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DEFENDANT’S UNEQUIVOCAL REQUEST FOR COUNSEL NOT HONORED; CONVICTION REVERSED.

The Second Department determined defendant’s statements, made after an unequivocal request for counsel, should have been suppressed. Defendant’s conviction was reversed and a new trial ordered:

The issue is whether ” a reasonable police officer in the circumstances would understand the statement to be a request for an attorney'” … . Any indication by a police officer that he understood a defendant’s statement to be a request for counsel is a factor to be considered in evaluating whether there was an unequivocal request for counsel … .

Once a suspect in police custody unequivocally requests the assistance of counsel, the suspect may not be asked any more questions in the absence of counsel … . “A defendant’s unequivocal invocation of counsel while in custody results in the attachment of the right to counsel, indelibly so, meaning that, as a matter of state constitutional law, a defendant cannot subsequently waive the right to counsel unless the defendant is in the presence of an attorney representing that defendant” … . * * *

… [T]he defendant’s second statement, made approximately 25 minutes after his first mention of an attorney, stating that he “need[ed] to see private counsel” and that he “need[ed] an attorney,” was an unequivocal invocation of his right to counsel … . Shortly thereafter, the investigator evidenced his understanding that the defendant had requested counsel by querying the defendant about “the attorney thing.” People v Carrino, 2015 NY Slip Op 09295, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

CRIMINAL LAW (UNEQUIVOCAL REQUEST FOR COUNSEL)/SUPPRESSION (STATEMENTS, UNEQUIVOCAL REQUEST FOR COUNSEL)/COUNSEL (UNEQUIVOCAL REQUEST FOR)

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