A. Cirando, for appellant.
K. Intschert, for respondent.
1974, our State's Constitution guaranteed criminal
defendants the unwaivable right to indictment by a grand
jury. In 1974, the Constitution was amended to provide that
defendants could waive that right by signing a written
instrument in open court in the presence of their counsel (NY
Const., art. I § 6). Because Steven Myers and the court
supervising his waiver followed that procedure, we affirm his
conviction. We emphasize, however, that the better
practice-captured in the relevant model colloquy-is for
courts to elicit defendants' understanding of the
significance of the right being waived, to minimize future
challenges to the effectiveness of the waiver (see
Waiver of Indictment; Superior Court Information Procedure
June 22, 2018]).
Myers waived his right to be prosecuted by indictment by a
grand jury. Immediately afterward, he pleaded guilty to the
third-degree burglary charged in the Superior Court
Information (SCI). The record shows the following took place
in County Court on July 9, 2012. The court clerk called Mr.
Myers' case. Mr. Myers was not present at that time. His
attorney and the prosecutor asked to approach, and they had
an off-the-record discussion with the court. Mr. Myers was
escorted into the courtroom and conferred with his counsel
off the record. The court then said, "We're going to
do a brief second call [of other cases], but Mr. Myers will
stay at the lectern to meet with [his counsel] on the waiver
form." The court continued the calendar call, after
which it asked Mr. Myers' counsel if he was ready. Mr.
Myers' counsel said he was ready, and the court again
called Mr. Myers' case. The court then announced:
"The application for grand jury waiver meets the
requirements of the statute so I'm going to sign the
order approving the waiver and order the information
filed." Mr. Myers' counsel acknowledged receipt of
the signed order and waived a reading of the SCI in open
court. The court immediately moved to a description of the
plea agreement Mr. Myers had reached with the prosecutor, to
which Mr. Myers allocuted and accepted. During his
allocution, Mr. Myers waived his Boykin rights and
confirmed he could read and write English, suffered from no
physical, mental, or substance-related impairment, and had
had sufficient time to discuss the case with his attorney.
appeal from the judgment of conviction and sentence, Mr.
Myers argued his waiver of indictment was invalid because
there was no evidence in the record that it was executed in
open court and no colloquy with the court on the subject
. The Appellate Division upheld the
validity of the waiver (145 A.D.3d 1596');">145 A.D.3d 1596 [4th Dept 2016]). A
judge of this Court granted Mr. Myers leave to appeal (29
N.Y.3d 1093 ).
the New York Constitution, article I, section 6,
[n]o person shall be held to answer for a capital or
otherwise infamous crime..., unless on indictment of a grand
jury, except that a person held for the action of a grand
jury upon a charge for such an offense, other than one
punishable by death or life imprisonment, with the consent of
the district attorney, may waive indictment by a grand jury
and consent to be prosecuted on an information filed by the
district attorney; such waiver shall be evidenced by written
instrument signed by the defendant in open court in the
presence of his or her counsel.
to Mr. Myers' first argument, the record evidences that
the waiver was signed in open court, as set forth in the
Constitution. The transcript shows that the court directed
Mr. Myers and his counsel to remain at the lectern to discuss
the waiver form and includes the court's finding that the
"waiver meets the requirements." Mr. Myers'
attorney notarized Mr. Myers' signature on the waiver on
the day of the court appearance. The court's order
approving the waiver expressly states that Mr. Myers executed
it "in open court in the presence of his attorney."
That record evidence sufficiently demonstrates that Mr. Myers
signed the waiver in open court.
Myers' second argument rests, albeit mistakenly, on a
vital and settled proposition: "It is axiomatic in our
jurisprudence that a waiver of a substantial right must be
made knowingly and intelligently" (People v
Weinberg, 34 N.Y.2d 429, 431 ). That axiom applies
to "many fundamental constitutional rights: the right to
confront accusers; the right to counsel; the privilege
against self-incrimination; the right to testify and to
present a defense; the right to be free from unreasonable
searches and seizures; and the right to be present during
trial proceedings" (People v Gajadhar, 9 N.Y.3d
438, 448 ). In many instances, the requisite
affirmative showing that those rights have been knowingly,
voluntarily, and intelligently waived will include a direct
colloquy between the court and the defendant (see People
v Sougou, 26 N.Y.3d 1052');">26 N.Y.3d 1052');">26 N.Y.3d 1052');">26 N.Y.3d 1052 ; People v
Conceicao, 26 N.Y.3d 375');">26 N.Y.3d 375 ).
instance, however, our Constitution specifies that persons
held for the action of a grand jury may waive indictment and
consent to be prosecuted by information when such waiver is
"evidenced by written instrument signed by the defendant
in open court in the presence of his or her
drafters specified - as a matter of constitutional law - the
method by which the grand jury right may be waived. Mr.
Myers' argument that those circumstances do not suffice
to demonstrate that a waiver is knowing, voluntary, and
intelligent runs into an obstacle he would not face were we
concerned with a statute alone: here, the Constitution itself
conclusively precludes a holding that a written waiver of ...