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DEFENDANT WAS NOT ADEQUATELY INFORMED ABOUT HIS SENTENCING EXPOSURE, THE NATURE OF THE CHARGES AND THE RISKS OF REPRESENTING HIMSELF; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined defendant was not adequately warned about the risks of representing himself:

The record “does not sufficiently demonstrate that defendant was aware of his actual sentencing exposure” … , including the potential for his sentences in two pending cases, arising from unrelated incidents, to run consecutively. The court also failed to inquire into defendant’s understanding of “the nature of the charges” … . This despite defendant’s admission that he did “[n]ot necessarily” understand the charges in one case and was “still coming to grips with the charges” in the other case. The court’s statement during the waiver colloquy that defendant was “facing felony charges” was inadequate for that purpose.

Moreover, the court’s inquiry did not “accomplish the goals of adequately warning a defendant of the risks inherent in proceeding pro se and apprising a defendant of the singular importance of the lawyer in the adversarial system of adjudication” … . The court failed to warn defendant about the numerous pitfalls of representing himself before and at trial, such as unfamiliarity with legal terms, concepts, and case names; the potential challenges of cross-examining witnesses and delivering an opening statement and summation as a pro se criminal defendant. While there is no mandatory “catechism for this inquiry,” there must be a “searching inquiry” conducted by a court before permitting self-representation … . Under the particular circumstances of this case, we find that defendant’s waiver of his right to counsel was not knowing, intelligent, and voluntary. People v Perry, 2021 NY Slip Op 05826, First Dept 10-26-21

 

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