PEOPLE v. LOTT

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Rasheid K. LOTT, Defendant-Appellant.

Decided: November 10, 2005

PRESENT:  GREEN, J.P., HURLBUTT, SCUDDER, KEHOE, AND GORSKI, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Steven Meyer of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him of attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ) and other crimes.   Defendant primarily contends that he was deprived of his right to counsel at a critical pretrial stage of the case because Supreme Court failed to conduct a searching inquiry of defendant concerning his election to proceed pro se and failed to warn him of the dangers and disadvantages of self-representation (see People v. Henriquez, 3 N.Y.3d 210, 224, 785 N.Y.S.2d 384, 818 N.E.2d 1125;  People v. Providence, 2 N.Y.3d 579, 582, 780 N.Y.S.2d 552, 813 N.E.2d 632;  People v. Arroyo, 98 N.Y.2d 101, 103-104, 745 N.Y.S.2d 796, 772 N.E.2d 1154;  People v. Slaughter, 78 N.Y.2d 485, 491, 577 N.Y.S.2d 206, 583 N.E.2d 919).   We agree.   Here, the court failed to make any inquiry with respect to defendant's election to proceed pro se, thus failing to “accomplish the goals of adequately warning [the] defendant of the risks inherent in proceeding pro se, and apprising [the] defendant of the singular importance of the lawyer in the adversarial system of adjudication” (People v. Smith, 92 N.Y.2d 516, 520, 683 N.Y.S.2d 164, 705 N.E.2d 1205, citing People v. Kaltenbach, 60 N.Y.2d 797, 798-799, 469 N.Y.S.2d 685, 457 N.E.2d 791;  see Arroyo, 98 N.Y.2d at 103-104, 745 N.Y.S.2d 796, 772 N.E.2d 1154;  Slaughter, 78 N.Y.2d at 491-492, 577 N.Y.S.2d 206, 583 N.E.2d 919;  People v. Wardlaw, 18 A.D.3d 106, 108-109, 794 N.Y.S.2d 524, lv. granted 5 N.Y.3d 771, 801 N.Y.S.2d 265, 834 N.E.2d 1275).

 We reject the People's contention that the court's error in allowing defendant to proceed pro se is harmless under the circumstances of this case (cf. Wardlaw, 18 A.D.3d at 109-114, 794 N.Y.S.2d 524;  see generally Slaughter, 78 N.Y.2d at 492, 577 N.Y.S.2d 206, 583 N.E.2d 919;  People v. Wicks, 76 N.Y.2d 128, 132-133, 556 N.Y.S.2d 970, 556 N.E.2d 409, rearg. denied 76 N.Y.2d 773, 559 N.Y.S.2d 986, 559 N.E.2d 680;  People v. Hodge, 53 N.Y.2d 313, 320-321, 441 N.Y.S.2d 231, 423 N.E.2d 1060).   During the time in which defendant was proceeding pro se, he served a notice of alibi in which he represented that, throughout the day of the crime, he had been at “202 E. Delevan spending time with family, cooking, preparing meals amongst other things, etc.”   At trial, however, defendant and witnesses on his behalf testified that, during the particular time in question, defendant and others had gone to a shopping mall, and thus the evidence presented by defendant at trial contradicted his notice of alibi.   On cross-examination of defendant and on summation, the prosecutor exploited that contradiction as well as various other deficiencies in the pro se notice of alibi.

The denial of counsel to defendant at the pretrial stage was an error of constitutional dimension (see Wicks, 76 N.Y.2d at 132, 556 N.Y.S.2d 970, 556 N.E.2d 409).   Consequently, in determining whether the error is harmless, we must determine whether there is any reasonable possibility that the error contributed to defendant's conviction (see Slaughter, 78 N.Y.2d at 492-493, 577 N.Y.S.2d 206, 583 N.E.2d 919;  Wicks, 76 N.Y.2d at 133, 556 N.Y.S.2d 970, 556 N.E.2d 409;  People v. Felder, 47 N.Y.2d 287, 295, 418 N.Y.S.2d 295, 391 N.E.2d 1274;  see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).   In our view, the defense was impaired to a significant extent by the pretrial denial of the right to counsel, particularly as a result of defendant's service of the pro se notice of alibi.   We thus conclude that there is a reasonable possibility that the error contributed to defendant's conviction (see Slaughter, 78 N.Y.2d at 492-493, 577 N.Y.S.2d 206, 583 N.E.2d 919;  cf. People v. Carracedo, 89 N.Y.2d 1059, 1061-1062, 659 N.Y.S.2d 830, 681 N.E.2d 1276;  Wardlaw, 18 A.D.3d at 113-114, 794 N.Y.S.2d 524).   Indeed, “[o]n the present record, it is impossible to assert ‘beyond a reasonable doubt’ that the deprivation of counsel produced no adverse consequences” (Hodge, 53 N.Y.2d at 320, 441 N.Y.S.2d 231, 423 N.E.2d 1060;  see People v. Knapp, 52 N.Y.2d 689, 698, 439 N.Y.S.2d 871, 422 N.E.2d 531).   It cannot be said that “defendant's prejudice arguments are simply too speculative to form the basis for” the relief requested by defendant, i.e., reversal of the judgment of conviction and a new trial (Carracedo, 89 N.Y.2d at 1062, 659 N.Y.S.2d 830, 681 N.E.2d 1276).   Indeed, we conclude that defendant must be restored to his status immediately postindictment, with leave to serve, e.g., a new set of motion papers, discovery requests and notices, in order to place him “in a position comparable to the one he would have occupied had his right to counsel not been compromised” for much of the pretrial phase (Hodge, 53 N.Y.2d at 321, 441 N.Y.S.2d 231, 423 N.E.2d 1060).

Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction of attempted murder in the second degree and assault in the first degree (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, we conclude that his contention is without merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;  People v. Rudolph, 16 A.D.3d 1151, 1152, 791 N.Y.S.2d 253).   We further conclude that the verdict is not against the weight of the evidence with respect to those counts (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and we reject defendant's contention that the conviction of kidnapping in the second degree merges with the other crimes of which defendant was convicted (see People v. O'Connor, 21 A.D.3d 1364, 802 N.Y.S.2d 810;  People v. Wegman, 2 A.D.3d 1333, 1336, 769 N.Y.S.2d 682, lv. denied 2 N.Y.3d 747, 778 N.Y.S.2d 473, 810 N.E.2d 926).   In light of our decision, we do not address defendant's remaining contentions.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law and a new trial is granted.

MEMORANDUM: