Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Smith

New York Court of Appeals

December 19, 2017

The People & c., Appellant,
Dwight Smith, Respondent.

          Ramandeep Singh, for appellant.

          Matthew Bova, for respondent.


          RIVERA, J.

         The People appeal an order by the Appellate Division that reversed a judgment by Supreme Court, vacated defendant's pleas, and dismissed the defendant's indictment without prejudice, allowing the People to re-present any appropriate charges to another grand jury (People v Smith, 143 A.D.3d 31 [1st Dept 2016]). Contrary to the People's claim, the Appellate Division correctly determined that the trial court denied defendant's right to counsel on the People's motion to compel defendant to submit to a buccal swab [1]. Nevertheless, the Appellate Division's order should be modified, because the indictment should not have been dismissed.

         Defendants have a constitutional right to counsel at every critical stage of the proceedings, meaning those stages that hold "significant consequences for the accused" (Bell v Cone, 535 U.S. 685, 696 [2002]; see also People v Settles, 46 N.Y.2d 154, 165 [1978]). Here, the People filed their motion to compel the DNA test and served the motion on retained counsel in court. As the Appellate Division found, the trial court - in defendant's absence [2] - subsequently granted both the retained defense counsel's motion to be relieved from representing defendant for failure to pay his fee and the People's DNA discovery motion, which it granted based on the "putative consent" it inferred from retained counsel's silence. Later the same day that counsel was relieved, defendant appeared in court. Knowing defendant was unrepresented, the court, rather than remain neutral, proceeded to act in place of counsel throughout an extensive colloquy, telling defendant that there were no bases on which to challenge the DNA sample order. In response to the court, defendant stated that he had not spoken with his attorney about the prosecution's motion and did not wish to consent to giving a sample. Notwithstanding defendant's entreaties, the court rejected his repeated requests for an attorney to advise him regarding the motion. Instead, the court told defendant "an attorney [was] not going to be able to help, " and that there was "no basis for fighting [the test]." When defendant said he did not "know the law, " the judge responded "I know the law." On these facts, the Appellate Division correctly determined that "the pretrial proceedings concerning the DNA test were 'critical' within the meaning of the law" (Smith, 143 A.D.3d at 35). Accordingly, defendant was deprived his right to counsel. [3]

         We reject the dissent's conclusion that defendant was not denied counsel during a critical stage of the proceeding, as that determination is contrary to law and would require that we distort the factual record. As the People concede, there was no express consent to their request for the DNA sample, either by defendant or by retained counsel. Nor was there any affirmative conduct or errant statement by defendant or counsel from which implied consent could be inferred. Instead, as the People acknowledge, the court issued its order based only on retained counsel's failure to reply to the People's motion to compel the buccal swab. Under the circumstances here, that is not a proper basis for finding defendant's consent [4]. Further, as the record unambiguously shows, shortly after the court granted retained counsel's request to withdraw - leaving defendant unrepresented - defendant appeared in court, expressly denied consent, and repeatedly stated he wanted counsel to assist him in responding to the People's motion [5]. Yet, rather than appointing counsel, the court told defendant there was no basis to oppose the motion. Notwithstanding these facts, the dissent believes defendant was represented on the motion for the DNA sample; we do not.

         The dissent also mistakenly ascribes to our narrow decision some previously-unannounced, broad rule. Here, we solely apply settled law to the facts before us. Where the court grants counsel's motion to be relieved from the case in defendant's absence but orders the taking of a DNA sample based on that counsel's inaction, and defendant at the first opportunity denies consent and requests assistance of counsel on that motion, the court may not deny the request and inform an unrepresented defendant that, in the court's opinion, there is no legal recourse. Thus, we conclude defendant was denied his right to counsel in violation of the Sixth Amendment and Article 1, Section 6 of the New York State Constitution.

         The legality of the remedy for that error is subject to our review pursuant to CPL 470.35 (2) (c). Based on the nature and timing of the constitutional deprivation at issue here, the dismissal of the indictment was not an appropriate corrective action. Under CPL 470.20, the Appellate Division may take "such corrective action as is necessary and appropriate both to rectify any injustice to the appellant resulting from the error or defect which is the subject of the reversal or modification and to protect the rights of the respondent." The violation of defendant's right to counsel, although serious, occurred post-indictment and did not retroactively infect the grand jury proceedings. Nevertheless, the violation resulted in defendant being denied the opportunity to confer with counsel regarding a potential challenge to the taking of inculpatory DNA evidence. This warranted the Appellate Division vacating defendant's pleas. Dismissal of the indictment, however, was not "necessary and appropriate" to rectify the injustice to the defendant.

         Accordingly, the order of the Appellate Division should be modified by reinstating the indictment and remitting the case to Supreme Court for further proceedings in accordance with this opinion and, as so modified, affirmed.

          GARCIA, J. (dissenting):

         I agree that the better course in this case would have been for the trial court to adjourn the proceedings until new counsel was appointed. But I disagree with the majority's conclusion that the court's failure to do so amounted to an error of constitutional dimension. Because defendant was never unrepresented during a critical stage of the proceedings, defendant's constitutional right-to-counsel argument - his only reviewable claim [1] - must be rejected. Accordingly, I dissent.


         Defendant was indicted on a number of charges, including second-degree murder, in connection with a burglary during which one of the victims was shot and killed. The three surviving victims independently identified defendant from a photo array and stated that defendant was the "ring leader" during the crime. Defendant was arrested and retained his own counsel.

         The Office of the Chief Medical Examiner of New York City retrieved low copy human DNA from evidence recovered from the crime scene, and the People later brought a motion to compel, seeking saliva samples from defendant and two co-defendants. The next day, in court, with defendant present, the People served a copy of the motion on the defense. Defense counsel indicated that he would "discuss it with [his] client." The court then asked: "If your client is not inclined to agree, would you put in your answer?" Defense counsel responded: "Yes, I will." Defense counsel did not file papers or otherwise oppose the motion.

         During a later appearance, before defendant had been produced, defense counsel "ma[d]e an application to be excused from th[e] case." After a brief dialogue, including an off-the-record discussion, the court relieved defense counsel. At the close of the proceeding, the prosecutor stated: "We're going to ask the card be held so we can go get a swab."

         Later that day, defendant appeared before the trial court without an attorney. The court informed defendant that his attorney had appeared "earlier today, " stating: "When I called the case at that time, I signed an order for a buccal swab. It's for a swab of your cheek with a swab, Q-tip, for purposes of providing [a] DNA sample. I have signed that order." The court then asked defendant if he would "mind doing [the swab] without your lawyer here in light of the fact that there has been an order signed by this Court indicating that you have to do that?" Defendant responded that he would "probably wait for [his] attorney." A lengthy colloquy ensued, during which the court implored defendant to comply with the order. Defendant stated several times that he "want[ed] to wait for [his] attorney, " indicating that he "wasn't aware of [the] buccal swab, " that he "didn't have contact [for] two months, " and that he would "probably want to... oppose" the People's motion to compel. The court stated that "[t]he motions are finished" and that defendant had "no basis" for opposing the signed order; the court was just "ask[ing]" defendant "to cooperate" and to do what the court had already "ordered [him] to do" in order to avoid harming defendant's already "injured arm." Ultimately, the court presented defendant with a copy of the signed order and he agreed to the swab.

         Defendant's new counsel later appeared on defendant's behalf and informed the court that his predecessor had provided him with the case file. New counsel subsequently filed an omnibus motion but did not address the motion to compel DNA evidence. Defendant ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.