People v. Jones

Lawrence, J.,

dissents and votes to reverse the judgments of conviction, on the law, vacate the plea of guilty under indictment No. 3071/84, and remit the matter to the Supreme Court, Queens County, for a new suppression hearing with respect to both indictments, a new trial with respect to indictment No. 3087/84, and for further proceedings with respect to indictment No. 3071/84, with the following memorandum decision in which Brown, J., concurs: The defendant appeals on the sole ground that he was deprived of his constitutional right to the effective assistance of counsel (US Const 6th Amend; NY Const, art I, § 6) at all stages of his trial as a result of the fact that the hearing court proceeded to hold a suppression hearing in the absence of his assigned trial counsel.

In response to the defendant’s appeals, the People have not retreated from their position taken before the hearing court; they concede that in light of the uncounseled suppression hearing, the appropriate corrective relief with respect to indictment No. 3087/84 is reversal of the conviction and a new trial, preceded by a counseled suppression hearing.

Absent a valid waiver, a defendant is entitled to "the guiding hand of counsel at every step in the proceedings against him” (Powell v Alabama, 287 US 45, 69). The Court of Appeals has repeatedly "called for 'the highest degree of vigilance in safeguarding the right of an accused to have the assistance of an attorney at every stage of the legal proceedings against him’ (People v Cunningham, 49 NY2d 203, 207)” (People v Hodge, 53 NY2d 313, 317-318; see, People v Ross, 67 NY2d 321, 324; People v Felder, 47 NY2d 287).

There can be no doubt that " 'a motion to suppress evidence

*651is a crucial step in a criminal prosecution; it may often spell the difference between conviction or acquittal’ (People v. Lombardi, 18 A D 2d 177, 180 [2d Dept., 1963], affd. 13 N Y 2d 1014)” (People v Anderson, 16 NY2d 282, 287). Nevertheless, a defense counsel’s failure to request the suppression of evidence does not per se constitute ineffective assistance of counsel (see, e.g., People v Montana, 71 NY2d 705; People v Strempack, 71 NY2d 1015; People v Crevelle, 122 AD2d 153, lv denied 68 NY2d 811; People v Morris, 100 AD2d 630, affd 64 NY2d 803; People v Eddy, 95 AD2d 956; People v Shannon, 92 AD2d 554, 555). However, once the defendant herein was properly granted a suppression hearing, he "bec[a]me * * * entitled to have it conducted with full respect for his right to counsel” (cf, People v Hodge, supra, at 320 [involving a defendant’s right to counsel at a preliminary hearing]).

While a defendant may proceed without the aid of counsel, the court may not permit him to do so unless it is satisfied that such a decision has been made with knowledge of the significance thereof (CPL 170.10 [6]). In this case, the statement by the defendant that he would proceed with the hearing in the absence of his assigned trial counsel cannot be construed as a knowing and voluntary waiver of his right to counsel. This is especially so in light of the fact that had the defendant not so agreed to proceed, the hearing court indicated that it would have dismissed those branches of his omnibus motions which were for the suppression of evidence. Further, at no time did the hearing court "ascertain that the [appellant] appreciated the risks of self-representation” (People v Sawyer, 57 NY2d 12, 20, rearg dismissed 57 NY2d 776, cert denied 459 US 1178).

Under the circumstances, the hearing court abrogated its responsibility to ensure that the defendant’s rights were protected by allowing assigned trial counsel to disregard his obligations and responsibilities to the defendant (see, CPL 210.15 [2], [3]; People v Ross, 67 NY2d 321, 326, supra). The hearing court was understandably frustrated by the apparently dilatory conduct of the defendant’s assigned trial counsel. However, its chosen remedies for the situation, to wit, either dismissal of those branches of the defendant’s omnibus motions which were to suppress evidence; the granting of those branches of the omnibus motions if the People did not proceed; or the holding of an uncounseled suppression hearing, subject to a motion to reopen upon justifiable grounds, were inappropriate. Rather, the hearing court should have considered either an adjournment, with the imposition of *652appropriate sanctions against the defendant’s assigned counsel or, the People’s suggestion that assigned counsel be relieved and new assigned trial counsel appointed for the purpose of the suppression hearing.

Further, the failure to provide counsel at a suppression hearing which has been properly granted is not subject to a harmless error analysis. The right to the assistance of counsel at such a hearing, which is a part of the trial (see, People v Anderson, 16 NY2d 282, supra), "is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial” (Glasser v United States, 315 US 60, 76; see, People v Felder, 47 NY2d 287, 295-296, supra; cf., People v Hodge, supra [denial of counsel at a preliminary hearing may be subject to harmless error analysis]).

As to the appropriate corrective relief in this case, I agree with the appellant and the People that the conviction upon indictment No. 3087/84 should be reversed and a new trial ordered to be preceded by a new suppression hearing (see, People v Hodge, supra; People v Anderson, supra; People v Clark, 45 NY2d 432; cf., People v Speller, 133 AD2d 865). By granting this relief, "the [defendant] will then be in a position comparable to the one he would have occupied had his right to counsel not been compromised” (People v Hodge, supra, at 321; see also, People v Anderson, supra).

Finally, since the defendant pleaded guilty to attempted robbery in the first degree in satisfaction of the counts in indictment No. 3071/84, on condition that he would receive a sentence concurrent to that imposed upon his conviction under indictment No. 3087/84, "in order to give effect to the plea commitment,” the plea entered under indictment No. 3071/84 should be vacated (see, People v Clark, 45 NY2d 432, 440, supra).

Accordingly, the judgments of convictions should be reversed, the guilty plea vacated, and the matter should be remitted to the Supreme Court, Queens County, for a new suppression hearing, with respect to both indictments, a new trial with respect to indictment No. 3087/84 and for further proceedings with respect to indictment No. 3071/84.