People v. Simmons
| Decision Date | 08 July 1978 |
| Citation | 408 N.Y.S.2d 204,95 Misc.2d 497 |
| Parties | The PEOPLE of the State of New York v. Daniel SIMMONS, Defendant. |
| Court | New York City Court |
May a defendant execute In personam an informed waiver of certain procedural safeguards in his favor, subsequent to his request for assigned counsel but prior to the attorney's actual functioning on his behalf?
THE FACTS : Defendant Daniel Simmons was arraigned on June 30, 1978 on a charge of attempted robbery (Penal Law §§ 110.00 et seq., 160.05) resulting from events which allegedly occurred on June 13, 1978. Bail was set at $10,000 and not posted. It appears that this alleged crime was one of four independent robberies all allegedly committed in a two week interval immediately following defendant's release from incarceration on similar crimes. These separate charges are now pending in other parts of the criminal justice system.
On July 7, 1978, proceedings herein came before the undersigned on a date within the statutory time limits of CPLR 180.80 for a hearing to determine whether or not defendant would be held for action of the grand jury. At that time, defendant appeared with counsel from the Legal Aid Society who made application to be relieved with the vigorous and whole-hearted concurrence of defendant. This application was made in the face of admonitions from the court that continuance of bail conditions and incarceration for failure to meet them could be expected in the light of delays occasioned thereby. Defendant who ultimately proved to be most knowledgeable in matters of criminal procedure, then applied to the court for the appointment of "18 B Counsel" (his words) which application was granted after the court relieved the Society with its thanks. At this point, with assigned counsel not yet functioning and the Society relieved, defendant made an In personam application to place on record a waiver to the grand jury. In support of his application to be allowed to do so without counsel, he volunteered a cogent, well organized, rational explanation of the purposes of the preliminary hearing; of jurisdictional questions concerning the impact of indictment upon Criminal Court proceedings; a logical explanation of his strategy in doing so in terms of his other cases; and of impact of this application on the bail conditions in his various other cases. The court found defendant articulate, knowledgeable in the law, and capable of understanding the strategic ramifications of every aspect of his proffered waiver to the grand jury. In short, this proffered waiver is "informed" as defined by authority in this realm. In view of his request for counsel immediately following relief of the Legal Aid Society, may the court accept an In personam waiver, informed or otherwise, to the grand jury?
The foundation of case-law in this state as regards to appointment of counsel may be found in Article 1, Section 6 of the New York State Constitution which provides that one accused of a crime is mandated to appear and defend in person or by counsel. It is clear from holdings in this sphere that the right to counsel is a double edged sword in which a trial court may err at both ends of the spectrum either by actions which have the effect of denial thereof on the one hand or in forcing unwanted legal assistance upon a defendant who insists on representing himself on the other (People v. Cunningham, 2 Misc.2d 162, 134 N.Y.S.2d 212 app. dism. 283 App.Div. 1057, 132 N.Y.S.2d 927, Hedgecock v. Oneida County Court, 19 Misc.2d 459, 190 N.Y.S.2d 786, app. dism. 10 A.D.2d 604, 200 N.Y.S.2d 343). While a defendant may not have the assistance of counsel foisted upon him, courts are under an obligation, before accepting a waiver thereof, to carefully ascertain that the waiver is executed by the accused acting competently, intelligently and with an understanding of the consequences of his acts (People v. Witenski, 15 N.Y.2d 392, 259 N.Y.S.2d 413, 207 N.E.2d 358; People v. Betillo, 53 Misc.2d 540, 279 N.Y.S.2d 444). This determination must depend upon the particular facts of...
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