Can a Criminal Choose Which Lawyer to Represent Him and How?

Can a Criminal Choose Which Lawyer to Represent Him and How?

The Sixth Amendment allows people to hire a lawyer to represent them in criminal cases. But this provision is somewhat vague. It states that defendants must have “the Assistance of Counsel.1

That phrase could mean attorneys must be available for informal consultations. One lawyer must aggressively represent one defendant throughout the process or between. As outlined below, a series of court cases have fleshed out this language and made it more specific.

The criminal law process usually starts with jail release and ends when the defendant’s jail term or period of court supervision ends. In a few cases, the need for a Rochester criminal defense lawyer continues further to criminal record sealing.

Pseudo-Criminal Proceedings

The criminal law process also includes administrative hearings and immigration hearings. The right to counsel varies since the Sixth Amendment doesn’t technically apply.

Administrative hearings are common in DUI and drug cases. An administrative law judge can suspend driver’s licenses following DUI arrests. Prosecutors must convince ALJs that these defendants refused a lawful request to provide a breath or blood sample. Drug cases, especially drug trafficking cases, often involve forfeiture hearings. Authorities can confiscate property, such as money, cars, or houses, which they believe is connected with illegal activity.

Although the law is unclear, the Sixth Amendment right to counsel usually doesn’t apply in these hearings. Nevertheless, ALJs must give these individuals a chance to hire lawyers, and they cannot place any additional limits on a Rochester criminal defense lawyer’s activity.

As for immigration hearings, in 1984, the Supreme Court ruled that these matters are civil hearings, which means the Sixth Amendment doesn’t apply. A limited right to counsel applies in removal proceedings, but no court-appointed lawyers or public defenders are available.

Choice of a Lawyer in Criminal Court

The Supreme Court ruled that felony defendants in state and federal court had an absolute right to counsel in 1963. In 1972, the Supreme Court extended this right to misdemeanors and any other matter that may entail “the actual deprivation of a person’s liberty.”

Individual judges usually have the power to determine if a defendant is indigent and therefore needs a public defender or a court-appointed lawyer. Some judges only require a verbal “I can’t afford a lawyer” affirmation. Others require detailed financial affidavits.

In most cases, a court cannot limit a defendant’s choice of a private attorney. For example, police officers cannot seize so much property that a defendant cannot afford to hire a lawyer of their choice.2 However, a judge can intervene if a lawyer and a client have a significant conflict of interest, such as parents who hire a Rochester criminal defense lawyer to represent their child.3

Courts have also ruled that the right to counsel occurs when the state files formal charging documents. This cutoff means defendants are without counsel at specific critical points of a criminal matter, such as the decision to provide or not provide a chemical sample in the DUI, as mentioned in earlier cases.

Ineffective Assistance or Denial of Counsel

The official test for ineffective assistance of counsel is that an attorney’s performance “fell below an objective standard of reasonableness.” Additionally, defendants must show this misconduct was prejudicial to the case.

As a practical matter, most courts use the glass mirror test. If the judge placed a glass mirror under the lawyer’s nose, and the mirror fogged up, the defendant had the practical assistance of counsel. In one famous case, a court ruled that even though the lawyer slept through much of the trial, the defendant had valuable aid from counsel.4

Courts treat the denial of counsel much differently. The rejection of this right, or even the limitation of it, could be grounds for reversal, even if the denial or restriction didn’t materially affect the outcome of the case.

There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester criminal attorney. We routinely handle matters in Monroe County and nearby jurisdictions.







Should Criminal Intent Matter with Sexual Assault?

Should Criminal Intent Matter with Sexual Assault?

In New York, criminal intent usually doesn’t matter in sexual assault, rape, or sexual battery prosecutions. All these infractions are basically the same offense. The intent is a requirement in forcible touching, which is a misdemeanor. The defendant must sexually touch the alleged victim “for the purpose of degrading or abusing such person or for the purpose of gratifying the actor’s sexual desire.”[1] This provision separates forcible touching from ABC, or assault by contact, which is basically a harmful or offensive touch.

