People v. Richardson

• Decision Date: 20 September 1993
• Citation: 603 N.Y.S.2d 700,159 Misc.2d 167
• Parties: The PEOPLE of the State of New York v. Carolyn RICHARDSON, Defendant.
• Court: New York Supreme Court

Page 700

603 N.Y.S.2d 700

159 Misc.2d 167

The PEOPLE of the State of New York v. Carolyn RICHARDSON, Defendant.

Supreme Court, Criminal Term,

Kings County, Miscellaneous Part.

Sept. 20, 1993.

Amy Applebaum, Asst. Dist. Atty., for the Dist. Atty. of Kings County, Charles Hynes.

Carolyn Richardson, pro se.

WILLIAM F. MASTRO, Justice.

Defendant moves to vacate the conviction on various grounds. Defendant also requests the court appoint counsel on this motion because she lacks funds and is unable to obtain an attorney who will volunteer to assist her. Before addressing the merits, the court addresses assignment of counsel.

The Sixth Amendment to the United States Constitution as applied to the states through the Fourteenth Amendment mandates that states provide indigent defendants with counsel at trial (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799). The Federal Constitution also mandates that states appoint counsel to poor persons for the first appeal as of right (Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811). However, the Federal Constitution does not require states to appoint an attorney to an indigent individual in discretionary appeals or after the initial appeal (Ross v. Moffitt, 417 U.S. 600, 94 S.Ct 2437, 41 L.Ed.2d 341). The Federal Constitution also does not mandate that states appoint counsel to indigent defendants in collateral proceedings (Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539).

Since CPL 440.10 is a collateral proceeding the Federal Constitution does not mandate that the court assign counsel to defendant (Pennsylvania v. Finley, supra ).

While the Federal Constitution does not mandate appointment of counsel to indigents, states are free to interpret their own constitutional provisions differently (see, People v. Settles, 46 N.Y.2d 154, 412 N.Y.S.2d 874, 385 N.E.2d 612).

Most states that have addressed the state constitution issue have held that there exists no state constitutional right to counsel in a post-conviction motion to vacate a judgment (Mayes v. State, 563 So.2d 38, 39 [Ala.]; Hertz v. State, 755 P.2d 406, 407-408 [Alaska]; Howard v. Lockhart, 300 Ark. 144, 777 S.W.2d 223; Lozada v. Warden, 24 Conn.App. 723, 591 A.2d 1272, 1273-1274, affd. 223 Conn. 834, 613 A.2d 818; People v. Demarest, 801 P.2d 6, 7 [Colo.]; State v. Dickens, 602 A.2d 95, 98, affd. 577 A.2d 752 [Del.]; Doe v. United States, 583 A.2d 670, 672 [D.C.]; Rodriguez v. State, 122 Idaho 20, 830 P.2d 531, 533; People v. Flores, 153 Ill.2d 264, 274, 180 Ill.Dec. 1, 7, 606 N.E.2d 1078, 1084; Baum v. State, 533 N.E.2d 1200, 1201 [Ind.]; Fuhrmann v. State, 433 N.W.2d 720, 722 [Iowa]; Commonwealth v. Stamps, 672 S.W.2d 336, 339 [Ky.]; Neal v. State, 422 So.2d 747, 748 [Miss.]; Rice v. State, 779 S.W.2d 771, 774 [Mo.]; Petition of Martin, 240 Mont. 419, 420, 787 P.2d 746, 747; State v. Stewart, 242 Neb. 712, 496 N.W.2d 524, 529; State v. Crowder, 60 Ohio St.3d 151, 152, 573 N.E.2d 652, 653-654; Commonwealth v. Perry, 386 Pa.Super. 534, 540, 563 A.2d 511, 514; State v. Garrard, 693 S.W.2d 921 [Tenn.]; In re Chapman, 155 Vt. 163, 581 A.2d 1041, 1043). While not constitutionally mandated, a majority of these states have statutory authority or rules regarding appointment of counsel in post-conviction motions instituted by indigent persons (see, cases above). Florida (Brevard County Bd. of County Commrs. v. Moxley, 526 So.2d 1023, 1026) and California ( People v. Shipman, 62 Cal.2d 226, 232, 42 Cal.Rptr. 1, 5, 397 P.2d 993, 997--opposite People v. Fowler, 175 Cal.App.2d 808, 346 P.2d 792, 794, cert. denied 363 U.S. 849, 80 S.Ct. 1627, 4 L.Ed.2d 1732) appear (although it is somewhat unclear) to require under their State Constitutions the appointment of counsel to poor individuals on post-conviction motions where the moving papers indicate that the motion is not "frivolous".

New York does not appear to have addressed the state constitution issue of the right of an indigent to counsel on a motion to vacate a judgment. In determining whether or not a state constitutional right differs from the Federal Constitution, courts examine "interpretive" and "non-interpretive" factors (see, People v. P.J. Video, 68 N.Y.2d 296, 302-303, 508 N.Y.S.2d 907, 501 N.E.2d 556, cert. denied 479 U.S. 1091, 107 S.Ct. 1301, 94 L.Ed.2d 156). Interpretive factors focus on "differences in the text, structure, or historical underpinning" of the State and Federal Constitutions (People v. Alvarez, 70 N.Y.2d 375, 378, 521 N.Y.S.2d 212, 515 N.E.2d 898). Non-interpretive factors include, but are not limited to, a perception of a sound policy and fairness, historical protections in New York, and whether the right is of local concern (id., at 378-379, 521 N.Y.S.2d 212, 515 N.E.2d 898). Balanced against these concerns are "practical considerations", the need for uniformity and "bright lines" (id., at 379, 521 N.Y.S.2d 212, 515 N.E.2d 898).

