When Do You Have a Right to an Attorney After Arrest in New York?

When Do You Have a Right to an Attorney After Arrest in New York?

Getting arrested can be a scary, overwhelming experience. As soon as those handcuffs go on, your mind is probably racing about what happens next. Will you spend the night in jail? How much will bail cost? What charges will you face? And most importantly – do you need a lawyer?

The short answer is yes, you absolutely need a lawyer if you’ve been arrested in New York. But when exactly does your right to an attorney kick in? And what should you do to invoke that right?

Your Right to Counsel Under the U.S. Constitution

The Sixth Amendment of the U.S. Constitution guarantees your right to have an attorney present during any “critical stage” of the criminal process. The U.S. Supreme Court has ruled that this includes the period immediately following arrest.

So as soon as you’re arrested, you have a constitutional right to speak with a lawyer before being questioned by police. This is true whether you’re under arrest for a misdemeanor or felony charge.

New York Law on the Right to Counsel

New York law takes your Sixth Amendment right a step further. Under the state constitution and statutes, you have an absolute right to counsel that attaches as soon as you’re taken into custody – even before formal arrest.

This means if the police put you in handcuffs, or otherwise detain you against your will for questioning, you have the right to demand a lawyer immediately. You don’t have to wait until you’re formally arrested or charged.

When the Right Kicks In

More specifically, your right to counsel kicks in as soon as:

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• You’re taken into custody
• You’re detained against your will
• You’re frisked by police
• You’re transported against your will by police
• You’re interrogated by police
• Criminal charges are filed

At any of these points, you have the absolute right to remain silent and speak with an attorney before answering any substantive questions.

How to Invoke Your Right to Counsel

To invoke your right to counsel in New York, you simply need to make an unambiguous statement requesting a lawyer, such as:

• “I want to speak to my attorney.”
• “I cannot afford an attorney, please provide one for me.”
• “I will not answer any questions without my lawyer present.”

As soon as you make this request, the police must stop questioning you until your attorney arrives. If they don’t honor your request for counsel, any subsequent statements you make may be suppressed (excluded) from evidence.

Right to Free Counsel if You Can’t Afford a Lawyer

Let’s say you want to invoke your right to counsel, but you can’t afford to hire a private criminal defense attorney. Does New York still require the police to provide you with a lawyer?

Yes! If you are financially unable to retain counsel, New York courts must appoint an attorney to represent you free of charge. This typically occurs at your arraignment or first court appearance.

However, you can request a free attorney even sooner – immediately after arrest – by telling the police:

• “I cannot afford an attorney, please provide one for me.”

At that point, the police must contact the court to request appointment of counsel before proceeding with any further questioning.

Should You Answer Police Questions Before Your Lawyer Arrives?

In a word: no. You should politely decline to answer any substantive questions until your attorney is present. The police may try to convince you that “things will be easier” if you cooperate quickly. They may even threaten you with harsher charges if you wait for a lawyer.

But in the vast majority of cases, it is not in your best interest to answer police questions without counsel present. Anything you say can potentially be used against you, even if you believe you are innocent.

By invoking your right to counsel, you ensure there is an objective third party present to protect your rights. Your lawyer can also provide advice on whether any statements to police would be strategically beneficial.

So resist the temptation to “explain yourself” in hopes of resolving the situation quickly. Wait until your lawyer arrives, then follow their advice on how to engage – or not engage – with law enforcement.

What If the Police Refuse Your Request for a Lawyer?

If you clearly invoke your right to counsel, and the police refuse or ignore your request, that is a serious constitutional violation. Any resulting statements you make would likely be inadmissible in court.

However, the police do not have to stop questioning you if your request for counsel is ambiguous or equivocal. So it’s important to be direct and unequivocal in requesting a lawyer.

If the police continue to question you after you’ve clearly invoked your right to counsel, your lawyer can file a motion to suppress any incriminating statements you made. In most cases, this motion will be successful and the statements will be excluded from evidence.

Should You Ever Speak to Police Without a Lawyer?

While you have the constitutional right to speak with police without a lawyer present, it’s almost never advisable to do so.

Anything you say to law enforcement can be used against you, even if you believe you’ve done nothing wrong. Experienced criminal lawyers know how seemingly harmless statements can be twisted against their clients.

Having a lawyer present ensures your rights are protected. Your attorney can also provide strategic guidance on whether any statements would be helpful or harmful to your case.

So as a general rule, it’s best to politely decline substantive questioning and let your lawyer handle communication with the police after arrest.

Takeaways on Your Right to Counsel in New York

Here are some key takeaways on when you have a right to an attorney after arrest in New York:

• Your right to counsel attaches as soon as you’re detained or taken into custody – even before formal arrest.
• To invoke your right, clearly and unequivocally request a lawyer.
• If you can’t afford an attorney, request a free one and the court will appoint counsel.
• Do not answer substantive questions until your lawyer arrives.
• If police ignore your request for counsel, any resulting statements may be inadmissible.
• It’s generally best to have a lawyer present for any police questioning after arrest.

Knowing your rights, and exercising them properly, is critical to protecting yourself after arrest. So be direct in requesting counsel, and wait for your lawyer’s guidance before answering questions or making any statements.

With an experienced criminal defense attorney advising you, you’ll be in the best position to navigate the complexities of the justice system and work toward the most favorable outcome possible.

References

New York State Constitution, Article I, Section 6

New York Criminal Procedure Law, CPL 170.10

New York Criminal Procedure Law, CPL 180.10

Police Questioning During a Criminal Investigation, Lawyers.com

Your Right to Have an Attorney, NYCourts.gov