Yet, as a ray of hope, another People v Smith case - literally, the same last name - surfaced from the 1st Department where the court did the right thing and vacated a plea of guilty because the court advocated for the prosecution and violated the defendant's right to counsel at a critical stage of litigation.
The case, by the way, involved not only judicial misconduct of the trial judge, not only prosecutorial misconduct of the Bronx County District Attorney's Office because its prosecutors took advantage of unrepresented defendant, but egregious misconduct by defense counsel Gilbert Parris who did this:
Note the sequence of events:
Attorney Parris appears before the court without his client present and asks the court to relieve him because the client cannot pay.
First, attorney Parris knows better than that.
Attorney Parris could be relieved from the case either by notarized consent of his client - which was not there, or by a motion on an Order to Show Cause to the court to relieve him, after service upon his client and after a HEARING on that motion - which also was not done.
Instead, the judge skipped all of those pesky formalities called the law and just went ahead and relieved attorney Parris from the case - after a "discussion off the record", imagine.
Ok, attorney Parris is relieved now from the case and IS NO LONGER ATTORNEY OF RECORD.
What does attorney Parris do next?
In the absence of a criminal defendant who is NO LONGER HIS CLIENT, attorney Parris waives that criminal defendant's right to be present for what? - apparently for discussion of the prosecution's application for a buccal swab, a search of the defendant's mouth while the defendant was in custody.
Why was defense attorney Gilbert Parris relieved from the case of Dwight Smith? Because Dwight Smith could NO LONGER pay him - after he did pay him initially.
Happens all the time, but that's not a justification for attorney Parris not to follow the law as to how to withdraw from a case (by the way, non-payment is not usually considered as a legal ground for withdrawal from a criminal case), and certainly not a justification to appear without his client, argue off record about withdrawing from the case, without a written motion or notice to his client, and, after obtaining that withdrawal illegally - even more illegally waiving his now FORMER client's right to be present at the argument about the buccal swab before an EX PARTE order for such a swab was signed.
Apparently, the court advised the defendant, who asked for an adjournment to get a new counsel to oppose the prosecution's belated application for a mouth (buccal) swab, that "all motions are finished" - confirming that Gilbert Parris, after being relieved from representation of the defendant, actually waived his right to oppose that motion.
In fact, the court, confirmed waiver of defendant's right to oppose the buccal swab by his no-longer-attorney Gilbert Parris in so many words:
Here is the "hero" in this case, attorney Gilbert Parris.
I wonder if attorney Parris will be disciplined for misconduct in this case - he richly deserves it.
One thing the 1st Department said though is not a correct statement of the law.
Further in People v Smith, the 1st Department stated that the right to counsel in New York criminal proceedings attaches at arraignment.
That is not correct.
In New York, state constitutional right to counsel attaches BEFORE criminal charges are filed if an uncharged individual asks for counsel,
and when criminal charges are FILED, before arrest or arraignment of the defendant.
That's why the police tries to talk to the defendant and obtain a confession BEFORE the charges are filed, and to persuade the defendant that he really does not need to ask for an attorney, but "just talk" to the police "amicably" - because once the defendant asks for an attorney, or once the charges are filed, the defendant cannot make a waiver of the right to remain silent without a lawyer present.
The above is Criminal Procedure 101 in New York, a 23-year-old New York State Court of Appeals case People v West.
The prosecutor, the judge, and the FORMER just-relieved defense attorney knew it, or should have known that case - that's elementary competence in the field you are practicing.
All participants knew that the defendant's right to counsel INDELIBLY attached under the New York State Constitution when the charges were filed, and that, once the court relieved one defense attorney, it had to either appoint another or wait until the defendant hires another attorney.
The court could not clandestinely proceed on the prosecution's motion "conveniently" using the just-relieved defense attorney to voice a waiver on behalf of his now-former client.
Yet, the court proceeded as a ton of bricks - and an advocate for the prosecution - pressured the defendant into a conviction on a plea, and sentenced him for 18 (!!) years in state prison.
- the two judges mentioned in this case,
- the prosecutors and
- the defense attorney Gilbert Parrish who sold out his client for inability to pay (the client was later appointed an assigned, 18-b, counsel), failed to oppose a motion and, after he was unlawfully relieved from representation without a proper motion or notice to his client, waived the defendant's right to be present at a hearing out for non-payment,
That's another one of those "you've already been raped, so why do you stir" arguments. The court already violated your rights, so your absence at the motion hearing, and your absence at the hearing where your attorney was allowed to withdraw, and where no adjournment was given for the motion to be properly opposed was not that important for you to attend.