Criminal intent usually does not matter in felony sex crime cases. These cases weren’t always so straightforward. In fact, until the mid-1970s, prosecutors generally had to prove a sexual assault defendant used physical force and the alleged victim strongly resisted the defendant. Additionally, a credible witness had to corroborate all parts of the alleged victim’s testimony.[2]

Even back in the old days, sexual assault never had an intent requirement. Sexual assault, prostitution, and almost all other sex crimes, except indecent exposure cases, usually have no intent requirement. This intentional omission, which is probably a good thing for society, makes sexual assault cases harder to defend. Therefore, only the most experienced Rochester criminal defense lawyer should handle these matters.

Elements of the Offense

Third-degree rape is the most common sexual assault charge in New York. Penal Law Section 130.25 is the “date rape” statute. As many as 90 percent of sexual assault cases are acquaintance rape cases.[3] These cases have several defenses, which are outlined below. Lack of intent isn’t one of them because third-degree rape has no mental element.

Other third-degree rape scenarios include intercourse with a person who cannot consent as a matter of law, usually because the person is under seventeen.

Second-degree rape is intercourse with someone under fifteen or someone who cannot consent because of a mental deficiency. First-degree rape is sexual intercourse with “forcible compulsion.” So, this offense is much like the pre-1980s rape laws, except the alleged victim’s testimony is presumptively credible. Section 130.35 charges could also apply if the alleged victim was “physically helpless” or was younger than eleven or thirteen, depending on the defendant’s age.

Three similar criminal sexual act statutes apply to non-intercourse cases, which in New York is “oral sexual conduct or anal sexual conduct.”

Substantive Defenses

Since almost all the rape cases a Rochester criminal defense lawyer handles are acquaintance rape cases, this section will focus on Section 130.25 matters.

The alleged victim’s credibility is often an issue. Frequently, the defendant and the alleged victim were both drinking. Alcohol impairs memory.

While we’re on this point, we should touch on the issues regarding alcohol, drugs, physical restraint, and “physically helpless.”

Physical helplessness implies involuntariness. Alleged victims who are tied up or physically incapacitated are physically helpless. Involuntary alcohol or drug use could also constitute physical helplessness, although it’s harder for prosecutors to make that case.

Consent is a defense to rape and most other sex crimes. Basically, consent is a current, affirmative, and voluntary agreement to engage in sexual activity. Kissing and flirting are not consent to sexual contact. It’s certainly not consenting to sexual intercourse.

However, kissing and flirting are circumstantial evidence of consent. Is this evidence strong enough to create reasonable doubt? That’s for a jury to decide.

Note that a Rochester criminal defense lawyer need not “prove” consent or anything else. An attorney must create reasonable doubt about the defendant’s guilt.

Lack of physical evidence is a third possible rape defense. Even if a rape kit is available, this evidence only proves the two people had sex, not that they had unconsented sex. Usually, defendants must choose between a lack of evidence defense and a consent defense. Lack of consent is an affirmative defense, which basically means the actor admits to the act and argues that s/he didn’t commit a criminal act.

Procedural Defenses

This section applies to all sex crime cases, whether they are misdemeanors or felonies. Fifth Amendment violations are extremely common in sex crimes cases.

If Tim and Sarah were drinking heavily or using drugs on their date, Tim might remember having sex with Sarah, but he might not remember the details. So, when investigators arrive at his door, he may not know why they are there. Generally, investigators are very vague at this stage. They typically say something like, “we believe you may have witnessed a crime last week, we cannot go into the details here, but we can cover this ground at the station.” In most cases, Tim readily agrees to what, unbeknownst to him, is a rape interrogation.

Legally, officers don’t have to tell defendants why they’re being detained or arrested. But they do have to inform defendants of their Fifth Amendment rights. They must provide this information when they start asking questions, even if they are unrelated to the alleged rape if Tim doesn’t feel free to leave. If police officers were at my front door, I wouldn’t feel free to run out the back. Would you?

If investigators violate the Fifth Amendment, the judge typically excludes the defendant’s confession and any evidence obtained from that contact, like a DNA sample.

