Opinion
No. 2021-532 S CR
12-21-2023
The People of the State of New York, Respondent, v. Donna Cook, Appellant.
Thomas E. Scott, for appellant. James A. Squicciarini, for respondent.
Thomas E. Scott, for appellant.
James A. Squicciarini, for respondent.
PRESENT:: ELIZABETH H. EMERSON, J.P., TIMOTHY S. DRISCOLL, GRETCHEN WALSH, JJ.
Appeal from judgments of the Justice Court of the Town of Southold, Suffolk County (Daniel C. Ross, J.), rendered October 6, 2021. The judgments, rendered pursuant to a decision of that court dated August 3, 2021, after a nonjury trial, convicted defendant of violating sections 144-15 (C) and 207-7 (A) of the Code of the Town of Southold, respectively, and imposed sentences.
ORDERED that, on the court's own motion, the notice of appeal by defendant from the decision dated August 3, 2021 is deemed a valid notice of appeal from the judgments of conviction (see CPL 460.10 [6]); and it is further, ORDERED that the judgments of conviction are reversed, on the law, and the matter is remitted to the Justice Court for a new trial in accordance with this decision and order.
On October 20, 2020, defendant, owner of the premises at 6900 Main Bayview Road in Southold, New York, was charged by separate informations with violating, respectively, sections 144-8 (A) (1) ("Building permit/rent permit required prior to commencement"), 144-15 (C) ("Certificate of occupancy required") and 207-7 (A) ("Rental permit required") of the Code of the Town of Southold (Code). The informations alleged that defendant had converted her garage into a living space without first obtaining the requisite building permit; that she was living in her garage without a certificate of occupancy; and that she was renting out her house as a one-family year-round residence without first obtaining the requisite rental permit.
At a pretrial court appearance, defendant appeared pro se. The court asked defendant if she had "considered engaging counsel," to which she responded "I do not have the funds for counsel and I included that in [an] e-mail to the Court." At that appearance, defendant requested that the court provide her with an interpreter to speak for her during the trial, as she had difficulty speaking due to a disability. The use of a microphone was offered to defendant, but defendant responded, "That doesn't really work because it's not only the volume of my voice. It's the sound of my voice. It's the way I pronounce my words. It is the things that I say." Defendant also stated that she had previously had been provided "an ADA [Americans with Disabilities Act] voice accommodation" in a Supreme Court case. Without directly addressing defendant's request or further inquiring into whether defendant wanted to proceed pro se, the court scheduled a nonjury trial for June 30, 2021.
In correspondence to the court dated June 28, 2021, defendant requested an accommodation through an organization called Disability Rights New York. The letter stated that defendant had paralyzed vocal cords, spinal cord injuries, arthritis, and multiple sclerosis which prevented her from speaking loudly and clearly, and led to her being misunderstood. The letter asked the court to provide a "a neutral interpreter" as a reasonable accommodation for her disability.
On June 30, 2021, prior to the start of the nonjury trial, after some discussion about defendant's ability to speak using the microphone that had been provided to her, the court stated that it would grant an adjournment at defendant's request "to allow [defendant] to line [a voice accommodation] up." There was then further colloquy (during which defendant often did not verbally respond), but the court did not offer to obtain an interpreter for defendant, nor did it make any further inquiry as to whether defendant wished to proceed without counsel. The trial then ensued. After the trial, defendant was found guilty of violating Code sections 144-15 (C) and 207-7 (A), and sentences were imposed.
On appeal, defendant argues that the court failed to provide her with a reasonable accommodation for her disability; that she was denied the right to the assistance of counsel; that statements she made should have been suppressed; that she was denied the fundamental right to a fair trial; that the evidence was legally insufficient; and that her conviction was against the weight of the evidence.
Defendant's contention that the evidence was legally insufficient to establish her guilt beyond a reasonable doubt is not preserved for appellate review because she did not make a motion to dismiss at the close of all of the evidence (see CPL 470.05 [2]; People v Hawkins, 11 N.Y.3d 484, 491-492 [2008]; People v Hines, 97 N.Y.2d 56, 61 [2001]; People v Gray, 86 N.Y.2d 10 [1995]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620, 621 [1983]), we find that the evidence was legally sufficient to establish defendant's guilt of violating Code sections 144-15 (C) and 207-7 (A).
