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You are here: Home1 / Attorneys2 / DESIGNATING ATTORNEY AS STANDBY COUNSEL WAS INSUFFICIENT, DEFENDANT’S...
Attorneys, Criminal Law

DESIGNATING ATTORNEY AS STANDBY COUNSEL WAS INSUFFICIENT, DEFENDANT’S REFUSAL TO BE REPRESENTED BY THE SUBSTITUTE COUNSEL WHO APPEARED FOR SENTENCING REQUIRED THE COURT TO CONDUCT A SEARCHING INQUIRY TO BE SURE THE DEFENDANT UNDERSTOOD THE CONSEQUENCES OF REPRESENTING HIMSELF (SECOND DEPT).

The Second Department, remitting the case for a new second violent felony offender determination and resentencing, held that the sentencing judge should have made a searching inquiry concerning defendant’s wish to proceed pro se. Defendant’s attorney was sick and defendant did not want to be represented by the attorney who appeared to represent him (Klein). Simply designating Klein as “standby counsel” was not sufficient:

At the sentencing proceeding, the Supreme Court asked the defendant if the defendant wanted Klein to represent him, and the defendant answered in the negative. The court continued the sentencing proceeding, with the defendant appearing pro se and Klein present as a “standby” attorney or legal advisor, and thereafter adjudicated the defendant a second violent felony offender and imposed sentence.

As the People correctly concede, the Supreme Court erred in allowing the defendant to proceed pro se at the sentencing proceeding without conducting a searching inquiry to ascertain whether the defendant appreciated the dangers and advantages of giving up the fundamental right to counsel … . …

Contrary to the defendant’s contention, since the record demonstrates that his plea of guilty was entered voluntarily, knowingly, and intelligently, the Supreme Court providently exercised its discretion in denying, without a hearing, the defendant’s motion to withdraw his plea … . People v Charles, 2018 NY Slip Op 02334, Second Dept 4-4-18

​CRIMINAL LAW (ATTORNEYS, DESIGNATING ATTORNEY AS STANDBY COUNSEL WAS INSUFFICIENT, DEFENDANT’S REFUSAL TO BE REPRESENTED BY THE SUBSTITUTE COUNSEL WHO APPEARED FOR SENTENCING REQUIRED THE COURT TO CONDUCT A SEARCHING INQUIRY TO BE SURE THE DEFENDANT UNDERSTOOD THE CONSEQUENCES OF REPRESENTING HIMSELF (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, DESIGNATING ATTORNEY AS STANDBY COUNSEL WAS INSUFFICIENT, DEFENDANT’S REFUSAL TO BE REPRESENTED BY THE SUBSTITUTE COUNSEL WHO APPEARED FOR SENTENCING REQUIRED THE COURT TO CONDUCT A SEARCHING INQUIRY TO BE SURE THE DEFENDANT UNDERSTOOD THE CONSEQUENCES OF REPRESENTING HIMSELF (SECOND DEPT))/STANDBY COUNSEL (CRIMINAL LAW, DESIGNATING ATTORNEY AS STANDBY COUNSEL WAS INSUFFICIENT, DEFENDANT’S REFUSAL TO BE REPRESENTED BY THE SUBSTITUTE COUNSEL WHO APPEARED FOR SENTENCING REQUIRED THE COURT TO CONDUCT A SEARCHING INQUIRY TO BE SURE THE DEFENDANT UNDERSTOOD THE CONSEQUENCES OF REPRESENTING HIMSELF (SECOND DEPT))/RIGHT TO COUNSEL (CRIMINAL LAW, DESIGNATING ATTORNEY AS STANDBY COUNSEL WAS INSUFFICIENT, DEFENDANT’S REFUSAL TO BE REPRESENTED BY THE SUBSTITUTE COUNSEL WHO APPEARED FOR SENTENCING REQUIRED THE COURT TO CONDUCT A SEARCHING INQUIRY TO BE SURE THE DEFENDANT UNDERSTOOD THE CONSEQUENCES OF REPRESENTING HIMSELF (SECOND DEPT))/WAIVER (CRIMINAL LAW, RIGHT TO COUNSEL, DESIGNATING ATTORNEY AS STANDBY COUNSEL WAS INSUFFICIENT, DEFENDANT’S REFUSAL TO BE REPRESENTED BY THE SUBSTITUTE COUNSEL WHO APPEARED FOR SENTENCING REQUIRED THE COURT TO CONDUCT A SEARCHING INQUIRY TO BE SURE THE DEFENDANT UNDERSTOOD THE CONSEQUENCES OF REPRESENTING HIMSELF (SECOND DEPT))

