The People v. Vladimir Duarte

• Court: New York Court of Appeals
• Decided: February 15, 2022
• Docket: 9
• Status: Published

Opinion

State of New York MEMORANDUM Court of Appeals This memorandum is uncorrected and subject to revision before publication in the New York Reports.

No. 9 The People &c., Respondent, v. Vladimir Duarte, Appellant.

Molly Schindler, for appellant. R. Jeannie Campbell-Urban, for respondent.

MEMORANDUM:

The order of the Appellate Term should be affirmed. The intermediate appellate

court correctly concluded that defendant did not clearly and unequivocally request to

proceed pro se. During a colloquy with the trial court, defendant referenced the

-1- -2- No. 9

unsuccessful application to relieve his assigned counsel made at his prior appearance, and

he renewed that application, claiming that counsel was “ineffective.” The court denied the

application and rejected defendant’s renewed attempt to read aloud from what defendant

had previously referred to as “my testimony.” Upon review of the record as a whole,*

defendant’s retort, “I would love to go pro se,” immediately after the court’s denial of his

applications “d[id] not reflect a definitive commitment to self-representation” that would

trigger a searching inquiry by the trial court (People v LaValle, 3 NY3d 88, 106 [2004];

see People v Gillian, 8 NY3d 85, 88 [2006]; People v McIntyre, 36 NY2d 10, 17 [1974]).

* Contrary to the dissent’s assertion, the relevant facts are in dispute (see dissenting op at 2). Whether defendant’s statement was an unequivocal request in the context of the Sixth Amendment is determined by the facts of the surrounding circumstances in the case as well as defendant’s conduct, including manner of expression, demeanor, and word choices (see Williams v Bartlett, 44 F3d 95, 100 [2d Cir 1994]; cf. People v Glover, 87 NY2d 838, 839 [1995]; Fields v Murray, 49 F3d 1024, 1029-1032 [4th Cir 1995]). This record demonstrates that the court did not clearly deny the purported request, and neither defendant nor defense counsel sought any decision on that issue from the court at any point in the proceedings. Both factors suggest that the request was not considered genuine in the first instance by those present in the courtroom who heard the statement. -2- RIVERA, J. (dissenting):

“I would love to go pro se.”

That’s exactly what defendant said in open court. The import of these seven words

is obvious: defendant wanted to represent himself. Under People v McIntyre (36 NY2d 10

[1974]), this clear and unequivocal statement required an inquiry by the court into

defendant’s request. Here, that inquiry could have been as brief as asking defendant a single

question confirming that he meant what he said. Contrary to the majority’s suggestion,

defendant, unlike the court, did not need to say or do anything else (see majority op at 2

n). Once defendant invoked his constitutional right to self-representation, it was for the

court to inquire whether his decision was made knowingly and intelligently (id. at 17). The

court’s failure to do so constitutes reversible error (People v Smith, 68 NY2d 737, 738-739

[1986]). Therefore, I dissent and would reverse and order a new trial. And in case there is

any doubt as to my intent, let me repeat: I dissent, unequivocally and without hesitation.

***

The relevant facts are not in dispute and the record is crystal clear. During a

suppression hearing in defendant Vladimir Duarte’s criminal prosecution, the court and

defendant, appearing with counsel, engaged in the following colloquy:

“Defendant: This is an ineffective counsel. I had made that clear on my last appearance with him. He’s not effective at all. This is the first time I’ve spoken with him actually this close about my case. He’s never told me—day one when I met him he believes I did this.

Court: That doesn’t mean that he is—that he is not effective.

-2- -3- No. 9

Defendant: It’s not true, because you’re not going to say it to her. He told it to me.

Counsel: I never said that.

Court: Mr. Duarte—

Defendant: So I wish for him not to represent me at all because he’s ineffective and he doesn’t believe that I did not do this.

Court: That’s denied. People, will you please call your first witness? This is a Wade/Huntley?

