Opinion
2020-434 OR CR
11-18-2021
The People of the State of New York, Respondent, v. Tobin Zahangir, Appellant.
John R. Lewis, for appellant. Orange County District Attorney (Andrew R. Kass of counsel), for respondent.
Unpublished Opinion
John R. Lewis, for appellant.
Orange County District Attorney (Andrew R. Kass of counsel), for respondent.
PRESENT:: TERRY JANE RUDERMAN, P.J., ELIZABETH H. EMERSON, HELEN VOUTSINAS, JJ
Appeal from judgments of the City Court of Newburgh, Orange County (E. Loren Williams, J.), rendered February 13, 2020. The judgments convicted defendant, upon jury verdicts, of driving while intoxicated per se, common-law driving while intoxicated, and disobeying a traffic control device, respectively, and imposed sentences.
ORDERED that the judgments of conviction are reversed, on the law, and the matters are remitted to the City Court for a new trial.
In May 2019, defendant was issued several simplified traffic informations, including ones charging defendant with driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]), common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), and disobeying a traffic control device (Vehicle and Traffic Law § 1110 [a]). Following a jury trial, defendant was convicted of the three aforementioned charges, and sentences were imposed. The sole contention defendant raises on appeal is that his constitutional and statutory rights to counsel were violated because the City Court denied his request for assigned counsel.
A review of the record indicates that, when defendant was arraigned on July 1, 2019, he was not represented by counsel and the case was adjourned numerous times so that he could obtain counsel. In August 2019, defendant informed the City Court that he wanted a "public defender" and, later that same day, a Legal Aid attorney appeared on behalf of defendant. In September 2019, the court informed defendant that it had received a letter from Legal Aid stating that defendant was not financially eligible for Legal Aid services. The court then asked defendant if he was going to hire an attorney or represent himself. Defendant replied that he would hire an attorney, and the case was adjourned. On October 17, 2019, the court asked defendant if he had contacted an attorney and defendant replied that he could not afford an attorney. The court then asked defendant if he worked, and defendant replied, "Yeah... I work part time. I don't make that much." Defendant also informed the court that he lived with his parents and that his father had been laid off from his job. The court stated that it had provided defendant with "a number of chances to hire an attorney" and that defendant did not qualify for assigned counsel or Legal Aid. The case was adjourned for hearings and/or trial.
Thereafter, in court on October 30, 2019, defendant again informed the City Court that he could not afford to hire an attorney. The court asked defendant if he was working, defendant replied, "part time." The court asked defendant if he lived with his parents and defendant replied that he did. When asked if his parents owned their home, defendant replied yes and that they had a mortgage. The court stated that "It doesn't look like you qualify. Do you have any children?" Defendant said that he did not have any children and that he had been helping out his parents, as his father had been suspended from his job. In reply to a question from the court, defendant stated that he had a loan on his car. The court stated, "You own your car. You know, I can't sit down and go through your finances with you. It's been more than four months here. I have been giving you a lot of opportunities here to [hire] an attorney. Even if you made payments over those four months, by this point you would have had enough to pay an attorney."
Prior to the start of trial in December 2019, the City Court stated that defendant had informed the court that he wanted to represent himself and have a jury trial. Defendant responded that he wanted a lawyer and that he had not hired a lawyer because he did not have the money. The court told defendant that he was financially ineligible for an attorney and, again, asked defendant if he was working. Defendant replied that he worked part time and stated, "I don't make enough to pay for a lawyer."
It is well settled that the New York State Constitution "guarantees due process of law, the right to effective assistance of counsel and the privilege against compulsory self-incrimination" (People v Grice, 100 N.Y.2d 318, 320 [2003]). The right to counsel in New York "extends well beyond the right to counsel afforded by the Sixth Amendment of the United States Constitution and other State Constitutions" (People v Davis, 75 N.Y.2d 517, 521 [1990]). In the case at bar, after Legal Aid informed the City Court that defendant was financially ineligible for its services, and defendant repeatedly informed the court that he could not afford to hire an attorney, the court "had an obligation to inquire further into defendant's eligibility and desire for the appointment of counsel" (People v McKiernan, 84 N.Y.2d 915, 916 [1994]).
Although the City Court asked defendant where, and with whom, he lived, whether his parents owned a house, whether defendant owned a vehicle, as well as whether defendant worked, the questions it posed did not make a sufficient inquiry into defendant's ability to hire an attorney, as no specific financial information was asked for, or provided. The fact that a defendant owns a car or lives with his parents in a house his parents own, does not, in and of itself, mean that defendant can afford to hire an attorney. The limited questioning by the court was inadequate, as it appears that the court based its determination predominantly on Legal Aid's determination that defendant did not financially qualify for its services.
Accordingly, the judgments of conviction are reversed and the matters are remitted to the City Court for a new trial.
RUDERMAN, P.J., EMERSON and VOUTSINAS, JJ., concur.