Muldoon, Getz & Reston

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"Critical Stage" Requires Presence of Counsel
by Gary Muldoon
Muldoon & Getz
Rochester, New York 
www.muldoongetz.com

Once an accusatory instrument has been filed, the right to counsel attaches. See 32 New York Jur, Criminal Law: Procedure, §§ 795-827. Certain parts of the criminal justice process have been found to be a "critical stage," others not.

In US v Wade, 388 US 218 (1963), a critical stage was defined as "any stage of the prosecution, formal or informal, in court or out, where ‘the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.’"

Critical stage found

The following have been found to be a critical stage:
• arrest warrant, People v Jones, 2 NY3d 235 (2004)
• arraignment, Hamilton v State of Alabama, 368 US 52 (1961); People v Meyer, 11 NY2d 162 (1962)
• preliminary hearing, Coleman v Alabama, 399 US 1 (1970)
• pre-arrest lineup, where there has been significant judicial activity in the matter. People v
Coates
, 74 NY2d 244 (1989)

• postindictment lineup, People v Coleman, 43 NY2d 222 (1977)
• appearing at a grand jury proceeding, Trudeau v Cantwell, 31 AD3d 844 (3d Dept 2006)
• psychiatric examination, Lee v County Court of Erie County, 27 NY2d 432 (1971)
• pretrial suppression hearing, People v Carracedo, 214 AD2d 404 (1st Dept 1995)
• trial, Perry v Leeke, 488 US 272 (1989)
• jury instructions, People v Martin, 26 AD3d 847 (4th Dept 2006), affd 8 NY3d 129 (2007)
• sentencing, Townsend v Burke, 334 US 736 (1948); People v Harris, 79 NY2d 909 (1992)
• revocation of parole, People ex rel. Donohoe v Montanye, 35 NY2d 221 (1974).

Critical stage not found

The following are not a "critical stage":
• warrantless arrest, People v Pelkey, 100 AD2d 663 (3d Dept 1984)
• interrogation by police prior to the filing of charges, People v Ramos, 99 NY2d 27 (2002)
• investigatory lineup, People v Hernandez, 70 NY2d 833 (1987); People v LeClere, 76 NY2d 670 (1990)
• intoxication tests, including blood tests, People v Bradway, 285 AD2d 831 (3d Dept 2001)
• filing of charges against a codefendant, People v Williams, 112 AD2d 259 (2d Dept 1985)
• "John Doe" indictment, People v Griffin, 86 AD3d 649 (2d Dept 2011); People v Dickson, 133 AD2d 492, 519 NYS2d 419 (3d Dept 1987)
• parole warrant and arrest, People v Pelkey, 294 AD2d 669 (3d Dept 2002)
• search warrant application, People v Wells, 133 AD2d 385 (2d Dept 1987), and execution thereof, People v Dawson, 249 AD2d 977 (4th Dept 1998)
• removal of a defendant from Treatment Alternatives to Street Crime (TASC), People v Garcia, 92 NY2d 726 (1999)
• presentence investigation interview, People v Bogart, 148 Misc2d 327 (Sup 1990)
• execution of sentence, People v Harris, 79 NY2d 909 (1992)
• extradition process, People v Morton, 104 AD2d 569 (2d Dept 1984).

© 2010 by Gary Muldoon