Defendant: I would like to read—

Court: You can’t speak.

Defendant: I object to your denying me ineffective counseling here.

Court: Please call the first witness.

Defendant: I would love to go pro se.

Court: This is going to be a Huntley/Wade/Dunaway?

Prosecutor: That’s correct.

Court: Please call your first witness.”

There was no further discussion of defendant’s request. After a bench trial, the court

found defendant guilty as charged and sentenced him to one year in jail.

The Appellate Term affirmed (People v Duarte, 69 Misc 3d 148[A] [NY App Term

2020]). The court concluded that defendant did not make a clear and unequivocal request

at the suppression hearing to represent himself because his request was presented in the

-3- -4- No. 9

context of his complaints about his attorney and, in the alternative, that he abandoned his

request (id.).

The issue before us on appeal is narrow but consequential. Defendant argues that

his constitutional right to represent himself was denied when the court failed to properly

inquire into his request to proceed pro se. The District Attorney unpersuasively counters

that defendant’s repeated outbursts in open court—particularly his statements suggesting

dissatisfaction with his attorney—render his statement equivocal because they demonstrate

that defendant was simply seeking replacement of assigned counsel. We need only read the

words on the page to conclude that defendant’s statement that he “would love to go pro se”

was a clear and unequivocal request to self-represent, which triggered the need for a

judicial inquiry into his request. It is undisputed that the court made no inquiry, and, in

accordance with our precedent, this error requires reversal and a new trial.

Under both the Federal and New York State Constitutions, defendants have the right

to represent themselves (see US Const, 6th Amend; Faretta v California, 422 US 806, 820

[1975] [explaining that, under the Federal Constitution, a defendant “must be free

personally to decide whether in (defendant’s) particular case counsel is to (defendant’s)

advantage . . . (a)nd . . . (defendant’s) choice must be honored”]; NY Const art I, § 6 [“In

any trial in any court whatever the party accused shall be allowed to appear and defend in

person . . . ”]; McIntyre, 36 NY2d at 15; see also CPL 180.10 [5] [“If the defendant desires

to proceed without the aid of counsel, the court must permit (them) to do so if it is satisfied

that (they) made such decision with knowledge of the significance thereof . . . ”]). This

-4- -5- No. 9

right “embodies one of the most cherished ideals of our culture; the right of an individual

to determine [their] own destiny” (McIntyre, 36 NY2d at 14; accord People v Crespo, 32

NY3d 176, 178 [2018]). The right stands even if it sets defendant on a perilous course to

representation without the benefit of a counsel trained and experienced in the law. As the

Court has explained, “even in cases where the accused is harming [themselves] by insisting

on conducting [their] own defense, respect for individual autonomy requires that [they] be

allowed to go to jail under [their] own banner if [they] so desire[] and if [they] make[] the

choice with eyes open” (McIntyre, 36 NY2d at 14 [internal citation and quotation marks

omitted]; id. at 16).

In order to determine whether a defendant has properly invoked this right and thus

waived the right to counsel, a court must determine whether: “(1) the request is unequivocal

and timely asserted, (2) there has been a knowing and intelligent waiver of the right to

counsel, and (3) the defendant has not engaged in conduct which would prevent the fair

and orderly exposition of the issues” (id. at 17). “Denial of the right of self-representation

is not subject to harmless error analysis” and requires reversal (People v LaValle, 3 NY3d

88, 106 [2004]).

Only the unequivocal nature of defendant’s request under the first prong is at issue

on this appeal.1 That first prong is established by reference to the suppression hearing

colloquy during which defendant stated, plainly, “I would love to go pro se.”

