You are here: / / DETERMINATION OF MOTION TO TAKE A BUCCAL SWAB FOR DNA TESTING IS A CRITICAL...
,

DETERMINATION OF MOTION TO TAKE A BUCCAL SWAB FOR DNA TESTING IS A CRITICAL STAGE OF THE PROCEEDINGS REQUIRING REPRESENTATION BY COUNSEL, BECAUSE DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT’S GUILTY PLEAS MUST BE VACATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over an extensive three-judge dissent, determined defendant was deprived of counsel at a critical stage of the prosecution, i.e., when the People made a motion to take a buccal swap for DNA testing. The appellate division properly vacated defendant’s pleas, but should not have dismissed the indictment:

​

Here, the People filed their motion to compel the DNA test and served the motion on retained counsel in court. As the Appellate Division found, the trial court — in defendant’s absence — subsequently granted both the retained defense counsel’s motion to be relieved from representing defendant for failure to pay his fee and the People’s DNA discovery motion, which it granted based on the “putative consent” it inferred from retained counsel’s silence. Later the same day that counsel was relieved, defendant appeared in court. Knowing defendant was unrepresented, the court, rather than remain neutral, proceeded to act in place of counsel throughout an extensive colloquy, telling defendant that there were no bases on which to challenge the DNA sample order. In response to the court, defendant stated that he had not spoken with his attorney about the prosecution’s motion and did not wish to consent to giving a sample. Notwithstanding defendant’s entreaties, the court rejected his repeated requests for an attorney to advise him regarding the motion. Instead, the court told defendant “an attorney [was] not going to be able to help,” and that there was “no basis for fighting [the test].” When defendant said he did not “know the law,” the judge responded “I know the law.” On these facts, the Appellate Division correctly determined that “the pretrial proceedings concerning the DNA test were ‘critical’ within the meaning of the law … . Accordingly, defendant was deprived his right to counsel.

​

We reject the dissent’s conclusion that defendant was not denied counsel during a critical stage of the proceeding, as that determination is contrary to law and would require that we distort the factual record. As the People concede, there was no express consent to their request for the DNA sample, either by defendant or by retained counsel. Nor was there any affirmative conduct or errant statement by defendant or counsel from which implied consent could be inferred. Instead, as the People acknowledge, the court issued its order based only on retained counsel’s failure to reply to the People’s motion to compel the buccal swab. Under the circumstances here, that is not a proper basis for finding defendant’s consent … . Further, as the record unambiguously shows, shortly after the court granted retained counsel’s request to withdraw — leaving defendant unrepresented — defendant appeared in court, expressly denied consent, and repeatedly stated he wanted counsel to assist him in responding to the People’s motion [FN5]. Yet, rather than appointing counsel, the court told defendant there was no basis to oppose the motion. Notwithstanding these facts, the dissent believes defendant was represented on the motion for the DNA sample; we do not. People v Smith, 2017 NY Slip Op 08798, CtApp 12-19-17

 

 

CRIMINAL LAW (DETERMINATION OF MOTION TO TAKE A BUCCAL SWAB FOR DNA TESTING IS A CRITICAL STAGE OF THE PROCEEDINGS REQUIRING REPRESENTATION BY COUNSEL, BECAUSE DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT’S GUILTY PLEAS MUST BE VACATED (CT APP))/ATTORNEYS (CRIMINAL LAW, DETERMINATION OF MOTION TO TAKE A BUCCAL SWAB FOR DNA TESTING IS A CRITICAL STAGE OF THE PROCEEDINGS REQUIRING REPRESENTATION BY COUNSEL, BECAUSE DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT’S GUILTY PLEAS MUST BE VACATED (CT APP))/DNA TESTING (CRIMINAL LAW, DETERMINATION OF MOTION TO TAKE A BUCCAL SWAB FOR DNA TESTING IS A CRITICAL STAGE OF THE PROCEEDINGS REQUIRING REPRESENTATION BY COUNSEL, BECAUSE DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT’S GUILTY PLEAS MUST BE VACATED (CT APP))

You might also like
DEFENDANT HAS THE RIGHT TO BE PRESENT WHEN, IN RESPONSE TO A MOTION TO VACATE BECAUSE THE PERIOD OF POST-RELEASE SUPERVISION (PRS) WAS NOT MENTIONED AT THE ORIGINAL SENTENCING, THE COURT IMPOSES A SENTENCE WITHOUT A PERIOD OF PRS (CT APP).
FAMILY COURT MADE REASONABLE EFFORTS TO REUNITE MOTHER, WHO IS INTELLECTUALLY DISABLED, WITH HER CHILD, WHO WAS REMOVED AFTER A NEGLECT FINDING, THE APPLICABILITY OF REASONABLE ACCOMMODATIONS UNDER THE AMERICANS WITH DISABILITIES ACT (ADA) AND THE ADA’S INTERPLAY WITH NEW YORK LAW IN THIS CONTEXT EXPLAINED (CT APP).
Statutory Attorney’s Fees Awarded in a Human Rights Law Action Should Not Be Added to the Jury Award to Determine the Amount of the Contingency Fee
Village Properly Withdrew Its Defense and Indemnification of Officials When Officials Refused a Reasonable Settlement Offer
Whether Plaintiff “Justifiably Relied” on Alleged Misrepresentations Is Not Generally a Question Which Can Be Resolved in a Motion to Dismiss for Failure to State a Cause of Action
WHERE THE BANK ATTEMPTS TO DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIRMENTS OF RPAPL 1304 WITH PROOF OF THE STANDARD OFFICE MAILING PROCEDURE, A DEFENDANT BORROWER MAY REBUT THE PRESUMPTION OF PROPER MAILING AND RECEIPT WITH PROOF OF A MATERIAL DEVIATION FROM THE BANK’S MAILING PROCEDURE; WHERE THERE ARE MULTIPLE BORROWERS, THE BANK NEED ONLY NAME ONE IN THE ELECTRONIC FILING REQUIRED BY RPAPL 1306 (CT APP).
THE MARTIN ACT CLAIMS IN THIS DECEPTIVE PRACTICES ACTION INVOLVING RESIDENTIAL MORTGAGE BACKED SECURITIES ARE TIME-BARRED UNDER THE THREE-YEAR STATUTE OF LIMITATIONS FOR STATUTORY VIOLATIONS, BUT THE EXECUTIVE LAW CLAIMS MAY NOT BE TIME-BARRED IF THEY ARE BASED SOLELY ON THE ELEMENTS OF COMMON LAW FRAUD SUBJECT TO THE SIX-YEAR STATUTE OF LIMITATIONS (CT APP).
STRICT FORECLOSURE AT THE DIRECTION OF THE MAJORITY BONDHOLDERS WHICH CANCELLED THE NOTES PRECLUDED RECOVERY BY THE PLAINTIFFS WHO PURCHASED SOME OF THE NOTES IN THE SECONDARY MARKET (CT APP).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2024 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

WHERE THE DEFENDANT AND THE IDENTIFYING WITNESS APPEAR TO BELONG TO DIFFERENT... FAMILY COURT MAINTAINED JURISDICTION TO ISSUE A FINAL ORDER OF PROTECTION FOR...