WHEN DEFENDANT TOLD THE COURT AT HIS FIRST TWO APPEARANCES THAT HE WISHED TO TESTIFY AT THE GRAND JURY, THE COURT SHOULD HAVE RECOGNIZED THAT DEFENDANT WAS ATTEMPTING TO REPRESENT HIMSELF AND CONDUCTED A SEARCHING INQUIRY TO MAKE SURE DEFENDANT UNDERSTOOD THE RISKS (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea and dismissing the indictment, determined the court should have conducted a searching inquiry into defendant’s representing himself when he indicated he wished to testify at the grand jury at his first and second appearances in court:

… [D]efendant appeared in City Court for arraignment on a felony complaint and a misdemeanor information charging him with the offenses for which he was later indicted. Defendant, as is relevant here, stated that he wished to represent himself and testify before the grand jury. He remained unrepresented at a second appearance three days later and reiterated his desire to appear before the grand jury. The indictment was handed up shortly thereafter, and it appears that the People disregarded defendant’s desire to testify before the grand jury because he failed to make a written demand as required … . …​

“[D]efendant’s indelible right to counsel . . . attached when the felony complaint against him was first filed” …  and, while he could waive that right and proceed pro se, the waiver would be invalid absent a “searching inquiry” by City Court to discern whether defendant understood and “appreciated the ‘dangers and disadvantages’ of” self-representation… . There was no inquiry conducted here, leaving the record silent as to whether “defendant ‘acted with full knowledge and appreciation of the panoply of constitutional protections that would be adversely affected by counsel’s inability to participate'” so as to constitute a valid waiver … . Defendant should therefore not have been permitted to proceed pro se … . It follows that defendant was deprived of an opportunity to consult with counsel — who could have assisted defendant in deciding whether to appear before the grand jury and made an effective demand to appear in the event he chose to do so — and this “deprivation of defendant’s constitutional right to counsel requires the dismissal of the indictment” … . People v Trapani, 2018 NY Slip Op 04041, Third Dept 6-7-18

CRIMINAL LAW (ATTORNEYS, WHEN DEFENDANT TOLD THE COURT AT HIS FIRST TWO APPEARANCES THAT HE WISHED TO TESTIFY AT THE GRAND JURY, THE COURT SHOULD HAVE RECOGNIZED THAT DEFENDANT WAS ATTEMPTING TO REPRESENT HIMSELF AND CONDUCTED A SEARCHING INQUIRY TO MAKE SURE DEFENDANT UNDERSTOOD THE RISKS (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, WHEN DEFENDANT TOLD THE COURT AT HIS FIRST TWO APPEARANCES THAT HE WISHED TO TESTIFY AT THE GRAND JURY, THE COURT SHOULD HAVE RECOGNIZED THAT DEFENDANT WAS ATTEMPTING TO REPRESENT HIMSELF AND CONDUCTED A SEARCHING INQUIRY TO MAKE SURE DEFENDANT UNDERSTOOD THE RISKS (THIRD DEPT))/RIGHT TO COUNSEL (WHEN DEFENDANT TOLD THE COURT AT HIS FIRST TWO APPEARANCES THAT HE WISHED TO TESTIFY AT THE GRAND JURY, THE COURT SHOULD HAVE RECOGNIZED THAT DEFENDANT WAS ATTEMPTING TO REPRESENT HIMSELF AND CONDUCTED A SEARCHING INQUIRY TO MAKE SURE DEFENDANT UNDERSTOOD THE RISKS (THIRD DEPT))/GRAND JURY ( WHEN DEFENDANT TOLD THE COURT AT HIS FIRST TWO APPEARANCES THAT HE WISHED TO TESTIFY AT THE GRAND JURY, THE COURT SHOULD HAVE RECOGNIZED THAT DEFENDANT WAS ATTEMPTING TO REPRESENT HIMSELF AND CONDUCTED A SEARCHING INQUIRY TO MAKE SURE DEFENDANT UNDERSTOOD THE RISKS (THIRD DEPT))