Opinion
February 22, 1979
Appeal from a judgment of the County Court of Sullivan County, rendered January 19, 1977, upon a verdict convicting defendant of the crimes of assault, second degree, and attempted assault, second degree. Judgment affirmed. No opinion. Sweeney, Kane, Staley, Jr., and Herlihy, JJ., concur.
Mahoney, P.J., dissents and votes to reverse in the following memorandum.
Pursuant to the Sixth and Fourteenth Amendments, a defendant in a State criminal trial has a right to proceed without counsel when he voluntarily and intelligently elects to do so (Faretta v California, 422 U.S. 806), and the State Constitution specifically allows a defendant "to appear and defend in person" (NY Const, art I, § 6). The Court of Appeals has held that "A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues" (People v. McIntyre, 36 N.Y.2d 10, 17). Here, it is clear that defendant's request was timely and that he had not engaged in disruptive conduct. With regard to the second requirement the court explained in McIntyre that inquiry into the defendant's age, education, occupation and previous exposure to legal procedures is appropriate in determining the defendant's competency to waive counsel (p 17). Moreover, in People v Reason ( 37 N.Y.2d 351, 356), the court rejected a defendant's contention that the trial court erred in allowing him to represent himself, noting that "the Trial Judge made a searching inquiry to determine whether the defendant's decision to waive counsel and proceed on his own was made knowingly and intelligently with full awareness of the risks and consequences." (See, also, People v. Medina, 44 N.Y.2d 199, 209-210.) On the other hand, in People v. Allen ( 39 N.Y.2d 916), the court found that a single inquiry as to whether defendant understood the charges against him was insufficient to form the basis for finding a knowing and intelligent waiver of the right to counsel. The inquiry of the trial court here was more extensive than the perfunctory single question in People v. Allen (supra), but appears to fall short of the "searching inquiry" of People v Reason (supra) since there was no direct questioning of the defendant as to whether he was fully aware of the risks and consequences of waiving counsel and proceeding on his own. As explained in Faretta v. California (supra, p 835), "Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that `he knows what he is doing and his choice is made with eyes open.'" The court's inquiry here was limited to ascertaining that defendant wanted to represent himself and believed himself qualified to do so, that defendant had gone to college for one year and that defendant did not want a mental examination. Despite defendant's indication that he had no experience with trial work outside some difficulties he had been in, the court made no effort to ascertain whether defendant was cognizant of the traditional benefits associated with the right to counsel, which he was relinquishing. Such a limited inquiry cannot form a rational basis for finding a competent and intelligent waiver of counsel. (Compare United States v Dujanovic, 486 F.2d 182, with United States ex rel. Smith v Pavich, 568 F.2d 33.) It may well be that the specific factual background will in some instances excuse the Trial Judge's failure to give explicit warning and advice regarding the waiver of counsel (see United States v. Rosenthal, 470 F.2d 837, cert den 412 U.S. 909), but in such cases the record will reveal that defendant was in fact knowledgeable about his right to counsel and what he was relinquishing (id.; see, also, People v Brown, 60 A.D.2d 540). The record herein does not establish such knowledge by the defendant. Apprehension of the nature of the charges and the possible range of punishment is also one of the foundations upon which a knowing and competent waiver of the right to counsel vests (see Matter of Lawrence S., 29 N.Y.2d 206, 208). The colloquy between the Judge and the defendant at the hearing to determine defendant's competence to represent himself concluded with defendant's assertion that "This is a childish matter", raising a substantial question as to defendant's understanding of the seriousness of the charges and the consequences of his decision to represent himself. The record also reveals a question as to whether defendant's request to represent himself was unequivocal. It is apparent that his decision was based upon the belief that he and his assigned counsel could not "relate to one another", and he stated that "I'm requesting for an attorney that's capable because I can't go through this." While an indigent defendant is not entitled to assignment of counsel of his own choosing (see People v Jackson, 61 A.D.2d 1071), Trial Judges have a duty to "carefully evaluate serious complaints about counsel" and "where `good cause' does exist a court is well advised to effect a change of counsel" (People v. Medina, 44 N.Y.2d 199, 207, supra). Here, the trial court failed to make the type of inquiry suggested in Medina. For all of the foregoing reasons, I find an insufficient basis for concluding that defendant made a knowing and intelligent waiver of the right to counsel and, accordingly, conclude that a new trial should be ordered (People v. Allen, 39 N.Y.2d 916, supra). I note that the trial court directed defendant's assigned counsel to be present at the trial and provide advice if requested by defendant and, in addition, both the trial court and prosecutor took steps to assist defendant in the presentation of his case. While these special efforts were appropriate under the circumstances, they do not serve to cure the failure to adequately ascertain whether defendant's waiver of the right to counsel was knowing and intelligent. Nor can it be said that this error, which is constitutional, was harmless (see People v. Crimmins, 36 N.Y.2d 230, 237). The judgment should be reversed, and a new trial ordered.