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COURT DID NOT CONDUCT SEARCHING INQUIRY INTO DEFENDANT’S REQUEST TO PROCEED PRO SE, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that the court’s inquiry into defendant’s request to proceed pro se was inadequate:

The knowing, voluntary, and intelligent waiver of the right to counsel by a defendant who seeks to proceed pro se requires a “searching inquiry” in which the court must communicate to the defendant both the “risks inherent in proceeding pro se” and “the singular importance of the lawyer in the adversarial system of adjudication” … . Neither a defendant’s expression of a strong desire to proceed pro se, nor elicitation of information demonstrating the defendant might be relatively capable of doing so, is a substitute for the two above-cited essential components of a searching inquiry, which were all but completely absent here. The relevant portion of the trial court’s colloquy with defendant on this subject was essentially limited to warning him that self-representation was a “big mistake” and that the court had seen many pro se defendants convicted after trial.

Even when the record is viewed as a whole, the required inquiry does not appear. Defendant had made several requests for self-representation before a calendar court. However, in each instance the court denied the request on the basis of its initial inquiry about defendant’s understanding of the charges, without reaching the stage of the required pro se inquiry at issue on appeal. People v Herbin, 2018 NY Slip Op 03811, First Dept 5-29-18

​CRIMINAL LAW (LESSER INCLUDED OFFENSES, PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))/LESSER INCLUDED OFFENSES (PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))/APPEALS (CRIMINAL LAW, LESSER INCLUDED OFFENSES, PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))

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