When you are arrested and charged with a crime, several rights are immediately granted to you. You have the right to be read your Miranda rights, to be told why you are being arrested, to have an attorney, to be silent, and to have a fair trial to determine your guilt or innocence. You may have grounds to appeal a conviction if these rights are violated. The right to counsel is fundamental, as it can significantly impact the outcome of your case. Your choice of attorney can determine the strategy used to defend you, which can directly influence a jury’s decision. If you waive this right, or if the court erroneously denies you the right to make this choice, you may be able to appeal and have your conviction reversed. An experienced criminal defense attorney with the Law Office of Benjamin Greenwald may be able to review your case, determine whether your right to choose your own lawyer was violated or whether there are other grounds to file an appeal, and assist you with filing that appeal. Call (845) 567-4820 to schedule a consultation and learn more about your legal rights and your options when those rights have been violated in a criminal case.
Where Does the Right to Counsel Come From and What Is It?
The right to counsel applies primarily to criminal cases, though it does apply in limited civil instances. Individuals must understand their rights and where they come from to ensure their rights are not violated.
What Is the Right to Counsel?
The right to counsel involves three main points: the individual’s right to be represented by an attorney when they are facing criminal charges, their right to choose that attorney, and their right to waive the right to an attorney. These rights specifically mean:
- The right to an attorney: Whether at the state or federal level, every individual facing criminal charges has the right to be represented by an attorney. This right also means that even if the person is unable to pay for an attorney, the court must provide them with one.
- The right to choose an attorney: People charged with a crime generally have the right to select which attorney represents them. However, this choice may be limited by factors such as the person’s budget, conflicts of interest, and time constraints. Additionally, if the individual is provided with an attorney by the court, they are unlikely to have a choice.
- The right to waive the right to an attorney: While every individual has the right to an attorney, they also have the right to waive that right and represent themselves, a choice called pro se defense. This means the individual chooses to act as their own lawyer, an option generally not recommended, even for attorneys themselves.
Where Does This Right Come From?
This right is found in the Sixth Amendment of the United States Constitution. However, in New York, the right is also found in Article 1, Section 6 of the New York State Constitution (page 6). This is important because the right as written in the New York State Constitution is stronger than the right found in the United States Constitution. This is partly due to the state requiring the individual to consult with an attorney and have an attorney present when waiving their right to have one.
Appeals Stemming From the Right to Choose Your Own Lawyer or Waiving the Right
A violation of a defendant’s right to have a lawyer, to choose their own lawyer, or to waive the right to one is potentially grounds for an appeal when they are convicted. Most appeals are about the right to choose an attorney or the right to waive having an attorney, as it is rare for courts to violate the right to have an attorney. Denying a defendant their right to an attorney is a clear violation that would result in a reversal of the conviction, so judges generally do not do that. However, the right to choose and the right to waive having an attorney are more complex, which means that it is possible for a judge to make a mistake.
Individuals can appeal based on waiving their right to an attorney. This waiver must be made knowingly, voluntarily, intelligently, and be clear and unequivocal. New York also requires that once the right has been indelibly attached, the waiver cannot be made without an attorney present. Individuals can also appeal based on being denied their counsel of choice. However, this is not an absolute right, which means there are some circumstances, such as unreasonable delays or a conflict of interest, in which the court may deny a defendant their choice of attorney. This means that the individual may want to consult with an attorney before appealing for denial of counsel of choice, as certain circumstances may mean that their appeal would be denied because the court was within its own right to ensure speed or fairness in the trial, and their denial of the defendant’s choice allowed them to do that.
Other Grounds for Appeals Related to Counsel Choice
Another common appeal related to choice of counsel is ineffective assistance of counsel (IAC). This appeal essentially claims that the attorney the defendant had was not competent representation. To appeal this, the individual must be able to prove deficient performance, or that the lawyer’s performance fell below an objective standard of reasonableness and that this performance or the errors made likely resulted in prejudice, or in a different outcome for the case, such as a wrongful conviction or harsher sentence.
However, it is important to note that this is not typically handled as a direct appeal. IAC claims must be raised in a motion to vacate the judgment, known as a CPL 440.10. This motion would be heard by the original trial court. If denied, the motion can be appealed.
