| People v Trapani |
| 2018 NY Slip Op 04041 [162 AD3d 1121] |
| June 7, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Damian Trapani, Appellant. |
G. Scott Walling, Slingerlands, for appellant.
Robert M. Carney, District Attorney, Schenectady (Gloria J. Sprague, Law Intern), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Schenectady County (Sypniewski,J.), rendered July 22, 2016, convicting defendant upon his plea of guilty of the crime ofattempted burglary in the third degree.
Defendant was charged in an indictment with burglary in the third degree and criminalmischief in the fourth degree. He unsuccessfully moved to dismiss the indictment on the groundthat the People had not afforded him with a reasonable amount of time in which to exercise hisright to appear as a witness before the grand jury (see CPL 190.50 [5]). Defendant thenpleaded guilty to attempted burglary in the third degree in full satisfaction of the indictment andwaived his right to appeal. The plea agreement contemplated that defendant would be sentencedas a second felony offender to 1
Defendant points to the denial of his motion to dismiss the indictment due to a violation ofhis statutory right to appear and testify before the grand jury (see CPL 190.50 [5] [a]), anissue that would ordinarily be forfeited by his guilty plea (see People v Straight, 106 AD3d 1190, 1191 [2013]; People vDennis, 223 AD2d 814, 815 [1996], lv denied 87 NY2d 972 [1996]) and precludedby his knowing, intelligent and voluntary appeal waiver (see People v Lawrence, 135[*2]AD3d 1187, 1188 [2016], lv denied 27 NY3d 1001[2016]; People v Johnson, 97 AD3d990, 991 [2012]). Inasmuch as he argues that the statutory violation occurred because of anoutright deprivation of his constitutional right to counsel, however, he advances an argument that" 'go[es] to the very heart of the process' and survive[s]" both his guilty plea and appealwaiver (People v Smith, 143 AD3d31, 34-35 [2016], affd in relevant part 30 NY3d 626 [2017], quoting People v Griffin, 20 NY3d 626,630 [2013]; see People v Chappelle,121 AD3d 1166, 1168 [2014], lv denied 24 NY3d 1118 [2015]; see also UnitedStates v Cronic, 466 US 648, 659 [1984]; Hurrell-Harring v State of New York, 15 NY3d 8, 23-24[2010]).
On December 11, 2015, defendant appeared in City Court for arraignment on a felonycomplaint and a misdemeanor information charging him with the offenses for which he was laterindicted. Defendant, as is relevant here, stated that he wished to represent himself and testifybefore the grand jury. He remained unrepresented at a second appearance three days later andreiterated his desire to appear before the grand jury. The indictment was handed up shortlythereafter, and it appears that the People disregarded defendant's desire to testify before the grandjury because he failed to make a written demand as required (see CPL 190.50 [5][a]).
"[D]efendant's indelible right to counsel . . . attached when the felony complaintagainst him was first filed" (People v Chapman, 69 NY2d 497, 500 [1987]) and, while hecould waive that right and proceed pro se, the waiver would be invalid absent a "searchinginquiry" by City Court to discern whether defendant understood and "appreciated the 'dangersand disadvantages' of" self-representation (People v White, 56 NY2d 110, 117 [1982],quoting Faretta v California, 422 US 806, 835 [1975]; see People v Silburn, 31 NY3d144, 150 [2018]; People vMyers, 160 AD3d 1029, 1032 [2018]). There was no inquiry conducted here, leaving therecord silent as to whether "defendant 'acted with full knowledge and appreciation of the panoplyof constitutional protections that would be adversely affected by counsel's inability toparticipate' " so as to constitute a valid waiver (People v Middlemiss, 125 AD3d 1065, 1067 [2015], quoting People v Henriquez, 3 NY3d 210,217 [2004]). Defendant should therefore not have been permitted to proceed pro se (seePeople v Crampe, 17 NY3d 469, 481-482 [2011]; People v Myers, 160 AD3d at1032-1033; People v Guarnieri, 122AD3d 1078, 1079-1080 [2014]).[FN*] It follows that defendant was deprived of anopportunity to consult with counsel—who could have assisted defendant in decidingwhether to appear before the grand jury and made an effective demand to appear in the event hechose to do so—and this "deprivation of defendant's constitutional right to counselrequires the dismissal of the indictment" (People v Chappelle, 121 AD3d at 1168; seePeople v Backman, 274 AD2d 432, 433 [2000]; People v Fields, 258 AD2d 593, 594[1999]; People v Stevens, 151 AD2d 704, 705 [1989]; People v Lincoln, 80AD2d 877, 877 [1981]).
Defendant's remaining arguments are academic.
McCarthy, J.P., Egan Jr., Mulvey and Rumsey, JJ., concur. Ordered that the judgment isreversed, on the law, and indictment dismissed, without prejudice to the People to re-present anyappropriate charges to another grand jury.
Footnote *:Defendant abandoned his effortsto proceed pro se after an indictment was handed up.