S TAT E O F N E W Y O R KC O U N T Y C O U R T C O U N T Y O F A L B A N Y

T H E P E O P L E O F T H E S TAT E O F N E W Y O R K ,

- a g a i n s t -

C H A R L E S E . C O L L I N S , I I I

M E M O R A N D U M O F L A W

B Y C H A R L E S E . C O L L I N S . I l l

P O I N T O N EDEFENDANT NEVER WAIVED HIS RIGHT TO COUNSEL

The appointment of counsel for an indigent defendant is

required at every stage of a criminal proceeding wheresubstantial rights may be affected. Memoa v. Rhaa. 88 S.ct.

254(1967)

Adams V. Carroll, 875F.2d 1441 at 1443(1989) held:"The right to assistance of counsel is automatic; assuminq

right IS not waived, assistance must be made available atcritical stages of a criminal prosecution, United States v. w^Hp.87 S.ct. 1926, 1930 - 1932 (1967), whether or not the defendant

Carnelev v. Cochran. 82 S.ct. 884, 888-89LnH exercise the right to self representation, on the otherobstacles "̂"̂ "̂̂ defendant must negotiate a number of procedural

United States v. Rvlander 714 F2d 996, 1005 (1983)"Although a criminal defendant has a right to represent

intelligently"decision to do so must be made knowingly andUnited States v. Harris^ 683 F2d 322, 324 (9th Cir 1982)

waiving his right to counsel, the defendant must beaware of the nature of the charges and the possible penalties aswell as the dangers and disadvantages of self-representation in ahelpful."®^ experience and professional training are most

The preferred procedure is for the district judge to ensurea waiver is made knowingly and intelligently by discussing withthe defendant, on the record, the nature of the charges, thepossible penalties, and the dangers of self-representation, id.It is an unusual case where, absent such a colloquy, a knowingand intelligent waiver of counsel will be found ID.

There was no colloquy in this case or any statement by ajudge that defendant was waiving his right to counsel.

Brainard v. BrainarH 88AD 2d 996 (2nd Dept 1982)

At the beginning of the hearing, the following took place:"THE COURT: Mr. Brainard has been advised of his right to

an attorney. If you cannot afford one, one will be provided. Doy o u w a n t t o s p e a k f o r y o u r s e l f ?

MR. BRAINARD: Yes , I do , Judge.

T H E C O U RT: Yo u w a n t t o s p e a k f o r y o u r s e l f . "

The hearing then proceeded, with neither party represented

b y c o u n s e l .

We hold this colloquy does not reflect an explicit, informed

waiver, by the husband of h is r ight to counsel . . . The record

does not show that the husband had a "sufficient awareness of the

relevant circumstances and probable consequences" of his waiver

(See matter of Lawrence S. 29 NY2d 206, 208; see Von Moltke v.

G i l l i e s , 3 3 2 U . S . 7 0 8 . 7 2 4 )

M a t t e r o f L a w r e n c e S . . 2 9 N . Y. 2 d 2 0 9

"To be valid" the Supreme Court declared in the Von Moltke

case (332 US 708 724):

"Such waiver must be made with an apprehension of the natureof the charges, the statutory offenses included within them,possible defenses to the charges, range of allowable punishmentsthereunder and circumstances in mitigation thereof, and all otherfacts essential to a broad understanding of the whole matter."

Defendant may proceed pro se if he knowingly, voluntarilyand unequ ivoca l ly wa ives h is r igh t to counse l . Pawlowsk i v.

K e l l y 9 3 2 F. s u p p . 4 7 5

Defendant must be made fully aware of consequences of hisdesire to represent himself and his decision to proceed pro sewill be effective only if defendant was cognizant of danger of

waiving counsel at t ime waiver was made. People v. Harris 85

=o».... "j"rir7°""°" "•'"-"' toy attaches and defendant- m=ueienaant may not therp^ft-o^w a i v e r r i g h t t o c o u n s e l . h e r e a f t e rIn absence of counsel. Peoole v

5«' »VS2d ,38 „ s„ . -̂ aS_v,-EUtUjai 120 «»2a loi," U.SCA. Const. Amend. 6.TO be effective waiver of right to counsel must be . •

. o - i c . . . . .y- Harris, 649 F2d 927.