New York Appeals of the Waiver of Right to Counsel
While appeals related to the right to counsel are common under the Sixth Amendment, the New York State Constitution provides stronger protections than the United States Constitution. Individuals filing an appeal do not have to choose between the two, however, as the New York Constitution provides more robust protections. However, understanding those protections and how they apply to the individual’s case is important to the appeals process.
New York’s Indelible Right to Counsel
The New York Constitution provides defendants with an indelible right to counsel. This means that once counsel, or an attorney, “attaches” to the case, police cannot question the defendant about the charges, and the defendant cannot waive the right to an attorney without first consulting with that attorney and without that attorney being present when they waive the right.
There are three points at which counsel can become indelibly attached: when a suspect requests an attorney while they are in custody, when formal criminal proceedings begin as a result of an accusatory instrument being filed, and when counsel is retained (by a defendant choosing their own attorney) or assigned (when a defendant is assigned a public defender). What makes this right unique compared to the United States Constitution’s Sixth Amendment or some other states’ state constitutions is that the right applies before formal charges are filed against the individual.
What Makes a Waiver of That Right Valid?
Individuals have the right to an attorney, and they also have the right to waive that right or represent themselves. However, it is generally not recommended that individuals engage in a pro se defense, or represent themselves, even if they are attorneys themselves. Before deciding to waive their right to an attorney, individuals should consult with an experienced New York criminal defense attorney at the Law Office of Benjamin Greenwald to understand how this decision can impact their case.
For a defendant to validly waive their right to an attorney and represent themselves in New York, the court must determine that the waiver is knowingly, intelligently, and voluntarily given. This means they must conduct a meaningful inquiry and discuss with the defendant the nature of the charges and potential penalties they face, the dangers and disadvantages of self-representation, and the benefits of having an experienced attorney. If, after this inquiry and discussion of the charges, dangers, and benefits, the defendant still wishes to waive their right to an attorney, the waiver may be considered valid.
Appeals Based on Waiving the Right to an Attorney
There are two ways to appeal the waiver of the right to an attorney. The appellate court may reverse a conviction if it finds that an adequate inquiry was not made. The first way to appeal is to file a direct appeal if the violation is evident on the face of the record, even if the issue was not preserved at trial.
If the record is not sufficient to show the invalid waiver, the claim can be raised in a post-conviction motion under CPL Article 440. This is a motion for post-conviction relief, specifically to vacate a judgment.
New York Appeals Regarding Counsel of Choice
The right to have an attorney also includes the right to choose that attorney. A violation of that right can also be appealed. However, individuals must understand that the right to choose an attorney is not absolute. Valid restrictions that the court may use to limit a defendant’s choice include a conflict of interest, disruption of the proceedings (if the defendant tries to change counsel solely to delay or disrupt the trial), and unavailability of the chosen attorney. Individuals may wish to consult with an attorney to discuss whether their denial of their choice of counsel was a violation of their right.
Appeals regarding counsel of choice are not subject to the harmless error analysis that many other grounds for appeal are subject to. This is because the attorney someone chooses can influence their defense strategy, affect trust and communication, and promote a fairer process and better outcome. In other words, being erroneously deprived of the choice of counsel is a structural error that can undermine the entire trial process and potentially result in a different outcome. Therefore, erroneous deprivation of the choice of counsel generally results in a reversal of conviction. However, the key is that it must be an erroneous deprivation. If there were valid reasons, such as conflict of interest or lack of availability of the chosen counsel, the appeal is not likely to get the conviction reversed.
How a Criminal Defense Attorney Can Assist You
Even if you are guilty of the charges against you, you are entitled to an effective defense. This right is even more important when you are innocent of those charges. One way to ensure that your right to an effective defense is honored is the right to counsel. This right provides you the right to an attorney, the right to choose that attorney, and the right to waive this right if you so desire. An experienced New York criminal defense attorney may be able to assist you in understanding how to assert these rights, such as when to ask for an attorney. They may also be able to assist you in building a strong defense strategy, negotiating a plea deal, and ensuring that all of your rights are protected during the original trial and any appeals after it is over. Call the Law Office of Benjamin Greenwald at (845) 567-4820 to discuss your case and the rights you have.
