he was once again arrested and charged with five new cases regarding the same tag as the first arrest that was currently pending in criminal court.

Beyond our client’s assertion that he was threatened into admitting that he had made the tags (there was corroboration by a witness as to part of the stop and interrogation), the argument used to successfully defeat these cases was not necessarily a factual one, but a legal one.
Generally, the police cannot question and obtain statements from individuals on matters related to those where the defendant has counsel where, such as our client’s case, a criminal action has previously begun. This prohibition is rooted in the concept of “Related Matters.” See People v. Cohen, 90 N.Y.2d 632 (1997). A “Related Matter” is one 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 there [has] been entry of counsel.” People v. Cohen, 90 N.Y.2d at 638. In the alternative, a matter is related where the “police interrogation [is] an integrated whole, in which the impermissible questioning as to the [represented matter] was not discrete or fairly separable” and the “questioning on the represented charge was used as a ‘crucial element’ in securing the defendant’s confession to the [matter where the defendant did not have representation].” Id at 640. The Court of Appeals has made it clear that a matter is related where “questioning on the unrepresented matter would all but inevitably elicit incriminating responses regarding the [represented matter].” Id at 639.

Applying this rule of law, I argued that by questioning my client about the exact same tag at five other locations, the police elicited an incriminating response regarding the initial arrest and tag where he retained Crotty Saland PC as counsel. In other words, admitting to the same tag on the later dates was also an admission to the tag on the first case where he had legal counsel and could not be questioned by the police. Therefore, the “Related Matters” doctrine prevented the use of that statement.

Although the argument was significantly more extensive, the point was clear. The police, whether they intended to violate our client’s rights or not, illegally questioned him. As a result, the “newer” cases were dismissed. Without our client’s alleged admission, law enforcement had no case against him. Fortunately, due to our legal work, our client avoided a criminal conviction and ultimately received a Disorderly Conduct violation.

For extensive information on the crimes of Making Graffiti (New York Penal Law 145.60) and Possession of Graffiti Instruments (New York Penal Law 145.65), please follow the highlighted link and search for these terms in the New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com. Additional information, including various criminal statutes, legal decisions and newsworthy cases can be found on the blog as well.

Prior to starting the firm, the New York criminal defense attorneys at Crotty Saland PC each served as prosecutors in the Manhattan District Attorney’s Office. Crotty Saland PC represents clients throughout New York City and the region.

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