PEOPLE v. KIRK

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Wesley KIRK, Defendant-Appellant.

Decided: September 29, 2000

PRESENT:  GREEN, J.P., PINE, WISNER, KEHOE and BALIO, JJ. Robert P. Moran, Jr., Utica, for Defendant-Appellant. Thomas E. Moran, Geneseo, for Plaintiff-Respondent.

 The judgment of conviction must be reversed and the indictment dismissed because defendant's right to counsel at a critical stage of the criminal proceedings was violated (see, N.Y. Const, art. I, § 6;  People v. Chapman, 69 N.Y.2d 497, 500, 516 N.Y.S.2d 159, 508 N.E.2d 894).   Defendant's indelible right to counsel had attached upon the filing of a felony complaint (see, People v. Chapman, supra, at 500, 516 N.Y.S.2d 159, 508 N.E.2d 894;  People v. Samuels, 49 N.Y.2d 218, 221, 424 N.Y.S.2d 892, 400 N.E.2d 1344).   Thus, when defendant appeared before the Grand Jury he could not waive his right to counsel in the absence of counsel (see, People v. Samuels, supra, at 221-223, 424 N.Y.S.2d 892, 400 N.E.2d 1344).   The physical presence of the attorney is not required where there is an assurance by the attorney that a defendant's decision to waive counsel was made in consultation with the attorney (see, People v. Beam, 57 N.Y.2d 241, 254, 455 N.Y.S.2d 575, 441 N.E.2d 1093;  People v. Yut Wai Tom, 53 N.Y.2d 44, 53-54, 439 N.Y.S.2d 896, 422 N.E.2d 556).   Here however, there was no such assurance, and thus the telephone call placed by defendant's attorney to the prosecutor notifying the prosecutor that defendant would appear alone was insufficient to waive defendant's right to counsel.  “[A]n attorney cannot unilaterally waive a defendant's right to counsel” (People v. Thomas, 155 A.D.2d 706, 548 N.Y.S.2d 271, affd. 76 N.Y.2d 902, 561 N.Y.S.2d 909, 563 N.E.2d 280).   There was no evidence that the attorney obtained defendant's consent to the attorney's absence (see, People v. Tompkins, 45 N.Y.2d 748, 750, 408 N.Y.S.2d 485, 380 N.E.2d 311, cert. denied 440 U.S. 939, 99 S.Ct. 1288, 59 L.Ed.2d 499;  People v. McCrimmon, 142 A.D.2d 606, 530 N.Y.S.2d 260;  People v. Valvano, 131 A.D.2d 615, 516 N.Y.S.2d 507, lv. dismissed 70 N.Y.2d 756, 520 N.Y.S.2d 1031, 514 N.E.2d 1383;  cf., People v. Beam, supra;  People v. Yut Wai Tom, supra;  People v. Williams, 263 A.D.2d 369, 695 N.Y.S.2d 71, lv. denied 94 N.Y.2d 831, 702 N.Y.S.2d 602, 724 N.E.2d 394;  People v. Brown, 244 A.D.2d 347, 663 N.Y.S.2d 880, lv. denied 91 N.Y.2d 940, 671 N.Y.S.2d 720, 694 N.E.2d 889).

 The Grand Jury waiver of immunity, obtained in violation of defendant's right to counsel, was therefore ineffective and conferred transactional immunity upon defendant (see, People v. Chapman, supra, at 503-504, 516 N.Y.S.2d 159, 508 N.E.2d 894;  see also, CPL 190.40;  People v. Bartok, 209 A.D.2d 530, 530-531, 619 N.Y.S.2d 626, lv. denied 85 N.Y.2d 935, 627 N.Y.S.2d 997, 651 N.E.2d 922;  People v. Valvano, supra, at 616, 516 N.Y.S.2d 507).   Based on our resolution of this issue, we need not address defendant's remaining contentions.

Judgment unanimously reversed on the law and indictment dismissed.

MEMORANDUM: