New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
September 13, 2012
THE PEOPLE OF THE STATE OF NEW YORK,
PANTELIS LAVIDAS AND OLYMPIA LAVIDAS,
Appeal from a judgment of the Justice Court of the Village of Floral Park, Nassau County (Douglas J. Hayden, J.), rendered October 18, 2010.
People v Lavidas (Pantelis)
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on September 13, 2012
PRESENT: NICOLAI, P.J., MOLIA and IANNACCI, JJ
The judgment convicted defendants, after a non-jury trial, of violating sections 99-3, 99-4 and 99-64 of the Floral Park Village Code.
ORDERED that the judgment of conviction is reversed, on the law, and the matter is remitted to the Justice Court for all further proceedings.
Following a non-jury trial, defendants were convicted of violating sections 99-3, 99-4 and 99-64 of the Floral Park Village Code as a result of their having permitted three or more families to reside in a two-family house. On appeal, defendants contend that, among other improprieties, they were deprived of their federal constitutional right to counsel (US Const 6th, 14th Amends). Defendant Olympia Lavidas also argues that she is separately entitled to a reversal of her conviction because she was never arraigned on the charges.
An arraignment confers personal jurisdiction over a criminal defendant (see CPL 1.20 ). However, it is generally accepted that by appearing in court and participating in court proceedings, a defendant submits to the court's jurisdiction (see People v Hallenbeck, 81 AD3d 1077, 1078-1079 ; People v Golston, 13 AD3d 887, 889 ; People v Carter, 33 Misc 3d 14 [App Term, 9th & 10th Jud Dists 2011]). In the instant case, defendant Olympia Lavidas was present at the arraignment and actively participated at the trial. Thus, she cannot now complain of the Justice Court's failure to arraign her.
Before permitting a defendant to proceed pro se, a court must be satisfied that a defendant's waiver of the constitutional right to counsel is knowing, voluntary and intelligent (see People v Crampe, 17 NY3d 469, 481 ; People v Arroyo, 98 NY2d 101 ; People v Smith, 92 NY2d 516 ). To determine whether a waiver is knowing, voluntary and intelligent, a court must conduct a "searching inquiry" to "insure that the defendant is aware of the dangers and disadvantages" of self-representation (People v Crampe, 17 NY3d at 481 [internal citations and quotation marks omitted]). While there is no mandatory catechism that the court must recite and no obligation that the court identify every consequence of forgoing counsel, a careful and realistic reading of the record must reveal that defendant was adequately warned of the importance of legal representation and the risks associated with proceeding pro se. Upon a review of the record, we find that neither defendant was alerted to any of the dangers and disadvantages inherent in self-representation. Moreover, the Justice Court made no inquiry into defendants' ages, educations, occupations, previous exposures to legal procedures, and other relevant factors bearing on an intelligent and voluntary waiver of the right to counsel (see People v Crampe, 17 NY3d at 482; People v Arroyo, 98 NY2d at 103-104; People v Biro, 13 Misc 3d 131[A], 2006 NY Slip Op 51864[U] [App Term, 2d & 11th Jud Dists 2006]). Thus, as the court failed to obtain an effective waiver of defendants' right to counsel, the judgment is reversed and the matter remitted to the Justice Court for all further proceedings.
In light of the foregoing, we do not reach defendants' remaining contentions.
Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: September 13, 2012
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