The Arraignment January 26, 1998
You have a right to an attorney and the right to an adjournment in order to obtain an attorney. If you cannot afford an attorney, I will appoint one to represent you. Can you afford your own attorney?
- COLLINS: No. I can’t.
THE COURT: I am going to enter a plea of not guilty. I will have the public defender speak to you.
- COLLINS: I would prefer not to have the public defender’s office.’ The last time I had them, they lied to me. They didn’t do their job. They refused to discuss this case with me.
THE COURT: What is your proposal regarding representation?
- COLLINS: I will represent myself.
THE COURT: I have provided you with copies of the charges. I have some statement. I have not provided you with copies of it yet. I am going to have copies made and I will get copies of those right now. Do the People have a recommendation on bail for the Class D felony and Class B misdemeanor?
- BOLAND: Based on the seriousness of these charges at approximately 6 a.m. at the Court of Appeals Building, the People recommend this defendant be remanded to the custody of the Albany County Sheriff with no bail.
THE COURT: Mr. Collins, the People recommend no bail here. Having had experience previously with Mr. Collins, it’s my recollection that you appear when you are supposed to appear; however, this is a serious matter so I will set bail. I am going to set bail in the amount of $7,500.
Judge Herrick’s illegal actions at arraignment
Did you catch the illegal actions of Judge Herrick? Probably not, unless you are a criminal attorney.
Judge Herrick did not comply with Criminal Procedure Law (CPL)§ 180.10:
(1) Upon the defendant’s arraignment before a local criminal court upon a felony complaint, the court must immediately inform him, or cause him to be informed in its presence, of the charge or charges against him and that the primary purpose of the proceedings upon such felony complaint is to be determined whether the defendant is to be held for the action of the Grand Jury with respect to the charges contained therein. The court must furnish the defendant with a copy of the felony complaint.
FACT: Judge Herrick failed to inform me that the primary purpose of the proceedings upon felony complaint was to determine whether I should be held for the action of a Grand Jury with respect to the felony charge.
(2) The defendant has a right to a prompt hearing upon the issue of whether there is sufficient evidence to warrant the court holding him for the action of a Grand Jury, but he may waive such right.
FACT: Judge Herrick did not inform me of my right to a prompt hearing upon the issue of whether there is sufficient evidence to warrant the court in holding him for the action of a Grand Jury, but he may waive such right.
(3) The defendant has a right to the aid of counsel at the arraignment and at every subsequent stage of the action, and, if he appears upon such arraignment without counsel, has the following rights:
(a) To an adjournment for the purpose of obtaining counsel; and
(b) To communicate, free of charge, by letter or by telephone, for the purpose of obtaining counsel and informing a relative or friend that he has been charged with an offense; and
(c) To have counsel assigned by the court in any case where he is financially unable to obtain the same.
FACT: Judge Herrick did not inform me that I had “a right to the aid of counsel at the arraignment and at every subsequent stage of the action, …”.
(4) The court must inform the defendant of all rights specified in subdivisions two and three. The court must accord the defendant opportunity to exercise such rights and must itself take such affirmative action as is necessary to effectuate them.
FACT: Judge Herrick did not take any affirmative action once I stated that I “preferred” not to have the public defenders office represent me. He gave me no other alternative nor did he take any other action concerning representation.
(5) “If the defendant desires to proceed without the aid of counsel, the court must permit him to do so if it is satisfied that he made such decision with knowledge of the significance thereof, but if it is not so satisfied it may not proceed until the defendant is provided with counsel, either of his own choosing or by assignment. A defendant who proceeds at the arraignment without counsel does not waive his right to counsel, and the court must inform him that he continues to have such right as well as all the rights specified in subdivision three which are necessary to effectuate it, and that he may exercise such rights at any stage of the action.
FACT: Judge Herrick did not inform me that a person who proceeds at arraignment without counsel does not waive his right to counsel and that I continue to have my right to counsel.
In order for me to have waived my right to counsel before Judge Herrick, he was required to inform me of certain information which he failed to do. People think that just because a judge states “you have the right to counsel and if you cannot afford counsel, counsel will be provided” is sufficient notice. The courts have held that this is not sufficient, and you must be provided with certain information as documented in part above and below, in order to make an intelligent decision about waiving your right to counsel.
The New York State Court of Appeals ruling Matter of Lawrence S., 29 N.Y.2d 206, 325 N.Y.S.2d 921 (1971) and in the United States Supreme Court ruling Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, held that in order for a defendant to waive his right to counsel he must be informed of certain information.
Matter of Lawrence S., 29 N.Y.2d 206, 325 N.Y.S.2d 921 (1971)
. . . To be valid’, the Supreme Court declared in the Von Moltke case (332 U.S. 708, 724 68 S.Ct. 316, 323, Supra), ‘such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.’
FACT: I was not informed of the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.’
FACT: Judge Herrick did not inform me of the advantages and disadvantages of self-representation as required for me to waive my right to counsel.
People v. Chapman, 69 N.Y.2d 497, Faretta v. California, 422 U.S. 806. While a defendant need not have the skill and experience of a lawyer in order to effect such a waiver, he must be made aware of the advantages and disadvantages of proceeding without counsel.
Is Judge Herrick guilty of a criminal act?
Is Judge Herrick guilty of official misconduct? As a criminal court judge, can we assume 1) that he is a public servant 2) that he knows the Criminal Procedure Law and 3) that he inform me of the information contained in CPL § 180.10 was inherent in his duty?
Penal Law § 195.00 Official misconduct
A public servant is guilty of official misconduct when, with intent to obtain a benefit or deprive another person of a benefit:
- He commits an act relating to his official office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized; or
- He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.
In my opinion, Judge Herrick committed official misconduct in that he did not inform me of the information that he was required to inform me of by statute and case law in order to deprive me of my right to counsel. The law does not state any exceptions where this information does not have to be given.