PEOPLE v. PERRY (2021)

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J. at counsel waiver;  Edward J. McLaughlin, J. at suppression hearing;  Ruth Pickholz, J. at jury trial and sentencing), rendered February 2, 2017, as amended August 3, 2017, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 31/212 to 7 years, unanimously reversed, on the law, and the matter remanded for a new suppression hearing and a new trial.  Appeal from judgment, same court (Pickholz, J.), rendered February 2, 2017, as amended March 29 and June 29, 2018, convicting defendant, upon his plea of guilty, of attempted robbery in the third degree, and sentencing him, as a second felony offender, to a concurrent term of two to four years, unanimously dismissed as abandoned.

The court's colloquy with defendant regarding his request to proceed pro se was insufficient to establish a valid waiver of the right to counsel.  The record “does not sufficiently demonstrate that defendant was aware of his actual sentencing exposure” (People v. Jackson, 194 A.D.3d 622, 622, 148 N.Y.S.3d 204 [1st Dept. 2021]), including the potential for his sentences in two pending cases, arising from unrelated incidents, to run consecutively.  The court also failed to inquire into defendant's understanding of “the nature of the charges” (People v. Cole, 120 A.D.3d 72, 75, 987 N.Y.S.2d 373 [1st Dept. 2014], lv denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014]).  This despite defendant's admission that he did “[n]ot necessarily” understand the charges in one case and was “still coming to grips with the charges” in the other case.  The court's statement during the waiver colloquy that defendant was “facing felony charges” was inadequate for that purpose.

Moreover, the court's inquiry did not “accomplish the goals of adequately warning a defendant of the risks inherent in proceeding pro se and apprising a defendant of the singular importance of the lawyer in the adversarial system of adjudication” (People v. Crampe, 17 N.Y.3d 469, 482, 932 N.Y.S.2d 765, 957 N.E.2d 255 [2011], cert denied sub nom.  New York v. Wingate 565 U.S. 1261, 132 S.Ct. 1746, 182 L.Ed.2d 531 [2012]).  The court failed to warn defendant about the numerous pitfalls of representing himself before and at trial, such as unfamiliarity with legal terms, concepts, and case names;  the potential challenges of cross-examining witnesses and delivering an opening statement and summation as a pro se criminal defendant.  While there is no mandatory “catechism for this inquiry,” there must be a “searching inquiry” conducted by a court before permitting self-representation (People v. Providence, 2 N.Y.3d 579, 580, 780 N.Y.S.2d 552, 813 N.E.2d 632 [2004] [internal quotation marks and citation omitted]); (see N.Y. Model Colloquies, Waiver of Counsel).  Under the particular circumstances of this case, we find that defendant's waiver of his right to counsel was not knowing, intelligent, and voluntary.

Because defendant represented himself at the suppression hearing and at trial, we remand for a new hearing and trial (see e.g. People v. Slaughter, 78 N.Y.2d 485, 491, 577 N.Y.S.2d 206, 583 N.E.2d 919 [1991]).  On this appeal, we decline to grant defendant's suppression motion, without prejudice to the litigation of all relevant suppression issues at a de novo hearing, and any appeal that may ensue.