The opinion of the court was delivered by: Read, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
The common question in these appeals is whether the courts fulfilled their responsibility to make a "searching inquiry" before allowing defendants to give up the right to a lawyer and conduct their defenses pro se (see People v Arroyo, 98 NY2d 101, 103 ; People v McIntyre, 36 NY2d 10, 17 ; see also Faretta v California, 422 US 806, 835 ; Iowa v Tovar, 541 US 77, 88-89 ). In both cases, we conclude that the inquiries were deficient because defendants were not adequately advised of the dangers and disadvantages of self-representation.
Defendant Alexander Crampe was arrested and charged with seventh-degree criminal possession of a controlled substance (Penal Law § 220.03) for possessing a vial of phencyclidine, or PCP. When he appeared in Justice Court, defendant acknowledged that he had not retained an attorney to represent him. The town justice then asked defendant if he intended to proceed pro se, and defendant replied "I guess so, your Honor."
This exchange prompted the judge to hand defendant a pretrial order meant to apply to the six cases then pending against him. The form order, which the judge reviewed with defendant by reading it aloud to him, stated that defendant's failure to accept the referral to the Legal Aid Society would be taken as a waiver of his right to assigned counsel and his election to proceed without counsel; that he should be prepared to proceed to trial on the next scheduled adjourn date; and that his failure to appear with counsel would "be deemed an acknowledgment of the advice and warnings of this Court relative to the right to counsel."
The form order continued as follows:
"The defendant has the absolute right to have counsel at all times during this proceeding. The defendant has a further constitutional right to represent himself in a criminal proceeding.
"The defendant acknowledges and understands the risk of representing himself and the failure to cooperate with counsel. Among those risks is the risk that he could be convicted of a crime, and he may be sentenced to jail if found guilty.
"The defendant acknowledges that a criminal trial and proceedings associated with a trial are difficult to understand and complex in nature.
"If you elect to represent yourself by failure to cooperate with the Legal Aid Society and retain counsel, you acknowledge that you are under no distress, no threats or promises have been made to you, and you are not suffering from any mental defect, and your election to represent yourself is not affected by drugs or alcohol.
"You are further advised that you have a constitutional right to be present at a trial of these charges before this Court. This right may be waived by your conduct. Such conduct must be a knowing, voluntary, intelligent waiver of this right. Acknowledgment of this right is by your signature hereon this date.
"Further, your signature is taken as evidence that you are not under any distress or compulsion, and you are ready for trial on August 21, 2008 at 9:30 a.m., or any adjourn date thereafter without justifiable excuse, shall be deemed a waiver of your right to be present at the trial of these charges, and we will proceed in your absence at that time."
Defendant signed the order, and the case was adjourned for trial. The judge cautioned him as he left: "Be here with a lawyer or without a lawyer, as you choose. I advise you to get a lawyer, sir." Defendant did not heed the judge's advice, however, and so 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.
Upon defendant's appeal, the Appellate Term unanimously affirmed, concluding that "Justice Court adequately warned defendant of the importance of legal representation and the risks associated with proceeding pro se" (26 Misc 3d 144 [A], 2010 NY Slip Op 50421 [U] ). The court added that it was "apparent from defendant's prior arrest and conviction record" that he was "not unfamiliar with the operation of the criminal justice system." A Judge of this Court granted defendant leave to appeal (15 NY3d 748 ).
Defendant Blake Wingate was arrested and subsequently indicted for fourth-degree criminal possession of stolen property (Penal Law § 165.45 ) and seventh-degree criminal possession of a controlled substance (Penal Law § 220.03) after the police found him sitting in a stolen van and recovered a crack pipe from his pocket.
When defendant informed his assigned counsel that he might "go to the grievance committee," the attorney successfully moved to be relieved. Supreme Court appointed a second attorney to represent defendant, who asked if there were "any way" he could represent himself with this new counsel assisting him. The judge instructed him to consult with his new attorney first. But at the next calendar call, defendant's second assigned counsel informed the court that defendant did not want her to represent him "in any way, shape or form," and "[o]n top of that, he ...