Opinion
03-01-2017
PEOPLE of State of New York, respondent, v. Donald GRIFFIN, appellant.
Lynn W.L. Fahey, New York, NY (Jenin Younes of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Jenin Younes of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., SANDRA L. SGROI, HECTOR D. LaSALLE and BETSY BARROS, JJ.
Appeal by the defendant from an order of the Supreme Court, Kings County (Brennan, J.), dated January 23, 2015, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a new risk assessment hearing and a new risk level determination.
The Supreme Court granted the defendant's request to represent himself at a hearing to determine his risk level pursuant to the Sex Offender Registration Act (see Correction Law art. 6–C; hereinafter SORA). The defendant appeals from the order, made after the hearing, designating him a level three sex offender.
A defendant in a SORA proceeding has a statutory and a constitutional right to counsel (see People v. Bowles, 89 A.D.3d 171, 932 N.Y.S.2d 112 ), and any waiver of that right must be knowing, intelligent, and voluntary (see People v. Edney, 111 A.D.3d 612, 974 N.Y.S.2d 293 ; People v. Wilson, 103 A.D.3d 1178, 960 N.Y.S.2d 276 ). Where a defendant makes a timely and unequivocal request to waive the right to counsel and represent herself or himself, "the trial court is obligated to conduct a ‘searching inquiry’ to ensure that the defendant's waiver is knowing, intelligent, and voluntary" (Matter of Kathleen K. [Steven K.], 17 N.Y.3d 380, 385, 929 N.Y.S.2d 535, 953 N.E.2d 773 ; see People v. Slaughter, 78 N.Y.2d 485, 577 N.Y.S.2d 206, 583 N.E.2d 919 ). "A waiver is voluntarily made when the trial court advises the defendant and can be certain that the ‘dangers and disadvantages of giving up the fundamental right to counsel have been impressed upon the defendant’ " (Matter of Kathleen K. [Steven K.], 17 N.Y.3d at 385–386, 929 N.Y.S.2d 535, 953 N.E.2d 773, quoting People v. Slaughter, 78 N.Y.2d at 491, 577 N.Y.S.2d 206, 583 N.E.2d 919 [internal quotation marks omitted] ). "A ‘searching inquiry’ does not have to be made in a formulaic manner, ... although it is better practice to ask the defendant about [her or] his ‘age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver’ " (Matter of Kathleen K. [Steven K.], 17 N.Y.3d at 386, 929 N.Y.S.2d 535, 953 N.E.2d 773 [internal citation omitted], quoting People v. Arroyo, 98 N.Y.2d 101, 104, 745 N.Y.S.2d 796, 772 N.E.2d 1154 ; see People v. Middlemiss, 125 A.D.3d 1065, 1067, 3 N.Y.S.3d 771 ; People v. Wilson, 103 A.D.3d at 1179, 960 N.Y.S.2d 276 ).
Applying that standard here, we conclude that the Supreme Court failed to conduct the requisite searching inquiry to ensure that the defendant's waiver of the right to counsel was unequivocal, voluntary, and intelligent (see People v. Middlemiss, 125 A.D.3d at 1067, 3 N.Y.S.3d 771 ; People v. Wilson, 103 A.D.3d at 1179–1180, 960 N.Y.S.2d 276 ). The court made only minimal inquiry into the defendant's age, experience, intelligence, education, and exposure to the legal system, and did not explain the risk inherent in proceeding pro se or the advantages of representation by counsel. The court's failure to conduct a searching inquiry renders the defendant's waiver of the right to counsel invalid and requires reversal (see People v. Middlemiss, 125 A.D.3d at 1067, 3 N.Y.S.3d 771 ; People v. Wilson, 103 A.D.3d at 1179–1180, 960 N.Y.S.2d 276 ; see also People v. Edney, 111 A.D.3d at 612, 974 N.Y.S.2d 293 ).
The defendant's remaining contentions need not be addressed in light of our determination.