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DEFENDANT’S CONVICTION UPHELD DESPITE INVALID WAIVER OF THE RIGHT TO COUNSEL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, determined defendant's waiver of his right to counsel was invalid, but deemed the error harmless and upheld his conviction. The defendant repeatedly represented himself at court appearances, repeatedly allowed counsel to represent him, and repeatedly refused to continue and left the courtroom. The trial was ultimately conducted in his absence. The First Department held that the failure to make sure defendant was aware that he faced a maximum of 15 years in prison rendered the waiver of counsel invalid. However, the suppression motion was deemed to have no chance of success and the trial evidence was deemed overwhelming:

The “normal remedy for a violation of the right to counsel at a suppression hearing is a new suppression hearing, with a new trial to follow if, after the new hearing, the evidence is suppressed” … . However, a new hearing would serve no purpose, and need not be ordered, where it is clear beyond a reasonable doubt that the result at a new trial would be the same even if the defendant prevailed at the suppression hearing. …

​

Even assuming counsel would some how be successful in arguing for the suppression of statements and property recovered, the evidence of defendant's guilt was overwhelming. Defendant was caught red-handed. …

Similarly, even assuming counsel would have been able to secure a more favorable Sandoval ruling, and defendant would have testified on his own behalf, the evidence overwhelmingly proved defendant knowingly and unlawfully entered the … apartment with the intent to take property. People v Rodriguez, 2018 NY Slip Op 00040, First Dept 1-2-18

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