
    The People of the State of New York, Respondent, v Ronald Mitchell, Appellant.
    Argued March 28, 1984;
    decided May 8, 1984
    
      POINTS OF COUNSEL
    
      Richard A. Insogna for appellant.
    I. The Town Justice in the trial court was not impartial and acted erroneously and contrary to the decisions of this court when she failed to insure and safeguard appellant’s right to counsel and right to due process of law through the making of a “searching inquiry” which sufficiently and reasonably assured that appellant appreciated the dangers and disadvantages of giving up the fundamental right to counsel before she allowed him to proceed in said fashion. (People v Settles, 46 NY2d 154; People v White, 56 NY2d 110; People v Sawyer, 57 NY2d 12.) II. The holding of this court in People v White (56 NY2d 110) should additionally be examined in light of the facts involved in this action, when it is considered that the offenses filed in the trial court were criminal in nature, carried the possible imposition of imprisonment, and in fact resulted in the imprisonment of appellant. III. The Town Justice in the trial court below acted both partially and erroneously in acting in a capacity which fairly could be classified as one of a prosecutor in passing sentence and denying youthful offender adjudication to appellant. IV. The acts committed by appellant which were alleged to support the accusatory instrument which is the subject of this appeal, do not support said offense; the accusatory instrument is therefore jurisdictionally defective and should be dismissed by this court. (People v McGuire, 5 NY2d 523; People v Sambounis, 251 NY 94; People v Case, 42 NY2d 98; People v Harper, 37 NY2d 96; People v Mehdi, 29 NY2d 824; People v Munafo, 50 NY2d 326; People v Pritchard, 27 NY2d 246.) V. The denial of youthful offender adjudication to appellant by the trial court, while discretionary, constituted an abuse of discretion. (People v Cecil Z., 57 NY2d 899.)
    
      JohnB. Poersch, District Attorney {Alfred D. Chapleau of counsel), for respondent.
    I. Defendant-appellant’s right to counsel and to due process of law were protected by the Trial Justice and defendant-appellant made a willful and knowing waiver of his right to counsel prior to the entry of his plea of guilty. (People v White, 56 NY2d 110; People v Sawyer, 57 NY2d 12; Scott v Illinois, 440 US 367; People v Farinaro, 36 NY2d 283.) II. The Town Justice involved here, at all times, conducted herself in a judicious manner. III. The accusatory instrument to which defendant-appellant pleaded guilty was legally and factually sufficient. (People v Kazmarick, 52 NY2d 322; People v Cohen, 52 NY2d 584; People v Iannone, 45 NY2d 589.) IV. The denial of youthful offender status by the trial court was well within the trial court’s discretion and such discretion was properly exercised.
   OPINION OF THE COURT

Jasen, J.

Once defendant has indicated an interest in having counsel assigned during a criminal proceeding, a defendant may waive such counsel in the presence of a neutral magistrate, but only where the court has first undertaken a sufficient inquiry to insure that defendant appreciates the dangers and disadvantages inherent in giving up his right to counsel.

In the early hours of a cold winter’s morning, defendant, a 17-year-old male who had briefly left home on foot after a familial argument, telephoned the State Police and misrepresented that he had been involved in an automobile collision with a deer. Upon the arrival of State troopers and their discovery of defendant’s ploy, defendant was arrested and charged with falsely reporting an incident in the third degree (Penal Law, § 240.50, subd 1) and obstructing governmental administration (Penal Law, § 195.05). Defendant appeared in Justice Court, Town of Duanesburg, for arraignment and pleaded not guilty to both charges. A few weeks later, defendant reappeared with his mother, elected to proceed without counsel, and entered pleas of guilty to the informations. Thereafter, a probation report was prepared and the Town Justice denied youthful offender adjudication and imposed two definite sentences of imprisonment to be served consecutively, to wit: 60 days for falsely reporting an incident and 90 days for obstructing governmental administration. Defendant was committed to the custody of the Schenectady County Sheriff and began serving the sentence. Subsequently, defendant’s mother contacted her personal attorney who inquired of the Town Justice whether the court would entertain a motion to permit defendant to withdraw his previous pleas, but the court was not inclined to do so.

Defendant appealed the convictions to the County Court of Schenectady County and was released on bail, as he has since remained throughout the appeals process. On the People’s request, County Court dismissed the charge for obstructing governmental administration as jurisdiction-ally defective and vacated the conviction and sentence imposed thereon. However, the court affirmed defendant’s conviction and sentence for falsely reporting an incident, rejecting each of defendant’s challenges, including the claim that waiver of counsel was ineffective. In upholding the conviction, the court held that the Town Justice, after having twice advised defendant that he was entitled to counsel and to the appointment of one if he could not afford to retain his own, was justified in permitting the defendant to forego the assistance of counsel. On that critical point we disagree.

The record before us, including defendant’s affidavit of errors and the Town Justice’s return summarizing the proceeding in the trial court, reveals no colloquy between the Town Justice and the defendant sufficient to insure that the defendant knowingly and intelligently waived his constitutional right to counsel before pleading guilty to the charges against him. (Matter of Lawrence S., 29 NY2d 206, 208; People v Seaton, 19 NY2d 404, 406; see, also, Johnson v Zerbst, 304 US 458, 465; People v Gina M, M., 40 NY2d 595, 597; cf. People v Harris, 61 NY2d 9, 19.) The record, although not entirely clear, indicates that on February 17, 1982, defendant initially informed the Town Justice of his interest in having counsel assigned, and that the Town Justice noted the following on the arraignment memorandum: “Court to assign attorney after consulting with ADA Callahan — if necessary. Adjourned to 3/3/82”. Subsequently, however, upon his reappearance in court on the second adjourned date (March 17,1982) and after consultation with his mother, defendant pleaded guilty in the absence of counsel, the Town Justice merely noting on the arraignment memorandum that “defendant and mother did not want attorney assigned”.

As this court has previously held, a defendant may be permitted to proceed without the presence of previously retained counsel, but only after the trial court has first undertaken a sufficient inquiry to insure that the defendant appreciates the dangers and disadvantages inherent in proceeding by himself. (People v White, 56 NY2d 110, 117.) Likewise, once a defendant has indicated an interest in counsel being assigned, the Trial Judge may not accept the defendant’s subsequent waiver of right to counsel and plea of guilty unless the Judge has made an adequate inquiry of the defendant to determine whether the defendant understands the risks and consequences of his actions. (Cf. People v Gina M. M., supra, at p 597; see, also, People v Kaltenbach, 60 NY2d 797, 798; People v Sawyer, 57 NY2d 12, 21.)

So judged, we hold that the record before us does not support a finding that defendant’s waiver of counsel was effective. Nowhere do we find in the record that the Town Justice made any precautionary inquiry to insure that defendant, in waiving counsel, appreciated the value of being represented by counsel and the difficulties and pitfalls of proceeding without one. All that the record discloses is that the defendant was informed by the Town Justice that he was entitled to be represented by counsel and that one would be appointed if he could not afford one. More than that was required to have an effective waiver of counsel.

Accordingly, the judgment of conviction, plea of guilty and sentences imposed should be vacated. The order of Schenectady County Court appealed from should be reversed, and the case remitted to the Town of Duanesburg Justice Court for further proceedings on the information which was legally sufficient. In so deciding, we need not reach defendant’s other contentions.

Chief Judge Cooke and Judges Jones, Wachtler, Meyer, Simons and Kaye concur.

Order reversed and case remitted to the Town of Duanesburg Justice Court for further proceedings on the information.  