| People v Myers |
| 2018 NY Slip Op 02361 [160 AD3d 1029] |
| April 5, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Scott Myers, Appellant. |
Bruce Evans Knoll, Albany, for appellant, and appellant pro se.
John R. Sandleitner, Special Prosecutor, Tannersville, for respondent.
Clark, J. Appeals (1) from a judgment of the County Court of Greene County (Koweek, J.),rendered April 11, 2014, upon a verdict convicting defendant of the crimes of criminal contemptin the first degree (two counts) and criminal contempt in the second degree (four counts), (2) bypermission, from an order of said court, entered November 24, 2015, which denied defendant'smotion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing, (3) bypermission, from an order of said court, entered November 24, 2015, which denied defendant'smotion pursuant to CPL 440.20 to set aside the sentence, without a hearing, (4) by permission,from an order of said court, entered February 22, 2017, which, among other things, partiallygranted defendant's motion pursuant to CPL 440.10 and 440.20 to vacate the judgment ofconviction and set aside the sentence, and (5) from a judgment of said court, rendered April 13,2017, which resentenced defendant.
In September 2013, defendant was charged by indictment with two counts of criminalcontempt in the first degree (counts 1 and 2) and six counts of criminal contempt in the seconddegree, all arising out of his alleged violations of a 2006 order of protection issued in favor of hischildren and former spouse (hereinafter collectively referred to as the victims). Following a jurytrial, at which defendant proceeded pro se with the assistance of standby counsel, defendant wasconvicted of both counts of criminal contempt in the first degree and four counts of criminal[*2]contempt in the second degree.[FN1] County Court sentenced defendant to anaggregate prison term of 1
Thereafter, defendant moved pursuant to CPL 440.10 to vacate the judgment of convictionand separately moved pursuant to CPL 440.20 to set aside the resulting sentence. Withoutconducting a hearing, County Court denied both motions in separate orders. Defendant, bypermission, appeals from both of those orders. Meanwhile, defendant successfully moved tovacate earlier convictions that served as predicate offenses for his felony convictions undercounts 1 and 2 of the indictment. Defendant then moved, pursuant to CPL 440.10 and 440.20, foran order vacating and/or reducing those felony convictions or vacating the entire judgment ofconviction and setting aside the sentence. County Court granted defendant's motion to the extentof reducing his convictions for criminal contempt in the first degree to convictions for criminalcontempt in the second degree and ordered that defendant be resentenced on all counts, butotherwise denied the motion. Defendant, by permission, appeals from this order. County Courtsubsequently resentenced defendant—on his six misdemeanor convictions for criminalcontempt in the second degree—to time served. County Court also issued an amendedorder charging defendant with applicable surcharges, as well as an order of protection in favor ofthe victims. Defendant appeals from this judgment.
Defendant argues that his convictions for criminal contempt in the second degree undercounts 3, 7 and 8 of the indictment are not supported by legally sufficient evidence. Defendant,however, failed to preserve this argument by moving for a trial order of dismissal (see People v Hawkins, 11 NY3d484, 492 [2008]; People vJones, 101 AD3d 1241, 1241 [2012], lv denied 21 NY3d 944 [2013]). Asdefendant also asserts that these convictions are against the weight of the evidence, wenecessarily evaluate whether the elements of each charged crime were proven beyond areasonable doubt (see People vDanielson, 9 NY3d 342, 348-349 [2007]; People v Young, 152 AD3d 981, 981 [2017], lv denied 30NY3d 955 [2017]). "To secure a conviction of criminal contempt in the second degree, thePeople were required to prove that defendant intentionally disobeyed or resisted the lawfulprocess or other mandate of a court in a case other than one involving or growing out of a labordispute" (People v Richardson, 155AD3d 1099, 1101 [2017]; see Penal Law § 215.50 [3]).
