People v Smith

[*1] People v Smith 2006 NY Slip Op 51518(U) [12 Misc 3d 1190(A)] Decided on August 4, 2006 Supreme Court, Queens County Knopf, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 4, 2006
Supreme Court, Queens County

The People of the State of New York, Plaintiff,

against

John Smith, Defendant.



1430/74

Stephen A. Knopf, J.

The Defendant moves to vacate his judgment of conviction of murder in the second degree on October 12, 1988. The handwritten moving papers were submitted by an individual by the name of WOODROW FLEMMING on June 15, 2006, on behalf of the defendant. Mr. Flemming states in his affirmation that he is not an attorney, but is a paralegal who practices before the New York State Courts and Federal Courts in both a pro se and paralegal capacity. Flemming also refers to himself as "pro se paralegal for inmate John Smith".

"While the Sixth Amendment and the State Constitution afford a defendant the right to counsel or to self-representation, they do not guarantee a right to both. These are separate rights depicted on the opposite sides of the same [constitutional] coin'" (see People v. Rodriguez, 95 NY2d 497, 501 [2000].

In this case the defendant is neither proceeding pro se nor is he represented by counsel. He has a self-styled "pro se paralegal" representing him. " A lay person, regardless of his educational qualifications or experience is not a substitute for a member of the Bar". (see People v. Felder, 47 NY2d 287,293 [1979]). The right to counsel means the right to an attorney. It does not mean that a criminal defendant has the right to choose to be represented by a lay person. (see Felder, supra).

Therefore, Woodrow Flemming, as "pro se paralegal" does not have the authority to file the instant motion on behalf of the defendant. Since the motion was improperly made, the relief sought is denied.

Order entered accordingly.

_________________________STEPHEN A. KNOPF, J.S.C. [*2]