Opinion
1181 KA 13-01552
12-23-2020
The PEOPLE of the State of New York, Respondent, v. Reggie CASWELL, Defendant-Appellant.
PAUL B. WATKINS, FAIRPORT, FOR DEFENDANT-APPELLANT. REGGIE CASWELL, DEFENDANT-APPELLANT PRO SE. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PAUL B. WATKINS, FAIRPORT, FOR DEFENDANT-APPELLANT.
REGGIE CASWELL, DEFENDANT-APPELLANT PRO SE.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the resentence so appealed from is unanimously reversed on the law and the matter is remitted to Supreme Court, Monroe County, for resentencing.
Memorandum: Defendant was convicted upon a jury verdict of, inter alia, robbery in the second degree ( Penal Law § 160.10 [2] [b] ) and attempted robbery in the third degree (§§ 110.00, 160.05; People v. Caswell , 56 A.D.3d 1300, 1301, 867 N.Y.S.2d 638 [4th Dept. 2008], lv denied 11 N.Y.3d 923, 874 N.Y.S.2d 8, 902 N.E.2d 442 [2009], reconsideration denied 12 N.Y.3d 781, 879 N.Y.S.2d 58, 906 N.E.2d 1092 [2009], cert denied 556 U.S. 1286, 129 S.Ct. 2775, 174 L.Ed.2d 278 [2009] ), and he now appeals from a resentence with respect to the count of attempted robbery in the third degree.
We agree with defendant's contention in his main and pro se supplemental briefs, as the People correctly concede, that he was deprived of his right to counsel when Supreme Court permitted defendant to represent himself at the resentencing proceeding without properly ruling on defendant's multiple requests for assignment of counsel (see generally People v. Wardlaw , 6 N.Y.3d 556, 559, 816 N.Y.S.2d 399, 849 N.E.2d 258 [2006] ; People v. Allen , 99 A.D.3d 1252, 1253, 951 N.Y.S.2d 822 [4th Dept. 2012] ). Denial of the right to counsel during a particular proceeding does not invariably require remittal for a repetition of the tainted proceeding, or any other remedy, inasmuch as "the remedy to which a defendant is entitled ordinarily depends on what impact, if any, the tainted proceeding had on the case as a whole" ( Wardlaw , 6 N.Y.3d at 559, 816 N.Y.S.2d 399, 849 N.E.2d 258 ). Here, however, the court's failure to consider defendant's motion for assigned counsel had an adverse impact on the resentencing proceeding because the absence of counsel prevented defendant from, inter alia, adequately contesting his adjudication as a second felony offender and arguing against the imposition of the maximum sentence permissible under the law. We therefore reverse the resentence and remit the matter to Supreme Court for resentencing, and we direct the court to ensure that defendant is afforded his right to counsel (see People v. Grueiro , 74 A.D.3d 1232, 1233, 905 N.Y.S.2d 629 [2d Dept. 2010], lv denied 15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821 [2010]; cf. People v. Johnson , 94 A.D.3d 1496, 1497, 942 N.Y.S.2d 741 [4th Dept. 2012], affd 20 N.Y.3d 990, 960 N.Y.S.2d 55, 983 N.E.2d 1239 [2013] ; People v. Adams , 52 A.D.3d 243, 243-244, 859 N.Y.S.2d 170 [1st Dept. 2008], lv denied 11 N.Y.3d 829, 868 N.Y.S.2d 604, 897 N.E.2d 1088 [2008] ).
In light of our determination, defendant's remaining contentions in his main brief are academic.
Finally, defendant's contentions in his pro se supplemental brief with respect to his motion to set aside the sentence pursuant to CPL 440.20 are not properly before us on appeal from the resentence (see People v. Morris , 94 A.D.3d 1450, 1451-1452, 942 N.Y.S.2d 725 [4th Dept. 2012], lv denied 19 N.Y.3d 976, 950 N.Y.S.2d 358, 973 N.E.2d 768 [2012] ; People v. Moore , 81 A.D.3d 1325, 1325, 916 N.Y.S.2d 569 [4th Dept. 2011], lv denied 16 N.Y.3d 897, 926 N.Y.S.2d 33, 949 N.E.2d 981 [2011] ).