THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. AGUSTIN OCASIO DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the case is held, the decision is reserved, and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal possession of a controlled substance in the first degree (Penal Law § 220.21 [1]) and attempted criminal possession of a weapon in the second degree (§§ 110.00, 265.03 [3]). The conviction arose from a long-term narcotics investigation involving physical surveillance and multiple eavesdropping warrants, including one for a cellular telephone referred to as “Ocasio Phone 2” (Phone 2 warrant). When this case was previously before us, we concluded that Supreme Court erred in refusing to suppress evidence obtained from the Phone 2 warrant on the ground that defendant lacked standing to challenge that warrant, and we held the case, reserved decision, and remitted the matter for a determination on the merits of that part of defendant's omnibus motion seeking suppression of evidence obtained pursuant to the Phone 2 warrant (People v Ocasio, 222 AD3d 1364, 1366 [4th Dept 2023]). On remittal, the court granted the motion of defendant's assigned counsel to withdraw from representation, after which defendant requested to proceed pro se. The court granted defendant's request to proceed pro se, and defendant thereafter represented himself through the remainder of the remittal proceedings. The court subsequently issued an order refusing, inter alia, to suppress the evidence obtained pursuant to the Phone 2 warrant.

As defendant contends and the People correctly concede, the court failed to conduct a sufficient inquiry into his request to represent himself. “[A]n application to proceed pro se must be denied unless defendant effectuates a knowing, voluntary and intelligent waiver of the right to counsel ․ To this end, trial courts must conduct a ‘searching inquiry’ to clarify that defendant understands the ramifications of such a decision” (People v Stone, 22 NY3d 520, 525 [2014]; see People v Abdullah, 194 AD3d 1346, 1346 [4th Dept 2021], lv denied 37 NY3d 990 [2021]). In other words, a “searching inquiry” is required to “warn defendant of the risks inherent in representing [themself]” and to “apprise [them] of the value of counsel” (People v Kaltenbach, 60 NY2d 797, 799 [1983] [internal quotation marks omitted]; see People v Crampe, 17 NY3d 469, 481 [2011], cert denied 565 US 1261 [2012]), including that “going pro se would be ‘extraordinarily dangerous’ and ‘that most defendants who represent themselves are not successful’ ” (People v Cole, 120 AD3d 72, 75 [1st Dept 2014], lv denied 24 NY3d 1082 [2014]). “When a record lacks the requisite ‘searching inquiry’ or fails to measure up to the prescribed standards, a waiver of the right to counsel will be deemed ineffective” (People v Smith, 92 NY2d 516, 520 [1998]).

Here, the court erred in allowing defendant to proceed pro se inasmuch as it did not “undertake a searching inquiry ․ to insur[e] that ․ defendant [was] aware of the dangers and disadvantages of proceeding without counsel” (Crampe, 17 NY3d at 481 [internal quotation marks omitted]; see People v Williams, 101 AD3d 1730, 1734 [4th Dept 2012], lv denied 21 NY3d 1021 [2013]; People v Allen, 99 AD3d 1252, 1253 [4th Dept 2012]). We conclude that “the tainted proceeding had an adverse impact on defendant” (Allen, 99 AD3d at 1253; see generally People v Wardlaw, 6 NY3d 556, 559 [2006]) and, therefore, we hold the case, reserve decision, and remit the matter to Supreme Court for further proceedings in accordance with our prior determination (Ocasio, 222 AD3d at 1366) and with defendant's right to counsel (see Allen, 99 AD3d at 1253).

In light of our determination, we do not address the remaining contentions in defendant's main and pro se supplemental briefs.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court