Issues:

(1) Can a defendant make a knowing, voluntary and intelligent waiver of the right to counsel and proceed pr se where he is not specifically advised of his maximum sentencing exposure in years; and

(2) Does C.P. L. § 30.30(4)(d) (excluding a reasonable period of delay when a defendant is joined for trial with a co-defendant) apply to pre-arraignment on indictment time? When is a defendant “joined for trial” with a co-defendant: prior to arraignment on the indictment, or, in cases where the defendant is not arraigned at the same time as his co-defendants, only afterwards?

Facts:

(Pro Se) -- Blue asked to proceed pro se. The court advised him that he “face[d] a lot of jail time.” The court reserved decision. On the adjourn date, Blue persisted. The trial court engaged him in a colloquy and found that Blue’s “request [was] unequivocal” and that his decision “to give up [his] right to be represented by a lawyer [was] knowingly and intelligently made.”

Blue was convicted of all 6 counts at trial and sentenced to consecutive terms totaling 20 years’ prison with 5 years’ PRS.

(C.P.L § 30.30) -- A grand jury returned a single indictment charging both Blue and his co-defendant with 6 counts of second-degree burglary. Both had previously been arrested, but the indictment was dismissed and Blue traveled from New York to Florida. He did not appear for arraignment on the new indictment at the scheduled time, but his co-defendant did. On April 17, 2013, 23 days after SCAR, the co-defendant requested a motion schedule (and later, an extension) making the decision date June 26, 2013. Law enforcement apprehended Blue in Florida and was or arraigned on June 13, 2013 (80 days after his indictment and 57 days after his co-defendant’s request for an adjournment to file motions). Blue filed a C.P.L. § 30.30 motion, arguing that the time between the dismissal of the first indictment and the decision date for his co-defendant’s motions was chargeable to the prosecution. The prosecution argued the time was excludable under (4)(c)(i).

Held (Halligan):

(1) Court declines to adopt Blue’s bright-line rule requiring an advisal of the maximum sentencing exposure and instead applies prior precedent and finds Blue’s waiver of the right to counsel valid.

Court finds Blue understood that he would likely face a lengthy prison sentence and possible consecutive time (“You face a lot of jail time.”). As the fact-specific appellate review looks at the entire record, majority considered arraignment minutes where sentencing exposure was noted. At arraignment, the prosecution stated that Blue “faces substantial time” and the court explained that “[t]he defendant faces a mandatory state prison sentence and could get consecutive sentences. He is clearly facing a lot of time.” The prosecution clarified it would recommend “12 years jail with five years post release supervision.”

Majority acknowledges AD1 cases suggesting defendant must be told of exact exposure but finds no CoA or SCOTUS law supporting that as a requirement and both endorsing a flexible approach. Court finds the cases cited by Blue/dissent involved a defendant who was not advised she was facing the death penalty (Von Multke), a 13-year-old (Lawrence S.) and approval of a colloquy that included advisal of the maximum sentence as one factor, in context, that made it sufficient but did not hold that such advisal was required (Tovar).

(2) C.P.L. § 30.30(4)(d) applies to pre-arraignment-on-indictment time, making the 57 days between indictment and arraignment thereon chargeable to Blue, for a total of 180 chargeable days (184 needed for dismissal).

Court looks to joinder provision (C.P.L. § 200.40(1)). Blue and his co-defendant were jointly charged with all counts and were thus joined at indictment, prior to arraignment. Court finds interpretation consistent with judicial economy purpose of joinder, rejecting Blue’s statutory interpretation arguments.¹

Dissent (Rivera): The Constitution requires the trial court to explore whether a criminal defendant is aware of their sentencing exposure as part of its “searching inquiry” (relying on Lawrence S. Von Moltke, Tovar). Blue was not aware of the range of allowable punishments. Rivera criticizes ambiguity of majority’s holding, noting its disregard of CoA and SOCTUS “precedent establishing a more straightforward, workable requirement that a court ascertain whether a defendant has an understanding of the range of allowable punishments they face before they may validly waive counsel.” Blue faced 90 years (subject to the 20-year statutory cap). The court’s statements that Blue faced “a lot of time”, etc. were inadequate as they did not convey the length of possible confinement (the maximum possible exposure for each count, whether the sentences could run consecutively and the statutory cap). “Numbers matter.”

CAL Observes:

The waiver of right to counsel (pro se) issue is an important one that is ripe for SCOTUS review. CoA denied a motion for reargument, 42 N.Y.3d 1073 but a cert petition was filed and docketed, ANTHONY BLUE v. NEW YORK, Jan 23, 2025 (No. 24-780) U.S. Docketing Petition for Cert. 42 N.Y.3d 584.

CAL (Carola and Matt) filed a cert petition in Carola’s case after and AD1 loss and CoA denial of leave on the issue (client was told he faced 25-life and he was sentenced to 4—life). Issue was framed as whether a criminal trial court violates Iowa v. Tovar in failing to advise a defendant, before he waives

¹ Blue argued that (1) joinder cannot antecede arraignment which gives court jurisdiction (Court finds the prosecution may declare readiness before a defendant is arraigned and that certain pre-arraignment delays not attributable to the prosecution may be excluded from the speedy-trial clock);

(2) § (4)(d) does not apply to pre-arraignment time because it does not state that it does (Court find the legislature elsewhere in C.P.L. § 30.30 distinguished between pre- and post- arraignment time, so its silence here means nothing);

(3) § (4)(d) references severance – a post-arraignment remedy (Court finds that when the prosecution seeks to exclude time under (4)(d), a defendant may make a showing of good-cause severance to charge that period to the prosecution (citing People v. Vidal, 180 A.D.2d 447, 448-49 (1st Dept. 1992);

(4) Blue’s reading better comports with the purpose of (4)(d) as a defendant cannot file pre-trial motions prior to arraignment and thus cannot engage in gamesmanship (Court finds that the already arraigned co-D could engage in gamesmanship and that the overall purpose of joinder overrides); and

(5) the language of (4)(d) restricts exclusions to a “reasonable period of delay” as it is unreasonable to charge time to a defendant before a court has jurisdiction and before C.P.L. rights have attached (Court finds pre-arraignment delays not caused by the prosecution may be charged to the defendant in other circumstances and charging Blue here was not unreasonable). his right to trial counsel, of the sentencing exposure he faces upon conviction? In Tovar, SCOTUS stated that knowledge of the “range of allowable punishments” is a component of a proper waiver of counsel prior to a guilty plea, Iowa v. Tovar, 541 U.S. 77, 81 (2004), but it has never opined on whether a court must provide that same sentencing information before a defendant waives trial counsel. Tovar left open whether a defendant must be told of his sentencing exposure in an uncounseled plea, or whether the presence or absence of that advisal is just one factor in adjudging the waiver.

Notably, after Blue’s trial, the Model Colloquy for a defendant seeking to go pro se was revised to include a statement of the defendant’s potential sentencing exposure. How trial courts are doing so is unclear. From my experience, due to NY’s complex sentencing scheme, trial courts often grapple with determining the correct sentencing ranges, much less determining how much time a defendant will actually serve (the length of possible confinement)

On the speedy trial issue, the decision is probably a correct reading of the statute and does not often occur, so its impact is minimal. But, for trial practitioners, I can attest that nothing is more frustrating than having a case with co-defendant(s). To get any chargeable time or ever try a co-defendant case, for every adjournment all lawyers must appear together, timely file motions, share information on schedules and vacations and be ready for trial together. That is nearly impossible to do. Yet, judges never grant severance or even charge partial time for one defendant as the CoA suggests can be done.