People v. Crampe

• Decision Date: 13 October 2011
• Citation: 932 N.Y.S.2d 765
• Parties: The PEOPLE of the State of New York, Respondent, v. Alexander G. CRAMPE, Appellant. The People of the State of New York, Respondent, v. Blake Wingate, Appellant.
• Court: New York Court of Appeals Court of Appeals

932 N.Y.S.2d 765

The PEOPLE of the State of New York, Respondent,

v.Alexander G. CRAMPE, Appellant.

The People of the State of New York, Respondent,

v.Blake Wingate, Appellant.

Court of Appeals of New York.

Oct. 13, 2011.

Legal Aid Society, Appeals Bureau, Riverhead (Adrienne Wallace, Robert C. Mitchell and Alfred J. Cicale of counsel), for appellant in the first above-entitled action.

Thomas J. Spota, District Attorney, Riverhead (Marcia R. Kucera of counsel), for respondent in the first above-entitled action.

Warren S. Landau, New York City, and Lynn W.L. Fahey for appellant in the second above-entitled action.

Richard A Brown, District Attorney, Kew Gardens (John F. McGoldrick and John M. Castellano of counsel), for respondent in the second above-entitled action.

OPINION OF THE COURT

READ, J.

The common question in these appeals is whether the courts fulfilled their responsibility to make a "searching inquiry" before allowing defendants to give up the right to a lawyer and conduct their defenses pro se (see People v. Arroyo, 98 N.Y.2d 101, 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154 [2002]; People v. McIntyre, 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 [1974]; see also Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 [1975]; Iowa v. Tovar, 541 U.S. 77, 88–89, 124 S.Ct. 1379, 158 L.Ed.2d 209 [2004] ). In both cases, we conclude that the inquiries were deficient because defendants were not adequately advised of the dangers and disadvantages of self-representation.

I. Crampe

Defendant Alexander Crampe was arrested and charged with seventh-degree criminal possession of a controlled substance ( Penal Law § 220.03 ) for possessing a vial of phencyclidine, or PCE When he appeared in Justice Court, defendant acknowledged that he had not retained an attorney to represent him. The town justice then asked defendant if he intended to proceed pro se, and defendant replied "I guess[ ] so, your Honor."

This exchange prompted the judge to hand defendant a pretrial order meant to apply to the six cases then pending against him. The form order, which the judge reviewed with defendant by reading it aloud to him, stated that defendant's failure to accept the referral to the Legal Aid Society would be taken as a waiver of his right to assigned counsel and his election to proceed without counsel; that he should be prepared to proceed to trial on the next scheduled adjourn date; and that his failure to appear with counsel would "be deemed an acknowledgment of the advice and warnings of this Court relative to the right of counsel."

The form order continued as follows:

"The defendant has the absolute right to have counsel at all times during this proceeding. The defendant has a further constitutional right to represent himself in a criminal proceeding.

"The defendant acknowledges and understands the risk of representing himself and the failure to cooperate with counsel. Among those risks is the risk that he could be convicted of a crime, and he may be sentenced to jail if found guilty.

"The defendant acknowledges that a criminal trial and proceedings associated with a trial are difficult to understand and complex in nature.

"If you elect to represent yourself by failure to cooperate with the Legal Aid Society and retain counsel, you acknowledge that you are under no distress, no threats or promises have been made to

you, and you are not suffering from any mental defect, and your election to represent yourself is not affected by drugs or alcohol.

"You are further advised that you have a constitutional right to be present at a trial of these charges before this Court. This right may be waived by your conduct. Such conduct must be a knowing, voluntary, intelligent waiver of this right. Acknowledgment of this right is by your signature hereon this date.

"Further, your signature is taken as evidence that you are not under any distress or compulsion, and you are ready for trial on August 21, 2008 at 9:30 [ AM. ], or any adjourn date thereafter without justifiable excuse, shall be deemed a waiver of your right to be present at the trial of these charges, and we will proceed in your absence at that time."

Defendant signed the order, and the case was adjourned for trial. The judge cautioned him as he left: "Be here with a lawyer or without a lawyer, as you choose.

I advise you to get a lawyer, sir." Defendant did not heed the judge's advice, however, and so went to trial pro se, with standby counsel. The jury returned a verdict of guilty, and the judge sentenced defendant to six months of incarceration.

