State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.
No. 77 The People &c., Respondent, v. Donnell Baines, Appellant.
Joseph M. Nursey, for appellant. Steven C. Wu, for respondent.
TROUTMAN, J.:
When a criminal defendant unequivocally requests self-representation, the court
must undertake a searching inquiry to ensure that the defendant’s waiver of the right to
counsel is knowing, voluntary, and intelligent before allowing the defendant to proceed pro
-1- -2- No. 77
se. “Although we have eschewed application of any rigid formula and endorsed the use of
a nonformalistic, flexible inquiry, the court’s record exploration of the issue must
accomplish the goals of adequately warning a defendant of the risks inherent in proceeding
pro se, and apprising a defendant of the singular importance of the lawyer in the adversarial
system of adjudication” (People v Arroyo, 98 NY2d 101, 104 [2002] [internal quotation
marks omitted]). The court failed to conduct a sufficient inquiry in this case, and therefore
defendant’s waiver of the right to counsel was not effective.
I.
Defendant was initially indicted on one count of promoting prostitution in the third
degree. On November 3, 2010, defendant requested to “handle [his] case pro se” due to a
disagreement with his assigned attorney regarding whether he should testify before the
grand jury that was considering additional charges in his case. The court granted
defendant’s request to relieve his assigned attorney but stated that the court would “contact
the 18 B panel for a new lawyer,” and once that attorney appeared, the court would further
discuss with defendant his request to proceed pro se.
Defendant thereafter appeared before the grand jury with a new attorney. On
November 5, a superseding indictment was filed charging defendant with several sex
trafficking and related counts.
Defendant was arraigned on the superseding indictment on November 17, 2010.
During that appearance, the court stated that defendant was “still acting pro se with [the
new attorney] as his legal advisor.” The attorney likewise confirmed that defendant “still
wants to go pro se.” At subsequent pretrial appearances, the court continued to state that
-2- -3- No. 77
defendant was representing himself and that the attorney present was defendant’s “legal
advisor.” In June of 2011, after defendant expressed dissatisfaction with his assigned legal
advisor, the court appointed a new attorney as defendant’s legal advisor but confirmed that
defendant remained pro se.
Defendant continued to represent himself until August 27, 2012, when the third
attorney assigned as defendant’s legal advisor informed the court that defendant wanted
her to represent him during his upcoming trial. Defendant therefore represented himself,
with varying levels of assistance from his legal advisors, throughout pretrial motion
practice and during the pretrial suppression hearing.
The Appellate Division modified the judgment by vacating defendant’s conviction
of promoting prostitution in the second degree and reducing the sentence, and otherwise
affirmed (178 AD3d 476 [1st Dept 2019]). As relevant here, the Appellate Division
rejected defendant’s contention that he was “deprived of his right to counsel when the court
allowed him to proceed pro se at pretrial proceedings,” concluding that the record as a
whole established that defendant made a knowing, voluntary, and intelligent waiver of his
right to counsel (id. at 476-477).
A Judge of this Court granted defendant leave to appeal (37 NY3d 970 [2021]).
II.
Initially, on this record, we reject defendant’s contention that he was unrepresented
by counsel during the second grand jury presentation. The record does not demonstrate
-3- -4- No. 77
that the court designated defendant as pro se before that grand jury appearance.1
As the People concede, however, defendant was representing himself on November
17, 2010—when the court stated that defendant was “acting pro se” and that the attorney
present was defendant’s “legal advisor”—until August 27, 2012. The People contend that
viewing the record as a whole, defendant made a knowing, voluntary and intelligent waiver
of the right to counsel. We disagree.
Criminal defendants have a constitutional right to be represented by counsel or to
represent themselves if they so choose (see People v Silburn, 31 NY3d 144, 150 [2018];
Arroyo, 98 NY2d at 103). Before a defendant may choose self-representation, however,
the defendant “ ‘must make a knowing, voluntary and intelligent waiver of the right to
counsel’ ” (People v Crampe, 17 NY3d 469, 481 [2011], quoting Arroyo, 98 NY2d at 103).
