DEFENDANT, BY FIRING HIS ATTORNEY AND REFUSING TO BE PRESENT AT TRIAL, WAIVED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND HIS RIGHT TO BE PRESENT AT HIS TRIAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a concurrence and an extensive dissent, determined defendant, by firing his attorney and refusing to be present during the trial, waived his right to effective assistance of counsel and his right to be present at his trial. The court further determined that the consecutive sentences for two counts of criminal possession of a weapon were improper because both offenses arose from the same act of possession:

“Waiver is a knowing, intelligent, and voluntary relinquishment of a known right” … . Like other fundamental rights, a defendant’s right to effective assistance of counsel may be waived … . We have explained that “[a]n accused awaiting trial . . . has only two choices regarding legal representation—proceed with counsel or waive the protection of the Sixth Amendment and proceed pro se” … . Accordingly, when a defendant “refuse[s] self-representation and restrict[s] the participation of counsel . . . [they] hav[e] voluntarily waived the right to the effective assistance of counsel” … .

Whether the waiver of a fundamental right is valid “depend[s], in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused” … . “In many instances, the requisite affirmative showing that . . . [a] right[ ] ha[s] been knowingly, voluntarily, and intelligently waived will include a direct colloquy between the court and the defendant” … . We have also long held that a defendant may waive certain fundamental rights by their conduct, most notably in the context of the right to be present … . In determining whether such a waiver occurred, relevant circumstances include the warnings provided by the trial court, the defendant’s actions in response, and whether, in light of the defendant’s conduct, the trial court could practicably have administered additional warnings or attempted to secure an oral waiver. * * *

In light of the trial court’s many warnings to defendant and defendant’s obstructive behavior in response, there is record support for the conclusion that, by his conduct, defendant waived the right to effective assistance of counsel. A trial court must be cautious not to conflate waiver of the right to be present at trial with waiver of the right to effective assistance of counsel. These rights are separate, and a trial court has distinct duties to ensure the validity of a defendant’s waiver of each. However, in certain circumstances, as in this case, the same conduct may amount to a waiver of both rights. People v Lewis, 2026 NY Slip Op 01588, CtApp 3-19-26

Practice Point: A defendant by his behavior (here firing his attorney and walking out of the trial), in the face of sufficient warnings by the judge, may waive both the right to effective assistance of counsel and the right to be present at the trial.