source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    [957 NE2d 255, 932 NYS2d 765]
    The People of the State of New York, Respondent, v Alexander G. Crampe, Appellant. The People of the State of New York, Respondent, v Blake Wingate, Appellant.
    Argued September 15, 2011;
    decided October 13, 2011

      POINTS OF COUNSEL

      Legal Aid Society, Appeals Bureau, Riverhead (Adrienne Wallace, Robert C. Mitchell and Alfred J. Cicale of counsel), for appellant in the first above-entitled action.
    In view of the totality of the circumstances bearing on defendant’s capability of representing himself, it was fatal error for the trial judge to permit defendant to proceed pro se; moreover, such error was compounded by the court’s appointment of standby counsel whose presence and function were virtually unutilized, particularly at critical stages of the trial. (Faretta v California, 422 US 806; People v Rosen, 81 NY2d 237; People v McIntyre, 36 NY2d 10; People v Davis, 49 NY2d 114; People v Schoolfield, 196 AD2d 111.)

      Thomas J. Spota, District Attorney, Riverhead (Marcia R. Kucera of counsel), for respondent in the first above-entitled action.
    The trial court properly gave effect to appellant’s knowingly, voluntarily and intelligently executed pretrial waiver of his right to counsel. (People v Arroyo, 98 NY2d 101; People v McIntyre, 36 NY2d 10; Faretta v California, 422 US 806; People v Slaughter, 78 NY2d 485; Adams v United States ex rel. McCann, 317 US 269; People v Kinchen, 60 NY2d 772; People v Olivo, 52 NY2d 309; People v Schoolfield, 196 AD2d 111, 83 NY2d 915; People v Wilder, 275 AD2d 268, 95 NY2d 893; People v Glover, 90 AD2d 776.)

      Warren S. Landau, New York City, and Lynn W.L. Fahey for appellant in the second above-entitled action.
    I. The court violated appellant’s right to counsel when it allowed him to represent himself, at his pretrial hearing and for months thereafter, without advising him of the risks of self-representation or the importance of having counsel. (Iowa v Tovar, 541 US 77; Faretta v California, 422 US 806; Gideon v Wainwright, 372 US 335; Johnson v Zerbst, 304 US 458; People v Arroyo, 98 NY2d 101; People v Harris, 77 NY2d 434; People v Bing, 76 NY2d 331; People v Davis, 75 NY2d 517; People v McIntyre, 36 NY2d 10; Martinez v Court of Appeal of Cal., Fourth Appellate Dist., 528 US 152.) II. The court violated appellant’s due process right to present a defense, the prescribed order of trial, and the fundamental mode of criminal proceedings when it required him to decide whether he would put on a defense case before the end of the People’s case and without speaking with his investigator. (Chambers v Mississippi, 410 US 284; People v Mehmedi, 69 NY2d 759; People v Fujah, 182 AD2d 774; People v Whipple, 97 NY2d 1; People v Olsen, 34 NY2d 349; People v Fama, 212 AD2d 542; People v Ventura, 35 NY2d 654; Brooks v Tennessee, 406 US 605; People v Rosen, 81 NY2d 237; McKaskle v Wiggins, 465 US 168.)

      Richard A. Brown, District Attorney, Kew Gardens (John F. McGoldrick and John M. Castellano of counsel), for respondent in the second above-entitled action.
    I. The Appellate Division correctly held that defendant’s exercise of his right to proceed pro se was knowing and intelligent. (Iowa v Tovar, 541 US 77; Johnson v Zerbst, 304 US 458; Faretta v California, 422 US 806; Patterson v Illinois, 487 US 285; Dallio v Spitzer, 343 F3d 553; United States v Sandles, 23 F3d 1121; United States v Oreye, 263 F3d 669; People v Sawyer, 57 NY2d 12; People v Smith, 92 NY2d 516; People v Arroyo, 98 NY2d 101.) II. The Appellate Division properly rejected defendant’s assertion that the trial court erroneously altered the order of the trial, and defendant’s claim is unpreserved. (People v Riback, 13 NY3d 416; People v Gray, 86 NY2d 10; People v Agramonte, 87 NY2d 765; People v Gajadhar, 9 NY3d 438; People v Brown, 7 NY3d 880; People v Washington, 64 NY2d 961; People v Garcia, 69 NY2d 903; People v Santos, 86 NY2d 869; People v Medina, 53 NY2d 951; People v Kisoon, 8 NY3d 129.) III. Defendant’s pro se supplemental claims are largely unreviewable and completely without merit. (People v Gray, 86 NY2d 10; People v Smith, 138 Misc 2d 531; People v Shelton, 136 Misc 2d 644; People v Ifill, 137 Misc 2d 14; People v Mason, 136 Misc 2d 968; United States v Ross, 719 F2d 615; People v Burnett, 245 AD2d 460; People v Hawkins, 11 NY3d 484; People v Diaz, 15 NY3d 764; People v Scarborough, 49 NY2d 364.)
   OPINION OF THE COURT

Read, J.

The common question in these appeals is whether the courts fulfilled their responsibility to make a “searching inquiry” before allowing defendants to give up the right to a lawyer and conduct their defenses pro se (see People v Arroyo, 98 NY2d 101, 103 [2002]; People v McIntyre, 36 NY2d 10, 17 [1974]; see also Faretta v California, 422 US 806, 835 [1975]; Iowa v Tovar, 541 US 77, 88-89 [2004]). In both cases, we conclude that the inquiries were deficient because defendants were not adequately-advised of the dangers and disadvantages of self-representation.

I

Crampe

Defendant Alexander Crampe was arrested and charged with seventh-degree criminal possession of a controlled substance (Penal Law § 220.03) for possessing a vial of phencyclidine, or PCE When he appeared in Justice Court, defendant acknowledged that he had not retained an attorney to represent him. The town justice then asked defendant if he intended to proceed pro se, and defendant replied “I guess[ ] so, your Honor.”

This exchange prompted the judge to hand defendant a pretrial order meant to apply to the six cases then pending against him. The form order, which the judge reviewed with defendant by reading it aloud to him, stated that defendant’s failure to accept the referral to the Legal Aid Society would be taken as a waiver of his right to assigned counsel and his election to proceed without counsel; that he should be prepared to proceed to trial on the next scheduled adjourn date; and that his failure to appear with counsel would “be deemed an acknowledgment of the advice and warnings of this Court relative to the right of counsel.”

