This is an appeal by the defendant from three judgments of the Supreme Court, Queens County all rendered September 21, 2007, convicting him of (1) grand larceny in the first degree, grand larceny in the second degree (three counts), criminal impersonation in the second degree (four counts), and scheme to defraud in the first degree, under Indictment No. 2096/04, (2) grand larceny in the second degree (two counts), criminal impersonation in the second degree (two counts), scheme to defraud in the first degree, and practicing or appearing as an attorney without being admitted and registered (two counts), under Indictment No. 439/05, and (3) grand larceny in the second degree (two counts), scheme to defraud in the first degree, criminal impersonation in the second degree (two counts), and practicing or appearing as an attorney without being admitted and registered, under Indictment No. 2434/05, upon a jury verdict, and imposing sentence.
A Bronx Grand Larceny Lawyer said that, the attempted grand larceny of a motor vehicle, took place, several days before the effective date of the 1986 amendment to the Penal Law. The sentence was imposed after the effective date of the statute, however, and defendant is entitled to retroactive application of the ameliorative amendment to the Penal Law, which reduces the punishment for the white collar crime charged. Mail fraud was suspected also.
The issue in this case is whether the court erred in convicting the defendant.
The court said that, before allowing a defendant to proceed pro se, the court must determine that the defendant’s waiver of the right to counsel is made knowingly, voluntarily, and intelligently. In order to make that evaluation, the court must conduct a “searching inquiry” of the defendant. While there is no “rigid formula” to be followed in such an inquiry, and the approach is a flexible one, the record must demonstrate that the defendant was made “aware of the dangers and disadvantages of proceeding without counsel”. In particular, the record should show that the trial court ” adequately warned the defendant of the risks inherent in proceeding pro se, and apprised the defendant of the singular importance of the lawyer in the adversarial system of adjudication'”. The record should also 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” of the right to counsel.
Here, before permitting the defendant to proceed pro se prior to a suppression hearing, the suppression court advised the defendant that it would be an “extraordinary” decision to proceed without counsel, that to do so would be “extraordinarily dangerous,” and that most defendants who represent themselves are not successful. The court also discussed the potential sentences that could be imposed.
However, the suppression court did not advise the defendant of the importance of the role of the attorney in the adversarial system, nor as to the “dangers and disadvantages” of self-representation. Further, prior to the trial itself, the trial court made no inquiry as to the defendant’s decision to represent himself at trial. Under these circumstances, the defendant’s waiver of counsel cannot be deemed knowing and voluntary.
Accordingly, the court held that they have considered the remaining arguments of the parties and find them to be with merit. Viewing the evidence in a light most favorable to the People where entry to the vehicle was accomplished by breaking a window, and where the defendant and co-defendant were seen under the hood and steering column of the vehicle and were in possession of a screw driver, the record supports the conclusion that a rational trier of fact could find, beyond a reasonable doubt, that the co-defendants in this case intended to steal the vehicle, thus engaging in conduct which tended to effect the commission of such crime. Any competing inferences were within the domain of the jury.
Accordingly, the court held that the judgments are reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new trial.
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