1 Contrary to the District Attorney’s argument, defendant’s statement was made before the start of trial and was, therefore, timely by any measure, as defined by this Court (see McIntyre, 36 NY2d at 17; Crespo, 32 NY3d at 182). -5- -6- No. 9

Deconstructing the statement is simple. Defendant used the verb “would,” indicating his

desire for the specific action mentioned (see Merriam-Webster Online Dictionary, would

[https://www.merriam-webster.com/dictionary/would] [“used in auxiliary function to

express plan or intention”]). That action was expressed through his use of the Latin term

“pro se”—a phrase meaning to act on one’s own behalf without a lawyer (see PRO SE,

Black’s Law Dictionary [11th ed 2019] [“For oneself; on one’s own behalf; without a

lawyer”]). Defendant’s words do not lend themselves to any other interpretation.

The clarity of those words forecloses any suggestion of hesitance or uncertainty in

defendant’s articulation of his request. Indeed, “would” is a form of the auxiliary verb

“will” and is used “to express [the speaker’s] plan or intention” (see Merriam-Webster

Online Dictionary, would). Nevertheless, the District Attorney argues that defendant’s use

of the verb “would” somehow renders his statement conditional. This argument is meritless

for two reasons. First, defendant simply did not stipulate any actual condition by saying,

for example, that he would “love to go pro se if he didn’t receive a new attorney.” Second,

a speaker’s use of verbs in the conditional mood, such as “could” and “would”—

particularly in formal contexts, such as when a defendant (or an attorney) is speaking to a

judge—is merely a means of polite speech that does not obscure the clarity of an otherwise

obvious request. To the extent there was any uncertainty about defendant’s sincerity, the

proper course was for the court to confirm his intent rather than ignore him. Something as

simple as “Are you asking to represent yourself?” would have eliminated any possible

-6- -7- No. 9

doubt as to whether defendant meant what he said and guaranteed protection of defendant’s

constitutional right.2

Contrary to the Appellate Term’s conclusion, the fact that this request was made in

the context of expressing defendant’s dissatisfaction with counsel did not make the request

any less clear or suggest equivocation on defendant’s part. In fact, the record supports only

the opposite conclusion. Defendant’s claims of ineffectiveness were tied to his request that

counsel no longer represent him, and the court expressly rejected both the merits of

defendant’s claim and his request to relieve counsel. When defendant sought to further

address the court on that matter, the court told him, “You can’t speak.” Only after the court

dispensed with the claims about counsel did defendant invoke his right to represent himself.

It is also unsurprising that defendant’s request came on the heels of the court’s

rejection of his complaints about his lawyer. As the Court in McIntyre recognized,

“[f]requently, the pro se defendant is motivated by dissatisfaction with the trial strategy of

defense counsel or a lack of confidence in [their] attorney” (36 NY2d at 16). No less so

where, as here, the defendant is convinced that counsel—the one person who stands before

the court on defendant’s behalf—does not believe in his innocence. Indeed, the choice to

2 The majority turns our precedent on its head, relieving the trial court of any obligation to inquire into an unambiguous expression of desire to “go pro se” by recasting the court’s silence in the face of such a request as a determination that defendant was not being “genuine” (see majority op at 2 n). The majority’s approach is not grounded in our abundantly clear case law, and, unsurprisingly, it cites not a single case in support of its claim that an explicit request for self-representation is subsequently rendered equivocal because the court failed to fulfill its duty under McIntyre or because defendant did not renew his request in response to that failure (see id.). -7- -8- No. 9

self-represent may be “influenced by a blind faith belief in [a pro se defendant’s] innocence

and the infallibility of justice” in vindicating that belief (id. [internal citations omitted]).

Matter of Kathleen K., People v Gillian, and People v LaValle are distinguishable

and do not control here. Unlike in those cases, and particularly the defendant in Kathleen

K., defendant’s demand was not intended as leverage for his request for substitution of

counsel because defendant did not request another lawyer at all. (see 17 NY3d 380, 384

[2011] [finding equivocation when defendant “turned . . . down” the lawyer he was

provided and affirmatively “asked for (his attorney) to be terminated”]). Nor did defendant

intimate that his request to self-represent was an alternative to substitution, as in Gillian

(see 8 NY3d 85, 87 [2006] [noting that “defendant . . . moved in writing for reassignment

of counsel or, in the alternative, the opportunity to proceed pro se”] [emphasis added]).

