Gun control bill is a big Fuck You to law enforcement

I received some interesting commentary from a person whose opinion I respect regarding A-6198B/S-5000B, Prohibits the sale, purchase, or transfer of firearms to anyone known to have an outstanding warrant for a felony or serious offense:

The arrest warrant bill is a big Fuck You to law enforcement because of how warrants issue in NY. In NY warrants issue under one of two situations. After a grand jury indictment or upon the filing of a criminal instrument. This tracks federal law in terms of indictment [which includes a prelim]. HOWEVER, unlike a number of states or under the federal rules, NY does not have a Ramey Warrant procedure whereby you can get a warrant without actually commencing a criminal action.

Under NY law, a person’s right to counsel indelibly attached 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. The issuance of an arrest warrant triggers the right to counsel.

The New York Court of Appeals has recognized that the New York right to counsel rule under the New York State Constitution Article 1 Section 6 is much broader than the federal right to counsel rule under the U.S. Constitution’s Sixth Amendment. In New York, 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 United 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. People v. Davis, 75 N.Y.2d 517.

There are several fundamental differences between the right to counsel rules under New York State law and federal law.

A key difference between the right to counsel under the New York rule and the federal rule is that under the federal rule, a defendant retains the power to waive the right to counsel without first conferring with his attorney if the defendant has any discussions with the police and if the defendant committed a voluntary and knowing waiver of his right to counsel; in New York one may not waive the right to counsel without first conferring with an attorney even if voluntary and even if the defendant initiates the discussion.

Additionally, in New York, a defendant for whom counsel has interceded may not waive counsel without counsel being present, even if the suspect has no idea that a lawyer has been procured for him, as long as the police do. However, under the federal rule if the defendant does not know about counsel’s intervention he may waive the right to counsel without counsel being present or having conferred with counsel. The general rule in New York is that someone that is held in custody on a criminal matter where an attorney has entered that matter, then the indelible right to counsel has attached and the person being held may not waive the right to counsel with regard to that matter unless he has conferred with an attorney.

Additionally, a person held in custody on a criminal matter, where counsel has entered, he may not validly waive the right to counsel on any other matter, even if it is unrelated to the matter upon which counsel has entered. When a defendant is represented on a charge for which he is being held in custody, he may not be interrogated in the absence of counsel on any matter, whether related or unrelated to the subject of the representation. People v. Rogers 48 N.Y.2d 167.

Recently, the Court of Appeals has found that even if it is reasonable for an interrogator to suspect that an attorney may have entered the custodial matter, there must be an inquiry regarding the defendants representational status and the interrogator will be charged with the knowledge that such an inquiry likely would have revealed. People v. Lopez 16 N.Y.3d 375.

As such, obtaining a warrant to stop a gun acquisition triggers the right to counsel and all that entails. That is why Cuomo initially included the warrant provision and then dropped it as DA’s went nuts absent the creation of a Ramey warrant procedure.

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