
    The People of the State of New York, Respondent, v Paul Wicks, Appellant.
    Argued February 15,1990;
    decided April 3, 1990
    
      POINTS OF COUNSEL
    
      Michael J. Hutter for appellant.
    
      
      Roger H Mallery, District Attorney, for respondent.
   OPINION OF THE COURT

Per Curiam.

The question we confront today is that expressly left open in People v Hodge (53 NY2d 313): whether harmless error analysis applies to the failure to provide counsel to a criminal defendant at a preliminary hearing pursuant to CPL 180.10. While harmless error analysis is inapplicable to alleged errors depriving a defendant of effective assistance of counsel at his trial or generally during the course of his prosecution, we conclude that in the limited circumstances of a preliminary hearing intended only to determine whether a defendant may be held over for action by the Grand Jury, harmless error analysis is applicable. We further conclude that in the circumstances of this case, the error was harmless beyond a reasonable doubt. Accordingly, we affirm the order of the Appellate Division upholding defendant’s conviction.

I

The charges against defendant arose out of his alleged attacks upon several women in the dormitories at the State University of New York Technical Institute at Cobleskill (SUNY) in Schoharie County. Although considerably older than the average student, defendant had matriculated the university and was well known by some members of the student body. On October 3, 1986, between 5:35 a.m. and 6:20 a.m., defendant unlawfully entered four dormitory rooms occupied by female students, touched them, fondled them and, in one instance, attempted a rape. Defendant was identified later that morning by one of the victims, who picked out his photograph from a series of student photographs at the office of campus security. He was arrested that afternoon and arraigned in the local criminal court.

On October 9, 1986, a preliminary hearing was held to determine whether defendant could be held for action by the Grand Jury (CPL 180.10). Although defendant requested counsel at his arraignment, no attorney had been appointed by the day of the hearing. Nevertheless, the hearing court decided to proceed. At the hearing one of the victims and the school’s director of public safety testified for the prosecution. The victim testified that on the morning of October 3, 1986, she awoke to find a man lying naked in the bed beside her while fondling her. She further testified that she ran out of the room, but, concérned about her roommate, she returned and told the man to leave. He complied and she then reported the incident to a resident advisor, the dorm director and the university office of public safety. She viewed five photographs at the office of public safety and identified the defendant. William Mercier, the director of public safety, testified as to the five photographs the victim viewed and that she chose the defendant’s photograph. Defendant did not cross-examine either witness, object to the prosecutor’s questions or call any witnesses on his own behalf. The court ruled that he was to be held for action by the Grand Jury.

Defendant was tried and convicted on all the counts in the indictment returned by the Grand Jury — first degree attempted rape, second degree burglary and third degree sexual abuse. The public safety director, but not the victim, testified at the Wade hearing although both testified at the trial. The victim’s trial testimony was completely consistent with her testimony at the preliminary hearing.

On appeal to the Appellate Division, defendant argued, for the first time, that the hearing court erred in conducting the preliminary hearing in the absence of his attorney. That court concluded that the issue was unpreserved, but held that, in any event, the error was harmless beyond a reasonable doubt. Defendant appeals by leave of a Judge of this court, and we now affirm.

II

Unquestionably, the denial of counsel to defendant at his preindictment preliminary hearing was error of constitutional dimension (Coleman v Alabama, 399 US 1) and a statutory violation as well (CPL 180.10 [3]). Contrary to the conclusion of the Appellate Division, the error is preserved for our review. The record reveals that the defendant requested counsel at his arraignment and the statements of the Village Justice at the time of the CPL 180.10 hearing establish that the Justice was fully aware of the error in proceeding with the hearing in the absence of counsel for the defendant. The question presented for our review then, is whether such an error is per se reversible or whether it may be subject to harmless error analysis.

