Calendar Date: April 27, 2018Before: McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey, JJ.__________G. Scott Walling, Slingerlands, for appellant.Robert M. Carney, District Attorney, Schenectady (Gloria J.Sprague, Law Intern), for respondent.__________Devine, J.Appeal from a judgment of the County Court of SchenectadyCounty (Sypniewski, J.), rendered July 22, 2016, convictingdefendant upon his plea of guilty of the crime of attemptedburglary in the third degree.Defendant was charged in an indictment with burglary in thethird degree and criminal mischief in the fourth degree. Heunsuccessfully moved to dismiss the indictment on the ground thatthe People had not afforded him with a reasonable amount of timein which to exercise his right to appear as a witness before thegrand jury (see CPL 190.50 [5]). Defendant then pleaded guiltyto attempted burglary in the third degree in full satisfaction ofthe indictment and waived his right to appeal. The pleaagreement contemplated that defendant would be sentenced as asecond felony offender to 1ó to 3 years in prison, but CountyCourt warned defendant that the sentence could be enhanced if hewere arrested prior to sentencing. Defendant was thereafterarrested and charged with assaulting three correction officers,prompting County Court to sentence him as a second felonyoffender to an enhanced prison term of 2 to 4 years. Defendantnow appeals.Defendant points to the denial of his motion to dismiss theindictment due to a violation of his statutory right to appearand testify before the grand jury (see CPL 190.50 [5] [a]), anissue that would ordinarily be forfeited by his guilty plea (seePeople v Straight, 106 AD3d 1190, 1191 [2013]; People v Dennis,223 AD2d 814, 815 [1996], lv denied 87 NY2d 972 [1996]) andprecluded by his knowing, intelligent and voluntary appeal waiver(see People v Lawrence, 135 AD3d 1187, 1188 [2016], lv denied 27NY3d 1001 [2016]; People v Johnson, 97 AD3d 990, 991 [2012]).Inasmuch as he argues that the statutory violation occurredbecause of an outright deprivation of his constitutional right tocounsel, however, he advances an argument that “‘go[es] to thevery heart of the process’ and survive[s]” both his guilty pleaand appeal waiver (People v Smith, 143 AD3d 31, 34-35 [2016],affd in relevant part 30 NY3d 626 [2017], quoting People vGriffin, 20 NY3d 626, 630 [2013]; see People v Chappelle, 121AD3d 1166, 1168 [2014], lv denied 24 NY3d 1118 [2015]; see alsoUnited States v Cronic, 466 US 648, 659 [1984]; Hurrell-Harring vState of New York, 15 NY3d 8, 23-24 [2010]).On December 11, 2015, defendant appeared in City Court forarraignment on a felony complaint and a misdemeanor informationcharging him with the offenses for which he was later indicted.Defendant, as is relevant here, stated that he wished torepresent himself and testify before the grand jury. He remainedunrepresented at a second appearance three days later andreiterated his desire to appear before the grand jury. Theindictment was handed up shortly thereafter, and it appears thatthe People disregarded defendant’s desire to testify before thegrand jury because he failed to make a written demand as required(see CPL 190.50 [5] [a]).“[D]efendant’s indelible right to counsel . . . attachedwhen the felony complaint against him was first filed” (People vChapman, 69 NY2d 497, 500 [1987]) and, while he could waive thatright and proceed pro se, the waiver would be invalid absent a“searching inquiry” by City Court to discern whether defendantunderstood and “appreciated the ‘dangers and disadvantages’ of”self-representation (People v White, 56 NY2d 110, 117 [1982],quoting Faretta v California, 422 US 806, 835 [1975]; see Peoplev Silburn, NY3d , , 2018 NY Slip Op 02286, *2 [2018];People v Myers, 160 AD3d 1029, 1032 [2018]). There was noinquiry conducted here, leaving the record silent as to whether“defendant ‘acted with full knowledge and appreciation of thepanoply of constitutional protections that would be adverselyaffected by counsel’s inability to participate’” so as toconstitute a valid waiver (People v Middlemiss, 125 AD3d 1065,1067 [2015], quoting People v Henriquez, 3 NY3d 210, 217 [2004]).Defendant should therefore not have been permitted to proceed prose (see People v Crampe, 17 NY3d 469, 481-482 [2011]; People vMyers, 160 AD3d at 1032-1033; People v Guarnieri, 122 AD3d 1078,1079-1080 [2014]).1 It follows that defendant was deprived of anopportunity to consult with counsel — who could have assisteddefendant in deciding whether to appear before the grand jury andmade an effective demand to appear in the event he chose to do so– and this “deprivation of defendant’s constitutional right tocounsel requires the dismissal of the indictment” (People vChappelle, 121 AD3d at 1168; see People v Backman, 274 AD2d 432,433 [2000]; People v Fields, 258 AD2d 593, 594 [1999]; People vStevens, 151 AD2d 704, 705 [1989]; People v Lincoln, 80 AD2d 877,877 [1981]).Defendant’s remaining arguments are academic.McCarthy, J.P., Egan Jr., Mulvey and Rumsey, JJ., concur.ORDERED that the judgment is reversed, on the law, andindictment dismissed, without prejudice to the People to representany appropriate charges to another grand jury.ENTER:Robert D. MaybergerClerk of the Court
