Opinion
CR-01958-19
11-05-2020
PEOPLE of the State of New York, v. Hope MARABLE, Defendant.
Westchester County District Attorney, Mount Vernon branch, Robert Hufjay, Esq., Attorney for Defendant, 22 West First Street, Suite 521, Mount Vernon, New York 10550
Westchester County District Attorney, Mount Vernon branch, Robert Hufjay, Esq., Attorney for Defendant, 22 West First Street, Suite 521, Mount Vernon, New York 10550
Defendant is charged with Criminal Impersonation in the Second Degree (P.L. 190.25 [1]), False Personation (P.L. 190.23), Driving While Intoxicated ( VTL 1192 [3] ). Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree ( VTL 511 [1] ), Unlicensed Operator ( VTL 509 [1] ), and Failure to Exhibit a License ( VTL 507 [2] ). Defendant now moves to withdraw her waiver to a trial by jury signed on February 10, 2020.
The People oppose the motion.
In support of the motion, defendant affirms that she was under duress and involved in abusive relationship at the time she made the decision to waive her right to a jury trial. She states that her significant other at the time was involved in law enforcement in New York City, insisted that she waive a jury trial since he did not want any further publicity drawn to this matter. Defendant maintains that she did not understand the nature and consequences of waiving a jury trial. She states that since her arrest in April 2019 she has continuously requested a trial by jury. Defendant states that she is no longer in a relationship with her significant other. Defendant argues that the People will not be prejudiced by allowing her to proceed with a jury trial since no bench trial has been commenced.
Defendant's counsel, Robert Hufjay, affirms that he was assigned as defendant's new counsel on August 18, 2020 in light of defendant's request that her jury waiver be withdrawn and defendant be permitted to have a trial by jury. Counsel states that since his assignment he has on a number of occasions requested that the People consent to permitting the defendant to withdraw her waiver and place this matter on the jury calendar. Counsel states that at the time the defendant waived her right to a jury trial before your Honor, defendant was represented by Attorney Joseph Goubeaud. Counsel argues that the People will not be prejudiced by allowing the defendant to proceed with a jury trial since no bench trial has been commenced.
In opposition, the People argue that the defendant made a knowing and intelligent waiver of her right to a jury trial. They further argue that on the day the jury waiver form was signed, the Court conducted a voir dire of the defendant and she was represented by competent legal counsel. Defendant was informed of her rights and indicated that she understood she was waiving her right to a jury trial. The People further argue that the defendant will obtain an unfair procedural advantage. The prosecution argues that his matter occurred on April 6, 2019. Defendant was arraigned the same day. Since her arraignment defendant requested numerous pre-trial conferences and received several jury trial dates. This matter was most recently placed on the jury trial calendar in February 10, 2020. Then on the same date, defendant waived her right to a jury trial only to request a jury trial on September 24, 2020. The People maintain that this application by the defendant is merely a delay tactic. They argue that if this matter is placed back on the jury pre-trial calendar it could take months before the actual jury trial is commenced and in the meantime their witnesses recollection of events will continue to fade. The People argue this will give the defendant an unfair procedural advantage. The People argue that given the age of the case, coupled with the fact that the defendant has been calendared for jury trial on several prior dates, the Court should deny defendant's motion.
Defendant was arraigned on the superceding misdemeanor information on April 8, 2019. The matter was adjourned on several occasions to the jury calendar. On June 5, 2019, defendant appeared and requested that the matter be placed on the jury pre-trial calendar. On June 12, 2019, defendant appeared for jury pre-trial and Judge Adam Seiden recused. The matter was adjourned to July 9, 2019 for jury pre-trial. On July 9, 2019, defendant appeared and the matter was adjourned to July 29, 2019 for jury selection and trial. On July 29, 2019 the defendant's appearance was waived and the matter was adjourned for jury pre-trial. On August 6, 2019 defendant appeared and the matter was adjourned for jury selection. On August 20, 2019, defendant appeared and, Defense Counsel Jean Robert Auguste was relieved and new defense counsel, Joseph Goubeaud was assigned. The matter was adjourned for pre-trial. On September 11, 2019, defendant appeared and the matter was adjourned for jury trial on September 30, 2019. On September 30, 2019, defendant appeared and the matter was adjourned to October 1, 2019 for jury trial. On October 1, 2019, defendant failed to appear and a bench warrant was issued. The matter was adjourned to October 9, 2019 for jury pre-trial. On October 9, 2019, defendant appeared and the matter was adjourned to November 6, 2019 for jury pre-trial. On November 6, 2019 defendant appeared and the matter was adjourned to December 2, 2019 for jury trial. On December 2, 2020 defendant was hospitalized and did not appear. The matter was adjourned to December 5, 2019. On December 5, 2019, defendant appeared and the matter was adjourned to January 8, 2020 for jury pre-trial. On January 8, 2020, defendant appeared and the matter was adjourned to January 27, 2020 for jury trial and selection. On January 27, 2020, the defendant appeared but her defense counsel was engaged in a trial. The matter was adjourned to February 10, 2020 for jury pre-trial.
