People v Grubstein (Howard)
Annotate this CaseDecided on May 19, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TOLBERT, J.P., GARGUILO and CONNOLLY, JJ.
&em;
The People of the State of New York, Appellant,
against
Howard Grubstein, Respondent.
Appeal from an order of the Justice Court of the Town of Tuxedo, Orange County (Shawn M. Brown, J.), dated January 6, 2011. The order granted defendant's motion to vacate a judgment convicting him, upon his plea of guilty, of driving while intoxicated, and to withdraw his guilty plea.
ORDERED that the order is affirmed.
On October 30, 2008, defendant, who had been charged with aggravated driving while intoxicated (Vehicle and Traffic Law § 1192 [2-a]) and driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]), appeared before the Justice Court of the Town of Tuxedo (Hume Stuyer, J.) without counsel and pleaded guilty to a misdemeanor charge of driving while intoxicated. On the same day, a judgment of conviction was entered, from which defendant did not appeal.
In June 2010, defendant was again arrested for a similar offense and was charged with a felony pursuant to Vehicle and Traffic Law § 1193 (1) (c) (i), which applies to a person who operates a vehicle while intoxicated after having been convicted of such a crime within the preceding 10 years. In November 2010, defendant moved to withdraw his 2008 guilty plea and, in his affidavit in support of the motion, stated that he did not have counsel at the time of his plea and, therefore, was unaware of any potential defenses, of his right to challenge the basis for his arrest and any statements attributed to him, and was unaware that any subsequent arrest for driving while intoxicated could be charged as a felony. The People opposed defendant's motion. By order dated January 6, 2011, the Justice Court treated defendant's motion as a motion to vacate the judgment of conviction, pursuant to CPL 440.10, and granted the motion.
By decision and order dated December 10, 2012 (37 Misc 3d 142[A], 2012 NY Slip Op 52285[U]), this court reversed the January 2011 order of the Justice Court finding, among other things, that "to the extent that adequate facts appeared in the record to evaluate certain of defendant's claims regarding the sufficiency of the plea allocution, the only possible avenue of review was a direct appeal." Thereafter, defendant was granted leave to appeal to the Court of Appeals (21 NY3d 1015 [2013]). By decision and order dated November 18, 2014 (24 NY3d 500, 501-502 [2014]), the Court of Appeals reversed this court's December 2012 order, and held, among other things, that "a defendant who asserts that he was deprived of his right to counsel when he pleaded guilty pro se is not barred from raising that claim in a motion under CPL 440.10 by his failure to raise it on direct appeal." The case was remitted to this court "for consideration of issues raised but not determined on the appeal" (id. at 503).
Since defendant faced the possibility of imprisonment pursuant to Vehicle and Traffic Law § 1193 (1) (b) (i) for the offenses charged in 2008, the Justice Court properly informed defendant, prior to his entry of the guilty plea, that he had the right to counsel, would be appointed counsel if he could not afford to hire counsel, and had the right to an adjournment in order to obtain counsel (see People v Raghubir, 39 Misc 3d 131[A], 2012 NY Slip Op 52476[U] [*2][App Term, 9th & 10th Jud Dists 2012]). Although a defendant has a right to self-representation (CPL 170.10 [6]), in the event a defendant seeks to waive his constitutional right to counsel, a court must conduct a searching inquiry to be reasonably assured that the defendant appreciates the dangers and disadvantages of giving up this fundamental right (see People v Arroyo, 98 NY2d 101 [2002]; People v Smith, 92 NY2d 516 [1998]; People v Kaltenbach, 60 NY2d 797 [1983]). Before permitting a defendant to proceed without counsel, a court must be satisfied that the defendant's waiver of his or her constitutional right to counsel is knowing, voluntary and intelligent (see People v Crampe, 17 NY3d 469, 481 [2011]). The Court of Appeals has "consistently refrained from creating a catechism for this inquiry, recognizing that it may occur in a nonformalistic, flexible manner' " (People v Providence, 2 NY3d 579, 580 [2004], quoting People v Smith, 92 NY2d at 520). Relevant factors bearing on an intelligent and voluntary waiver of the right to counsel include the defendant's age, education, occupation, and previous exposure to legal procedures (see People v Crampe, 17 NY3d at 482; People v Arroyo, 98 NY2d at 103-104). However, a waiver of the right to counsel is not necessarily "ineffective for lack of inquiry into specific factors such as [the defendant's] education or experience in the law," as the court may look to the whole record, and not simply the questions asked and answers given during a waiver colloquy (see People v Anderson, 94 AD3d 1010, 1012 [2012], citing People v Providence, 2 NY3d 579).
Applying the foregoing standards to the case at bar, it is clear that the Justice Court failed to conduct a sufficient inquiry to determine whether defendant's waiver of his right to counsel was knowing and intelligent, and it did not otherwise ensure that defendant was aware of the drawbacks of self-representation, since its "inquiry did not direct defendant's attention to the dangers and disadvantages of self-representation" (People v Crampe, 17 NY3d at 482-483; see also People v Slaughter, 78 NY2d 485 [1991]). A review of the plea transcript shows that the Justice Court "neither tested defendant's understanding of choosing self-representation nor provided a reliable basis for appellate review. Thus, the court failed . . . to evaluate adequately defendant's competency to waive counsel, to warn him of the risks inherent in proceeding pro se and to apprise him of the importance of the lawyer in the adversarial system of adjudication" (People v Arroyo, 98 NY2d at 104 [internal quotation marks and citations omitted]). We note that the prosecutor twice requested that the Justice Court not accept defendant's plea and stated that defendant should obtain counsel, and the Justice Court twice informed defendant that it would not accept his plea and that he should obtain counsel, before ultimately accepting the plea. Moreover, as noted by the Court of Appeals, the Justice Court did not inform defendant of his right to appeal (see People v Grubstein, 24 NY3d at 502). Consequently, the Justice Court properly granted defendant's motion to vacate the judgment of conviction and withdraw his guilty plea.
Accordingly, the order is affirmed.
Tolbert, J.P., Garguilo and Connolly, JJ., concur.
Decision Date: May 19, 2015
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