Defendant argues that our decision in People v Hodge (53 NY2d 313, supra) mandates a new trial in every instance where a defendant is denied his right to counsel at a CPL 180.10 preliminary hearing. This argument, however, misreads Hodge, which expressly left open the question of whether harmless error analysis was applicable to the denial of effective assistance of counsel at such a preliminary hearing (id., at 320). In Hodge, we distinguished a deprivation of counsel at a CPL 180.10 hearing from a denial of effective assistance of counsel at trial, reasoning that the latter right is " 'too fundamental’ ” to permit speculations as to the presence or absence of prejudice (id., quoting Glasser v United States, 315 US 60, 76). This is because unlike other trial errors, a denial of effective assistance of counsel at trial invalidates the trial itself (People v Felder, 47 NY2d 287, 296). Similarly, we have held that denial of a defendant’s access to his attorney for a period of 30 days after his arraignment denies the defendant his fundamental right to a fair trial and therefore is not subject to harmless error analysis (People v Hilliard, 73 NY2d 584).

The denial of counsel at a preindictment preliminary hearing, however, does not necessarily invalidate the trial. Pursuant to CPL 180.10 (1), the purpose of the hearing is to determine whether or not the defendant may be bound over for action by the Grand Jury on the charges in the felony complaint. If a defendant prevails at the hearing, he must be released and the felony complaint dismissed, but the Grand Jury is nevertheless free to indict upon its independent determination that there is legally sufficient evidence that crimes have been committed and reasonable cause to believe that the defendant committed the crimes charged (CPL 190.65 [1]; People ex rel. Hirschberg v Close, 1 NY2d 258, 261). The trial therefore, is unaffected by the outcome of the hearing. While we have recognized that, as a practical consequence of a CPL 180.10 hearing, defense counsel may be afforded some discovery benefits (People v Hodge, 53 NY2d, at 318), any demonstrated prejudice in this regard would lead to a determination that the error was not harmless; it does not mandate the conclusion that every deprivation of counsel at such a hearing invalidates the subsequent trial and therefore cannot be harmless. Indeed, those same discovery benefits were noted by the Supreme Court in Coleman v Alabama and the court determined nevertheless that in an appropriate case, such a deprivation of counsel could be harmless error (399 US, at 11, supra). We decline to adopt a contrary rule as a matter of State law and conclude that in this limited circumstance, harmless error analysis is applicable.

We turn, then, to the question of whether the error in this case is harmless. Since the denial of counsel at a preliminary hearing violates the Constitution, the standard is whether the error is harmless beyond a reasonable doubt because there is no reasonable possibility that the error might have contributed to defendant’s conviction (Chapman v California, 386 US 18, 23; People v Crimmins, 36 NY2d 230, 237; see also Coleman v Alabama, 399 US, at 11, supra).

Defendant does not argue, nor can he, that the outcome of the hearing — a determination that he was to be held for action by the Grand Jury — in any way affected the trial. Nor does he argue that the absence of his attorney at the hearing deprived him of any discovery benefit such as those implicated in People v Hodge (supra). Rather, he argues that because his attorney was not present to cross-examine the two witnesses at the hearing, he was not able to "pin down” their testimony for the purposes of impeachment later at the trial, and in the case of Mercier, at the Wade hearing as well. Mercier’s testimony at the Wade hearing, however, fully explored the identification issue and at that time, defense counsel fully cross-examined Mercier on the subject. Thus, any inconsistencies in his testimony were revealed at the Wade hearing, and defense counsel was able to use that testimony for impeachment purposes at the trial. In fact, no significant inconsistencies were revealed and defendant’s argument of the possibility of an inconsistency sufficient to negate the verdict is sheer speculation.

Similarly, the contention that a devastating inconsistency in the victim’s testimony might have been revealed at the hearing, used to impeach her testimony at the trial, and changed its outcome, is wholly speculative. Although the victim’s trial testimony as to the crime was more detailed than her hearing testimony, the accounts were completely consistent. The trial testimony established that on the morning of October 3, 1986, defendant entered the dormitory rooms of seven female students and subjected them to various forms of sexual contact without their consent. The victim whose testimony is at issue here established that defendant entered her room without consent, fondled her and attempted to rape her before she could push him away. Defendant’s pen and underwear were retrieved from the victim’s bed and her testimony was corroborated by the testimony of her roommate. In light of this overwhelming evidence of defendant’s guilt, there is no reasonable possibility that the absence of defense counsel at the preindictment preliminary hearing contributed to defendant’s conviction.

Finally, the suggestion that reversal is required because had he had the advice of counsel, defendant might not have appeared at the preliminary hearing to be identified is without merit. The hearing identification was not admitted at the trial and thus did not contribute to defendant’s conviction.

