NY Criminal Law: What To Do When You're Arrested

For most us, the thought of being arrested is a frightening thought. However, it does happen – whether warranted or not. If you find yourself in this situation, it's important to understand what you should say to police, when you have the right to counsel and what you can do if your arrest was wrongful. Our New York legal expert provides the answers.

What to say – and what NOT to say – after being arrested

Should someone avoid making statements to the police when they've been arrested? Elliot Schlissel, a New York criminal defense attorney whose firm represents clients in Long Island's Nassau and Suffolk Counties all the boroughs of Manhattan in New York County and surrounding counties, answered that question for us during a recent interview:

An individual who’s been arrested should make no statement to the police unless he has conferred with counsel. Immediately upon being arrested, a person should advise the police that he wishes to make no statement until such time that he’s had a reasonable opportunity to meet with his attorney.

The police’s job, when they have someone who they perceive may have been involved in a crime, is to try to motivate him to not get an attorney. The expression the police use is 'lawyered up,' meaning he or she's shut up or won’t talk. Anything that person says can and will be used against him if he’s in a custody.

Unfortunately, the large majority of people make statements. Those statements end up being confessions very often or they make statements that implicate them – sometimes in crimes they haven’t even committed. A person has no obligation to make a statement to the police. They can simply say, “I wish to make no statement until I have spoken with my attorney.”

At what point does a New Yorker have the right to counsel?

An individual has the right to counsel at the time he is arrested or at the time he is being investigated with regard to a criminal matter, according to Schlissel. He told us:

The reason for the right to counsel is to help an individual deal with the criminal justice system. So, if an individual feels that he is the subject of any type of criminal investigation by the legal establishment, it is in his interest to seek counsel. At the very least, it may help him avoid possibly taking some action that will create an appearance that he’s done something wrong.

What happens when you’re wrongly arrested for a crime?

While some arrests may be legitimate, others are not. Schlissel says that the police have an obligation to investigate criminal activity; however, there are occasions when people are wrongly arrested – and that's when having a lawyer is crucial. He explained:

Very often in those situations, defense counsel are successful in getting the charges dismissed and/or preventing those individuals from being wrongly convicted of a crime. However, there are instances where individuals are wrongly convicted of crimes and sent to prison. In those circumstances, if they can later show they were wrongly imprisoned, they can sue the state of New York, or the municipality that convicted them, and very often recover financial damages. However, they can’t resurrect or get back the portion of their lives wasted in prison.