“To ascertain whether a waiver is knowing, voluntary and intelligent, a court must
undertake a ‘searching inquiry’ designed to ‘insur[e] that the defendant [is] aware of the
dangers and disadvantages of proceeding without counsel’ ” (Crampe, 17 NY3d at 481,
quoting People v Providence, 2 NY3d 579, 582 [2004]). “Additionally, a searching inquiry
encompasses consideration of a defendant’s pedigree since such factors as age, level of
education, occupation and previous exposure to the legal system may bear on a waiver’s
validity” (Crampe, 17 NY3d at 482).
We have “consistently refrained from creating a catechism for this inquiry,
1 To the extent defendant asserts that events occurring outside the record support his claim that he was unrepresented before the grand jury, he may raise that issue by way of a CPL article 440 motion. -4- -5- No. 77
recognizing that it ‘may occur in a nonformalistic, flexible manner’ ” (Providence, 2 NY3d
at 580, quoting People v Smith, 92 NY2d 516, 520 [1998]). For a waiver of the right to
counsel to be effective, the court’s discussion of the issue with the defendant “ ‘must
accomplish the goals of adequately warning a defendant of the risks inherent in proceeding
pro se, and apprising a defendant of the singular importance of the lawyer in the adversarial
system of adjudication’ ” (Arroyo, 98 NY2d at 104, quoting Smith, 92 NY2d at 520). “[A]
reviewing court may look to the whole record, not simply to the waiver colloquy, in order
to determine if a defendant effectively waived counsel” (Providence, 2 NY3d at 583).
Here, the court’s record exploration of the issue did not warn defendant of the risks
of proceeding pro se or apprise him of the importance of a lawyer in the adversarial system,
nor does the record as a whole demonstrate that defendant effectively waived his right to
counsel. Initially, the court conducted no discussion whatsoever of these issues before
stating that defendant was representing himself on November 17, 2010. Although the court
later told defendant that it was “not a great idea” to represent himself, that defendant was
putting himself “in a very bad position,” and that a lawyer would have knowledge of
criminal procedure that defendant did not, these brief, generalized warnings do not satisfy
the requirement for a searching inquiry (see Smith, 92 NY2d at 521; People v Sawyer, 57
NY2d 12, 21 [1982]).
We disagree with the People that the April 11, 2012 colloquy before a different
Justice rendered defendant’s waiver of the right to counsel effective. Setting aside that
Free access — add to your briefcase to read the full text and ask questions with AI
State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.
No. 77 The People &c., Respondent, v. Donnell Baines, Appellant.
Joseph M. Nursey, for appellant. Steven C. Wu, for respondent.
TROUTMAN, J.:
When a criminal defendant unequivocally requests self-representation, the court
must undertake a searching inquiry to ensure that the defendant’s waiver of the right to
counsel is knowing, voluntary, and intelligent before allowing the defendant to proceed pro
-1- -2- No. 77
se. “Although we have eschewed application of any rigid formula and endorsed the use of
a nonformalistic, flexible inquiry, the court’s record exploration of the issue must
accomplish the goals of adequately warning a defendant of the risks inherent in proceeding
pro se, and apprising a defendant of the singular importance of the lawyer in the adversarial
system of adjudication” (People v Arroyo, 98 NY2d 101, 104 [2002] [internal quotation
marks omitted]). The court failed to conduct a sufficient inquiry in this case, and therefore
defendant’s waiver of the right to counsel was not effective.
I.
Defendant was initially indicted on one count of promoting prostitution in the third
degree. On November 3, 2010, defendant requested to “handle [his] case pro se” due to a
disagreement with his assigned attorney regarding whether he should testify before the
grand jury that was considering additional charges in his case. The court granted
defendant’s request to relieve his assigned attorney but stated that the court would “contact
the 18 B panel for a new lawyer,” and once that attorney appeared, the court would further
discuss with defendant his request to proceed pro se.
Defendant thereafter appeared before the grand jury with a new attorney. On
November 5, a superseding indictment was filed charging defendant with several sex
trafficking and related counts.
