| People v Maraj |
| 2007 NY Slip Op 07774 [44 AD3d 1090] |
| October 18, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v HemdathMaraj, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone, for respondent.
Lahtinen, J. Appeal, by permission, from an order of the County Court of Franklin County(Main, Jr., J.), entered September 5, 2006, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment convicting him of the crime of criminal sale of marihuana in thethird degree.
Defendant was charged with, among other things, criminal sale of marihuana in the thirddegree and criminal possession of marihuana in the second degree. At a time when he wasunrepresented by counsel, the People offered a deal of pleading guilty to criminal sale ofmarihuana in the third degree in satisfaction of all charges. He appeared before County Court,still without an attorney, and explained that his application for assigned counsel had beenrejected and that he had not yet found an attorney that he could afford. County Court questionedhim regarding his efforts to retain counsel and elicited an assurance from defendant that he didnot want an adjournment to seek counsel and that he wanted to proceed with the plea. Defendantthen pleaded guilty and was eventually sentenced to 365 days in the Franklin County Jail. He didnot file a notice of appeal from his judgment of conviction. He subsequently moved pursuant toCPL 440.10 to vacate the judgment on the grounds that his plea was obtained in violation of hisright to counsel and was not knowingly, voluntarily and intelligently made. County Court deniedthe motion and this appeal ensued.
Initially, we find meritless the People's argument that, because defendant has served his [*2]jail time, the appeal is moot (see People v Bigtree, 231AD2d 802, 803 [1996], lv denied 89 NY2d 919 [1996]; People v De Leo, 185AD2d 374, 375 [1992], lv denied 80 NY2d 974 [1992]).
Nor are we persuaded by the People's assertion that defendant is precluded from raising theissue regarding his lack of counsel since he did not pursue a direct appeal. While it is settled thatCPL 440.10 should not be "employed as a substitute for direct appeal" (People v Cooks,67 NY2d 100, 103 [1986]), where, as here, the issue involves a defendant who received norepresentation by counsel (including when entering the plea and thereafter during the time to takean appeal) and he is challenging his purported waiver of that constitutional right, a collateralattack on the judgment of conviction may be considered (see People v Byroads, 24 AD2d732, 733 [1965]; see also People v Silverman, 3 NY2d 200, 202 [1957]; cf. CPL440.10 [3] [a]).
Next, we consider defendant's contention that his guilty plea should have been vacated uponthe ground that it was obtained in violation of his right to counsel. "The constitutional right tocounsel is fundamental to our system of justice" (People v Arroyo, 98 NY2d 101, 103[2002] [citations omitted]). "[B]efore proceeding pro se a defendant must make a knowing,voluntary and intelligent waiver of the right to counsel" and, "[i]n determining whether a waivermeets this requirement, the court should undertake a 'searching inquiry' of defendant"(id., quoting People v Slaughter, 78 NY2d 485, 491 [1991]; see People vSmith, 92 NY2d 516, 520 [1998]). There is not a specific "catechism for this inquiry,. . . it 'may occur in a nonformalistic, flexible manner,' " and "when decidingwhether a defendant actually understood the dangers of self-representation, a reviewing courtmay look to the whole record" (People vProvidence, 2 NY3d 579, 580-581 [2004], quoting People v Smith, 92 NY2d at520).
Here, we begin by observing that the record does not include a clear, unequivocal recitationto defendant that he is entitled to counsel and, if he cannot afford an attorney, one will beprovided for him. In his first court appearance in this record, defendant pleaded guilty to a felonywithout ever having been assisted by counsel. At the beginning of that proceeding, he was askedwhy he did not have an attorney and responded, "I couldn't afford an attorney." He stated that heapplied for representation by the public defender, but that application was denied. Elsewhere inthe record it appears that, although separated from his wife, her modest assets may have been thereason his application was denied. His apparent desire to have an attorney is reflected by the factthat he had also contacted two attorneys but could not afford the retainer each required.According to the presentence report, defendant, who is a resident alien, has a middle schooleducation (eighth grade) and has had only relatively minor prior experience with the criminaljustice system (a charge in 2000 for misdemeanor driving while intoxicated that was reducedresulting in a $300 fine and a 1987 incident in New Jersey for making a false report that resultedin a $150 fine). He was described by his wife as "very naive," an opinion borne out in part by thefact that, even after pleading to a felony, he told the officer conducting the presentence reportinvestigation that he was hoping the judge would change that to a misdemeanor at the time ofsentencing. Indeed, such comment reveals that he did not, in reality, understand the nature of hisuncounseled plea. While defendant was offered an adjournment in order to try and find anattorney that he could afford, he was not given specific warnings of the risk of continuingwithout an attorney (cf. People v Providence, 2 NY3d at 584; People v Slaughter,78 NY2d at 491-492; People vWhitted, 16 AD3d 905, 908 [2005], lv denied 4 NY3d 892 [2005]). This recorddoes not contain the requisite searching inquiry of defendant and concomitant knowing,voluntary and intelligent waiver of his right to counsel.[*3]
Crew III, J.P., Peters, Spain and Kane, JJ., concur.Ordered that the order is reversed, on the law, motion granted, guilty plea vacated and matterremitted to the County Court of Franklin County for further proceedings not inconsistent withthis Court's decision.