April 4, 2018
Tags: Second Department
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https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 Bruce Freeman https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png Bruce Freeman2018-04-04 13:20:222020-01-28 11:27:05DESIGNATING ATTORNEY AS STANDBY COUNSEL WAS INSUFFICIENT, DEFENDANT’S REFUSAL TO BE REPRESENTED BY THE SUBSTITUTE COUNSEL WHO APPEARED FOR SENTENCING REQUIRED THE COURT TO CONDUCT A SEARCHING INQUIRY TO BE SURE THE DEFENDANT UNDERSTOOD THE CONSEQUENCES OF REPRESENTING HIMSELF (SECOND DEPT).
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THE WARRANTLESS SEARCH OF A HOME TO RETRIEVE A HANDGUN DEFENDANT HAD THROWN UNDER A CHAIR IN THE PRESENCE OF THE POLICE WAS NOT JUSTIFIED UNDER ANY EXCEPTION TO THE WARRANT REQUIREMENT, THE PLAIN VIEW DOCTRINE DID NOT APPLY BECAUSE THE OFFICER DID NOT KNOW WHAT THE DEFENDANT HAD THROWN UNDER THE CHAIR, THE EMERGENCY EXCEPTION DID NOT APPLY BECAUSE THE DEFENDANT WAS IN CUSTODY WHEN THE OFFICER REENTERED THE HOME TO LOOK UNDER THE CHAIR (SECOND DEPT).
FAILURE TO TIMELY FILE CERTIFIED MINUTES OF THE CONVENTION REQUIRED REMOVAL OF TWO CANDIDATES FOR SUPREME COURT FROM THE BALLOT (SECOND DEPT).
ALTHOUGH PLAINTIFF INDICATED SHE DID NOT KNOW THE CAUSE OF HER FALL IN HER DEPOSITION, IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHE RAISED A QUESTION OF FACT ABOUT WHETHER THE FLOOR WAS WET FROM TRACKED IN SNOW AND DEFENDANT DID NOT PRESENT ANY EVIDENCE ON THE ISSUE OF NOTICE (SECOND DEPT).
PLAINTIFF BICYCLIST STRUCK THE DOOR OF DEFENDANT’S VAN AFTER DEFENDANT HAD OPENED THE DOOR; DEFENDANT RAISED QUESTIONS OF FACT ABOUT WHETHER HE HAD OPENED THE DOOR SAFELY AND WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED AND DEFENDANT’S COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).
QUESTION OF FACT WHETHER FLOODING, AS OPPOSED TO WIND, CAUSED THE PROPERTY DAMAGE PRECLUDED SUMMARY JUDGMENT IN FAVOR OF THE INSURER BASED UPON POLICY EXCLUSIONS (SECOND DEPT).
THE COVID-19 TOLLS AND THE COURT’S DELAY IN SIGNING THE ORDER TO SHOW CAUSE PROVIDED A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE A NOTICE OF CLAIM IN THIS BUS ACCIDENT CASE; THE POLICE REPORT TIMELY NOTIFIED THE CITY OF THE RELEVANT FACTS; THE MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​
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CONTRACT WAS ENFORCEABLE DESPITE PARTIES’ EXPECTATION A MORE FORMAL CONTRACT... DEFENDANT HAD PLED GUILTY IN ANOTHER COUNTY TO POSSESSION OF THE SAME WEAPON...
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