92 N.E.3d 789
Court for the Trial of Impeach...2017Background
- Defendant was indicted for crimes including murder; retained counsel represented him at initial proceedings.
- The People moved to compel a buccal (DNA) swab; the motion was served on defense counsel in court while defendant was present.
- Defense counsel later moved to withdraw (in defendant's absence); the court granted withdrawal and signed an order for a buccal swab based in part on counsel's failure to file opposition.
- After counsel was relieved but before new counsel was appointed, defendant appeared unrepresented, denied consent to the swab, and repeatedly asked for an attorney; the court engaged in a colloquy and told defendant there was no basis to oppose the swab.
- The Appellate Division reversed, vacated defendant's pleas, and dismissed the indictment as remedy for the Sixth Amendment violation; the Court of Appeals affirmed denial of counsel during a critical stage but modified the remedy, reinstating the indictment and remitting for further proceedings while vacating the pleas.
Issues
| Issue | People’s Argument | Smith’s Argument | Held |
|---|---|---|---|
| Whether defendant was denied the right to counsel during proceedings on the DNA-swab motion | No: counsel consented or acquiesced; court properly relied on counsel's inaction and order was issued before defendant was unrepresented | Yes: court relied on "putative" consent from counsel and then denied defendant his request for counsel when unrepresented | Court: Trial court deprived defendant of counsel at a critical stage when it enforced an order based on counsel's silence and refused defendant's repeated requests for an attorney |
| Whether the post-indictment colloquy/execution of the swab was a "critical stage" requiring counsel | Not a new critical stage because the motion had already been decided while defendant had counsel; the later colloquy was ministerial/compliance | The colloquy and denial of ability to consult counsel were a critical stage because defendant was unrepresented and faced significant consequences (potential inculpatory DNA) | Court: The pretrial proceedings concerning the DNA test were critical; denying assistance of counsel violated the Sixth Amendment and NY Const. art. I § 6 |
| Whether the claim is properly characterized as ineffective assistance of counsel (IAC) or nonrepresentation | People: Allegations of counsel’s failure are classic IAC claims based on out-of-record facts and should be raised in CPL 440.10 | Smith: The record shows nonrepresentation after counsel was relieved and the court acted in place of counsel; this is a right-to-counsel violation, not mere IAC | Court: Treated as nonrepresentation (right-to-counsel violation) because the record shows defendant was unrepresented and the court refused requests for counsel |
| Appropriate remedy for the constitutional violation | Appellate Division: dismissal of the indictment | Smith: Vacatur of pleas and ability to seek other relief; dismissal unnecessary because violation occurred post-indictment and did not taint grand jury | Court: Vacate defendant's pleas and remand for further proceedings; reinstate indictment (dismissal not necessary or appropriate) |
Key Cases Cited
- Bell v. Cone, 535 U.S. 685 (discusses attachment of Sixth Amendment right to counsel at critical stages)
- Montejo v. Louisiana, 556 U.S. 778 (right to counsel attaches at arraignment and at critical stages)
- United States v. Wade, 388 U.S. 218 (defines "critical stage" and distinguishes ministerial forensic procedures)
- People v. Settles, 46 N.Y.2d 154 (New York precedent on critical stages and counsel assistance)
- People v. Cole, 73 N.Y.2d 957 (court may treat failure to oppose as conceding motion)
- People v. Henderson, 28 N.Y.3d 63 (ineffective-assistance claims based on matters dehors the record belong in CPL 440.10 proceedings)
- Hurrell-Harring v. State of NY, 15 N.Y.3d 8 (distinguishing nonrepresentation from ineffective assistance in certain contexts)