People v. Sirianni

• Decision Date: 23 June 1981
• Citation: 109 Misc.2d 781,440 N.Y.S.2d 988
• Parties: The PEOPLE of the State of New York v. Anthony J. SIRIANNI, Defendant.
• Court: New York County Court

Page 988

440 N.Y.S.2d 988

109 Misc.2d 781

The PEOPLE of the State of New York v. Anthony J. SIRIANNI, Defendant.

Cattaraugus County Court.

June 23, 1981.

Michael Nevins, Dist. Atty., County of Cattaraugus, Olean, for the people.

Shane & Franz, Olean, for defendant; David C. Brautigam, Olean, of counsel.

DECISION

EDWARD M. HOREY, Acting Judge.

The defendant is charged by indictment in the County Court of Cattaraugus County with the crime of driving while intoxicated as a felony in violation of Sec. 1192, Subd. 5 Vehicle & Traffic Law.

That statute provides in relevant part:

"5. A violation of subdivisions two, three or four of this section shall be a misdemeanor and shall be punishable by imprisonment in a penitentiary or county jail for not more than one year, or by a fine of not more than five hundred dollars, or by both such fine and imprisonment. A person who operates a vehicle in violation of subdivisions two or three of this section after having been convicted of a violation of subdivision two or three of this section, or of driving while intoxicated, within the preceding ten years, shall be guilty of a felony." (Italics added)

As a part of an omnibus motion the defendant seeks to suppress any evidence of a prior conviction of driving while intoxicated.

The evidence adduced upon a hearing is that the defendant was previously convicted of driving while intoxicated, as a misdemeanor in the City Court of Olean, New York on December 22, 1975. The conviction was upon a plea of guilty.

The records of the Olean City Court, maintained by the City Court Judge, concerning the 1975 conviction were introduced into evidence. Such records contain the following relevant statement made by the presiding judge, to wit: "Arraigned and advised of rights on 12/22/75".

To explain the quoted record entry, the Honorable James F. Crowley, Judge of the City Court of Olean, New York in 1975, and currently the County Judge of Cattaraugus County, disqualified on this motion, was called as a witness. His testimony was that while he recalled advising the defendant of his right to counsel and the right to have counsel assigned as well as the force and effect of a plea of guilty, he was certain that he had not advised the defendant at any time that a subsequent conviction for the same crime would constitute a conviction as a felony. The judge also was certain that the defendant had waived his right to counsel and that counsel did not at any time appear for the defendant.

The testimony of the defendant corroborated that of the presiding judge. The defendant added that he first learned that the effect of a prior conviction of driving while intoxicated would convert a subsequent conviction for that crime into one for a felony, was during his attendance at "drivers school" when he attempted to secure the return of his operator's license. He also gave it as his opinion, without objection thereto being made, that he would not have waived counsel had he known of the effect of his original plea of guilty on a subsequent conviction.

In support of defendant's motion, his counsel cites Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 and People v. Dorn, 105 Misc.2d 244, 431 N.Y.S.2d 974 (County Court, Oneida Co., Sept. 19, 1980).

In Baldasar v. Illinois (supra), the Supreme Court of the United States held that a conviction of a defendant could not be used to enhance the punishment for a second conviction of the same crime when it appeared that the defendant had not been represented by counsel and had not formally waived counsel at the time of the first offense.

In People v. Dorn (supra), it was determined that upon an initial conviction for driving while intoxicated, the defendant was not informed by the court of his right to have counsel appointed if he was financially unable to secure private counsel. As a consequence, in proceeding on a subsequent charge of driving while intoxicated, it was held on motion, that evidence of the prior conviction should be suppressed. The net effect of the ruling was that second trial of the defendant should proceed as the first, viz: as a misdemeanor and not as a felony.

In the motion before this court, the People, through the district attorney, urge that the decisions in People v. Dorn (supra) and Baldasar v. Illinois (supra) should be distinguished. The distinction urged is for the reason that in both cases the People were not able to prove the waiver of counsel by the defendant, whereas, in the instant case, proof is at hand that the defendant did waive counsel after advice by the court of defendant's right to counsel and the right to the assignment of counsel if indigent.

This court is of the opinion that this factual difference alone is not decisive of the issue. In the opinion of this court, it is not only necessary that the People prove a waiver of counsel by the defendant, but also that the People prove that the waiver of counsel was made with knowledge and understanding of the...