People v Stearns

[*1] People v Stearns 2008 NY Slip Op 50271(U) [18 Misc 3d 1133(A)] Decided on February 11, 2008 County Court, Essex County Meyer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 11, 2008
County Court, Essex County

The People of the State of New York, Plaintiff,

against

Glenn E. Stearns, Defendant.



07-020-I



Julie A. Garcia, Esq., Essex County District Attorney, (Brian W. Felton, Esq., of counsel), Elizabethtown, New York.

Livingston L. Hatch, Esq., Essex County Public Defender, Elizabethtown, New York, for the defendant.

Richard B. Meyer, J.

The defendant is charged by a four-count indictment filed August 6, 2007 with driving while intoxicated per se (Vehicle and Traffic Law §1192[2]) and common law driving while intoxicated (Vehicle and Traffic Law §1192[3]), both class E felonies based upon defendant's predicate [*2]misdemeanor conviction for driving while intoxicated in 2001 [FN1], and two traffic infraction counts for moving from a lane unsafely (Vehicle and Traffic Law §1128[a]) and following too closely (Vehicle and Traffic Law §1129[a]). The charges arise out of an incident occurring in the Town of St. Armand, Essex County on June 21, 2007.

As part of his omnibus motion, the defendant moves to reduce the felony DWI counts to misdemeanors by challenging the validity of his 2001 DWI conviction, claiming that his guilty plea was entered in violation of his constitutional rights to counsel and to remain silent (U.S. Constitution, Amendments V and VI). Specifically, the defendant alleges that he was arrested on August 25, 2001 in the Village of Saranac Lake, Franklin County, and charged with the misdemeanor crime of driving while intoxicated (Vehicle and Traffic Law §1192[2]). He was taken to the village police station where he was also charged with assault in the third degree (Penal Law §120.00[2]) for an alleged domestic incident that took place shortly before his initial arrest. In the early morning hours of August 26, 2001, he was taken before the village justice court where he entered guilty pleas to both charges. At the time of his court appearance, the defendant claims he was exhausted from his consumption of alcohol before his arrest and from not having slept while incarcerated. He further claims that when he entered his pleas of guilty he was unaware of his right to counsel and to a trial, and he has no recollection of being advised by the court of those rights. According to the defendant, he was then of the understanding that he was "obligated to go forward with the proceeding" and that his only option was to plead guilty.

The grand jury minutes also reveal that a certificate of conviction, issued by the clerk of the Village of Saranac Lake justice court on July 13, 2007, was received into evidence (CPL §60.60[1]) relative to the defendant's 2001 convictions for assault in the third degree and driving while intoxicated. The certificate indicates a disposition date of November 12, 2001, with the defendant being fined $300.00 on the assault conviction and placed on probation for three years for the DWI conviction with a $500.00 fine.

A hearing was held on February 5, 2008 to allow the defendant the opportunity to submit evidence to support the motion. A certified copy of the records from the Village of Saranac Lake Justice Court were received, consisting of a domestic incident report, the defendant's September 2003 motion pursuant to CPL §440.10(1)(e) and (h) and writ of error coram nobis to vacate the assault conviction, an order dated September 22, 2003 granting the motion and writ, and a plea offer from the Franklin County District Attorney dated September 2001. Significantly, there is no docket or other record for the defendant's court appearance and pleas on August 26, 2001, and the village justice who presided over those proceedings is now deceased. Counsel for the defendant also advised that a similar motion to vacate the defendant's remaining 2001 conviction for DWI is now pending before another justice of that court. [*3]

"A misdemeanor conviction which was obtained when the defendant was not represented by counsel or had not intelligently waived counsel cannot be used as the basis to enhance a subsequent crime from a misdemeanor to a felony (Baldasar v. Illinois, 446 US 222, 100 SCt 1585, 64 LEd2d 169; People v. Butler, 96 AD2d 140, 144, 468 NYS2d 274)." (People v. Knickerbocker, 136 AD2d 769, 770, 523 NYS2d 227, 228). "The constitutional right to counsel is fundamental to our system of justice (see U.S. Const. 6th Amend.; NY Const., art. I, § 6)." (People v. Arroyo, 98 NY2d 101, 103, 745 NYS2d 796, 797, 772 NE2d 1154, 1155). Thus, before proceeding pro se a defendant must make a knowing, voluntary and intelligent waiver of the right to counsel (see People v. Slaughter, 78 NY2d 485, 491, 577 NYS2d 206, 583 NE2d 919; People v. Vivenzio, 62 NY2d 775, 776, 477 NYS2d 318, 465 NE2d 1254). In determining whether a waiver meets this requirement, the court should undertake a " searching inquiry' " of defendant (Slaughter, 78 NY2d at 491, 577 NYS2d 206, 583 NE2d 919 [citing Faretta, 422 US at 835, 95 SCt 2525]). A defendant need not have the professional skills and experience of an attorney to choose self-representation. However, a defendant 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' " (Faretta, 422 US at 835, 95 SCt 2525). Moreover, appropriate record evidence is required which "should affirmatively disclose that a trial court has delved into a defendant's age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver" (People v. Smith, 92 NY2d 516, 520, 683 NYS2d 164, 705 NE2d 1205 [citing McIntyre, 36 NY2d at 17, 364 NYS2d 837, 324 NE2d 322]).(id., at 103, 745 NYS2d at 798, 772 NE2d at 1156-1156)

Also, where a defense of intoxication may possibly exist, the trial court is obligated to inquire of the defendant during the plea colloquy whether he was aware of the defense and whether his waiver of it was intelligent and voluntary (see, People v. Munck, 278 AD2d 662, 663, 717 NYS2d 431, 432; People v. Osgood, 254 AD2d 571, 572, 681 NYS2d 365; People v. Braman, 136 AD2d 382, 384, 527 NYS2d 104, leave to appeal denied 72 NY2d 911, 532 NYS2d 760, 528 NE2d 1233).

The trial court's order granting defendant's motion to vacate the assault conviction as constitutionally infirm, coupled with the lack of any docket or record of the plea proceedings, compels this court to grant the defendant's motion to reduce counts one and two of the indictment, charging the defendant with felony driving while intoxicated, to misdemeanor charges. Having adjudicated the infirmity of the plea proceedings by its 2003 order vacating the assault conviction as taken in violation of the defendant's constitutional rights to counsel, presumably because there was no docket or record evidencing the requisite advisement of rights (CPL §170.10[3] and [4]), the plea to the misdemeanor DWI charge must necessarily be equally deficient for the same reasons.

IT IS SO ORDERED.

[*4]ENTER

__________________________________

Richard B. Meyer

J.C.C. Footnotes

Footnote 1:Although no special information has been filed as required by CPL §200.60[2], such a failure is a nonjurisdictional, procedural defect which may be cured prior to the close of the People's case (see People v. Viano, 287 AD2d 584, 731 NYS2d 500, leave to appeal denied 97 NY2d 689, 738 NYS2d 305, 764 NE2d 409 ).