Defendant may waive right to counsel only if he had b-e fully .ware of nature of right being abandoned andonseguences of abandonment.

Accused must declare desire to proceed nm-eguivocally and must Knowingly and inte • ̂counsel. Weisner v Ah i^ently waive right toweisner v, shnmi 726 f. Supp 912 .1 4 7 3 _ a f fi r m e d 9 0 9 F 2 d

o n e . t o p r o c e a~»t <l.t®r.in. vh.thsr

. . . p p .

. . . S Z . . . . .waiver is given knowingly

and .nteUigently. 529 p. supp. 646.Based upon the above, the defendant could not have

n̂ow.n,Xy, i„teu.,entl,, and volunta.Uy waived his .i,..ounse as the defendant neve, .e.uested to .aive his ..ht to

counsel; never stated he wanted to waive his ri.ht to counsel-was not asked by any judge if he wanted to waive his right to'counsel; was not informed by the judge that he was waiving his^ o counsel and was not informed by any judge that he hadhis right to counsel at arraignment on January 26, 1993

earing to send proceeding to Grand Jury on February 3, 1993and before the Grand Jury on April 28, 1998.

65 AD2d 455 412 NVS2d 153 (2nd 1978)... He .ay not waive right to counsel after arraignmentess counsel is present. (cf.

2d 369; People v. nnqq̂n, 53 AD2d 507, 386 NYS2d 257.

28 1I9T hTdT"'"'1998, he did not have counsel present and there was no judgep r e s e n t t o d o a i u d i c i a i ^entitled t . -tervention, as such, the defendant iso ransactional immunity under State Law. He is beingeprived of due process and equal protection of the law.

People V. rhapm.n, 69 NY2d 497, 516 NYS2d I59

. y c o . p i . i „ , . „ i „ „

Samulals, 49 Ny2d 218, 424 NYS2d 892)indeed, since defendant had already been accused of a

serious crime, his appearance before the Grand Jury .was

unquestionably an occasion "when legal advice is most criticallyneeded." People v. Settles, 46 NY 2d 154, 164, 412 NYS2d 874.

Accordingly, neither his uncounseled waiver to the right tosuch legal advice nor his immediately ensuing waiver before Grand

Jury of his statutory right to immunity may be deemed to be validrenunc ia t i ons o f t hese r i gh t s unde r s ta te cons t i t u t i on .

Fur thermore, the ta int resul t ing f rom the absence of counsel

was not mitigated by the l imited judicial intervention thatoccur red in th is case . A l though the judge pres id ing over the

Grand Jury proceedings informed the defendant of the consequences

of waiving his right to remain silent, no mention was made of the

importance of independent counsel or the imprudence of making thedecision to appear and testify without first obtaining the adviceof a trained, experienced attorney. In l ight of these omissions,

it can hardly be said that the Court's inquiry was sufficiently

searching to assure that the waiver of the right to counsel that

may have occurred was made intelligently and with full knowledgeof the "Dangers and disadvantages" of foregoing constitution

protection. rPeople v. Sawyer, 57 NY2d 12, 21 453 NY2d 418;People V. Whi te, 56 NY2d 110, 451 NYS2d 57) .

I n t h i s case , t he re was no j ud i c i a l i n te rven t i on un l i ke

C h a p m a n w h e r e t h e r e w a s l i m i t e d j u d i c i a l i n t e r v e n t i o n . D e f e n d a n t

ce r ta in l y d id no t wa ive r i gh t to counse l .

At no time was there any searching inquiry as to defendant

allegedly waiving his right to counsel. And there was no actiontaken to protect such right to counsel. Further, the defendant

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w a s n e v e r i n f o r m e d o f h i s r i g h t s u n d e r C r i m i n a l P r o c e d u r e L a w

S e c t i o n 1 8 0 . 1 0 i n c l u d i n g " A d e f e n d a n t w h o p r o c e e d s a t a r r a i g n m e n t

w i t h o u t c o u n s e l d o e s n o t w a i v e h i s r i g h t t o c o u n s e l a n d t h e C o u r t

m u s t i n f o r m h i m t h a t h e c o n t i n u e s t o h a v e s u c h r i g h t a s w e l l a s

all the rights specified in subdivision three which are necessaryt o e f f e c t u a t e i t a n d t h a t h e m a y e x e r c i s e s u c h r i g h t s a t a n y

s t a g e o f t h e a c t i o n .