The form order continued as follows:

“The defendant has the absolute right to have counsel at all times during this proceeding. The defendant has a further constitutional right to represent himself in a criminal proceeding.
“The defendant acknowledges and understands the risk of representing himself and the failure to cooperate with counsel. Among those risks is the risk that he could be convicted of a crime, and he may be sentenced to jail if found guilty.
“The defendant acknowledges that a criminal trial and proceedings associated with a trial are difficult to understand and complex in nature.
“If you elect to represent yourself by failure to cooperate with the Legal Aid Society and retain counsel, you acknowledge that you are under no distress, no threats or promises have been made to you, and you are not suffering from any mental defect, and your election to represent yourself is not affected by drugs or alcohol.
“You are further advised that you have a constitutional right to be present at a trial of these charges before this Court. This right may be waived by your conduct. Such conduct must be a knowing, voluntary, intelligent waiver of this right. Acknowledgment of this right is by your signature hereon this date.
“Further, your signature is taken as evidence that you are not under any distress or compulsion, and you are ready for trial on August 21, 2008 at 9:30 [a.m.], or any adjourn date thereafter without justifiable excuse, shall be deemed a waiver of your right to be present at the trial of these charges, and we will proceed in your absence at that time.”

Defendant signed the order, and the case was adjourned for trial. The judge cautioned him as he left: “Be here with a lawyer or without a lawyer, as you choose. I advise you to get a lawyer, sir.” Defendant did not heed the judge’s advice, however, and so went to trial pro se, with standby counsel. The jury returned a verdict of guilty, and the judge sentenced defendant to six months of incarceration.

Upon defendant’s appeal, the Appellate Term unanimously affirmed, concluding that “Justice Court adequately warned defendant of the importance of legal representation and the risks associated with proceeding pro se” (26 Misc 3d 144[A], 2010 NY Slip Op 50421[U] [2010]). The court added that it was “apparent ] from defendant’s prior arrest and conviction record” that he was “not unfamiliar with the operation of the criminal justice system.” A Judge of this Court granted defendant leave to appeal (15 NY3d 748 [2010]).

Wingate

Defendant Blake Wingate was arrested and subsequently indicted for fourth-degree criminal possession of stolen property (Penal Law § 165.45 [5]) and seventh-degree criminal possession of a controlled substance (Penal Law § 220.03) after the police found him sitting in a stolen van and recovered a crack pipe from his pocket.

When defendant informed his assigned counsel that he might “go to the grievance committee,” the attorney successfully moved to be relieved. Supreme Court appointed a second attorney to represent defendant, who asked if there were “any way” he could represent himself with this new counsel assisting him. The judge instructed him to consult with his new attorney first. But at the next calendar call, defendant’s second assigned counsel informed the court that defendant did not want her to represent him “in any way, shape or form,” and “[o]n top of that, he [had] sent correspondence indicating his displeasure” and “[t]he lines of communication [were] irreparably broken.” She requested to be relieved.

Defendant complained to the judge that his attorney “was trying to talk [him] out of [his] . . . defense.” The judge asked defendant if he wanted to represent himself at the suppression hearing, and defendant responded that he did, but “need[ed] co-counsel” and had previously represented himself with a lawyer’s assistance. The judge advised defendant that he was not entitled to hybrid representation, and again inquired as to what he wanted to do. Defendant replied “Same as before. Request to represent myself.” At that point, the judge engaged in the following exchange with defendant:

“the court: You understand that you’re facing felony charges, sir?
“the defendant: Yes.
“the court: You understand that you face jail time if convicted of the top charge in this indictment?
“the defendant: Yes.
“the court: Do you understand that the right to represent yourself is not an absolute right? If you can’t conduct yourself in a proper manner in the courtroom, you would forfeit the right to pro se representation. Do you understand that?
“the defendant: Yes.
“the court: Sir, notwithstanding any of the risks that you face representing yourself, do you still wish to go forward and defend yourself in this case? That’s your constitutional right. Do you understand that?
“the DEFENDANT: YeS.
“the court: Okay. I will allow you to represent yourself.”

A suppression hearing was held before a judicial hearing officer later the same day. The hearing officer recommended denial of defendant’s motion to suppress physical evidence (the crack pipe) and statements that he made to the police, and referred the case back to Supreme Court for determination. Supreme Court adopted the hearing officer’s findings of fact and conclusions of law, and denied defendant’s motion.

The case went to trial five months later before another Supreme Court Justice, who explored with defendant whether he had “considered legal representation.” This judge first confirmed with defendant that he had turned down an offer of a minimum sentence of IV2 to 3 years; warned him that he faced a sentence of 15 years to life if convicted and sentenced as a discretionary persistent felon; and stressed that, “based on [his] many years of experience,” it was his

“good faith belief that it is a mistake to represent yourself. Areas of law can be complicated and a person, not even another lawyer [should] engage in self-representation. So I strongly urge you to get a lawyer, and if you cannot afford one, a lawyer will be appointed for you. That is my honest heartfelt belief. Because of the exposure that you may be facing in terms of incarceration, should you lose and the intricacies involved in self-representation and legal matters, you should seriously get a lawyer to represent you. Do you understand that?”

Defendant responded that he understood.

After reiterating that defendant “could be facing a long time in jail, up to life,” the trial judge cautioned that it was “a big mistake to go it alone.” The judge then asked defendant if he had any legal training, and defendant replied that he had been studying law for the last 10 or 12 years “in the street and different libraries” and was “not a paralegal [but] just received legal research certificates.” When the judge inquired if he was a college graduate, defendant responded that he held a two-year associate’s degree in labor studies from Empire State College, and was “a law librarian, library clerk in the facility” where he worked.

Again, the trial judge “strongly urge[d]” defendant “with all the sincerity that [he could] muster that [defendant] must” get a lawyer. As the judge put it, “I say that because obviously the decision is yours, but I use the term 'must’ get a lawyer. You are facing too much in this case. Once it’s over, it’s over. So you should seriously consider that.” Before sending the case to the trial-ready part for disposition of defendant’s pro se speedy trial motion, the judge reiterated that defendant should think twice before representing himself:

“the court: You think about what I told you. This case may be disposed of. You may be back here or not. Whatever you do, you may seriously think about what I am telling you. I can’t tell you in [any] stronger terms[:] get a lawyer. Don’t play with this.
“the defendant: I requested an assistant.
“the court: Listen to me. Get a lawyer. Don’t play with this. You will end up in jail for the rest of your life and that’s ridiculous.
“the defendant: I appreciate it.
“the court: You insist that a lawyer represent you.”