On February 10, 2020, defendant appeared with her former counsel Joseph Goubeaud, Jr. Defendant withdrew her request for a jury trial. Defendant indicated to her attorney that she wished to waive her right to a trial by jury and proceed with a non-jury trial. She was seeking to postpone her trial until April 2020. The defendant executed a jury trial waiver form, which states in pertinent part, "THE DEFENDANT HAVING BEEN CHARGED WITH THE CRIME(S) OF ... HEREBY WAIVES HIS RIGHT TO A JURY TRIAL, ... AND DOES HEREBY SUBSCRIBE HIS SIGNATURE TO THIS INSTRUMENT IN OPEN COURT, BEFORE AND WITH THE APPROVAL OF THE CITY JUDGE HEARING THIS CASE."
The Court also conducted a voir dire in open court with the defendant:
THE COURT : Okay. Ms. Marable, I've been handed the waiver, the Jury Waiver Form, I have to go through it in open court very quickly. So Ma'am you know there's a difference between a Jury Trial and a Non-Jury Trial. A jury trial, you pick a jury of your peers, and unless they're convinced beyond a reasonable doubt of your guilt, all of them, then you can't be convicted. So, you have to have all of those people, they all have to decide the facts of the case. The Judge is there, but they only officiate the law, but not the facts.
MS. MARABLE (DEFENDANT) : Yes.
THE COURT : In a Non Jury Trial, of course, the judge now is going to do not only the law, but also the facts. The People have only one person to convince of your guilt beyond a reasonable doubt, and that would be that judge. Are you sure you're okay with waiving your right to a trial by jury?
MS. MARABLE : Yes Your Honor.
THE COURT : And this is what you want to do?
MS. MARABLE : Yes, Your Honor.
THE COURT : And you talked it over with Counsel Goubeaud?
MS. MARABLE : I did, Your Honor.
THE COURT : Counsel Mr. Goubeaud, so, if that's the case, I'm going to find you're waiving your right to a trial by jury knowingly, willingly, intelligently and after competent Counsel. So I'm going to execute this jury waiver form. And March is the date. March sometime?
DEFENSE COUNSEL MR. GOUBEAUD : Judge, my client is saying she would like it to be April, but I know Mr. Thomas doesn't want to go out to April.
ASSISTANT DISTRICT ATTORNEY MR. THOMAS : Well, the only problem is that this is the only case the Court has to do due to Standards and Goals.
THE COURT : Yes.
During the Court proceedings, the Court had advised the parties that the trial could not be adjourned passed March 2020, as the goal of the courts was to try misdemeanor cases within 90 days of arraignment so as not to continually tie defendants up in the court system. The Court advised the parties that this case was the oldest outstanding case. The matter was adjourned to March 26. 2020 for a non-jury trial. In March 2020, the COVID-19 pandemic began to spread in the state of New York. All non-custody misdemeanor criminal matters were suspended by Administrative Order number 68/20. On March 26, 2020 this matter was adjourned to July 23, 2020 by administrative directive and defendant was directed to appear. On July 23, 2020, defendant's counsel appeared, however, defendant failed to appear. An appearance letter was mailed to defendant advising her to appear on August 18, 2020. On August 18, 2020, defendant appeared. Attorney Joseph Goubeaud was relieved as her counsel. Defendant's current counsel was assigned. The matter was adjourned to September 24, 2020 for motions. Defendant filed the instant motion on September 24, 2020.
Administrative Order of the Chief Administrative Jude of the Courts, dated March 16, 2020 http://www.nycourts.gov/whatsnew/pdf/AO-68-20.pdf
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The Sixth Amendment to the United States Constitution provides the defendant with a right to a trial by jury ( U.S. Const. Art. III. Sec. 2; U.S. Const. Sixth Amend.) A defendant, however, may waive that right. The further law provides that a defendant who has waived a jury trial may seek to withdraw the waiver before trial starts. However, granting a motion to rescind a jury trial waiver is not automatic, but it is left to the sound exercise of the court's discretion ( People v. McQueen, 52 N.Y.2d 1025, 438 N.Y.S.2d 299, 420 N.E.2d 97 [1981] ). In People v. McQueen, the Court of Appeals held that is was not an abuse of discretion to deny a defendant's request to withdraw his jury trial waiver where the record demonstrated that the defendant was advised by counsel, and after a thorough voir dire by the court, defendant made a knowing, voluntary and intelligent waiver or his right to a jury trial. In People v Miller, the Bronx County Supreme Court offered some guidance on factors to consider in using sound discretion to address a request for withdrawal of a jury trial waiver (People v. Miller, 37 Misc. 3d 1230 (A) [Sup. Ct. Bronx Co. 1990]). The court found that factors to consider include: 1) timeliness of the application; 2) evidence of bad faith; 3) the effect of the request on the interest of justice; and 4) the nature or extent of the prosecution's objection. While not binding on this court, it should be noted that this case has been cited by the Appellate Term ( People v. Perl (John), 32 Misc. 3d 135 (A), 2011 WL 3370911 [Sup.App.Term 2011] ) and another Westchester County City Court ( People v. Capellan, 37 Misc. 3d 1230 (A), 2012 WL 6178410 [City Ct. Rye 2012] ).
