Searching over 5,500,000 cases.


searching
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. Myers

New York Court of Appeals

June 27, 2018

The People & c., Respondent,
v.
Steven Myers, Appellant.

          John A. Cirando, for appellant.

          Nicole K. Intschert, for respondent.

          OPINION

          WILSON, J.

         Until 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 & Colloquy, https://www.nycourts.gov/judges/cji/8-Colloquies/ [accessed June 22, 2018]).

         I.

         Steven 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.

         On 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 [1]. 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 [2017]).

         II.

         Under 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.

         Contrary 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.

         Mr. 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 [1974]). 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 [2007]). 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 [2015]; People v Conceicao, 26 N.Y.3d 375');">26 N.Y.3d 375 [2015]).

         In this 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 counsel."[2]

         Its 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 ...


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.