People v. Garcia, 1999 N.Y. Int. 0026 (Feb. 23, 1999).

CONSTITUTIONAL LAW - CRIMINAL LAW - RIGHT TO COUNSEL - WAIVER - COUNSEL ON APPEAL

ISSUE & DISPOSITION

Issue

Whether an unrepresented Defendant was denied his constitutional right to counsel on appeal where the record is devoid of evidence that Defendant was informed of and waived his right to counsel.

Disposition

Yes. Absent record evidence that an unrepresented Defendant was informed of his right to appellate counsel and that he waived that right, it is a denial of Defendant's constitutional right to counsel for the court to proceed with the People's appeal.

SUMMARY

Defendant was represented by counsel during a jury trial in which he was convicted of first degree burglary and robbery. Defendant's motion to set aside the verdict of conviction pursuant to C.P.L. § 330.30(1) was granted by the Supreme Court. Before releasing Defendant, the court instructed defense counsel to inform Defendant of the People's right to appeal the court's decision and the significance of such an appeal.

The People filed a timely notice of appeal. Defendant's trial counsel informed the People that Defendant had not retained its offices for appellate representation. On appeal, Defendant failed to appear. The Appellate Division unanimously reinstated the conviction, noting that there was "no appearance for respondent," and remanded the case to the Supreme Court for sentencing.

On remand, the court determined that Defendant was unrepresented on appeal because he was indigent. Thereafter, the court offered Defendant assigned counsel, which he immediately accepted. The Court of Appeals granted Defendant leave to appeal from the Appellate Division order. The Court of Appeals reversed and remit the matter to the Appellate Division for a de novo appeal with assigned counsel for Defendant.

The Court stated that without evidence that Defendant was represented or waived his right to counsel, the Appellate Division erred in proceeding with the People's appeal. The State has the ultimate duty to ensure that Defendant is informed of his right to appellate counsel or his right to seek appointment of counsel upon proof of indigence.

Prepared by the liibulletin-ny Editorial Board.