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People v. Zi

Supreme Court of New York, First Department

December 26, 2019

The People of the State of New York, Respondent,
v.
John Kojo Zi, Defendant-Appellant.

          Robert S. Dean, Center for Appellate Litigation, New York (Scott H. Henney of counsel), for appellant.

          Cyrus R. Vance, Jr., District Attorney, New York (Luis Morales of counsel), for respondent.

          Renwick, J.P., Gische, Tom, Gesmer, Moulton, JJ.

         Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered September 6, 2017, convicting defendant, after a jury trial, of offering a false instrument for filing in the first degree (six counts), grand larceny in the first degree (four counts), scheme to defraud in the first degree, forgery in the second degree, making an apparently sworn false statement in the first degree and grand larceny in the second degree, and sentencing him to an aggregate term of 4 to 12 years, reversed, on the law, and the matter remanded for a new trial.

         Under the facts of this case, the trial court improperly granted defendant's request to proceed pro se without first conducting a searching inquiry regarding defendant's mental capacity to waive counsel (see People v Stone, 22 N.Y.3d 520');">22 N.Y.3d 520');">22 N.Y.3d 520');">22 N.Y.3d 520 [2014]). A defendant's request to proceed pro se must be denied unless the defendant effectuates a knowing, voluntary and intelligent waiver of the right to counsel (People v Crampe, 17 N.Y.3d 469, 481 [2011], cert denied sub nom. New York v Wingate, 565 U.S. 1261');">565 U.S. 1261');">565 U.S. 1261');">565 U.S. 1261 [2012]). In assessing the efficacy of the defendant's waiver, a trial court must undertake a "searching inquiry" to determine whether the defendant understands the dangers and disadvantages of proceeding without counsel (id.). It is within the trial court's discretion to determine whether its searching inquiry should include questioning about a defendant's mental capacity to waive counsel (Stone, 22 N.Y.3d at 529; People v Hilser, 158 A.D.3d 819, 820 [2d Dept 2018] lv denied 31 N.Y.3d 1083 [2018]). Where there are "red flags" that a defendant may be suffering from a serious mental illness affecting his or her competency to waive counsel, the searching inquiry should include a particularized assessment of defendant's mental capacity (Stone, 22 N.Y.3d at 528). A court reviewing the trial court's determination looks at the entire record developed by the time the inquiry is made (People v Providence, 2 N.Y.3d 579, 583 [2004]; People v Hisler, 158 A.D.3d at 820; see People v Cruz, 131 A.D.3d 724, 726-727 [2d Dept 2015], lv denied 26 N.Y.3d 1087');">26 N.Y.3d 1087 [2015]).

         We recognize that any determination regarding whether "red flags" exist is necessarily fact driven. Nonetheless, case law provides guidance for making that determination. As the Court of Appeals stated in Stone, "[W]e have long recognized that a mentally-ill defendant, though competent to stand trial, may not have the capacity to appreciate the demands attendant to self-representation, resulting in an inability to knowingly, voluntarily and intelligently waive the right to counsel and proceed pro se" (22 N.Y.3d at 526-27). The Court of Appeals has also made it clear that a trial court need not order a CPL Article 730 exam to determine that a defendant has mental capacity to waive counsel (id. at 527). Even so, information obtained from CPL Article 730 exams that have otherwise been previously ordered by the court may bear upon the issue of waiver capacity (People v Fleming, 141 A.D.3d 408, 409 [1st Dept 2016] [given defendant's history of mental illness, court providently exercised its discretion in ordering a new CPL Article 730 proceeding to ensure that any waiver of the right to counsel would be knowing] lv denied 28 N.Y.3d 1027');">28 N.Y.3d 1027 [2016]; People v Malone, 119 A.D.3d 1352, 1354 [4th Dept 2014] [CPL Article 730 exam finding defendant mentally competent "weighs in favor of our conclusion that defendant knowingly, voluntarily and intelligently waived his right to counsel"] lv denied 24 N.Y.3d 1003');">24 N.Y.3d 1003 [2014]). A CPL Article 730 exam finding a defendant fit to proceed, however, is not determinative on the issue of waiver of counsel and does not, in itself, foreclose an enhanced searching inquiry (Stone, 22 N.Y.3d at 527; People v Brodeur, 55 Misc.3d 37, 40 [App Term, 2d Dept, 2d, 11th, & 13th Jud Dists 2017]). Thus, in determining whether a basis for inquiry exists, a trial court should consider the information in the record from any prior CPL Article 730 exam, even if a defendant is fit to stand trial.