After defendant’s speedy trial motion was denied and his case was recalled for trial, the trial judge “reiterate [d]” that he had “indicated to [defendant] before the matter was referred back [to the trial-ready part] that [he] should seriously consider getting a lawyer.” When the judge asked defendant whether he had “done that,” defendant replied “Yes, I have considered it, your Honor.” He explained that “the reason why I am persistent now is because I had attorneys. I am going this by myself. I appreciate what you said. I asked for an attorney to assist me, but I am not going to let them take control because that’s why I am persistent.” At that point, the judge said there was “[n]o reason for any further explanation,” and appointed standby counsel to assist defendant, as he had requested.

Stating that there were “a few questions” that he had to pose before he might allow defendant to represent himself, the trial judge next carried out an extensive dialogue with him, filling 20 pages of transcript. The judge first looked into defendant’s age and competency in English; he explored whether defendant was taking or had ever taken medications that might compromise his understanding; he confirmed that defendant did not suffer from any mental or physical condition that might impair his ability to follow what was happening in court. The judge inquired if defendant had been afforded “sufficient time to reflect on [his] decision to represent [him]self.” WTien defendant responded affirmatively, the judge asked “And having reflected on this decision, you are now desirous of continuing to represent yourself?” Defendant answered “Yes.”

The trial judge then reviewed defendant’s schooling, work history and knowledge of the criminal justice system, eliciting that defendant had achieved an “A” average at Empire State College; had worked as an electrician, a cook, and a legal clerk; was not a stranger to the criminal justice system; had experienced some success representing himself in this case in the past; and had appeared in court with a lawyer, although he ultimately did not get along with either of his two assigned attorneys. The judge followed up by establishing that defendant had never represented himself at trial, and examining whether he knew anything about the rules of evidence. (He ultimately announced that he was “convinced” that defendant knew next to nothing about this topic.) The judge looked at whether defendant had been coerced or threatened or in any way influenced to request to represent himself.

The trial judge probed defendant’s comprehension of the charges against him, the plea offer that had been made (and that he would have “minimal time” left if he accepted it) and the length of the sentence he might receive if convicted. In response to the judge’s questions, defendant claimed to understand his lawyers’ explanations of court procedures and legal issues related to the charges. When asked to explain to the judge exactly why he wished to waive his right to counsel, defendant asserted that, otherwise, he would not know about “things . . . going on between [his attorney] and the DA,” wanted to “eliminate the middle person” and believed he was “better off just representing [him]self.”

The trial judge pursued whether defendant knew the functions of the court and the jury, and defendant answered that the “jury would be the triers of the facts” and would decide the case “based on the facts . . . presented . . . and the instructions.” When the judge called upon defendant to explain his role and the prosecutor’s role, defendant responded that the

“prosecutor’s role is ... to seek justice not just convictions. Her duty is to present her case . . . and to do it fairly. My job is to protect, preserve the rights of myself. . . , and to present the same information or evidence that I have to contradict what is being stated by the witnesses . . . that [the] prosecution presents.”

The trial judge observed to defendant that

“[t]he law recognizes the right of a person to defend himself or herself. However, the law also recognizes such a choice may not be a wise one. Let me alert you now to some of the [dangers] of self-representation so that you will be aware of them before you finally decide whether you wish to give up your right to be represented by a lawyer. Please listen to me carefully. Even the most intelligent and educated layman has small and sometimes no skills in the field of law. Left without the assistance of counsel, he or she may be put on trial without a proper charge and convicted upon incomplete[ ], irrelevant, or inadmissible evidence. Often the layman lacks the skill [or] knowledge to adequately prepare his or her defense, even though he may have a good one. Without counsel, though an accused may not be guilty, he faces the danger of conviction because he does not know how to adequately protect his legal rights. Lawyers are both generally college and law school trained before they are permitted to take the bar examination. Only those who pass the bar are licensed to practice law. The number who become trial lawyers [is] small. In order to adequately represent a client, a trial lawyer needs a 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 . . . [M]ost non-lawyers do not have such education and training. Did you understand what I just said?”

Defendant answered “Yes.”

The trial judge then asked defendant if he understood that almost all pro se representations are unsuccessful; that by choosing to represent himself he was not entitled to a lawyer, although the judge would appoint a lawyer to “sit next to [him] and give [him] legal advice”; that he would be held to the same legal standards as an attorney; that he would “receive no advantage or assistance from [the] court” because “[e]ven in those cases where [he] show[ed] a lack of complete knowledge of how to represent [himself], [the court couldn’t] jump in the middle” and help him out; that when defendant did “something wrong,” the judge was going to “call [him] on it” and he had to “live with that”; that he risked not being able to understand legal terms of art used in court proceedings, the “case names used and what they stand for” and potentially applicable rules or theories of criminal law; that he would be subject to the same rules of evidence as an attorney and chanced not being able to introduce evidence because of his ignorance of these rules; that his examination of witnesses would be held to the same standards as those expected of an attorney; that he would have to make his own opening and closing statements to the jury; that the assistant district attorney presenting the case against him was trained in the law and was familiar with criminal law principles, and would not “go ‘easy’ on” him because he was representing himself; that by waiving his right to counsel he was giving up the “benefit of [an] attorney’s ability, training, and past experiences in speaking to a jury”; and that he would be expected to “conduct [himself] appropriately in the courtroom.” Defendant indicated that he understood all of these things, and “[w]ithout a doubt” still wished to represent himself.

The trial judge elaborated on his admonition to defendant that “self-representation [was] not a license to abuse” the courtroom’s “dignity and decorum,” cautioning him that if he did not conduct himself properly he might lose his right to be present at trial. Again, defendant said that he understood. With that representation, the judge pronounced himself satisfied that he had asked defendant the “relevant questions to determine if [he understood] the consequence [s] and the pitfalls of self-representation.”

The case went to trial, and the jury convicted defendant of the charged crimes. Supreme Court subsequently sentenced him to prison terms of 2 to 4 years on the stolen property charge, and one year on the drug possession charge, to run concurrently.

The Appellate Division unanimously modified by vacating the conviction of possession of stolen property and dismissing that count of the indictment, and otherwise affirmed (70 AD3d 734 [2d Dept 2010]). Although defendant’s legal sufficiency claim was unpreserved, the court reached it in the interest of justice and determined that his presence in the van was too brief to establish the element of possession. The court further held that, although the suppression court did not conduct a proper waiver colloquy before allowing defendant to represent himself at the pretrial suppression hearing, “the record as a whole demonstrate [d] that the defendant made a knowing, voluntary, and intelligent decision to waive his right to counsel and proceed pro se” (id. at 735). A Judge of this Court granted defendant leave to appeal (15 NY3d 780 [2010]).