Upon defendant's appeal, the Appellate Term unanimously affirmed, concluding that "Justice Court adequately warned defendant of the importance of legal representation and the risks associated with proceeding pro se" ( 26 Misc.3d 144[A], 2010 N.Y. Slip Op. 50421[U], 2010 WL 936164 [2010] ). The court added that it was "apparent[ ] from defendant's prior arrest and conviction record" that he was "not unfamiliar with the operation of the criminal justice system." A Judge of this Court granted defendant leave to appeal (15 N.Y.3d 748, 906 N.Y.S.2d 821, 933 N.E.2d 220 [2010] ).

Wingate

Defendant Blake Wingate was arrested and subsequently indicted for fourth-degree criminal possession of stolen property ( Penal Law § 165.45[5] ) and seventh-degree criminal possession of a controlled substance ( Penal Law § 220.03 ) after the police found him sitting in a stolen van and recovered a crack pipe from his pocket.

When defendant informed his assigned counsel that he might "go to the grievance committee," the attorney successfully moved to be relieved. Supreme Court appointed a second attorney to represent defendant, who asked if there were "any way" he could represent himself with this new counsel assisting him. The judge instructed him to consult with his new attorney first. But at the next calendar call, defendant's second assigned counsel informed the court that defendant did not want her to represent him "in any way, shape or form," and "[o]n top of that, he [had] sent correspondence indicating his displeasure" and "[t]he lines of communication [were] irreparably broken." She requested to be relieved.

Defendant complained to the judge that his attorney "was trying to talk [him] out of [his] ... defense." The judge asked defendant if he wanted to represent himself at the suppression hearing, and defendant responded that he did, but "need[ed] co-counsel" and had previously represented himself with a lawyer's assistance. The judge advised defendant that he was not entitled to hybrid representation, and again inquired as to what he wanted to do. Defendant replied "Same as before. Request to represent myself." At that point, the judge engaged in the following exchange with defendant:

" THE COURT: You understand that you're facing felony charges, sir?

" THE DEFENDANT: Yes.

" THE COURT: You understand that you face jail time if convicted of the top charge in this indictment?

" THE DEFENDANT: Yes.

" THE COURT: Do you understand that the right to represent yourself is not an absolute right? If you can't conduct yourself in a proper manner in the courtroom, you would forfeit the right to pro se representation. Do you understand that?

" THE DEFENDANT: Yes.

" THE COURT: Sir, notwithstanding any of the risks that you face representing yourself, do you still wish to go forward and defend yourself in this case? That's your constitutional right. Do you understand that?

" THE DEFENDANT: Yes.

" THE COURT: Okay. I will allow you to represent yourself."

A suppression hearing was held before a judicial hearing officer later the same day. The hearing officer recommended denial of defendant's motion to suppress physical evidence (the crack pipe) and statements that he made to the police, and referred the case back to Supreme Court for determination. Supreme Court adopted the hearing officer's findings of fact and conclusions of law, and denied defendant's motion.

The case went to trial five months later before another Supreme Court Justice, who explored with defendant whether he had "considered legal representation." This judge first confirmed with defendant that he had turned down an offer of a minimum sentence of 1 ½ to 3 years; warned him that he faced a sentence of 15 years to life if convicted and sentenced as a discretionary persistent felon; and stressed that, "based on [his] many years of experience," it was his

"good faith belief that it is a mistake to represent yourself. Areas of law can be complicated and a person, not even another lawyer [should] engage in self-representation. So I strongly urge you to get a lawyer, and if you cannot afford one, a lawyer will be appointed for you. That is my honest heartfelt belief. Because of the exposure that you may be facing in terms of incarceration, should you lose and the intricacies involved in self-representation and legal matters, you should seriously get a lawyer to represent you. Do you understand that?"

Defendant responded that he understood.

After reiterating that defendant "could be facing a long time in jail, up to life," the trial judge cautioned that it was "a big mistake to go it alone." The judge then asked defendant if he had any legal training, and defendant replied that he had been studying law for the last 10 or 12 years "in the street and different libraries" and was "not a paralegal [but] just received legal research certificates." When the judge inquired if he was a college graduate, defendant responded that he held a two-year associate's degree in labor studies from Empire State College, and was "a law librarian, library clerk in the facility" where he worked.

Again, the trial judge "strongly urge[d]" defendant "with all the sincerity that [he could] muster that [defendant] must" get a lawyer. As the judge put it, "I say that because obviously the decision is yours, but I use the term ‘must’ get a lawyer. You are facing too much in this case. Once it's over, it's over. So you should seriously...