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Pro Se Defendants And The Necessary Inquiry By The Trial Court

People v. Crampe 2011 NY Slip Op 07148 (also includes decision on People v. Wingate).

Decided October 13, 2011 New York Court of Appeals

Issue: whether the trial courts in both cases conducted a sufficient inquiry prior to allowing a defendant to represent himself (pro se) at a criminal trial and waive his Sixth Amendment right to counsel.

Holding: The Court of Appeals held that in both cases the court’s inquiry did not direct defendant’s attention to the dangers and disadvantages of self-representation and were therefore not sufficiently conducted by either the trial court or the hearing court.

Legal Analysis: “[B]efore proceeding pro se a defendant must make a knowing, voluntary and intelligent waiver of the right to counsel” (Arroyo, 98 NY2d at 103, citing People v Slaughter, 78 NY2d 485, 491 [1991].

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” (People v Providence, 2 NY3d 579, 582 [2004]

“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'” (Arroyo, 98 NY2d at 104

In Crampe, the town justice did not make the requisite searching inquiry to insure that defendant was aware of the drawbacks of self-representation before allowing him to go down that path. The form that he read aloud only pointed out that proceeding pro se brought with it the danger of conviction — a risk that also exists when the accused is represented by counsel — and that criminal trials and proceedings are complicated

The colloquy conducted by the suppression court in Wingate was deficient for the same reason — the court’s inquiry did not direct defendant’s attention to the dangers and disadvantages of self-representation beyond the risk of a felony conviction. Conversely, the trial court engaged in an extensive colloquy with defendant, drawing his attention to the many challenges that he would face if he proceeded pro se rather than avail himself of legal representation. As a result, there is a sufficient showing that defendant’s decision to defend himself at trial was knowing, voluntary and intelligent.  the trial court’s warnings were incapable of retrospectively “curing” the suppression court’s error. The critical consideration is defendant’s knowledge at the point in time when he first waived his right to counsel, and his waiver then was not knowing, intelligent and voluntary.

While the inquiry conducted by the trial judge in Wingate was exemplary, we do not mean to suggest that the colloquy there has created a template to be followed in every instance where a defendant seeks to proceed pro se. Patterson v Illinois (487 US 285 [1988]), the Court “elaborated on ‘the dangers and disadvantages of self-representation’  “Pattersondescribes a ‘pragmatic approach to the waiver question,’ one that asks ‘what purposes a lawyer can serve at the particular stage of the proceedings in question, and what assistance he could provide to an accused at that stage,’ in order ‘to determine the scope of the Sixth Amendment right to counsel, and the type of warnings and procedures that should be required before a waiver of that right will be recognized'”

Accordingly, in People v Crampe, the order of the Appellate Term should be reversed and a new trial ordered; and in People v Wingate, the order of the Appellate Division should be modified by remitting to Supreme Court for a new suppression hearing. In the event defendant prevails at the suppression hearing, a new trial should be held; alternatively, in the event the People prevail, the judgment should be amended to reflect that result

Facts: The Court of Appeals went through an extensive analysis of the facts of the two cases.  Only the pertinent facts are reproduced here.

Defendant Alexander Crampe  charged with seventh-degree criminal possession of a controlled substance (Penal Law § 220.03). The town justice  asked defendant if he intended to proceed pro se, and defendant replied “I guess[] so, your Honor.”

A form order that the judge reviewed  by reading it aloud to the defendant, stated  failure to accept the referral to the Legal Aid Society would be taken as a waiver of his right to assigned counsel.

Defendant signed the order, and the case was adjourned for trial.  Defendant went to trial pro se, with standby counsel. The jury returned a verdict of guilty, and the judge sentenced defendant to six months of incarceration.

Appellate Term unanimously affirmed, concluding that “Justice Court adequately warned defendant

Defendant Blake Wingate was indicted for fourth-degree criminal possession of stolen property (Penal Law § 165.45 [5]) and seventh-degree criminal possession of a controlled substance

Defendant complained to the judge that his attorney “was trying to talk [him] out of [his] defense.” The judge asked defendant if he wanted to represent himself at the suppression hearing, and defendant responded that he did, but “need[ed] co-counsel”  judge engaged in the following exchange

“THE COURT: You understand that you’re facing felony charges, sir?


“THE COURT: You understand that you face jail time if convicted of the top charge in this indictment?