Defendant was arraigned on the superseding indictment on November 17, 2010.
During that appearance, the court stated that defendant was “still acting pro se with [the
new attorney] as his legal advisor.” The attorney likewise confirmed that defendant “still
wants to go pro se.” At subsequent pretrial appearances, the court continued to state that
-2- -3- No. 77
defendant was representing himself and that the attorney present was defendant’s “legal
advisor.” In June of 2011, after defendant expressed dissatisfaction with his assigned legal
advisor, the court appointed a new attorney as defendant’s legal advisor but confirmed that
defendant remained pro se.
Defendant continued to represent himself until August 27, 2012, when the third
attorney assigned as defendant’s legal advisor informed the court that defendant wanted
her to represent him during his upcoming trial. Defendant therefore represented himself,
with varying levels of assistance from his legal advisors, throughout pretrial motion
practice and during the pretrial suppression hearing.
The Appellate Division modified the judgment by vacating defendant’s conviction
of promoting prostitution in the second degree and reducing the sentence, and otherwise
affirmed (178 AD3d 476 [1st Dept 2019]). As relevant here, the Appellate Division
rejected defendant’s contention that he was “deprived of his right to counsel when the court
allowed him to proceed pro se at pretrial proceedings,” concluding that the record as a
whole established that defendant made a knowing, voluntary, and intelligent waiver of his
right to counsel (id. at 476-477).
A Judge of this Court granted defendant leave to appeal (37 NY3d 970 [2021]).
II.
Initially, on this record, we reject defendant’s contention that he was unrepresented
by counsel during the second grand jury presentation. The record does not demonstrate
-3- -4- No. 77
that the court designated defendant as pro se before that grand jury appearance.1
As the People concede, however, defendant was representing himself on November
17, 2010—when the court stated that defendant was “acting pro se” and that the attorney
present was defendant’s “legal advisor”—until August 27, 2012. The People contend that
viewing the record as a whole, defendant made a knowing, voluntary and intelligent waiver
of the right to counsel. We disagree.
Criminal defendants have a constitutional right to be represented by counsel or to
represent themselves if they so choose (see People v Silburn, 31 NY3d 144, 150 [2018];
Arroyo, 98 NY2d at 103). Before a defendant may choose self-representation, however,
the defendant “ ‘must make a knowing, voluntary and intelligent waiver of the right to
counsel’ ” (People v Crampe, 17 NY3d 469, 481 [2011], quoting Arroyo, 98 NY2d at 103).
“To ascertain whether a waiver is knowing, voluntary and intelligent, a court must
undertake a ‘searching inquiry’ designed to ‘insur[e] that the defendant [is] aware of the
dangers and disadvantages of proceeding without counsel’ ” (Crampe, 17 NY3d at 481,
quoting People v Providence, 2 NY3d 579, 582 [2004]). “Additionally, a searching inquiry
encompasses consideration of a defendant’s pedigree since such factors as age, level of
education, occupation and previous exposure to the legal system may bear on a waiver’s
validity” (Crampe, 17 NY3d at 482).
We have “consistently refrained from creating a catechism for this inquiry,
1 To the extent defendant asserts that events occurring outside the record support his claim that he was unrepresented before the grand jury, he may raise that issue by way of a CPL article 440 motion. -4- -5- No. 77
recognizing that it ‘may occur in a nonformalistic, flexible manner’ ” (Providence, 2 NY3d
at 580, quoting People v Smith, 92 NY2d 516, 520 [1998]). For a waiver of the right to
counsel to be effective, the court’s discussion of the issue with the defendant “ ‘must
accomplish the goals of adequately warning a defendant of the risks inherent in proceeding
pro se, and apprising a defendant of the singular importance of the lawyer in the adversarial
system of adjudication’ ” (Arroyo, 98 NY2d at 104, quoting Smith, 92 NY2d at 520). “[A]
reviewing court may look to the whole record, not simply to the waiver colloquy, in order
to determine if a defendant effectively waived counsel” (Providence, 2 NY3d at 583).
