When Does The Right To Counsel Attach

 A person's right to counsel indelibly attaches to a matter upon any one of three triggering events :

(1) entry or retaining of counsel on the matter.

(2) commencement of a criminal prosecution of the matter.

(3) request for counsel or invocation of the right to counsel concerning the matter while held in custody.

When the right to counsel indelibly attaches based on one of the three rules listed above, any statement deliberately elicited from that person by the police without counsel present is subject to suppression and any consent to search obtained without counsel present is invalid. In the counsel indelibly attaches to a matter on any one of the three triggering events:

(1) Request for counsel while in custody.

(2) Commencement of criminal prosecution on the matter (usually commences by filing of accusatory instrument).

(3) Entry or retaining of counsel on the matter.

The Appeals has recognized that the counsel rule under the Constitution Article 1 Section 6 is much broader than the federal right to counsel rule under the U.S. Constitution's Sixth Amendment. The right to counsel is grounded on this State's constitutional and statutory guarantees of the privilege against self-incrimination, the right to the assistance of counsel, and due process of law. It extends well beyond the right to counsel afforded by the Sixth Amendment of the Unites States Constitution and other State Constitutions. The right to counsel is so revered in New York that it may be raised for the first time on appeal.

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