Gallet Dreyer & Berkey, LLP | Your Right to Counsel is Immediate
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Your Right to Counsel is Immediate

10/24/18 | By: Roger L. Stavis, Esq. | GDB 2018 Fall Newsletter
I am often asked by potential clients facing criminal investigations whether retaining counsel will cause law enforcement agents to suspect that those clients are guilty. The answer is that it matters little what law enforcement agents suspect or think. The earlier defense counsel enters the investigation, the better positioned the client will be to defend against potential charges.
The New York Constitution, unlike the United States Constitution, extends the right to counsel to the pre-charge criminal investigation phase.  See People v. Skinner, 52 N.Y.2d 24 (1980).  But can the fact that a suspect retains counsel at such an early phase of the process be introduced by the prosecution at a potential trial as evidence of “consciousness of guilt?”  Since this right exists, one would think that a suspect exercising it could not be penalized for doing so. 
Incredibly, in a case I argued earlier this year, People v. Suero, ___ A.D.3d ___ (1st Dept., decided 3/29/18), the New York County District Attorney’s office took the position that the defendant’s text messages seeking to retain counsel demonstrated  “consciousness of guilt.”  According to the District Attorney’s brief: “…there is no question that defendant’s text evinced consciousness of guilt.” The trial court agreed and the evidence in the form of text messages regarding the defendant’s efforts to retain counsel following a shooting incident figured prominently at trial.

Appeal to First Department

On appeal to the Appellate Division, First Department, however, the court made crystal clear that exercise of this constitutional right to counsel cannot be used against a defendant at trial. According to the First Department: “The People should not have been permitted to introduce, as evidence of defendant’s consciousness of guilt, a text exchange the day after the crime in which defendant indicated that he needed money ‘just in case for a lawyer.’ This evidence was an improper infringement of defendant’s right to counsel.”  While the appellate court ultimately found the error to be “harmless,” its definitive statement of principle will serve as notice to prosecutors and courts not to attempt to tar a defendant at trial with his or her exercise of this important constitutional right.
By protecting the right to counsel during the investigatory or even pre-investigatory stage of a criminal matter, the First Department has ensured that individuals concerned that they may have criminal exposure can seek out an attorney without fear that by doing so they are creating evidence that may ultimately be used against them.