People v. Trapani

162 A.D.3d 1121

78 N.Y.S.3d 745

The PEOPLE of the State of New York, Respondent,

v.Damian TRAPANI, Appellant.

108791

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

Calendar Date: April 27, 2018

Decided and Entered: June 7, 2018

G. Scott Walling, Slingerlands, for appellant.

Robert M. Carney, District Attorney, Schenectady (Gloria J. Sprague, Law Intern), for respondent.

Before: McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey, JJ.

MEMORANDUM AND ORDER

Devine, J.

Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered July 22, 2016, convicting defendant upon his plea of guilty of the crime of attempted burglary in the third degree.

Defendant was charged in an indictment with burglary in the third degree and criminal mischief in the fourth degree. He unsuccessfully moved to dismiss the indictment on the ground that the People had not afforded him with a reasonable amount of time in which to exercise his right to appear as a witness before the grand jury (see CPL 190.50[5] ). Defendant then pleaded guilty to attempted burglary in the third degree in full satisfaction of the indictment and waived his right to appeal. The plea agreement contemplated that defendant would be sentenced as a second felony offender to 1½ to 3 years in prison, but County Court warned defendant that the sentence could be enhanced if he were arrested prior to sentencing. Defendant was thereafter arrested and charged with assaulting three correction officers, prompting County Court to sentence him as a second felony offender to an enhanced prison term of 2 to 4 years. Defendant now appeals.

Defendant points to the denial of his motion to dismiss the indictment due to a violation of his statutory right to appear and testify before the grand jury (see CPL 190.50[5][a] ), an issue that would ordinarily be forfeited by his guilty plea (see People v. Straight, 106 A.D.3d 1190, 1191, 964 N.Y.S.2d 755 [2013] ; People v. Dennis, 223 A.D.2d 814, 815, 636 N.Y.S.2d 453 [1996], lv denied 87 N.Y.2d 972, 642 N.Y.S.2d 201, 664 N.E.2d 1264 [1996] ) and precluded by his knowing, intelligent and voluntary appeal waiver (see People v. Lawrence, 135 A.D.3d 1187, 1188, 22 N.Y.S.3d 920 [2016], lv denied 27 N.Y.3d 1001, 38 N.Y.S.3d 110, 59 N.E.3d 1222 [2016] ; People v. Johnson, 97 A.D.3d 990, 991, 947 N.Y.S.2d 922 [2012] ). Inasmuch as he argues that the statutory violation occurred because of an outright deprivation of his constitutional right to counsel, however, he advances an argument that " ‘go[es] to the very heart of the process’ and survive[s]" both his guilty plea and appeal waiver ( People v. Smith, 143 A.D.3d 31, 34–35, 37 N.Y.S.3d 4 [2016], affd in relevant part 30 N.Y.3d 626, 69 N.Y.S.3d 566, 92 N.E.3d 789 [2017], quoting People v. Griffin, 20 N.Y.3d 626, 630, 964 N.Y.S.2d 505, 987 N.E.2d 282 [2013] ; see People v. Chappelle, 121 A.D.3d 1166, 1168, 994 N.Y.S.2d 435 [2014], lv denied 24 N.Y.3d 1118, 3 N.Y.S.3d 760, 27 N.E.3d 474 [2015] ; see also United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 [1984] ; Hurrell–Harring v. State of New York, 15 N.Y.3d 8, 23–24, 904 N.Y.S.2d 296, 930 N.E.2d 217 [2010] ).

On December 11, 2015, defendant appeared in City Court for arraignment on a felony complaint and a misdemeanor information charging him with the offenses for which he was later indicted. Defendant, as is relevant here, stated that he wished to represent himself and testify before the grand jury. He remained unrepresented at a second appearance three days later and reiterated his desire to appear before the grand jury. The indictment was handed up shortly thereafter, and it appears that the People disregarded defendant's desire to testify before the grand jury because he failed to make a written demand as required (see CPL 190.50[5][a] ).

"[D]efendant's indelible right to counsel ... attached when the felony complaint against him was first filed" ( People v. Chapman, 69 N.Y.2d 497, 500, 516 N.Y.S.2d 159, 508 N.E.2d 894 [1987] ) and, while he could waive that right and proceed pro se, the waiver would be invalid absent a "searching inquiry" by City Court to discern whether defendant understood and "appreciated the ‘dangers and disadvantages’ of" self-representation ( People v. White, 56 N.Y.2d 110, 117, 451 N.Y.S.2d 57, 436 N.E.2d 507 [1982], quoting Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 [1975] ; see People v. Silburn, 31 N.Y.3d 144, ––––, 74 N.Y.S.3d 781, 98 N.E.3d 696, 2018 N.Y. Slip Op 02286, *2 [2018] ; People v. Myers, 160 A.D.3d 1029, 1032, 74 N.Y.S.3d 394 [2018] ). There was no inquiry conducted here, leaving the record silent as to whether "defendant ‘acted with full knowledge and appreciation of the panoply of constitutional protections that would be adversely affected by counsel's inability to participate’ " so as to constitute a valid waiver ( People v. Middlemiss, 125 A.D.3d 1065, 1067, 3 N.Y.S.3d 771 [2015], quoting People v. Henriquez, 3 N.Y.3d 210, 217, 785 N.Y.S.2d 384, 818 N.E.2d 1125 [2004] ). Defendant should therefore not have been permitted to proceed pro se (see People v. Crampe, 17 N.Y.3d 469, 481–482, 932 N.Y.S.2d 765, 957 N.E.2d 255 [2011] ; People v. Myers, 160 A.D.3d at 1032–1033, 74 N.Y.S.3d 394 ; People v. Guarnieri, 122 A.D.3d 1078, 1079–1080, 996 N.Y.S.2d 776 [2014] ).¹ It follows that defendant was deprived of an opportunity to consult with counsel—who could have assisted defendant in deciding whether to appear before the grand jury and made an effective demand to appear in the event he chose to do so—and this "deprivation of defendant's constitutional right to counse...