# People v. Providence

> Appellate Division of the Supreme Court of the State of New York · August 28, 2003 · 308 A.D.2d 200

URL: https://www.frixlaw.com/law-library/cases/6098386

## Case

- **Full name:** The People of the State of New York v. Eric Providence
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** August 28, 2003
- **Citations:** 308 A.D.2d 200; 764 N.Y.S.2d 32; 2003 N.Y. App. Div. LEXIS 9063
- **Precedential status:** Published
- **Opinion:** Dissent by Tom
- **Judges:** Sullivan, Tom
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Tom, J.P.
(dissenting). Inasmuch as the court’s colloquy with defendant in connection with his request to proceed pro se did not comply with the Court of Appeals’ specific mandate in People v Arroyo ( 98 NY2d 101 [2002]), I conclude that a reversal is compelled. Although the trial court did discuss defendant’s request and explored the advisability of proceeding with counsel, nevertheless the “searching inquiry” that has been required was not satisfied (Arroyo at 103 ). Arroyo specifically requires as part of this showing that the record “affirmatively disclose that a trial court has delved into a defendant’s age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver” (Arroyo at 104 , quoting People v Smith, 92 NY2d 516, 520 [1998]). Here, the record is clear that the trial court failed to make a “searching inquiry” to adequately evaluate defendant’s competency to waive counsel, and to apprise him of the risks of self-representation and the importance of legal representation. Although I realize that in the next sentence, the Arroyo decision eschews reliance on any “rigid formula” {id.), nevertheless the decision does articulate that these factors must be explored by the court and that a record must be made of such which was not done in the present case. Additionally, although the present case predated Arroyo , it postdated Smith , which constrains our analysis. Although, as the majority points out, defendant’s court file included personal information regarding his age, educational level, occupation and previous exposure to the court system, the record provides no assurance that these were ever reviewed or even considered by the trial judge. In the face of the record’s silence, we cannot assume that they were factors in the court’s evaluation of defendant’s request bearing on a competent, intelligent and voluntary waiver. The court is required to make an appropriate record to reflect that it had considered these relevant factors so as to evaluate defendant’s ability to understand the court’s warning concerning self-representation (People v Arroyo, supra). The court failed to do so. While the majority faults *206 this analysis as exalting form over substance, the complaint is misplaced for present purposes: the rule originates with the Court of Appeals.
Williams and Gonzalez, JJ., concur with Sullivan, J.; Tom, J.P., and Mazzarelli, J., dissent in a separate opinion by Tom, J.P.
Judgment, Supreme Court, New York County, rendered April 23, 2001, affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6098386. Public record. Not legal advice.