Opinion
2012-2572 N CR
02-17-2015
The People of the State of New York, Respondent, v. Jawant Mohabir, Appellant.
PRESENT: : , TOLBERT and GARGUILO, JJ.
Appeal from five judgments of the District Court of Nassau County, Nassau County Traffic and Parking Violations Agency (Allen S. Mathers, J.H.O.), rendered October 15, 2012. The judgments, after a nonjury trial, convicted defendant of operating an uninspected motor vehicle, operating a motor vehicle without insurance, operating an unregistered motor vehicle, misuse of transporter number plates, and failing to signal when changing lanes, respectively.
ORDERED that the judgments of conviction are reversed, on the law, and the matters are remitted to the District Court of Nassau County, Nassau County Traffic and Parking Violations Agency for a new trial before a different judicial hearing officer.
On June 9, 2012, the People charged defendant, in five simplified traffic informations, with operating an uninspected motor vehicle (Vehicle and Traffic Law § 306 [b]), operating a motor vehicle without insurance (Vehicle and Traffic Law § 319 [1]), operating an unregistered motor vehicle (Vehicle and Traffic Law § 401 [1] [a]), misuse of transporter number plates (Vehicle and Traffic Law § 415 [8]), and failing to signal when changing lanes (Vehicle and Traffic Law § 1163 [d]), respectively. After three or four adjournments, a nonjury trial commenced on October 15, 2012, at the Nassau County Traffic and Parking Violations Agency, with the testimony of the state trooper who had issued the simplified informations. At the conclusion of the trooper's brief testimony, defendant, when asked if he wished to cross-examine the trooper, stated that he did not know how to proceed, and that he needed a lawyer. The court denied this request and numerous additional requests for an adjournment to obtain counsel. The court stated that an accused does not have the right to counsel in traffic infraction prosecutions and, in addition, citing the tardiness of the application and the inconvenience to the prosecution, characterized the requests as a merely "dilatory" tactic. Defendant was convicted of all of the charges and was sentenced to, among other things, substantial fines and the suspension of his driver's license. Defendant appeals, raising many claims of error, the most significant of which are the denial of his right to counsel and prosecutorial misconduct.
We have repeatedly affirmed the proposition that "[a] defendant has the right to the aid of counsel at arraignment and at all subsequent stages of the proceedings, regardless of the gravity of the charge" (Peter Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 170.10 [3]), and must be informed of that right and of the right to an adjournment to obtain counsel (CPL 170.10 [3] [a]; [4] [a]; e.g. People v Schonfeld, 26 Misc 3d 74, 76 [App Term, 9th & 10th Jud Dists 2009]). The record contains no indication that, prior to the trial, defendant was advised of those rights, whether in writing or orally by the court ( see CPL 170.10 [5]; People v Rellou, 31 Misc 3d 143[A], 2011 NY Slip Op 50874[U] [App Term, 9th & 10th Jud Dists 2011]; People v Berger, 16 Misc 3d 133[A], 2007 NY Slip Op 51498[U] [App Term, 9th & 10th Jud Dists 2007]; People v Rios, 9 Misc 3d 1 [App Term, 9th & 10th Jud Dists 2005]). It is noted that while defendant, not faced with the threat of imprisonment, may not have been entitled to assigned counsel ( see CPL 170.10 [3] [c]), he was entitled to be represented by his own counsel in these proceedings, regardless of the gravity of the charge. Further, as there is no indication in the record that defendant's requests for counsel were "calculated to undermine, upset or unreasonably delay the progress of the trial" ( People v James, 13 AD3d 649, 650 [2004] [citation omitted]), there was no reason to conclude that the requests were "dilatory."
An additional reason for reversal and a new trial is the prosecutor's conduct of the trial and his behavior toward defendant and his witness. The trial record is replete with instances of prosecutorial misconduct, including, among others, becoming an unsworn witness by testifying as to the nature and relevance of documentary evidence offered by defendant (which "testimony" the court accepted without examining the documents) (see e.g. People v Bailey, 58 NY2d 272, 277 [1983]), asserting, in the middle of the trial, his personal opinion of defendant's guilt of the offenses charged (People v Kozlowski, 11 NY3d 223, 241 [2008]; People v Bailey, 58 NY2d at 277), and numerous instances of denigrating the witnesses and their arguments, interrupting a witness who was attempting to explain a point or develop a defense, asking improper questions, and offering gratuitous negative commentary in response to testimony (see Matter of Holtzman, 78 NY2d 184, 191 [1991] [improper proceedings may "undermine public confidence in the judicial system"]).
Accordingly, the judgments of conviction are reversed and the matters are remitted to the District Court of Nassau County, Nassau County Traffic and Parking Violations Agency for a new trial before a different judicial hearing officer.
Marano, J.P., Tolbert and Garguilo, JJ., concur.
Decision Date: February 17, 2015