“THE COURT: Do you understand that the right to represent yourself is not an absolute right? If you can’t conduct yourself in a proper manner in the courtroom, you would forfeit the right to pro se representation. Do you understand that?


“THE COURT: Sir, notwithstanding any of the risks that you face representing yourself, do you still wish to go forward and defend yourself in this case? That’s your constitutional right. Do you understand that?”


“THE COURT: Okay. I will allow you to represent yourself.”

 A suppression hearing was held before a judicial hearing officer Supreme Court for determination. Supreme Court adopted the hearing officer’s findings of fact and conclusions of law, and denied defendant’s motion. The case went to trial five months later before another Supreme Court Justice, ” This judge first confirmed with defendant that he had turned down an offer of a minimum sentence of 1½ to 3 years; warned him that he faced a sentence of 15 years to life if convicted and sentenced as a discretionary persistent felon; and stressed that, “based on [his] many years of experience,” it was his  “good faith belief that it is a mistake to represent yourself. Areas of law can be complicated and a person, not even another lawyer [should] engage in self-[*5]representation. So I strongly urge you to get a lawyer, and if you cannot afford one, a lawyer will be appointed for you. That is my honest heartfelt belief. Because of the exposure that you may be facing in terms of incarceration, should you lose and the intricacies involved in self-representation and legal matters, you should seriously get a lawyer to represent you. Do you understand that?”

After reiterating that defendant “could be facing a long time in jail, up to life,” the trial judge cautioned that it was “a big mistake to go it alone. Again, the trial judge “strongly urge[d]” defendant “with all the sincerity that [he could] muster that [defendant] must” get a lawyer. As the judge put it, “I say that because obviously the decision is yours, but I use the term ‘must’ get a lawyer. You are facing too much in this case. Once it’s over, it’s over. So you should seriously consider that.” Before sending the case to the trial-ready part for disposition of defendant’s pro se speedy trial motion, the judge reiterated that defendant should think twice before representing himself:

“THE COURT: You think about what I told you. This case may be disposed of. You may be back here or not. Whatever you do, you may seriously think about what I am telling you. I can’t tell you in [any] stronger terms[:] get a lawyer. Don’t play with this.”

“THE DEFENDANT: I requested an assistant.

“THE COURT: Listen to me. Get a lawyer. Don’t play with this. You will end up in jail for the rest of your life and that’s ridiculous.

“THE DEFENDANT: I appreciate it.

“THE COURT: You insist that a lawyer represent you.”.  the judge said there was “[n]o reason for any further explanation,” and appointed standby counsel to assist defendant, as he had requested. judge next carried out an extensive dialogue with him, filling 20 pages of transcript. The judge first looked into defendant’s age and competency in English; he explored whether defendant was taking or had ever taken medications that might compromise his understanding; he confirmed that defendant did not suffer from any mental or physical condition that might impair his ability to follow what was happening in court. The judge inquired if defendant had been afforded “sufficient time to reflect on [his] decision to represent himself.” When defendant responded affirmatively, the judge asked “And having reflected on this decision, you are now desirous of continuing to represent yourself?” Defendant answered “Yes.”The trial judge then reviewed defendant’s schooling, work history and knowledge of the criminal justice system, eliciting that defendant had achieved an “A” average at Empire State College; had worked as an electrician, a cook, and a legal clerk; was not a stranger to the criminal justice system; had experienced some success representing himself in this case in the past; The judge followed up by establishing that defendant had never represented himself at trial, and examining whether he knew anything about the rules of evidence. (He ultimately announced that he was “convinced” that defendant knew next to nothing about this topic.) The judge looked at whether defendant had been coerced or threatened or in any way influenced to request to represent himself. judge probed defendant’s comprehension of the charges against him, and the length of the sentence he might receive if convicted. In response to the judge’s questions, defendant claimed to understand his lawyers’ explanations of court procedures and legal issues related to the charges. When asked to explain to the judge exactly why he wished to waive his right to counsel, defendant asserted that, otherwise, he would not know about “things . . . going on between [his attorney] and the DA,” wanted to “eliminate the middle person” and believed he was “better off just representing [him]self.”  trial judge pursued whether defendant knew the functions of the court and the jury, and defendant answered that the “jury would be the triers of the facts” and would decide the [*7]case “based on the facts . . . presented . . . and the instructions.The trial judge then asked defendant if he understood that almost all pro se representations are unsuccessful. 

The case went to trial, and the jury convicted defendant of the charged crimes. Supreme Court subsequently sentenced him to prison terms of two to four years