II

££[B]efore proceeding pro se a defendant must make a knowing, voluntary and intelligent waiver of the right to counsel” (Arroyo, 98 NY2d at 103, citing People v Slaughter, 78 NY2d 485, 491 [1991] [in order for a defendant to ££forego( ) the benefits associated with the right to counsel. . . the court must be satisfied that (the defendant’s waiver) was unequivocal, voluntary and intelligent” (citations omitted)] and People v Vivenzio, 62 NY2d 775, 776 [1984] [“Regardless of his lack of expertise and the rashness of his choice, defendant could choose to waive counsel if he did so knowingly and voluntarily”]). As we emphasized in McIntyre — the foundation stone of our self-representation jurisprudence under article I, § 6 of the New York State Constitution — “[fimplicit in a defendant’s assertion of his right to defend pro se is the decision to disavow the constitutional right to counsel. For such a waiver to be effective, the trial court must be satisfied that it has been made competently, intelligently and voluntarily” (36 NY2d at 17).

To ascertain whether a waiver is knowing, voluntary and intelligent, a court must undertake a “ searching inquiry” designed to ££insur[e] that the defendant [is] aware of the dangers and disadvantages of proceeding without counsel” (People v Providence, 2 NY3d 579, 582 [2004] [internal quotation marks and citation omitted]; see also People v Sawyer, 57 NY2d 12, 21 [1982], rearg dismissed 57 NY2d 776 [1982], cert denied 459 US 1178 [1983] [to ascertain the validity of a waiver, “the court should undertake a sufficiently searching inquiry of the defendant to be reasonably certain that the dangers and disadvantages of giving up the fundamental right to counsel have been impressed on the defendant” (internal quotation marks omitted)]; People v Kaltenbach, 60 NY2d 797, 799 [1983] [court did not satisfy the duty to make a searching inquiry by declaring that defendant was entitled to legal representation, was facing a serious charge and, if convicted, might receive a year’s imprisonment because this “precautionary inquiry (did not) adequately warn defendant of the risks inherent in representing himself or apprise him of the value of counsel” (internal quotation marks omitted)]; Slaughter, 78 NY2d at 491 [suppression court failed to undertake sufficiently searching inquiry to be reasonably certain that defendant understood the dangers and disadvantages of proceeding pro se]; People v Smith, 92 NY2d 516, 520 [1998] [“To pass muster, a searching inquiry must reflect record evidence that defendants know what they are doing and that choices are exercised with eyes open” (internal quotation marks omitted)]; Arroyo, 98 NY2d at 103 [“In determining whether a waiver (is knowing, voluntary and intelligent), the court should undertake a searching inquiry of defendant” (internal quotation marks omitted)]). Additionally, a searching inquiry encompasses consideration of a defendant’s pedigree since such factors as age, level of education, occupation and previous exposure to the legal system may bear on a waiver’s validity (see Providence, 2 NY3d at 583; Arroyo, 98 NY2d at 104; Smith, 92 NY2d at 520).

“Although we have eschewed application of any rigid formula and endorsed the use of a nonformalistic, flexible inquiry, the court’s record exploration of the issue ‘must accomplish the goals of adequately warning a defendant of the risks inherent in proceeding pro se, and apprising a defendant of the singular importance of the lawyer in the adversarial system of adjudication’ ” (Arroyo, 98 NY2d at 104, quoting Smith, 92 NY2d at 520 [citing Kaltenbach, 60 NY2d at 799]; see also Providence, 2 NY3d at 583).

Finally, we have held that “a reviewing court may look to the whole record, not simply to the waiver colloquy, in order to determine if a defendant effectively waived counsel” (id.).

In Crampe, the town justice did not make the requisite searching inquiry to insure that defendant was aware of the drawbacks of self-representation before allowing him to go down that path. The form that he read aloud only pointed out that proceeding pro se brought with it the danger of conviction — a risk that also exists when the accused is represented by counsel — and that criminal trials and proceedings are complicated (cf. Vivenzio, 62 NY2d at 776 [waiver colloquy sufficient where, among other things, “(t)he court warned defendant forcefully that he did not have the training or knowledge to defend himself, that others who had done so had been unsuccessful and that if he insisted upon appearing pro se he would be held to the same standards of procedure as would an attorney”]).

The colloquy conducted by the suppression court in Win-gate was deficient for the same reason — the court’s inquiry did not direct defendant’s attention to the dangers and disadvantages of self-representation beyond the risk of a felony conviction. Conversely, the trial court engaged in an extensive colloquy with defendant, drawing his attention to the many challenges that he would face if he proceeded pro se rather than avail himself of legal representation. As a result, there is a sufficient showing that defendant’s decision to defend himself at trial was knowing, voluntary and intelligent. And certainly, it may logically be inferred from this record that nothing the suppression court might have said would have dissuaded defendant from representing himself at the pretrial hearing: he was impervious to the trial court’s later repeated and thorough explanations of the perils of defending himself at trial and the importance of counsel, and was dissatisfied with the attorneys assigned to represent him and, ultimately, with standby counsel as well. This may be what the Appellate Division meant when it decided that the “record as a whole” demonstrated a valid waiver of counsel and election to proceed pro se (70 AD3d at 735 [emphasis added]), citing Providence. There, we looked to the record as a whole to establish that the judge was already familiar with the defendant’s pedigree information when he engaged in the waiver colloquy. While the record as a whole may also be considered when a court assesses whether the accused is aware of the dangers of self-representation, we agree with defendant that this situation is very different. Simply put, the trial court’s warnings were incapable of retrospectively “curing” the suppression court’s error. The critical consideration is defendant’s knowledge at the point in time when he first waived his right to counsel, and his waiver then was not knowing, intelligent and voluntary.

It remains as true today as it was in 1974 that “the multifaceted problems generated by a motion to proceed pro se[ make] the task of the trial court . . . exceedingly difficult” (McIntyre, 36 NY2d at 14). A checklist might be helpful as a memory aid, but there is simply no one-size-fits-all format for a searching inquiry. And while the inquiry conducted by the trial judge in Wingate was exemplary, we do not mean to suggest that the colloquy there has created a template to be followed in every instance where a defendant seeks to proceed pro se.

