63 N.Y.2d 11 | NY | 1984
Lead Opinion
OPINION OF THE COURT
Where a defendant represented by counsel has expressly waived the reading of his rights required by CPL 170.10 (subd 4, par [d]), including the reading of his right under CPL 170.65 (subds 1, 3) to be prosecuted upon an information, and thereafter proceeds through preparation for trial and trial on a misdemeanor complaint without raising objection thereto, he may be deemed to have waived prosecution by information and consented to prosecution on the misdemeanor complaint.
Defendant was arrested on August 4, 1981 and charged with criminal sale of marihuana in the fourth degree in a misdemeanor complaint sworn to that day by the arresting officer who had been informed by an undercover officer that defendant had sold marihuana to him. Defendant was thereafter issued a desk appearance ticket directing him to appear on August 26, 1981 and was released on his own recognizance. At his arraignment on August 26 where he appeared with his attorney, the attorney was asked if he would “waive the public reading of the defendant’s rights and charges”, to which the attorney replied, “So waived.” The case was subsequently adjourned several times at least on one occasion at defendant’s request, discovery motions were made, a suppression hearing was conducted, and ultimately a jury trial was held at which defendant was convicted. At no time did defendant or his attorney indicate any hesitancy that prosecution proceed on the misdemeanor complaint or any desire that the accusatory instrument be converted to an information.
Defendant nevertheless now contends that his conviction should be vacated because the misdemeanor complaint was
Contrary to defendant’s argument, there is nothing in the statute which mandates that the required waiver and consent be manifested in writing or by express oral statement. The requisite waiver and consent may be implied if the circumstances, as here, compel the conclusion that the defendant, competently represented by counsel, acquiesced in the prosecution of the charge against him on the misdemeanor complaint.
Our decision in People v Weinberg (34 NY2d 429) does not require a different result. We there held that any waiver and consent to prosecution on a misdemeanor complaint must be knowingly and intelligently given, that by implication the statute requires as a basis therefor that the defendant be informed of his right to insist on prosecution by information, and that in the absence of such an admonition such waiver and consent cannot be presumed. In that
It is appropriate to place the substance of our holding today in its contextual setting. At his arraignment, defendant appeared with counsel and waived the reading of the procedural rights to which he was entitled by statute. He then proceeded to and through his trial with the advice of counsel. The evidence introduced against him, the rights accorded him on trial, and the procedures there followed would have been not one whit different had the trial been based on an information rather than a misdemeanor complaint. Defendant advances no claim that he was not accorded full notice of the charge made against him or that he was denied a full and fair opportunity to defend himself. He makes no claim that he is innocent of the charge of which he was convicted. Rather, he reaches out to assert a claim which can now only be described as immaterial — that at the outset of the criminal action the accusatory instrument was based on a hearsay accusation rather than supported by a nonhearsay affidavit (i.e., that it was made by the arresting officer who, although he had been promptly informed by radio of the sale by the undercover officer to whom the marihuana had been sold, had not himself witnessed the sale), a circumstance which thereafter in this instance was of no practical significance whatsoever. Now to sustain the defendant’s assertion on the record before us that he never waived his statutory right to be prosecuted on an information and did not consent to be prosecuted on the misdemeanor complaint would be to recognize the right of a defendant, after having put the
For the reasons stated, the order of the Appellate Term should be affirmed.
This waiver of the mandated reading of the right did not, of course, by itself constitute a waiver of the procedural right to be tried on information.
Dissenting Opinion
(dissenting). No view of the record in
this case or of the law governing waiver of the right to be tried by information supports the majority’s conclusion that defendant waived this explicit statutory right, imbued with jurisdictional implications. Therefore, respectfully, I must dissent.
“The Criminal Court clearly has no jurisdiction to take to trial a defendant who is charged only by a complaint and who has not waived the filing of a sufficient information” (People v Colon, 110 Misc 2d 917, 920, revd 112 Misc 2d 790, revd on opn at Criminal Ct 59 NY2d 921). Moreover, it is well settled that a waiver of the right to proceed by information is valid only when knowingly and intelligently made, which requires that it be preceded by “an effective admonition of the right to be prosecuted by information” (People v Weinberg, 34 NY2d 429,431; see People v Redding, 109 Misc 2d 487, 489, n 1; People v Conoscenti, 83 Misc 2d 842, 843).
The majority does not directly dispute these propositions. Instead, it reasons that when a defendant agrees to “waive the public reading of defendant’s rights and charges” he or she has somehow “knowingly and intelligently” abandoned the right to be prosecuted by information. This utter dilution of the standard of waiver is without precedent, as the absence of citation in the majority’s opinion indicates. The well-recognized concept of waiver as “the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it” is thus jeopardized (see City of New York v State of
A determination whether a defendant has knowingly and intelligently waived a right will turn on the facts and circumstances of each case (cf. People v Epps, 37 NY2d 343, 350). At a minimum, however, such a determination may only be based on a finding that the defendant was aware “of the relevant circumstances and probable consequences” of the waiver (Matter of Lawrence S., 29 NY2d 206,208; see People v Gina M. M., 40 NY2d 595, 597; People v Hobson, 39 NY2d 479, 484; People v White, 32 NY2d 393, 399). There is no evidence in the record that would support an inference that defendant knew of his right to proceed by information or knew of the consequences of the waiver. That defendant may have waived an undefined “public reading” of his “rights and charges” sheds no light on whether defendant had knowledge of this particular right and intelligently waived it. Nor has the mere presence of counsel ever been deemed dispositive of the question whether waiver of a substantial right (here jurisdictional) was voluntary (see People v Sawyer, 57 NY2d 12; People v Epps, 37 NY2d 343, supra; People v White, 32 NY2d 393, supra; People v Nixon, 21 NY2d 338). Finally, unlike cases where waiver of a right may be inferred from counsel’s conduct in proceeding to trial (see, e.g., People v Rodriguez, 50 NY2d 553; People ex rel. LeMon v Mancusi, 31 NY2d 679; People v White, 2 NY2d 220), in the instant case the court was powerless to proceed with the prosecution or to render a judgment of conviction without there first being a waiver of the right to prosecution by information.
It was just 10 years ago that this court held, in a case where defendant was represented by counsel and proceeded to trial without being advised of his right to prosecution by information, that knowledge or waiver of the
Because there is no basis for concluding that defendant in this case waived his right to proceed by information, the order of the Appellate Term should be reversed and the complaint dismissed.
Judges Jasen, Meyer and Kaye concur with Judge Jones; Chief Judge Cooke dissents and votes to reverse in a separate opinion in which Judges Wachtler and Simons concur.
Order affirmed.