Because, upon review of the evidence, a different result would not have been unreasonable,we must "weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony" (People v Bleakley, 69NY2d 490, 495 [1987] [internal quotation marks and citation omitted]; see People v Rosario, 157 AD3d988, 989 [2018]; People vLaBarge, 80 AD3d 892, 893 [2011], lv denied 17 NY3d 797 [2011]). Theevidence at trial established that, by virtue of a 2006 order of protection [*3]that expires in 2019,[FN3] defendant was required to stay away from, andrefrain from contacting, the victims. Defendant's testimony at trial demonstrated that he hadknowledge of this order of protection and its terms at the time of the alleged violations. Withrespect to count 3 of the indictment, which charged defendant with violating the order ofprotection by visiting the residence of his ex-wife on a particular rainy evening in July 2013, thePeople presented the testimony of a neighbor, who stated that he had observed defendant outsidethe residence at the time in question. As to count 7, which alleged that defendant left letters forhis son on the front porch of his ex-wife's home in August 2013, the ex-wife testified that shediscovered the letters and recognized the handwriting as belonging to defendant. Additionally, alaw enforcement officer testified that the ex-wife reported the incident to him and that hephotographed and collected the letters, which were admitted into evidence without objection.Finally, count 8 of the indictment charged defendant with violating the order of protection bysending his ex-wife an email in August 2013. The email in question, which was copied to theex-wife, was admitted into evidence on consent, and the ex-wife testified to receiving this emailfrom defendant. Viewing the foregoing evidence in a neutral light, and according deference to thecredibility determinations made by the jury, we find that defendant's convictions under counts 3,7 and 8 of the indictment are amply supported by the weight of the credible evidence (seePeople v Richardson, 155 AD3d at 1101-1103; People v Worthy, 109 AD3d 1140, 1141 [2013], lv denied23 NY3d 970 [2014]).
We find merit, however, in defendant's contention that County Court failed to ensure that heknowingly, voluntarily and intelligently waived his constitutional right to counsel (seeUS Const 6th Amend; NY Const, art I, § 6). The fundamental right to counselcarries with it the implicit, but antagonistic, "right to forego the advantages of counsel andrepresent oneself" (People v Arroyo, 98 NY2d 101, 103 [2002]; see People v Henriquez, 3 NY3d210, 215 [2004]). However, "to best promote the orderly administration of justice andinsulate convictions from claims of deprivation of fundamental fairness, the right toself-representation is necessarily a qualified right" (People v Arroyo, 98 NY2d at 103;see People v McIntyre, 36 NY2d 10, 16-17 [1974]). A defendant must knowingly,voluntarily and intelligently waive the right to counsel before being permitted to proceed pro se(see People v Crampe, 17 NY3d 469, 481 [2011], cert denied 565 US 1261[2012]; People v Slaughter, 78 NY2d 485, 491 [1991]; People v Sawyer, 57NY2d 12, 21 [1982], cert denied 459 US 1178 [1983]).
To ascertain whether a defendant's waiver of the right to counsel is knowing, voluntary andintelligent, a trial court must engage in a sufficient "searching inquiry," aimed at determiningwhether the defendant understands and "appreciate[s] the 'dangers and disadvantages' "of self-representation (People v White, 56 NY2d 110, 117 [1982], quoting Faretta vCalifornia, 422 US 806, 835 [1975]; see People v Slaughter, 78 NY2d at 491;People v Kaltenbach, 60 NY2d 797, 798-799 [1983]). Although the trial court need notconduct the required inquiry in a strict, formulaic manner, "it must accomplish the goals ofadequately warning a defendant of the risks inherent in proceeding pro se, and apprising adefendant of the singular importance of the lawyer in the adversarial system of adjudication"(People v Smith, 92 NY2d 516, 520 [1998]; see People [*4]v Crampe, 17 NY3d at 481-482; People v Arroyo, 98NY2d at 103-104). The trial court must also elicit on the record any information that may bear onthe defendant's ability to effectively waive the right to counsel, such as his or her "age, education,occupation [and] previous exposure to legal procedures" (People v Smith, 92 NY2d at520; see People v Crampe, 17 NY3d at 482). The inquiry must both "test an accused'sunderstanding of the waiver and . . . provide a reliable basis for appellate review"(People v Smith, 92 NY2d at 520; see People v Providence, 2 NY3d 579, 583 [2004]; People vSawyer, 57 NY2d at 21).