         It also stands to reason that the threshold for determining that a basis exists for inquiry about a defendant's mental capacity to waive counsel is broader than the standard applied to the ultimate determination about whether a defendant actually has capacity to do so (See People v Johnson, 128 A.D.3d 412, 413 [1st Dept 2015] [following a determination that the defendant was fit to stand trial, the court still inquired into whether defendant's mental condition would affect his right to waive counsel based upon his history of violent behavior, but then permitted him to represent himself] lv denied 27 N.Y.3d 999');">27 N.Y.3d 999 [2016]). This is because the particularized inquiry is only a tool to assist the court in obtaining information to determine that a defendant seeking to exercise a constitutional right to self-representation actually has the capacity to waive counsel (Stone, 22 N.Y.3d at 525). Red flags only serve to trigger an inquiry; the information elicited aids the court in reaching its ultimate conclusion on defendant's ability to waive counsel. Red flags by themselves do not foreclose a determination that defendant has that ability.

         Not every indication of a defendant's mental infirmity mandates inquiry. Expressions of paranoia or distrust of an attorney, common for many defendants, are not red flags (Stone, 22 N.Y.3d at 528). Nor is a defendant's belief that he or she was framed by police (Cruz, 131 A.D.3d at 727). A psychiatric history in itself may not be enough (People v Moore, 126 A.D.3d 561');">126 A.D.3d 561 [1st Dept 2015] lv denied 26 N.Y.3d 1090');">26 N.Y.3d 1090 [2015]). On the other hand, notwithstanding a CPL Article 730 exam finding defendant fit, court observations that a defendant was irrational and had a tendency to "fly off the handle" warranted a searching inquiry into defendant's mental capacity (Boudeur, 55 Misc.3d at 40). So too, inquiry was warranted where defendant was observed by the court to be unruly, volatile and physically menacing (Johnson, 128 A.D.3d at 413). In many cases, whether or not the behavior would trigger an inquiry may be a question of degree.

         Here, the record establishes that before defendant's application to proceed pro se was considered by the court, his third court-appointed attorney requested, of a prior judge, an order for a CPL Article 730 examination. The attorney reported to the examining psychiatrists that defendant believed he committed no crime, and that he faced prosecution as the result of "a Jewish conspiracy led by the Court and ISIS." Although defendant was found by both psychiatrists to be fit for trial, there were red flags in both reports suggesting the need for further inquiry. Both psychiatrists reported that defendant spoke about warrants being forged. One psychiatrist observed that some of defendant's assertions "impressed as potentially delusional," but that they were not a result of "psychotic delusions." The examiner expressly questioned whether defendant's beliefs about forged warrants and also the resignation of the arresting officer were delusional in nature. The examiner explained, however, that he could not conclude whether defendant's beliefs were delusional because he had no evidence to challenge the beliefs. Notwithstanding his conclusions, the examiner stated that "should further information become available... which suggests that some of [defendant's] beliefs are false and unyielding," his competency should be reassessed. The second psychiatrist described defendant's speech in part as "tangential and verbose." He also described defendant's assessment of the merits of winning his own case as "unrealistic but irrational."

         Defendant appeared for trial before a justice who was presiding over the case for the first time. Defense counsel informed the court that defendant wished to proceed pro se. Neither defense counsel nor the prosecution made the court aware of defendant's CPL Article 730 exams or the potential for him to be experiencing delusional thoughts. Although the trial court conducted an extensive colloquy with defendant regarding the waiver of the right to counsel, at no point did the court inquire into defendant's mental health. We find that, notwithstanding other aspects of the record supporting defendant's capacity, the information in the CPL Article 730 reports indicating a potential for delusional thought was a red flag that required a particularized assessment of defendant's mental capacity before resolving his request to proceed pro se (see generally People v Stone, supra). Consequently, defendant's waiver of the right to counsel, made without such inquiry, cannot be deemed to have been knowing, voluntary, and intelligent.

         Because we grant a new trial, we find no need to address defendant's remaining arguments.

          All concur except Tom, J.

         who dissents in a ...


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