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Criminal Law: New York: Identification Proceedings: The Cops Put Me In A Line Up, What Should I Do?

Imagine you’re riding the good ole’ 6 train back to Pelham Bay Station after the St. Patrick’s emerald gala on 5th Avenue in New York last month. A midday robbery ensues shortly after the tin can colored subway car pulls into the Hunt’s Point Avenue station. Although you fail to witness the crime, there is no mistaking the sound of a leprechaun crying He rob’d me’ pot o’ gold!!! The robber, appropriately clad in green for the holiday, makes off with a pot of gold.

The ever vigilant New York Police Department is quickly notified of the robbery and the 6 train comes to a screeching halt before it arrives at the Whitlock Avenue station, and in course, our famous boys in blue begin to swarm about. Turns out the St. Patrick’s Day Bandit looks a lot like you, in fact, the crook was wearing the same 4 leaf clover colored shirt, pants and face paint as you. While you may be positive that the bandit just couldn’t have the same twinkle in their blue eyes as you, Officer McGotcha from the NYPD isn’t so convinced. McGotcha grabs you by the collar and informs you that you’re headed off for identification, because guess what? Yep, Detective Solvedit has an eye-witness waiting back at the Hunts Point Avenue station who is going to seal the deal on this case just in time for Officer McGotcha’s promotion next month. What should you do? What rights do you have?

On The Spot & Showups

You do not have the right to a lawyer for the mere purpose of identification by the victim or witness if you were apprehended in or close to the area where the crime took place and brought back to the scene shortly thereafter.

Pre-Charge Line Up

Unfortunately, there is usually no right to an attorney in a Pre-Charge Line Up. If no charges have been filed, you have not requested an attorney or alternatively cannot afford an attorney, the police have no duty to notify or provide an attorney. If you have an attorney and request that your attorney is present, the police must make an attempt to notify your attorney and in turn, if your lawyer learns there will be a line up and notifies the police they would like to attend, the police must allow the attorney a reasonable amount of time to appear. However, the cops are usually not required to reschedule or delay if the attorney can’t make it. Line up identification evidence is difficult to suppress, the Court has found that such evidence is admissible even in the case where it is produced by a probable cause warrantless nonconsensual felony arrest in the accused’s home. In New York, such an arrest is a violation of rights and usually requires the suppression of statements made to police prior to and after leaving the accused’s home, but the remedy to that violation does not include the exclusion of identification evidence.

Post-Charge Line Up

Once charged with a crime, you have the right to an attorney, but must make clear that you are invoking that right.

Court Ordered Line Up

Court ordered line ups usually apply to a person incarcerated for another crime or being held by a government agency other than the investigating agency. The right to counsel applies unless waived, but cannot be waived unless an attorney is present. As an exception, an incarcerated suspect who has not been charged with a crime can waive the right.

Violation of Right to Counsel

Right to counsel is violated when your attorney is excluded from line up while present in the police station or place where the line up occurs. Your attorney has the right to waive his own presence from the line up.

If you want to learn more about Michael A. Huerta, Attorney and Counselor at Law, or Huerta PLLC, a New York Law Firm, visit http://HuertaPLLC.com