ineffective waiver in New York

2014In People v Finkle ( 262 AD2d 971 [1999]), at the outset of trial, the trial court obtained an ineffective waiver of the defendant’s right to a jury trial.

2014In People v Finkle ( 262 AD2d 971 [1999]), at the outset of trial, the trial court obtained an ineffective waiver of the defendant’s right to a jury trial.

2005V In its decision in Slaughter , the Court of Appeals assumed, without deciding the issue, that a claim of an ineffective waiver by the defendant of his right to be represented by counsel at a pretrial suppression hearing was subject to harmless error analysis, and the Court determined that the error was not harmless in that instance (see 78 NY2d at 492 ; see also People v Smith, 243 AD2d 738, 739 [1997], affd 92 NY2d 516 [1998] [assuming, without deciding, that harmless error analysis applies to the denial of the right to counsel at a pretrial hearing, and holding that the error was not harml

1997Assuming, without deciding, that harmless error analysis applies here, the defendant’s ineffective waiver of counsel, made during cross examination of the arresting officer, was not harmless (see, People v Slaughter, supra).

2012The contention that the failure to consider his alcoholism defense renders the award in violation of public policy is merely a semantic variation on the ineffective claim that the arbitrator failed to properly evaluate the evidence (see Kalyanaram v New York Inst. of Tech., 79 AD3d 418 , 419-420 [2010], lv denied 17 NY3d 712 [2011]).

2012The contention that the failure to consider his alcoholism defense renders the award in violation of public policy is merely a semantic variation on the ineffective claim that the arbitrator failed to properly evaluate the evidence (see Kalyanaram v New York Inst. of Tech., 79 AD3d 418 , 419-420 [2010], lv denied 17 NY3d 712 [2011]).

2005V In its decision in Slaughter , the Court of Appeals assumed, without deciding the issue, that a claim of an ineffective waiver by the defendant of his right to be represented by counsel at a pretrial suppression hearing was subject to harmless error analysis, and the Court determined that the error was not harmless in that instance (see 78 NY2d at 492 ; see also People v Smith, 243 AD2d 738, 739 [1997], affd 92 NY2d 516 [1998] [assuming, without deciding, that harmless error analysis applies to the denial of the right to counsel at a pretrial hearing, and holding that the error was not harml

2005V In its decision in Slaughter , the Court of Appeals assumed, without deciding the issue, that a claim of an ineffective waiver by the defendant of his right to be represented by counsel at a pretrial suppression hearing was subject to harmless error analysis, and the Court determined that the error was not harmless in that instance (see 78 NY2d at 492 ; see also People v Smith, 243 AD2d 738, 739 [1997], affd 92 NY2d 516 [1998] [assuming, without deciding, that harmless error analysis applies to the denial of the right to counsel at a pretrial hearing, and holding that the error was not harml

2005V In its decision in Slaughter , the Court of Appeals assumed, without deciding the issue, that a claim of an ineffective waiver by the defendant of his right to be represented by counsel at a pretrial suppression hearing was subject to harmless error analysis, and the Court determined that the error was not harmless in that instance (see 78 NY2d at 492 ; see also People v Smith, 243 AD2d 738, 739 [1997], affd 92 NY2d 516 [1998] [assuming, without deciding, that harmless error analysis applies to the denial of the right to counsel at a pretrial hearing, and holding that the error was not harml

2001We reject the contention of defendant that his counsel’s statement to the court, in defendant’s presence, that defendant did not wish to participate in sidebar conferences of potential jurors was an ineffective waiver of defendant’s right to be present at those conferences (cf, People v Lucious, 269 AD2d 766, 768-769 ; see generally, People v Vargas, 88 NY2d 363, 375-376 ; People v Kanner, 272 AD2d 866, 866-867 , lv denied 95 NY2d 867 ).

2001We reject the contention of defendant that his counsel’s statement to the court, in defendant’s presence, that defendant did not wish to participate in sidebar conferences of potential jurors was an ineffective waiver of defendant’s right to be present at those conferences (cf, People v Lucious, 269 AD2d 766, 768-769 ; see generally, People v Vargas, 88 NY2d 363, 375-376 ; People v Kanner, 272 AD2d 866, 866-867 , lv denied 95 NY2d 867 ).

1997(See, People v Hanley, 227 AD2d 144 [1st Dept 1996].) In seeking this relief, the defendant additionally seeks refuge in a decision handed down in People v Stewart (Sup Ct, Onondaga County, Feb. 28, 1997, Brunetti, J., indictment No. 96-3380) in which that court found an ineffective waiver because no oath or affirmation was apparently administered.

1995The failure to comply with the statutory provisions governing waiver of indictment results in an ineffective waiver and renders the superior court informations upon which defendant was prosecuted jurisdictionally defective (see, People v Johnson, supra; see also, People v Zanghi, 79 NY2d 815, 817 ; People v Menehetti, 76 NY2d 473, 475 , n; People v Boston, 75 NY2d 575, 589, n 2 ).

1995The failure to comply with the statutory provisions governing waiver of indictment results in an ineffective waiver and renders the superior court informations upon which defendant was prosecuted jurisdictionally defective (see, People v Johnson, supra; see also, People v Zanghi, 79 NY2d 815, 817 ; People v Menehetti, 76 NY2d 473, 475 , n; People v Boston, 75 NY2d 575, 589, n 2 ).

1992Therefore, this ineffective waiver does not preclude review of the denial of the defendant’s motion to withdraw her plea, as the right to challenge the voluntariness of the plea is a right that the defendant always retains (see, People v Seaberg, 74 NY2d 1, 10 ; cf., People v Hall, 176 AD2d 960 ; People v Stephens, 175 AD2d 272 ).

1992Therefore, this ineffective waiver does not preclude review of the denial of the defendant’s motion to withdraw her plea, as the right to challenge the voluntariness of the plea is a right that the defendant always retains (see, People v Seaberg, 74 NY2d 1, 10 ; cf., People v Hall, 176 AD2d 960 ; People v Stephens, 175 AD2d 272 ).

1992Therefore, this ineffective waiver does not preclude review of the denial of the defendant’s motion to withdraw her plea, as the right to challenge the voluntariness of the plea is a right that the defendant always retains (see, People v Seaberg, 74 NY2d 1, 10 ; cf., People v Hall, 176 AD2d 960 ; People v Stephens, 175 AD2d 272 ).