We conclude that the error was harmless beyond a reasonable doubt and accordingly the order of the Appellate Division should be affirmed.

Titone, J.

(dissenting). As a matter of State law, the ahsence of an attorney at a preliminary hearing is a fundamental right that should not be subject to harmless error analysis. Our prior cases, most notably People v Hodge (53 NY2d 313), all but compel that conclusion. Furthermore, the difficulty of identifying specific prejudice in the form of what might have occurred if counsel had been furnished renders the use of harmless error analysis in this context fundamentally unsound. Accordingly, I must respectfully dissent.

The right of a criminal defendant to interpose an attorney between himself and the awesome power of the sovereign has been a cherished and protected principle in our State (see, e.g., People v Cunningham, 49 NY2d 203, 207-208; People v Settles, 46 NY2d 154, 160-161; People v Hobson, 39 NY2d 479; People ex rel. Burgess v Risley, 66 How Prac 67). Consequently, this court has "exercised the highest degree of vigilance in safeguarding the right of an accused to have the assistance of an attorney at every stage of the legal proceeding against him” (People v Cunningham, supra, at 207; see, People v Blake, 35 NY2d 331; People v Di Biasi, 7 NY2d 544) beginning with the commencement of formal adversary proceedings (see, People v Settles, supra; People v Di Biasi, supra), through an indictment (see, People v Waterman, 9 NY2d 561), an arraignment (People v Meyer, 11 NY2d 162), or, as in this case, the filing of a felony complaint (see, People v Samuels, 49 NY2d 218). The primary reason for affording a defendant counsel at these points in the criminal proceedings is that "[t]he initiation of judicial criminal proceedings is far from a mere formalism. * * * For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.” (Kirby v Illinois, 406 US 682, 689; see, United States v Wade, 388 US 218, 227.) Accordingly, we have recognized that providing assistance of counsel is necessary not only to protect the rights of the defendant "but for the protection and well-being of society as well.” (People v Settles, supra, at 161.)

The central importance of counsel at preliminary hearings was recognized in Coleman v Alabama (399 US 1). The Supreme Court in that case noted that "the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution. First, the lawyer’s skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State’s case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State’s witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.” (Id., at 9.)

In People v Hodge (53 NY2d 313, supra), this court addressed the absence of defense counsel from the preliminary hearing. In reversing the defendant’s conviction, the court held that "the test [for reversal] must be not what the hearing did not produce, but what it might have produced if the defendant’s right to counsel had not been ignored [citations omitted]. So measured, the result of such inquiry would have to be pure speculation.” (Id., at 321.) This observation was consistent with the rationale in People v Felder (47 NY2d 287) where the court refused to apply harmless error analysis when a criminal defendant had been represented at trial by an unlicensed laymen masquerading as an attorney. In Felder, the court noted that such analysis was especially inapt because "[tjhere are some errors which operate 'to deny [an] individual defendant his fundamental right to a fair trial [in which event], the reviewing court must reverse the conviction and grant a new trial, quite without regard to any evaluation as to whether the errors contributed to the defendant’s conviction.’ ” (Id., at 295, quoting People v Crimmins, 36 NY2d 230, 238.) Recently, in People v Hilliard (73 NY2d 584), the court, once again, refused to apply harmless error analysis when a defendant had been deprived of his right to counsel due to a Judge’s contempt order which barred defendant’s contact with his attorney for a period of 30 days following his arraignment. There, as in Felder, we refused to speculate about what might have occurred during the 30-day "no contact” period to determine the degree of prejudice occasioned by the error. The same result should obtain here, where the potential for prejudice was obviously much greater, since, in this case, defendant lacked counsel during a formal postcritical stage proceeding rather than during a postcritical stage period during which no formal judicial proceedings occurred.