As the United States Supreme Court suggested in Tovar, the scope of a searching inquiry turns on the context in which the right to counsel is waived. Justice Ginsburg explained that in Patterson v Illinois (487 US 285 [1988]), the Court “elaborated on ‘the dangers and disadvantages of self-representation’ to which Faretta referred” by observing that at trial, “ ‘counsel is required to help even the most gifted layman adhere to the rules of procedure and evidence, comprehend the subtleties of voir dire, examine and cross-examine witnesses effectively . . . , object to improper prosecution questions, and much more’ ” (Tovar, 541 US at 89, quoting Patterson at 300 n 13); and that warnings of the pitfalls of going to trial without counsel must therefore be “ ‘rigorous [ly]’ conveyed . . . [while] at earlier stages of the criminal process, a less searching or formal colloquy may suffice” (id., quoting Patterson at 298). Thus,

“Patterson describes a ‘pragmatic approach to the waiver question,’ one that asks ‘what purposes a lawyer can serve at the particular stage of the proceedings in question, and what assistance he could provide to an accused at that stage,’ in order ‘to determine the scope of the Sixth Amendment right to counsel, and the type of warnings and procedures that should be required before a waiver of that right will be recognized’ ” (id. at 90 [emphasis added], quoting Patterson at 298).

Accordingly, in People v Crampe, the order of the Appellate Term should be reversed and a new trial ordered; and in People v Wingate, the order of the Appellate Division should be modified by remitting to Supreme Court for a new suppression hearing. In the event defendant prevails at the suppression hearing, a new trial should be held; alternatively, in the event the People prevail, the judgment should be amended to reflect that result (Slaughter, 78 NY2d at 493; People v Millan, 69 NY2d 514, 521-522 [1987]). As so modified, the order in People v Wingate should be affirmed.

Chief Judge Lippman and Judges Ciparick, Graffeo, Smith, Pigott and Jones concur.

In People v Crampe: Order reversed, etc.

In People v Wingate-. Order modified, etc.

        Tovar resolved a conflict among federal courts of appeals concerning the proper application and interpretation of the Faretta decision. Specifically, some courts had interpreted Faretta to require a trial judge to conduct a searching inquiry or special hearing to insure that the accused understood the dangers and disadvantages of defending himself before allowing self-representation (essentially, the same way we interpreted the right-to-counsel provision in the state constitution), while other courts took the position that no searching inquiry or special hearing was required in order for an accused’s exercise of the right of self-representation to be considered knowing and intelligent (see McDowell v United States, 484 US 980, 980-981 [1987] [two-Justice dissent from the denial of a writ of certiorari]). For example, before Tovar the Second Circuit did not take Faretta to mean that a searching inquiry was constitutionally mandated (see Dallio v Spitzer, 343 F3d 553, 564-565 [2d Cir 2003] [court concludes in a habeas corpus proceeding that “neither Faretta’s holding nor its dictum clearly establishes that explicit warnings about the dangers and disadvantages of self-representation are a minimum constitutional prerequisite to every valid waiver of the right to counsel,” although such warnings are desirable to insure knowing and intelligent waivers]).


author: Chief Judge Lippman.

text:
    [957 NE2d 1133, 933 NYS2d 631]
    The People of the State of New York, Respondent, v Isidro Rodriguez, Appellant.
    Argued September 14, 2011;
    decided October 18, 2011

      POINTS OF COUNSEL

      Weil Gotshal & Manges, LLP, New York City (Evert J. Christensen, Jr., Seth Goodchild and Robert V. Spake, Jr., of counsel), and Office of the Appellate Defender (Richard M. Greenberg and Eunice C. Lee of counsel) for appellant.
    Isidro Rodriguez’s conviction should be reversed as legally insufficient because the People failed to prove an intent to use the forged identification documents found in his possession to defraud, deceive or injure. (People v Contes, 60 NY2d 620; Jackson v Virginia, 443 US 307; People v Patterson, 39 NY2d 288; People v Stevens, 109 NY 159; People v Bailey, 13 NY3d 67; People v Brunson, 66 AD3d 594; People v Bracey, 41 NY2d 296; People v Dallas, 46 AD3d 489.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Deborah L. Morse and Gina Mignola of counsel), for respondent.
    The decision of the Appellate Division fully comported with the governing legal principles as set out by this Court, and there was legally sufficient trial proof of the requisite fraudulent intent. (People v Bailey, 13 NY3d 67; People v Cabey, 85 NY2d 417; Matter of Kevin B., 128 AD2d 63; People v McDonald, 88 NY2d 281; People v Caraballo, 138 AD2d 725; People v Sanchez, 86 NY2d 27; People v Bracey, 41 NY2d 296; United States of Am. v MacPherson, 424 F3d 183; Mallette v Scully, 752 F2d 26; People v Dallas, 46 AD3d 489.)
   OPINION OF THE COURT

Chief Judge Lippman.

The question before the Court is whether the evidence in this case was legally sufficient to convict the defendant of criminal possession of a forged instrument in the second degree. We hold that it was.

In March 2007, as part of a criminal investigation, New York City Police Detective Steven Goetz interviewed a complainant who provided him with the name, photograph, and phone number of a possible suspect whom she identified as Devine Perez. Goetz called the phone number and spoke to a person who identified himself as Devine Perez and who told Goetz that he was in Hartford, Connecticut and would be unable to come in to meet with the detective. Later that month, Goetz received information suggestive of the possible suspect’s whereabouts. On March 19, 2007, while driving to that location, the detective spotted a man on the street whom he recognized to be the person in the photograph given to him by the complainant. Detective Goetz exited his vehicle and arrested the man, defendant Isidro Rodriguez. During the course of a search incident to arrest, Detective Goetz found the following items: a forged New York State driver’s license bearing defendant’s photograph, a forged New York State non-driver identification card bearing defendant’s photograph, a forged Social Security card, a forged permanent resident card (“green card”) bearing defendant’s photograph, four loose ID-sized photographs of defendant, and identification documents indicating defendant’s true identity. Defendant’s genuine identification documents were found in a wallet in his pocket, while the false documents, all in the name of Louis Amadou, were also found in his pocket but were not in his wallet. Upon arrest, Detective Goetz observed that defendant was wearing a tan corduroy suit jacket that defendant also appeared to be wearing in the photographs found in his possession.

Following a jury trial, defendant was convicted of four counts of criminal possession of a forged instrument in the second degree. The Appellate Division affirmed defendant’s conviction (71 AD3d 450 [1st Dept 2010]), holding that there was sufficient circumstantial evidence from which the jury could rationally have inferred that defendant possessed the forged documents with intent to defraud, deceive, or injure, as required to sustain a conviction for criminal possession of a forged instrument as defined by Penal Law § 170.25. A Judge of this Court granted defendant leave to appeal (15 NY3d 777 [2010]), and we now affirm.

