Understanding Your Right To Counsel: Does a Demand for an Attorney to One Law Enforcement Agency Follow You to Another Agency

As a defendant already under arrest or as an accused or target confronted by law enforcement during an investigation, one of the most important rights you can ever exercise is your right to remain silent. Whether you are legally in custody or you are lawfully being interrogated by a police officer, detective, state trooper or DA investigator, once you invoke this right, all questioning must cease once you ask for your lawyer. Should further statements be elicited, anything you say as it relates to the crime or investigation will not be admissible against you in the prosecution’s case in chief. If you fail to ask for a lawyer or an attorney, then you should expect that anything you say can and will be used against you in court.

With the above in mind, what happens if you exercise your Miranda Rights before one detective or agent but hours later find yourself before different officers? Does it matter if law enforcement is the same, meaning, all from the NYPD? Would you have to invoke your rights again if you changed hands from one agency to another? For that matter, what if law enforcement questioned you while in custody and were honestly were unaware of your prior demand? In People v. Roman, decided by the Appellate Division, First Department on 9/24/2019, the Court addressed these critically important issues.

Although irrelevant to the issue of right to counsel, the defendant was convicted after trial of Manslaughter in the First Degree, under the theory that with intent to cause serious physical injury to another person, he caused the death of that person or third person, and Criminal Possession of a Weapon in the Second Degree, under the theory that the defendant possessed a loaded firearm with the intent to use it unlawfully against another person. Of import, during the course of the investigation, the defendant made statements to law enforcement that were used against him at trial. Those statements were the primary subject of the appeal, in which the defendant asserted that the trial court made a mistake in allowing those statements into evidence instead of suppressing the same on the grounds that his Miranda Rights have been violated.

The issue that arose in this instance, which often happens when a defendant in custody is transferred from one law enforcement agency to another, is that the defendant unequivocally invoked his right to counsel to law enforcement officers from one agency before being passed off to another law enforcement entity. Mr. Roman was originally taken into custody in Las Vegas where he told a detective who was investigating the case that he wanted to talk to an attorney. That detective properly ended the interrogation. Shortly thereafter, New York extradited the defendant to face criminal charges here. However, once in the custody of detectives from New York, he was again questioned. It was at that time that Mr. Roman allegedly made incriminating statements. Despite the New York police officers apparent lack of knowledge with regard to the invocation of Mr. Roman’s right to counsel, the appellate court reaffirmed that whether or not the New York detectives were acting innocently, ignorance of the prior attorney request was irrelevant. Simply, Mr. Roman’s asked for counsel and further questioning and interrogation while he was in custody should have ceased no matter who was asking the questions.

The law is clear. Once a criminal defendant has invoked his or her right to counsel, no future statements made in the absence of counsel are admissible against them at trial. Period. Put simply, law enforcement cannot use their ignorance of facts and circumstances to escape legal consequences of the usurping an accused’s rights even if based on an honest and reasonable mistake.

To learn more about your rights and how you can both exercise and protect them, contact the New York criminal lawyers and former Manhattan prosecutors at Crotty Saland PC.

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