There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester criminal attorney. We routinely handle matters in Monroe County and nearby jurisdictions.






When Should You Go with a Court-Appointed Defense Lawyer?

When Should You Go with a Court-Appointed Defense Lawyer?

Going with a court-appointed defense lawyer is usually a mistake, but it’s not terrible. Tales of overworked court-appointed lawyers occasionally appear in media stories. This overwork is more common in the post-coronavirus era.[1] More than two years after lockdowns ended in New York, the criminal justice system still struggles with case backlog.

However, it’s important to remember that the attorneys featured in these articles are poster boys (or poster girls) for a point the author wants to make about criminal justice, equality, or another broad topic. Additionally, overworked lawyers are typically good lawyers. It’s usually the underworked lawyers that criminal defendants should avoid. There’s generally a reason an attorney has few clients, and it’s usually not a good reason.

The choice is the biggest reason to partner with a Rochester criminal defense lawyer instead of a court-appointed defense lawyer. Defendants who work with private lawyers decide which lawyer to use. Furthermore, if things don’t work out, defendants usually have a right to fire their lawyers, even if the case is about to go to trial. In contrast, judges or bureaucrats randomly assign court-appointed lawyers to defendants. It’s impossible to “fire” this lawyer and get another one, at least in most cases, regardless of the circumstances.

Direct and Indirect Consequences

This random assignment means a court-appointed lawyer might have several decades of experience or several weeks of experience. Inexperienced lawyers often aren’t fully aware of the indirect consequences of a criminal conviction. As a result, the defendant might be blindsided by a punishment s/he had no idea might be coming.

Immigration consequences are a good example. Assume Raul is charged with aggravated assault in Rochester, NY. His court-appointed lawyer reduces the charges to misdemeanor assault, Raul pleads guilty, and the judge gives him deferred disposition probation.

Regarding direct consequences, Raul’s court-appointed lawyer did a great job. Raul doesn’t have a felony conviction on his record. In fact, if he successfully completed deferred disposition probation, he won’t have a misdemeanor conviction on his record either.

But as for indirect consequences, Raul’s court-appointed lawyer did a terrible job. Under current law, assault is a crime of moral turpitude (CMT). The dictionary definition of a CMT is an offense that involves fraud, violence, dishonesty, or misrepresentation. That vague definition could apply to almost all criminal offenses.

In this context, a CMT is basically anything the Department of State says it is. The State Department’s CMT list changes frequently. But assault is almost always on the list. Additionally, for immigration purposes, Raul has an assault conviction on his record. Deferred disposition is generally a conviction.[2]

These rules are very complex. The petty offense exception generally, but does not always, apply to CMTs. A “petty offense” is basically a misdemeanor. Furthermore, if a Rochester criminal defense lawyer successfully argues that the judge gave the defendant deferred because of a lack of evidence or a procedural flaw, the matter might not be a conviction for immigration purposes.

Lawyers often don’t know all these details because they aren’t legally required to inform defendants about collateral consequences. As far as many Rochester criminal defense lawyers are concerned, their jobs end when the judge’s gavel falls.

How to Hire a Rochester Criminal Defense Lawyer

In the 1970s game show Let’s Make a Deal, contestants often chose between a mystery prize, which could be something valuable or something worthless, and an actual prize. If you are accused of a crime, would you rather take your chances with a mystery prize or partner with an attorney with:

  • Experience: Law school professors don’t teach courses about the collateral effects of criminal convictions. Only experienced lawyers are fully aware of these adverse effects.
  • Accessibility: In all our years of criminal law, we’ve never met a court-appointed lawyer who makes house calls or changes his/her schedule to fit a defendant’s schedule. Private lawyers often make such accommodations.
  • Dedication: Many attorneys take a few appointed cases to see if they’d like to do criminal law or to tide them over until something better comes along. That’s not the kind of advocate you want.

Only the right lawyer reduces or eliminates the collateral consequences of a criminal conviction in Monroe County.

There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester criminal attorney. Convenient payment plans are available.