Evidence is sufficient to sustain a conviction where “ ‘there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial’ ” (People v Mateo, 2 NY3d 383, 409 [2004] [citations omitted]). “A person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in section 170.10” (Penal Law § 170.25). Forged government identification cards fall under one category of documents specified in Penal Law § 170.10.

Because intent is an “ ‘invisible operation of [the] mind’ ” (People v Samuels, 99 NY2d 20, 24 [2002] [citation omitted]), direct evidence is rarely available (in the absence of an admission) and is unnecessary where there is legally sufficient circumstantial evidence of intent (see People v Bracey, 41 NY2d 296, 301 [1977] [noting that “intent can also ‘be inferred from the defendant’s conduct and the surrounding circumstances’ ” (citation omitted)]).

Defendant, relying on People v Bailey (13 NY3d 67 [2009]), argues that the evidence of intent was insufficient in this case because he was arrested on a public street and as such there were no surrounding circumstances from which the inference of intent could permissibly be drawn.

In Bailey, the defendant was observed by police officers for a period of time before his arrest entering and exiting several fast food restaurants. During that time he never engaged in any conduct evincing intent to use the counterfeit bills in his possession to defraud anyone, nor were there any circumstances surrounding his arrest which suggested that he had the intent to do anything other than steal from the patrons of the restaurants he visited. In reversing the conviction for criminal possession of a forged instrument in the first degree, we made clear that intent cannot be presumed from knowing possession alone unless there is a statute establishing such a presumption (see id. at 72).

In contrast to Bailey, here there are several factors which, taken together, form a sufficient basis for the permissible inference that defendant acted with the requisite intent. Here, defendant had a motive to assume a false identity because he was aware that the police were searching for him. Furthermore, the fact that three of the four documents found in defendant’s possession bear his photograph provides a sound basis for the inference that defendant actively participated in manufacturing the false identification documents (compare People v Brunson, 66 AD3d 594 [1st Dept 2009]). Upon inspecting the forged documents to which defendant’s photograph was affixed, the jury could rationally have determined that the items contained photographs of defendant because he posed for the photographs for the purpose of making the documents and that he subsequently made the documents, assisted in the creation of the documents, or directed someone else to make them. Also, defendant was observed, upon arrest, wearing a tan corduroy suit jacket which appears to be the same suit jacket he is seen wearing in the loose photographs found in his possession. From this it was permissible for the jury to infer that defendant was recently involved in the production of the false documents and that he retained the intent to defraud at the time of his arrest.

Moreover, defendant carried the false documents separately from his true identification which leads to the inference that he wanted to keep the two separate so that he could quickly and easily produce one or the other, as needed. Finally, defendant sent a letter to the court requesting to plead guilty. While the letter did not include an express admission of intent, the jury could have evaluated the evidence to be supportive of a finding that defendant had the requisite intent and was admitting as much by requesting to plead guilty.

A conviction for criminal possession of a forged instrument in the second degree requires both knowing possession and intent. Penal Law § 170.25 does not, however, require use or attempted use as an element of the crime (a person is guilty under the statute if he or she utters or possesses a forged instrument, so long as that person also has the requisite intent). Nor does Penal Law § 170.25 require that the contemplated use be imminent. In sum, there are cases in which, in the absence of use or attempted use, and in the absence of a statutory presumption of intent, there is nevertheless legally sufficient circumstantial evidence of intent to defraud, deceive, or injure. This is such a case. The evidence adduced at trial established more than defendant’s knowing possession of four forged instruments. It provided a solid basis for the jury to infer that defendant had the requisite intent to defraud, deceive, or injure and for it to conclude rationally that defendant was guilty beyond a reasonable doubt.

Accordingly, the order of the Appellate Division should be affirmed.

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Order affirmed.

      . This search is not challenged on this appeal.

        . The first name of the alias was misspelled on one of the documents.

      . Penal Law § 170.10 (3) references a forged instrument that purports to be “[a] written instrument officially issued or created by a public office, public servant or governmental instrumentality.”

      . The only presumption of intent set forth in Penal Law article 170 pertains to the possession of forged credit or debit cards (see Penal Law § 170.27).


author: Chief Judge Lippman. Smith, J.

text:
    [958 NE2d 72, 934 NYS2d 38]
    Alexander Lifson, as Executor of Irene Lifson, Deceased, Appellant, v City of Syracuse, Defendant, and Derek Klink, Respondent.
    Argued September 8, 2011;
    decided October 13, 2011

      POINTS OF COUNSEL

      Longstreet & Berry, LLP, Syracuse (Michael J. Longstreet of counsel), for appellant.
    I. The trial court erred in charging the discredited sun glare excuse under the guise of an emergency. (Caristo v Sanzone, 96 NY2d 172; Rivera v New York City Tr. Auth., 77 NY2d 322; Kuci v Manhattan & Bronx Surface Tr. Operating Auth., 88 NY2d 923; Ferrer v Harris, 55 NY2d 285; Martin v Herzog, 228 NY 164; Jacobellis v New York State Thruway Auth., 51 AD3d 976; Romero v Metropolitan Suburban Bus Auth., 25 AD3d 683; Barton v Youmans, 13 AD3d 1151; Wenz v Shafer, 293 AD2d 742; Roviello v Schoolman Transp. Sys., Inc., 10 AD3d 356.) II. The refusal to grant the emergency charge in favor of Irene Lifson was erroneous. (Raimondo v Harding, 41 AD2d 62; Scott v State of New York, 27 AD2d 961; Wolfson v Darnell, 15 AD2d 516, 12 NY2d 819; Gajjar v Shah, 31 AD3d 377; Madden v Mullet, 211 AD2d 623; Flanel v Maglione Italian Ices, 266 AD2d 505; Batal v Associated Univs., 293 AD2d 558.) III. The court erroneously defined the location of the crosswalk. (Fan v Buzzitta, 42 AD2d 40; Vanbenschoten v Pitarys, 284 AD2d 912; People v County of Westchester, 282 NY 224; Farnsworth v Village of Potsdam, 228 AD2d 79; Petrowski v

      Abraham, 265 AD2d 901; Donnelly v Village of Perry, 88 AD2d 764; Lloyd v Village of Walton, 57 App Div 288; Finnegan v Mayer, 200 App Div 855.) IV. Derek Klink was negligent as a matter of law. (Perez v Paljevic, 31 AD3d 520; Safran v Amato, 155 AD2d 653; Larmer v Boyd, 202 AD2d 982; Johnson v Ahmed, 63 AD3d 1108; Finkel v Benoit, 211 AD2d 749; Larsen v Spano, 35 AD3d 820; Weigand v United Traction Co., 221 NY 39; Bolta v Lohan, 242 AD2d 356; Doxtader v Janczuk, 294 AD2d 859; Perez v Brux Cab Corp., 251 AD2d 157.) V. Expert testimony placing Irene Lifson outside the crosswalk was speculative. (In-glut v Consolidated Rail Corp., 185 AD2d 614; Northrop v Smith, 37 AD2d 1014; Saba v Montgomery, 125 AD2d 902; Thomas v New York City Tr. Auth., 194 AD2d 663; Hodge v Losquadro Fuel Corp., 29 AD3d 861; Pascuzzi v CCI Cos., 292 AD2d 685; People v Jones, 73 NY2d 427; Cilio v Resjefal Corp., 16 AD3d 339; Gomez v New York City Hous. Auth., 217 AD2d 110; Neidert v Austin S. Edgar, Inc., 204 AD2d 1030.)