In conducting an independent review of the weight of the evidence (see CPL 470.15 [2]; People v Danielson, 9 N.Y.3d 342, 348 [2007]), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v Lane, 7 N.Y.3d 888, 890 [2006]; People v Mateo, 2 N.Y.3d 383, 409 [2004]; People v Bleakley, 69
N.Y.2d 490, 495 [1987]). Upon a review of the record, we find that the guilty verdicts here were not against the weight of the evidence.
Defendant's contention that a statement she made to the Town of Southold ordinance inspector should have been suppressed is unpreserved for appellate review because defendant did not move to suppress the statement (see CPL 470.20 [2]; People v Santjer, 190 A.D.3d 983 [2021]). In any event, defendant was not in custody when she made the statement (see People v Conde, 46 Misc.3d 142 [A], 2015 NY Slip Op 50172[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]) and the statement was not inculpatory, as it advanced defendant's trial strategy (see People v Fugate, 78 Misc.3d 131 [A], 2023 NY Slip Op 50341[U] [App Term, 1st Dept 2023]).
However, we agree that defendant's purported waiver of her right to the assistance of counsel was ineffective. Before proceeding pro se, a defendant in a criminal case must waive the right to counsel (see People v Crampe, 17 N.Y.3d 469, 481 [2011]; People v Arroyo, 98 N.Y.2d 101 [2002]). For such a waiver to be effective, the court must be satisfied that it was, among other things, "unequivocal" (People v Slaughter, 78 N.Y.2d 485, 491 [1991]). In this case, defendant never explicitly stated that she wished to represent herself or proceed without counsel, and the court never asked if defendant wanted to proceed pro se, beyond asking if defendant had "considered" engaging counsel. Instead, the record indicates that defendant felt compelled to proceed pro se because she could not afford an attorney. Thus, any purported waiver by defendant of her right to counsel was not unequivocal.
Moreover, before allowing a defendant to proceed pro se, the court must determine that the defendant's waiver of the right to counsel was made knowingly, voluntarily and intelligently (see Crampe, 17 N.Y.3d 469; Arroyo, 98 N.Y.2d 101). To this end, the trial court is required to "conduct a searching inquiry to clarify that [the] defendant understands the ramifications of such a decision" (People v Stone, 22 N.Y.3d 520, 525 [2014] [internal quotation marks omitted]; see Crampe, 17 N.Y.3d 469; Arroyo, 98 N.Y.2d 101). A waiver cannot be deemed knowing, voluntary and intelligent unless, after conducting such a searching inquiry, the court is satisfied that the defendant is "aware of the dangers and disadvantages of proceeding without counsel" (Crampe, 17 N.Y.3d at 481). While there is no mandatory catechism that the court must recite, a careful and realistic reading of the record must reveal that the defendant was adequately warned of the importance of legal representation and the risks associated with proceeding pro se.
Upon a review of the record, we find that defendant was not alerted to any of the dangers and disadvantages inherent in self-representation. Moreover, the Justice Court made no inquiry into defendant's age, education, occupation, previous exposures to legal procedures, or other relevant factors bearing on an intelligent and voluntary waiver of the right to counsel (see Crampe, 17 N.Y.3d at 482; Arroyo, 98 N.Y.2d at 103-104). Consequently, we find that the Justice Court failed to obtain an effective waiver of defendant's right to counsel (see Crampe, 17 N.Y.3d 469; Arroyo, 98 N.Y.2d 101; People v Brodeur, 55 Misc.3d 37 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; People v Lavidas, 36 Misc.3d 160 [A], 2012 NY Slip Op 51827[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; People v Biro, 13 Misc.3d 131 [A], 2006 NY Slip Op 51864[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).
In addition, we find that the Justice Court failed to provide defendant with an appropriate accommodation for her disability. "A public entity must provide a reasonable accommodation under the ADA when it knows that the individual is disabled and 'requires an accommodation of some kind to participate in or receive the benefits of its services'" (J. V. ex rel. C. V. v Albuquerque Pub. Sch., 813 F.3d 1289, 1299 [10th Cir 2016], quoting Robertson v Las Animas County Sheriff's Dept., 500 F.3d 1185, 1197 [10th Cir 2007]; see Profita v Regents of the Univ. of Colo., 709 Fed.Appx 917, 920 [10th Cir 2017]). As defendant's disability was not merely the volume of her voice, but rather difficulty in forming her words and communicating her arguments, the provision of a microphone was inadequate.
Accordingly, the judgments of conviction are reversed and the matter is remitted to the Justice Court for a new trial in accordance with this decision and order.
EMERSON, J.P., DRISCOLL and WALSH, JJ., concur.