A textual analysis of Article 1, Section 6 of the New York State Constitution indicates that "in any trial in any court" (emphasis added) defendant has a right to "appear and defend" with counsel. The meaning of the word "trial" in the state constitution must be determined in light of the particular purpose of the particular right (People v. Anderson, 16 N.Y.2d 282, 288, 266 N.Y.S.2d 110, 213 N.E.2d 445). For example, for the purpose of the New York State constitutional right to be present, the word trial includes suppression hearings (id.). In contrast, the New York State constitutional right to compulsory process at "trial" does not include suppression hearings (People v. Chipp, 75 N.Y.2d 327, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70).

Nonetheless, it appears that the trial "terminates" with a jury verdict (CPL 1.20[11], and a judgment is entered upon sentencing (CPL 1.20[15]. It appears from a textual analysis that the New York State Constitution would not include post-judgment motions as part of the "trial".

Historically, New York's right to counsel has developed independent of the Federal Constitution (see, People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894). The right to counsel in New York antedates the Federal right (People v. Witenski, 15 N.Y.2d 392, 396-397, 259 N.Y.S.2d 413, 207 N.E.2d 358), and is much broader than the federal equivalent (see, People v. Settles, 46 N.Y.2d 154, 412 N.Y.S.2d 874, 385 N.E.2d 612, supra; People v. Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400 N.E.2d 1344; People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709).

Nonetheless, historically, the New York right to counsel has consistently not been extended to post-conviction matters (see, e.g., People v. Robles, 72 N.Y.2d 689, 536 N.Y.S.2d 401, 533 N.E.2d 240; Matter of Jose D., 66 N.Y.2d 638, 495 N.Y.S.2d 360, 485 N.E.2d 1025; People v. Colwell, 65 N.Y.2d 883, 493 N.Y.S.2d 298, 482 N.E.2d 1214; People v. Lucarano, 61 N.Y.2d 138, 472 N.Y.S.2d 894, 460 N.E.2d 1328; People v. Stoliker, 94 A.D.2d 854, 463 N.Y.S.2d 612; cf. People v. West, 81 N.Y.2d 370, 599 N.Y.S.2d 484, 615 N.E.2d 968). The post-conviction matters where a right to counsel exists, such as appeals as of right, have their genesis in the Federal Constitution not the State Constitution (Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, supra; see, People v. Hughes, 15 N.Y.2d 172, 256 N.Y.S.2d 803, 204 N.E.2d 849; People v. Wilson, 7 N.Y.2d 568, 200 N.Y.S.2d 40, 166 N.E.2d 838, both apparently overruled because of CPL 450.15).

There appears to be no historical basis for the appointment of counsel under the New York State Constitution in a post-judgment motion to vacate.

It appears necessary to balance the imposition of an additional financial burden on the State of providing free counsel against a movant's statutorily authorized CPL article 440 motion, where appeals are provided for and there exists a presumption of regularity.

The court finds that the New York State Constitution does not mandate appointment of counsel on a post-conviction motion.

While the Constitution does not require appointment of counsel for "poor persons", the court must analyze New York statutes.

CPL 210.15(2)(c) as is relevant states:

2. The defendant has a right to the aid of counsel at the arraignment and at every subsequent stage of the action, and, if he appears upon such arraignment without counsel, has the following rights:

* * * * * *

(c) To have counsel assigned by the court in any case where he is financially unable to obtain the same (emphasis supplied).

Thus, at every "stage of the action" a "financially unable" individual has a statutory right to counsel.

CPL 1.20(16) reads as follows:

16. "Criminal action." A criminal action (a) commences with the filing of an accusatory instrument against a defendant in a criminal court, as specified in subdivision seventeen; (b) includes the filing of all further accusatory instruments directly derived from the initial one, and all proceedings, orders and motions conducted or made by a criminal court in the course of disposing of any such accusatory instrument, or which, regardless of the court in which they occurred or were made, could properly be considered as a part of the record of the case by an appellate court upon an appeal from a judgment of conviction; and (c) terminates with the imposition of sentence or some other final disposition in a criminal court of the last accusatory instrument filed in the case (emphasis supplied).

After sentence the criminal action terminates, and what follows is not a "stage of the action" (DeBellis v. Property Clerk, 79 N.Y.2d 49, 56, 580 N.Y.S.2d 157, 588 N.E.2d 55; Darvin M. v. Jacobs M., 69 N.Y.2d 957, 959, 516 N.Y.S.2d 641, 509 N.E.2d 336).

CPL 210.15(2)(c) does not apply to CPL 440 motions. County Law § 722(4) as is relevant reads as follows:

4. Representation according to a plan containing a combination of any of the foregoing. Any judge, justice or...