      Costello, Cooney & Fearon, PLLC, Syracuse (Donald S. DiBenedetto and Jennifer L. Nuhfer of counsel), for respondent.
    I. The Appellate Division, Fourth Department, correctly held that the emergency instruction was properly charged to the jury. (Caristo v Sanzone, 96 NY2d 172; Rivera v New York City Tr. Auth., 77 NY2d 322; Palmer v Rouse, 232 AD2d 909; Ferrer v Harris, 55 NY2d 285; Durham v Melly, 14 AD2d 389; Insurance Co. of State of Pa. v Just Mgt. Corp., 55 AD3d 676; Artessa v City of Utica, 23 AD3d 1148; Amaro v City of New York, 40 NY2d 30; Kuci v Manhattan & Bronx Surface Tr. Operating Auth., 88 NY2d 923; Benitez v Olson, 6 AD3d 560.) II. The Appellate Division, Fourth Department, properly held that Supreme Court’s refusal to give the emergency instruction in favor of plaintiff was not reversible error. (Quain v Buzzetta Constr. Corp., 69 NY2d 376; Sweeney v Linde, 59 AD3d 948.) III. The Appellate Division, Fourth Department, correctly held that Supreme Court properly instructed the jury on the unmarked crosswalk. (Quain v Buzzetta Constr. Corp., 69 NY2d 376; Fan v Buzzitta, 42 AD2d 40; Vanbenschoten v Pitarys, 284 AD2d 912; Hodge v Losquadro Fuel Corp., 29 AD3d 861; Cilio v Resjefal Corp., 16 AD3d 339; Interstate Cigar Co. v Dynaire Corp., 176 AD2d 699; Mahon v Giordano, 30 AD2d 792.) IV. Derek Klink was not negligent as a matter of law. (Quain v Buzzetta Constr. Corp., 69 NY2d 376; Olson v Dougherty, 128 AD2d 920; Fannon v Metropolitan Transp. Auth., 133 AD2d 211; Shachnow v Myers, 229 AD2d 432; Nazario v Stalica, 272 AD2d 903; McLean v Dessert, 267 AD2d 962; Gianniosis v LID Mgt. & Finishing

      Serv. Co., 194 AD2d 413; Mancuso v Compucolor, Inc., 172 AD2d 153; Johnson v Ahmed, 63 AD3d 1108; Finkel v Benoit, 211 AD2d 749.) V. Plaintiff concedes that this Court has no power to review the Appellate Division, Fourth Department’s holding rejecting plaintiffs contention that the verdict was against the weight of the evidence.
   OPINION OF THE COURT

Chief Judge Lippman.

Defendant Klink was the driver of an automobile that struck plaintiffs decedent, Irene Lifson, while she was crossing the street, causing her death. Pursuant to Klink’s claim that the accident occurred while he was temporarily blinded by sun glare, the trial court instructed the jury on the emergency doctrine in his favor. We find that, under these circumstances, it was error to give the jury the emergency instruction.

Both Lifson and Klink worked in the MONY Plaza, a large office complex in Syracuse containing two 20-story high-rise office towers. MONY Plaza is located across the street from the Harrison Street Garage, where many of the employees park their cars during the work day. There is, as a result, a substantial amount of pedestrian traffic crossing Harrison Street between the towers and the garage, particularly during rush hours. Pedestrians would commonly cross Harrison Street where the MONY Towers’ exit lines up with the entrance to the garage, despite the absence of a marked crosswalk at that location.

On February 29, 2000, the day of the accident, Klink retrieved his car after work. At approximately 4:05 p.m., he was attempting to make a left-hand turn onto Harrison Street from Harrison Place. Harrison Street is a three-lane, one-way road, with traffic running from east to west. Klink had been proceeding north on Harrison Place, which forms a “T” intersection with Harrison Street and was waiting to turn to the west. Although Klink worked at the MONY Towers, he testified that he was not familiar with driving this particular route because he parked in different locations throughout the city, rather than in the same place every day.

Klink testified that he stopped at the stop sign to make the left turn onto Harrison Street, but that his view of oncoming traffic was partially obstructed by parked cars in the left-hand lane of Harrison Street and he had to “creep up” in order to see the approaching vehicles. He had noticed that there were pedestrians crossing Harrison Street to his left, but he also asserted that he had looked in that direction and “cleared the road” before making the turn. He further testified that he had been looking to his right, toward the oncoming traffic when he started turning. He maintained that, when he looked back to his left, mid-turn, he was blinded by the sun, “all of a sudden.” His reaction was to look down and to his right and, when he looked up, the first object he saw was Ms. Lifson. Although he applied the brakes, he was unable to avoid hitting her, having seen her only a fraction of a second prior to impact. At the time of the accident, Ms. Lifson had been wearing a red coat. There was no evidence that Ms. Lifson darted out in front of Klink’s car, or that Klink was traveling at an excessive rate of speed.

Plaintiff commenced this action against Klink and the City of Syracuse alleging causes of action in negligence and failure to study/plan for pedestrian traffic. The ensuing trial was limited to the issue of liability. As noted, pursuant to Klink’s request and over plaintiffs objection, the trial court gave the jury an emergency doctrine instruction in Klink’s favor. The instruction generally conveyed to the jury that it had to determine whether Klink was in fact confronted with an emergency situation not of his own making and, if so, whether his conduct in response to that situation was that of a reasonably prudent person. The jury was free to reject both of those propositions, but if it determined that he had faced an emergency situation and acted reasonably, it was to find for Klink.