The court here also did not deny substitution of counsel, with defendant raising the prospect

of self-representation solely because he had no choice but to proceed pro se, as in LaValle

(3 NY3d at 105-106 [noting defendant’s statement “The only thing I see and that’s my last

option is to represent myself, not that I want to, I don’t know (anything) about the law, but

at least I have a chance to prove my innocence”]). The record refutes this interpretation; on

prior occasions defendant had stated he was dissatisfied with counsel but never sought

substitution. And again, at the suppression hearing, he only requested that counsel no

longer represent him (as opposed to demanding a new attorney) because, in defendant’s

view, counsel was ineffective for failing to meet with him and because he did not believe

in defendant’s innocence.

-8- -9- No. 9

It is worth noting that the trial court never actually denied defendant’s request.

Rather, the court simply ignored it, leaving the record utterly devoid of any hint as to why

(or even if) the court found the request equivocal. Nothing in McIntyre or its progeny permit

inferring ambiguity from a cold record containing solely an unambiguous statement of

intent “to go pro se.” Even if we infer that defendant sought appointment of new counsel,

defendant’s response indicating that he wished to proceed pro se in no way provided a basis

for the additional inference that he was “threatening” to act as his own lawyer if the court

did not assign him new counsel, as defendant did not link the two.

Further, the District Attorney’s reliance on defendant’s actions at previous court

appearances is misplaced because this was defendant’s first appearance before the

suppression hearing judge. Thus, the judge here did not have any basis, other than what

was said at the suppression hearing, to consider defendant’s request. Nor may defendant’s

actions after his request to self-represent—which the majority apparently considers as part

of its review of the “whole record”—serve as a ground for concluding that his statement

was equivocal. McIntyre does not support that approach. Absent an express disavowal of

the request—which goes directly to whether a request has been unequivocally made in the

first instance—a “court may not validate an erroneous denial of a pro se motion on the

basis of a postruling outburst” (36 NY2d at 18). If a court may not excuse its error based

on a defendant’s subsequent courtroom outbursts, neither may a court avoid a mandatory

inquiry based on a defendant’s postruling silence or acquiescence to the court’s denial of

the request to self-represent.

-9- - 10 - No. 9

The effect of the majority’s affirmance here is to complicate what has been a

straightforward judicial task: When a defendant says they want to represent themselves, a

court must inquire into that request to ensure it is made knowingly and intelligently, and

that the request is not merely an attempt to undermine or delay the proceedings (see

McIntyre, 36 NY2d at 17; Crespo, 32 NY3d at 178). Any concern that defendant’s request

is not genuine is already addressed by the second and third prongs of the McIntyre test (see

36 NY2d at 19 [“Where a court feels that the motion is a disingenuous attempt to subvert

the overall purpose of the trial . . ., the proper procedure is to conduct a dispassionate

inquiry into the pertinent factors”]). As our Court has recognized, the best way to assess

voluntariness and uncover gamesmanship is through an inquiry into defendant’s request

and not by appellate review without the benefit of defendant’s responses and the lower

court’s on-the-record assessment of defendant’s statements and actions at the time of the

request.

Although the decision below strays far afield from McIntyre, that error appears to

be an aberration, as the courts of this state have had little difficulty applying that case’s

central holding. In doing so, they have safeguarded “one of the most cherished ideals of

our culture” (McIntyre, 36 NY2d at 14). The reasoning of McIntyre has stood the test of

time. The majority’s memorandum cannot.

- 10 - - 11 - No. 9

Order affirmed, in a memorandum. Chief Judge DiFiore and Judges Garcia, Singas and Cannataro concur. Judge Rivera dissents in an opinion, in which Judge Wilson concurs. Judge Troutman took no part.

Decided February 15, 2022

- 11 -