A Nassau Criminal Lawyer said that, this is an appeal by the defendant from a judgment of the Supreme Court, Nassau County, rendered September 17, 2009, convicting him of grand larceny in the second degree, grand larceny in the third degree (three counts), criminal possession of a forged instrument in the second degree (two counts), identity theft in the first degree (four counts), and scheme to defraud in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant’s omnibus motion which were to suppress physical evidence and his statement to law enforcement officials.
Contrary to the defendant’s contention, the hearing court properly determined that the police lawfully stopped the vehicle in which he was a passenger, and that his arrest was supported by probable cause. Accordingly, the court properly denied those branches of the defendant’s omnibus motion which were to suppress physical evidence and his statement to law enforcement officials.
The defendant’s contention that the evidence was legally insufficient to support his conviction of grand larceny in the second degree is unpreserved for appellate review. In any event, viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence, we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor. Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence.
However, under the circumstances of this case, the defendant’s waiver of his right to counsel was ineffective. “Before allowing a defendant to proceed pro se, the court must determine that the defendant’s waiver of the right to counsel is made knowingly, voluntarily, and intelligently”. “To ascertain whether a waiver is knowing, voluntary and intelligent, a court must undertake a searching inquiry’ designed to insure that the defendant is aware of the dangers and disadvantages of proceeding without counsel'”.
The record should show that the criminal defendant was adequately warned “of the risks inherent in proceeding pro se, and apprised of the singular importance of the lawyer in the adversarial system of adjudication”. “The record should also disclose that a trial court has delved into a defendant’s age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver’ of the right to counsel”.
Here, prior to trial, the defendant indicated that he did not want his assigned counsel to represent him. The court gave the defendant the option of proceeding pro se, or having his assigned counsel represent him, which the court recommended. Alternatively, the court indicated that assigned counsel could “stand by [the defendant] and give [him] guidance.” The defendant indicated that he had “no objection to representing himself,” and the court permitted him to proceed pro se. The court then discussed the potential sentence that could be imposed, and obtained certain pedigree information from the defendant, including his level of education and criminal history. Under these circumstances, the court failed to conduct a sufficiently searching inquiry of the defendant to be reasonably certain that he understood the dangers and disadvantages of self-representation. Accordingly, since the court failed to ensure that the defendant’s waiver of his right to counsel was made knowingly, intelligently, and voluntarily, the defendant is entitled to a new trial.
The defendant’s contentions raised in points I and III of his pro se supplemental brief are unpreserved for appellate review and, in any event, are without merit. The defendant’s remaining contentions, including those raised in his pro se supplemental brief, either are without merit or need not be reached in light of our determination.
Accordingly, the court held that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Nassau County, for a new trial.
Grand larceny in the second degree is a serious offense, if you have been charged of this crime, seek the legal representation of a Nassau Grand Larceny Attorney and Nassau Criminal Attorney at Stephen Bilkis and Associates. Call us now.