160 A.D.3d 1029
N.Y. App. Div.2018Background
- In 2013 Myers was indicted on two counts of criminal contempt in the first degree and six counts of criminal contempt in the second degree for violating a 2006 order of protection protecting his ex‑wife and children.
- At trial Myers proceeded pro se with standby counsel; the jury convicted him of two first‑degree contempts and four second‑degree contempts. He was sentenced to 1 1/3 to 4 years, fined, and an order of protection was issued.
- Myers moved under CPL 440.10 and 440.20 to vacate the convictions and set aside the sentence; County Court initially denied relief but later reduced the first‑degree convictions to second‑degree and resentenced him on the misdemeanors to time served.
- On appeal Myers challenged sufficiency/weight of evidence for several second‑degree contempt counts and argued his waiver of counsel was invalid; appellate review considered both preserved and unpreserved claims.
- The court found the evidence (neighbor testimony, letters, and an email) sufficient and not against the weight of the evidence for counts 3, 7, and 8, but concluded the waiver‑of‑counsel inquiry was constitutionally deficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency/weight of evidence for counts 3, 7, 8 (criminal contempt 2nd) | Evidence (neighbor, letters, email) proves intentional violations beyond a reasonable doubt | Convictions lack legally sufficient evidence and are against the weight of the evidence | Affirmed: evidence and weight support convictions for those counts |
| Validity of pro se waiver (right to counsel) | People rely on record and defendant's repeated expression to proceed pro se | Waiver invalid: County Court failed to conduct a sufficient searching inquiry and did not adequately warn of dangers of self‑representation | Reversed: waiver ineffective; conviction reversed and case remitted for new trial on remaining counts |
| Admission of order of protection into evidence | Foundation for admission was adequate at trial | Defendant now challenges admission on appeal | Unpreserved: defendant only objected on foundation grounds at trial; appellate claim not considered |
| Pretrial/procedural issues and resentencing orders | County Court’s post‑trial adjustments and resentencing remedied predicate issues | Defendant appeals various CPL 440 rulings and resentencing | Appeals from the 440 orders and resentencing judgment dismissed as academic after reversal of conviction |
Key Cases Cited
- People v. Crampe, 17 N.Y.3d 469 (2011) (trial court must ensure a knowing, voluntary, intelligent waiver of counsel)
- People v. Smith, 92 N.Y.2d 516 (1998) (trial court must warn of risks of self‑representation and elicit background for appellate review)
- People v. Arroyo, 98 N.Y.2d 101 (2002) (self‑representation is a qualified right requiring searching inquiry)
- Faretta v. California, 422 U.S. 806 (1975) (defendant has right to self‑representation but must waive counsel knowingly)
- People v. White, 56 N.Y.2d 110 (1982) (searching inquiry standard described; must ensure appreciation of dangers)
- People v. Bleakley, 69 N.Y.2d 490 (1987) (standard for weight of the evidence review)
- People v. Danielson, 9 N.Y.3d 342 (2007) (elements must be proven beyond a reasonable doubt when assessing weight challenges)
- People v. Richardson, 155 A.D.3d 1099 (2017) (contempt 2nd degree elements and application to similar facts)