As justification for its departure from our prior cases, the majority distinguishes between deprivations of counsel at preliminary hearings from such deprivations at trial, relying on the suggestion in Hodge that the former’s amenity to harmless error analysis remained an open question after that decision (majority opn, at 132; see, People v Hodge, supra, at 320). The Hodge majority, however, specifically noted that "the distinction between denial of effective assistance of counsel at trial and, as here, its denial at a preliminary stage of a case is of no consequence. ” (Id. [emphasis supplied].) Further, the majority’s conclusion that the denial of counsel at a preliminary hearing does not "necessarily invalidate the trial” because even if defendant prevails at the hearing "the Grand Jury is nevertheless free to indict” (majority opn, at 133) is flatly contrary to what was said in Hodge and Coleman (supra) (see, People v Hodge, supra, at 319 ["we must reject, as did the Supreme Court in Coleman (399 US, at pp 8-9, supra), the People’s suggestion that, because the Grand Jury subsequently indicted the defendant, any infirmities that occurred at the flawed hearing may be excused.”]). This sudden reversal of position is inexplicable (see, People v Hobson, 39 NY2d 479, 488-491, supra).

As was recognized in Hodge, the preliminary hearing has "many functions besides the obvious formal ones, such as reduction of excessive charges, prompt arrangement for release where appropriate and, above all, early screening of unjustifiable and unprovable charges against the innocent.” (People v Hodge, supra, at 318.) Indeed, the primary purpose of the preliminary hearing is to safeguard a defendant charged with a crime against being improperly committed to jail pending action of the Grand Jury on the charges against him. Further, as even the majority has observed, the preliminary hearing provides defense counsel with a rare opportunity for discovery since the hearing serves "as a virtual minitrial of the prima facie case” (id.) which enables counsel to "gain knowledge and insight that will be of invaluable assistance in the preparation and presentation of the client’s defense.” (Id., at 319.) Moreover, defense counsel is given the opportunity to cross-examine the People’s witnesses in the presence of the accused, subpoena witnesses to the stand whom the People have not elected to summon, and, as a tactical maneuver to elect to not have the defendant appear (id., at 319-320; see also, CPL 180.60).

As in Felder, Hodge, and Hilliard, harmless error analysis is inappropriate primarily because it is difficult, if not impossible, to assess the possible effect on or prejudice to the defense resulting from a deprivation of counsel. In fact, it is almost impossible to demonstrate many of the forms of prejudice that might occur because any such argument would have to be based solely upon speculation. Here, for instance, since the primary issue was defendant’s identity, defense counsel might have chosen not to have defendant appear at the hearing. This decision, in turn, might have undermined the witness’s ability to identify defendant in court. My point is not that this potential for prejudice is alone basis for reversal. Rather, my point is that application of our harmless error rules in this context is problematic because it is impossible to second-guess what an attorney might have done had he been present at the hearing, much less to foresee what the results of his actions might have been (see, e.g., People v Jones, 70 NY2d 547, 552 [violation of Rosario rules]). Finally, the denial of right to counsel, even at a preliminary hearing, creates an appearance of unfairness which severely taints the entire judicial proceeding, and brings into question the fairness of the treatment afforded the defendant. Viewed in this manner, the error casts a shadow over the integrity of the fact-finding process and the entire proceeding in such a way that harmless error is not sufficient to measure the societal loss (see also, People v Mehmedi, 69 NY2d 759 [defendant absent from court when inquiry from jury received and answer framed]; People v Jones, 47 NY2d 409, 416-417 [right to a public trial]; People v Anderson, 16 NY2d 282 [right of defendant to be present at trial]; People v Savvides, 1 NY2d 554, 556 [prosecutor aware that principle witness testified falsely]).

For all of these reasons, I conclude that only the application of a bright line rule will ensure that a defendant’s right to counsel at a preliminary hearing is respected and enforced by our courts. In the absence of such a rule I fear that the right to counsel at a preliminary hearing could well be eviscerated through application of the harmless error doctrine, since it is only in rare instances that the defendant will be able to point to some concrete form of prejudice. Such a per se rule is necessary both to deter violations of the right to counsel at preliminary hearings and to promote the appearance, as well as the reality, of justice and fairness, goals which should be this court’s utmost concern.

For the foregoing reasons, I would reverse the order of the Appellate Division, and order a new trial (see, People v Hodge, supra, at 321).

Chief Judge Wachtler and Judges Simons, Alexander, Hancock, Jr., and Bellacosa concur in Per Curiam opinion; Judge Titone dissents and votes to reverse in a separate opinion in which Judge Kaye concurs.

Order affirmed.  