The jury returned a verdict attributing negligence to the City of Syracuse and Ms. Lifson and apportioning fault at 15% and 85%, respectively. Klink was found not negligent and the action was dismissed as against him.

The Appellate Division affirmed, finding that the emergency instruction was properly given, as there was a reasonable view of the evidence showing that the sun glare was a sudden and unforeseen occurrence (72 AD3d 1523 [2010]). One Justice dissented and would have found that Klink was not entitled to an emergency instruction because the sun glare should have been anticipated and was not unexpected in light of the circumstances surrounding the accident, including the sunny weather and the time of day. We granted plaintiff leave to appeal and now reverse.

The common-law emergency doctrine

“recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency” (Caristo v Sanzone, 96 NY2d 172, 174 [2001] [internal quotation marks and citation omitted]).

The doctrine recognizes that a person confronted with such an emergency situation “cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision” (Rivera v New York City Tr. Auth., 77 NY2d 322, 327 [1991] [citations omitted]). We have, however, acknowledged that the

“rationale for this doctrine . . . has been somewhat eroded by the evolution from contributory negligence to comparative negligence. With the advent of the ability of juries to allocate fault and apportion damages, the viability of the doctrine has been questioned by some jurisdictions, with a few states going so far as to abolish it” (Caristo, 96 NY2d at 174).

The trial judge must make the threshold determination whether a reasonable view of the evidence supports the existence of a qualifying emergency (see Caristo, 96 NY2d at 175). When reviewing the determination that an emergency instruction was warranted, we evaluate the evidence in the light most favorable to the party requesting the charge (see Caristo, 96 NY2d at 175).

In Caristo, the trial court gave an emergency instruction in favor of the defendant, who had been driving in icy conditions when his car slid down a hill, past a stop sign and hit the plaintiffs vehicle. We reversed and ordered a new trial, finding no view of the evidence to support the conclusion that defendant faced a qualifying emergency. Specifically, since defendant had been aware of the poor and deteriorating weather conditions that had existed for at least two hours, the resulting icy conditions on the road could not be considered “sudden and unexpected” (see Caristo, 96 NY2d at 175).

By contrast, in Ferrer v Harris (55 NY2d 285 [1982]) we found that the defendant driver, whose vehicle struck a child who ran out into the street, was entitled to an emergency doctrine charge. The defendant had testified that he was driving well below the posted speed limit and that he stopped abruptly when he saw the child step off the sidewalk and run into the street between the parked cars. We determined that “it [was] more than conceivable that a jury could conclude that this defendant was faced with an emergency” (Ferrer, 55 NY2d at 292).

The situation presented in this case bears closer resemblance to that in Caristo. While Klink did not drive this particular route often, he was familiar with the general area since he worked in the MONY Towers. Klink was about to turn to the west at a time of day that the sun would be setting. It is well known, and therefore cannot be considered a sudden and unexpected circumstance, that the sun can interfere with one’s vision as it nears the horizon at sunset, particularly when one is heading west. This is not to say that sun glare can never generate an emergency situation but, under the circumstances presented, there is no reasonable view of the evidence under which sun glare constitutes a qualifying emergency.

Moreover, the error in giving the emergency instruction was not harmless. The improper charge permitted the jury to consider Klink’s action under an extremely favorable standard. Because the application of that instruction to the facts presented could have affected the outcome of the trial, it was not harmless error (see e.g. Garricks v City of New York, 1 NY3d 22, 27 [2003]).

Plaintiffs remaining contentions are without merit.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, the amended complaint reinstated as against defendant Derek Klink, and the case remitted to Supreme Court for further proceedings consistent with this opinion.

Smith, J.

(dissenting). Plaintiffs argument here rests on the seemingly obvious proposition that no one should be surprised to find the sun setting in the west. I admit that sunset is a foreseeable event. Yet surely everyone who has driven a car knows that good drivers are sometimes surprised to find the sun in their eyes. Drivers cannot be expected to have always at the forefront of their minds the time of day, the season of the year, the direction they are traveling, the weather conditions and the presence or absence of obstruction in a particular spot. Therefore, sun glare, as the majority appears to acknowledge, can sometimes present an emergency situation (majority op at 498).

In deciding whether an emergency instruction was properly given, the issue is not whether the emergency was foreseeable; it is whether it was sudden and unexpected. Our cases illustrate the distinction. In Ferrer v Harris (55 NY2d 285 [1982]), the defendant driver was passing a park where he knew that children played, and it was obviously foreseeable that a child would step in front of his car; but the event was sudden and unexpected when it happened, and the driver was therefore entitled to an emergency instruction. In Amaro v City of New York (40 NY2d 30 [1976]), plaintiff was a firefighter who was injured in a firehouse while responding to a fire alarm; we held that the alarm, foreseeable as it was for that plaintiff in that location, was sudden and unexpected and that the plaintiff was properly accorded the benefit of an emergency charge. In Kuci v Manhattan & Bronx Surface Tr. Operating Auth. (88 NY2d 923, 924 [1996]), the defendant’s employee, a bus driver, was familiar with the intersection where the accident occurred and knew “that cars frequently turned right from the left lane in front of buses in this area.” We nevertheless held that it was error to deny an emergency charge, because the driver’s general awareness that such turns often happen “would not preclude a jury from deciding that, as to the events in issue in this case, the driver did not anticipate being suddenly cut off by this particular car” (id.).

Caristo v Sanzone (96 NY2d 172 [2001]) appears to be the only case in which we have held an emergency instruction was improperly given. There, the defendant was driving in bad weather — a mixture of snow, frozen rain and hail. The claimed emergency was that he encountered a sheet of ice. We held, five to two, that in view of the driver’s knowledge of the weather conditions “the presence of ice on the hill cannot be deemed a sudden and unexpected emergency” (id. at 175). Caristo thus holds that no one driving through such conditions, while exercising reasonable care, could be surprised to find that the road was icy.

A similar holding is not justified here. The record, read most favorably to Klink, shows that he was driving on a city street, where buildings sometimes do and sometimes do not block the sun, and that he was unfamiliar with the route. A jury could surely find that he did not calculate the direction of his travel, the time of day and the time of year so precisely that he expected to find the sun in his eyes when he turned. The emergency instruction was properly given.

Judges Ciparick, Graffeo, Pigott and Jones concur with Chief Judge Lippman; Judge Smith dissents in a separate opinion in which Judge Read concurs.

Order, insofar as appealed from, reversed, etc.

      . The action is not final as to the City of Syracuse and the City is not a party to this appeal.

      . The action was discontinued as against a third defendant (CGU Insurance) by stipulation dated October 14, 2002.