The Appellate Division, First Department, at 27 Madison Ave.
The Appellate Division, First Department, at 27 Madison Ave. (NYLJ/Rick Kopstein)

A Manhattan judge who allowed a burglary defendant to waive his right to counsel failed to make a “searching inquiry” into whether the defendant knew what he was doing, even though he repeatedly urged the man not to proceed without counsel and intimated the risks of going pro se, a state appeals panel has ruled.

Appellate Division, First Department, Justice Rolando Acosta (See Profile) wrote in People v. Cole, 3610/10, which was handed down Thursday, that Manhattan Acting Supreme Court Justice Robert Stolz (See Profile) should have asked the defendant, Marlon Cole, more about his background and education, among other things.

Justices David Friedman (See Profile), Dianne Renwick (See Profile), Sallie Manzanet-Daniels (See Profile) and Judith Gische (See Profile) joined the opinion.

Cole was convicted of second-degree burglary in 2012. During the suppression hearing, he told Stolz that he wanted to proceed pro se. The judge responded that it was in Cole’s interest to have his court-appointed attorney represent him.

“You have a right to represent yourself,” Stolz said. “That doesn’t mean it is a good idea. In fact, it is probably a bad idea. Generally, it is a very bad idea.”

The judge added that the court-appointed attorney “is a trained attorney, so I would urge you avail yourself of his services so that he can represent you in this case. I have every confidence that he will do a very good job.”

Cole responded, “I understand what you are saying but I have been studying and doing legal work,” and said that he preferred the attorney to act as his legal advisor.

The judge then told Cole that, while he could use his assigned counsel as a legal advisor, there were “all kinds of dangers in doing this.”

Cole said he understood. The judge told Cole that this choice was “fraught with problems” and urged him to talk further with his attorney and reconsider, but ultimately granted his request.

Acosta wrote in the decision that these warnings did not meet the standard set in 2011 by the Court of Appeals in People v. Crampe, 17 NY3d 469, 481, which held that the court must conduct a “searching inquiry” into whether the defendant was acting “knowingly, voluntarily, and intelligently” when deciding to proceed pro se.

“It is not enough to tell the defendant that it is against his interests to represent himself, even when coupled with advise about the consequences of conviction,” Acosta wrote.

Instead, Acosta said, a searching inquiry must include age, level of education, occupation and previous exposure to the legal system.

As an example of an adequate inquiry, Acosta pointed to People v. Wingate, 17 NY3d at 476-480, a Queens case in which a defendant’s waiver of his right to counsel was upheld by the Second Department. In that case, the judge’s discussion with the defendant took up 20 pages of transcript.

The judge asked the defendant about his educational background, English fluency and familiarity with the law. He told the defendant that representing himself would require “comprehensive knowledge of the rules of evidence, which I believe you do not possess, as well as an understanding of the art of jury selection and the art of cross-examination.”

The judge also stressed that the defendant would be treated exactly the same way as an attorney, and that the court would not be able to help him during the case.

By contrast, Acosta said, Stolz’s inquiry consisted of “nothing more than generalized warnings, and completely failed to advise defendant of the benefits of being represented by counsel.”

Cole is represented by Lisa Packard, an attorney at the Center for Appellate Litigation.

“We’re glad that the court unanimously agreed that fundamental rights like the right to counsel can’t be waived with just a warning,” Packard said. “They must be explained in detail so the accused understands what he’s losing.”

The prosecution is represented by Manhattan Assistant District Attorneys Beth Fisch Cohen and Susan Axelrod. A spokesman for the D.A.’s office said the state is planning an appeal.