After reviewing the foregoing, the Court finds that the defendant's motion must be denied. Defendant affirms that she was under duress and pressure from her former significant other to move forward without a jury trial. While the Court sympathizes with defendant, this bare allegation that her significant other caused her to change her mind is insufficient to support the claim asserted (See People v. Perl (John), 32 Misc. 3d 135 (A), 2011 WL 3370911 [Sup.App.Term 2011] ). The written jury waiver form executed by the defendant and her statements on the record indicate that her waiver of the right to a jury trial was knowingly, voluntarily, and intelligently made ( People v. Hakim, 281 A.D.2d 559, 721 N.Y.S.2d 816 [2d Dept. 2001] ); (People v. Solouzo, 235 A.D.2d 439, 653 N.Y.S.2d 355 [2d Dept. 1997] ). The court and assigned counsel took great care to explain the consequences of a waiver of jury trial. It cannot be said that defendant's assertions of her constitutional rights were not made knowingly and understandingly, based on an intelligent, informed judgment. Applying the Miller standards, the Court finds that while the defendant has made this motion prior to the commencement of a bench trial, a granting of her motion will continue to cause undue substantial delay. Here defendant was arrested in April 2019. At her arraignment she did not waive her right to a jury trial. Instead over the course of the following 10 months, the matter was repeatedly adjourned, mostly at defendant's request or due to defendant's absence. The matter was on the jury term calendar in June 2019, July 2019, August 2019, September 2019, October 2019, November 2019, December 2019, January 2020 and February 2020. On several occasions defendant's trial was the first case on the jury calendar and calendared for jury selection. A bench warrant was issued when she failed to appear for the October 1, 2019 jury term calendar. The Court finds that granting the application will impeded the course of justice. Permitting the defendant to return back to the jury calendar will further delay the proceedings and the People advise that this will impact the recollection of their witnesses. Criminal jury trials are still suspended in this Court until further administrative directive. Non-jury trials, however, have been allowed to proceed in this Court since July 9, 2020. At the time defendant signed the jury waiver form in February 2020, her case was the oldest outstanding case on the jury calendar. The record indicates that the defendant wanted to delay her trial date into April 2020, however the Court rejected the defendant's request and advised her that it had to commence in March 2020 because the case had been pending since April 2019. Due to the COVID-19 pandemic, defendant's trial was administratively delayed. When defendant was directed to appear on this matter on July 23, 2020 she failed to appear, thus further delaying the proceedings. The Court then directed the defendant to appear on August 18, 2020. Defendant's assigned counsel Joseph Goubeaud asked to be relieved. Mr. Hufjay, defendant's third counsel on this matter was assigned. Mr. Hufjay advised the Court that the defendant was now seeking to withdraw her jury waiver and return to the jury term calendar. For the reasons stated above, the Court finds that the defendant made a knowing, voluntary and intelligent waiver of her right to a jury a trial. Additionally, when considering the other factors TOGETHER with Defendant's voluntary waiver, factors which include: 1) the prosecution's objection and persuasive and compelling argument that their witnesses memory is fading thereby giving the Defendant an unfair procedural advantage; 2) the unreasonable delay by the Defense as evidenced in the regurgitation of this matter's calendar history; 3) the history of Defendant's changing 18B counsel which caused further delay (this is her 3rd 18B attorney); 4) Defendant's failure to appear (may have come later that day) for what would have been her day of commencement of a trial on October 1 of 2019; 5) the fact that back in or about February 2020 when Defendant waived her right to a jury trial, because of all the delays by the Defense for one reason or another, it was the oldest outstanding case back then and Defendant was still trying to request a date for trial that suit her schedule and the court objected; and finally 6) the fact that as a result of covid-19 jury trials cannot be scheduled at this time thereby unfairly impacting the prosecution's case and while not the Defendant's fault, based upon the Defendant's prior delay tactic history the Court finds that granting defendant's request will result in further undue delay. Accordingly, defendant's motion is denied.