New York Criminal Lawyer Blog
This is an appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered April 9, 1985, convicting him of robbery in the third degree, grand larceny in the third degree, reckless endangerment in the first degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. A Kings Grand Larceny Lawyer said that, on this appeal, the defendant claims that the evidence adduced at his trial did not establish his guilt of robbery in the third degree and grand larceny in the third degree.
A Kings Criminal Lawyer said that, before allowing a defendant to proceed pro se, the court must determine that the defendant’s waiver of the right to counsel is made knowingly, voluntarily, and. While there is no “rigid formula” to be followed in such an inquiry, and the approach is a flexible one, the record must demonstrate that the defendant was made “aware of the dangers and disadvantages of proceeding without counsel”. In particular, the record should show that the trial court ” adequately warned the defendant of the risks inherent in proceeding pro se, and apprised the defendant of the singular importance of the lawyer in the adversarial system of adjudication. The record should also disclose “that a trial court has delved into a defendant’s age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver” of the right to counsel.
The issue in this case is whether court erred in convicting the defendant of grand larceny and robbery, not burglary, in the third degree.
Here, before permitting the defendant to proceed pro se prior to a suppression hearing, the suppression court advised the defendant that it would be an “extraordinary” decision to proceed without counsel, that to do so would be “extraordinarily dangerous,” and that most defendants who represent themselves are not successful. The court also discussed the potential sentences that could be imposed.
However, the suppression court did not advise the defendant of the importance of the role of the attorney in the adversarial system, nor as to the “dangers and disadvantages” of self-representation. Further, prior to the trial itself, the trial court made no inquiry as to the defendant’s decision to represent himself at trial. Under these circumstances, the defendant’s waiver of counsel cannot be deemed knowing and voluntary.
The Court held that it disagrees with respect to the robbery conviction. Viewing the evidence in a light most favorable to the People, we find that it was legally sufficient to establish the defendant’s guilt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict with respect to the conviction of robbery in the third degree was not against the weight of the evidence.
However, we do not find that the People proved the element of value in excess of $250 necessary to establish the defendant’s guilt of grand larceny in the third degree (Penal Law former ยง 155.30). “The prosecution must establish the market value of the stolen property at the time and place of the crime or the cost of replacement within a reasonable time thereafter”. In this case, the prosecution failed to elicit such proof from its witnesses. Therefore, the conviction of grand larceny in the third degree is reduced to a conviction of petit larceny. We note that there is no need to remit for resentencing on that charge inasmuch as the defendant has already served the maximum permissible sentence for such a conviction.
We also agree with the defendant’s contention that the court erred in refusing to permit his mother to testify as a witness in his behalf. The record demonstrates that the excluded testimony was offered for the purpose of establishing that the defendant’s physical characteristics and attire on the date of the crime were different from the description supplied by the prosecution witnesses. While not highly probative, this testimony bore some relevance to the issue of identification and was not, as the court ruled, collateral and speculative. However, due to the overwhelming evidence of the defendant’s guilt we find that there is no reasonable possibility that the court’s error contributed to his conviction and it was, therefore.
Accordingly, the court ordered that the judgment is modified, on the law, by reducing the conviction of grand larceny in the third degree to one of petit larceny, and vacating the sentence imposed thereon. As so modified, the judgment is affirmed.
In every criminal case, the accused should be represented by a competent counsel; otherwise he might lose his case. At Stephen Bilkis and Associates, we can assure you that our Kings Robbery Attorney and Kings Grand Larceny Attorney are competent enough to handle your day in court.