County Court failed to conduct a sufficient searching inquiry on the record here. Atarraignment, defendant unequivocally expressed his intention to forgo his right to counsel and toinstead represent and defend himself. Despite defendant's clear expression of intent from theearliest possible opportunity, County Court made no immediate attempt, either at arraignment orsubsequent pretrial proceedings, to conduct the requisite searching inquiry on the record. It wasnot until the first day of trial that County Court made any attempt to fulfill its obligation todetermine whether defendant had knowingly, voluntarily and intelligently waived his right tocounsel. At that time, County Court asked defendant a series of relevant questions relating to hisbackground and pedigree, as well as his physical, mental and emotional capacity to representhimself. However, County Court's belated searching inquiry fell short; the court neither "testeddefendant's understanding of choosing self-representation," nor warned of " 'the risksinherent in proceeding pro se' " (People v Arroyo, 98 NY2d at 104,quoting People v Smith, 92 NY2d at 520). At no point in this record did the court addressthe dangers and disadvantages of self-representation or impress upon defendant the "singularimportance" of being represented by counsel (People v Smith, 92 NY2d at 520; seePeople v Arroyo, 98 NY2d at 104). In contrast, at trial and prior to trial, County Court madevarious unwarranted laudatory comments about defendant's aptitude for self-representation,thereby giving defendant the probable impression that his decision to proceed without counselwas in his best interest. In fact, at several points in the record, defendant undermined anyconclusion that his waiver of the right to counsel was knowing, voluntary and intelligent bydemonstrating a fundamental misunderstanding of the role of an attorney. For example, as aresult of defendant's uninformed decision, neither he nor his standby counsel attended juryselection.[FN4]
The absence of the requisite searching inquiry may be the inadvertent product of CountyCourt's familiarity with defendant. However, County Court's history and prior dealings withdefendant does not relieve it of its obligation to conduct—and create a recordof—the required inquiry (see People v Termotto, 155 AD2d 965, 966 [1989],lv denied 75 NY2d 925 [1990]), for this inquiry serves the vital purpose of ensuring thatdefendant knew "what [he was] doing" and made the choice to forgo counsel with his" 'eyes open' " (People v Smith, 92 NY2d at 520, quoting Faretta vCalifornia, 422 US at 835). Moreover, neither County Court's statements regarding its priorexperience with defendant, nor its laudatory comments regarding defendant's prior pro seperformance, provide a reliable basis upon which we can conclude that defendant's waiver of theright to counsel was knowing, voluntary and intelligent (see generally People v Arroyo,98 NY2d at 104; People v Smith, 92 NY2d at 520), particularly given defendant'sstatement that he had never before represented himself at a trial. Accordingly, in the absence of asufficient searching inquiry, defendant's waiver of the right to counsel was ineffective and thejudgment of conviction must be reversed and the matter remitted for a new trial on the remaining[*5]counts of the indictment (see People v Crampe, 17NY3d at 482; People v Mitchell, 61 NY2d 580, 584-585 [1984]; People v Guarnieri, 122 AD3d1078, 1080-1081 [2014]; compare People v Vivenzio, 62 NY2d 775, 776[1984]).
In light of our determination, the remaining arguments raised on defendant's direct appeal, aswell as the appeals from the orders and the judgment of resentencing, are academic.
McCarthy, J.P., Lynch, Devine and Pritzker, JJ., concur. Ordered that the judgment renderedApril 11, 2014 is reversed, on the law, and matter remitted to the County Court of Greene Countyfor further proceedings not inconsistent with this Court's decision. Ordered that the appeals fromthe orders entered November 24, 2015 and February 22, 2017 and from the judgment renderedApril 13, 2017 are dismissed, as academic.
Footnote 1:Two of the six charged counts ofcriminal contempt in the second degree were deemed lesser included offenses of counts 1 and 2and were not considered by the jury.
Footnote 2:In July 2016, a Justice of thisCourt granted defendant's application, made pursuant to CPL 460.50, for an order stayingexecution of the judgment of conviction and releasing defendant on his own recognizancepending appeal.
Footnote 3:At trial, defendant objected tothe admission of the order of protection into evidence only on foundational grounds.Accordingly, the arguments that he now raises on appeal with respect to the admission of theunderlying order of protection are unpreserved (see People v Romero, 147 AD3d 1490, 1492 [2017], lvdenied 29 NY3d 1036 [2017]; People v Williams, 118 AD3d 1295, 1296 [2014], lv denied24 NY3d 1090 [2014]).
Footnote 4:While defendant separately takesissue with his absence from jury selection, we need not independently reach this issue given ourdetermination that defendant's waiver of the right to counsel was ineffective.