Here, the court’s record exploration of the issue did not warn defendant of the risks
of proceeding pro se or apprise him of the importance of a lawyer in the adversarial system,
nor does the record as a whole demonstrate that defendant effectively waived his right to
counsel. Initially, the court conducted no discussion whatsoever of these issues before
stating that defendant was representing himself on November 17, 2010. Although the court
later told defendant that it was “not a great idea” to represent himself, that defendant was
putting himself “in a very bad position,” and that a lawyer would have knowledge of
criminal procedure that defendant did not, these brief, generalized warnings do not satisfy
the requirement for a searching inquiry (see Smith, 92 NY2d at 521; People v Sawyer, 57
NY2d 12, 21 [1982]).
We disagree with the People that the April 11, 2012 colloquy before a different
Justice rendered defendant’s waiver of the right to counsel effective. Setting aside that
defendant did not unequivocally request self-representation during that appearance and had
been representing himself for nearly a year and a half by that time (see Crampe, 17 NY3d
-5- -6- No. 77
at 483), the court’s discussion with defendant similarly informed him, in various ways, that
it was “not a good idea” to represent himself and that defendant was making a mistake.
Viewing the record as a whole (see Providence, 2 NY3d at 583), the court failed to inform
defendant of the “dangers and disadvantages of self-representation” or the “singular
importance of [a] lawyer in the adversarial system of adjudication” (Arroyo, 98 NY2d at
104 [internal quotation marks omitted]). Defendant’s waiver of the right to counsel
therefore was not knowing, voluntary, and intelligent.
We continue to recognize that “the multifaceted problems generated by a motion to
proceed pro se make the task of the trial court exceedingly difficult” (Crampe, 17 NY3d at
483 [internal quotation marks and alterations omitted]). We note, however, that when the
court, in its discretion, permits standby counsel (see Silburn, 31 NY3d at 151), it should
explain to the defendant the court’s rules regarding the role of a legal advisor or standby
counsel and how that role differs from representation by an attorney. No such explanation
was given here.
III.
The remedy for deprivation of counsel during pretrial proceedings is not
automatically vacatur of the judgment and a new trial, as defendant requests, nor can we
simply conclude that the error was harmless, as the People argue. Rather, when a defendant
has been deprived of counsel during pretrial proceedings without an effective waiver, we
generally remit for a repeat of the pretrial proceeding during which the defendant was
deprived of counsel (see People v Wingate, 17 NY3d 469, 484 [2011]; People v Slaughter,
78 NY2d 485, 493 [1991]; see also People v Carracedo, 89 NY2d 1059, 1061-1062 [1997];
-6- -7- No. 77
cf. People v Wardlaw, 6 NY3d 556, 559-561 [2006]). If the defendant is successful upon
remittal, then, depending on the nature of the motion, the defendant may be entitled to a
new trial or some other appropriate relief, and if the defendant is not successful, then the
judgment is to be amended to reflect that result (see Wingate, 17 NY3d at 484).
That is the appropriate remedy here. Defendant was unrepresented by counsel from
November 17, 2010 to August 27, 2012. He is entitled to remittal to Supreme Court for an
opportunity to make whatever pretrial motions were or could have been made during that
period, as he or his counsel deem appropriate,2 and the corresponding substantive pretrial
proceedings. In light of this remedy, we do not address defendant’s appellate contentions
regarding his suppression motion. Finally, defendant presents no arguments on this record
regarding his pro se CPL 30.30 motion that require dismissal of the indictment.
Accordingly, the order of the Appellate Division should be modified in accordance
with this opinion and, as so modified, affirmed.
Order modified in accordance with the opinion herein and, as so modified, affirmed. Opinion by Judge Troutman. Acting Chief Judge Cannataro and Judges Rivera, Garcia, Wilson and Singas concur.
Decided October 20, 2022
2 Defendant, of course, retains the right to proceed pro se upon remittal if he so chooses, after the requisite searching inquiry guaranteed by our precedent. -7-