F u r t h e r d i s t r i c t a t t o r n e y i s n o t a u t h o r i z e d t o h a v e

defendant waive his r ight to counsel wi thout counsel being

present or a searching judicial inquiry by a judge.

P O I N T T W O

S TAT U T E N O T P R O P E R LY A P P L I E D T O D E F E N D A N T A S I T R E L AT E D T O C L E A NU P C O S T S

P e o p l e V. S i m p s o n . 1 3 2 A D 2 d 8 9 4 , 5 1 8 N Y S 2 d 4 5 3 ( 3 r d D e p t

1987 )

" . . . u n d e r P e n a l L a w S e c t i o n 1 4 5 . 1 0 t h e e l e m e n t s o f t h ec r i m e o f c r i m i n a l m i s c h i e f i n s e c o n d d e g r e e a r e ;

1) Intent to damage property; 2) Actual damage to tangiblep r o p e r t y o f a n o t h e r ; 3 ) . . . "

Judge LaMont specifically ruled there was no physical damage

to the property. Therefore, there was no actual damage to

t a n g i b l e p r o p e r t y o f a n o t h e r .

P e o p l e V. D i e t z e , 7 5 N Y 2 d 4 7 , 5 5 0 N Y S 2 d 5 9 5 ( 1 9 8 9 )

T h e s t a t u t o r y l a n g u a g e w o u l d s i g n i f y o n e t h i n g , b u t a s a

mat te r o f j ud i c ia l dec i s ion , wou ld s tand fo r someth ing en t i re l y

d i f f e r e n t . U n d e r t h o s e c i r c u m s t a n c e s , p e r s o n s o f o r d i n a r y

in te l l igence reading Sect ion 240.25(2) could not know what i t

actually meant. (See People v. Bright. 71 NY2d 376, 382, 526NYS2d 66; People v. HarHy 47 NY2d 500, 501, 419 NYS2d 49.

in order to satisfy requirements of due process doctrine ofvagueness, law must give fair notice and warning of scope of itsprohibitions or commands, and must contain reasonably clearguidelines for law enforcement officials and triers to follow.Amato V. Suffolk County, 668 F. Supp. 151 affirmed 847 F.2d 834.

Due process requires of a statute a reasonable degree ofdefinitiveness; when it leaves the Legislature, a statute must becomplete in all of its terms, and it must be definite and certainenough to enable every person, by reading the law, to know howthe law will operate when put into execution. Foss v. riry

104 AD2d 99, 481 NYS2d 191, reargument ordered 64 NY2d993, 489 NYS2d 62 affirmed as modified 65 Ny2d 247, 491 NYS2d

Connally v. General Construction rn. 269 US. 385, 391,4 6 S . C t . 1 2 6 , 1 2 7 .

The New York Legislature has failed to define "damage," amajor element of the offense, as it relates to the charge ofcriminal mischief. As such, the statute is not complete in allof its terras, when a person thinks of damage to property, onethinks of physical damage such as a broken window, smashed door,etc., not clean up costs, yet alone necessary clean up costs.Something that can be washed off and cleaned up is not damage tothe property, clean up costs would be damage to the owner andrecoverable under negligence. The property is not paying theclean up costs. No fair warning was given to defendant that

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clean up costs are damage to property as all case law has actualPhysical damage to the property involved as it relates tocriminal mischief in second degree. No court or judge haspreviously held that clean up costs are damage to property.

Based upon the above, the defendant never legally waived hisr.ght to counsel and the statute did not give him fair notice ofxts scope as required. Defendant is the first person convictedOf crxmxnal mischief in the second degree where there was nophysical damage done to the property. Defendant should beimmediately released and his conviction overturned

Respectfully submitted,

Charles E. Collins lii