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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 123
The People &c.,
            Appellant,
        v.
Dwight Smith,
            Respondent.




         Ramandeep Singh, for appellant.
         Matthew Bova, for respondent.




Rivera, J.:
         The People appeal an order by the Appellate Division
that reversed a judgment by Supreme Court, vacated defendant's
pleas, and dismissed the defendant's indictment without
prejudice, allowing the People to re-present any appropriate
charges to another grand jury (People v Smith, 143 AD3d 31 [1st


                             - 1 -
                              - 2 -                          No. 123
Dept 2016]).   Contrary to the People's claim, the Appellate
Division correctly determined that the trial court denied
defendant's right to counsel on the People's motion to compel
defendant to submit to a buccal swab.1   Nevertheless, the
Appellate Division's order should be modified, because the
indictment should not have been dismissed.
          Defendants have a constitutional right to counsel at
every critical stage of the proceedings, meaning those stages
that hold "significant consequences for the accused" (Bell v
Cone, 535 US 685, 696 [2002]; see also People v Settles, 46 NY2d
154, 165 [1978]).   Here, the People filed their motion to compel
the DNA test and served the motion on retained counsel in court.
As the Appellate Division found, the trial court -- in
defendant's absence2 -- subsequently granted both the retained
defense counsel's motion to be relieved from representing
defendant for failure to pay his fee and the People's DNA
discovery motion, which it granted based on the "putative
consent" it inferred from retained counsel's silence.    Later the
same day that counsel was relieved, defendant appeared in court.
Knowing defendant was unrepresented, the court, rather than
remain neutral, proceeded to act in place of counsel throughout


     1
       As defendant admits, he has no right to have counsel
present during the physical administration of the buccal swab.
     2
       When the court officer informed the court that defendant
had yet to be produced, retained counsel waived defendant's
production in this matter.

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                              - 3 -                          No. 123
an extensive colloquy, telling defendant that there were no bases
on which to challenge the DNA sample order.    In response to the
court, defendant stated that he had not spoken with his attorney
about the prosecution's motion and did not wish to consent to
giving a sample.   Notwithstanding defendant's entreaties, the
court rejected his repeated requests for an attorney to advise
him regarding the motion.   Instead, the court told defendant "an
attorney [was] not going to be able to help," and that there was
"no basis for fighting [the test]."    When defendant said he did
not "know the law," the judge responded "I know the law."     On
these facts, the Appellate Division correctly determined that
"the pretrial proceedings concerning the DNA test were 'critical'
within the meaning of the law" (Smith, 143 AD3d at 35).
Accordingly, defendant was deprived his right to counsel.3
          We reject the dissent's conclusion that defendant was
not denied counsel during a critical stage of the proceeding, as
that determination is contrary to law and would require that we
distort the factual record.   As the People concede, there was no
express consent to their request for the DNA sample, either by
defendant or by retained counsel.     Nor was there any affirmative



     3
       This is not a case in which defendant asserts an
ineffective assistance of counsel claim based on matters dehors
the record, which would be properly addressed in a CPL 440.10
motion (People v Jackson, 29 NY3d 18, 24 [2017]). The colloquy
between the court is on the record, and it is undisputed that
defendant was unrepresented at that time.


                              - 3 -
                              - 4 -                       No. 123
conduct or errant statement by defendant or counsel from which
implied consent could be inferred.     Instead, as the People
acknowledge, the court issued its order based only on retained
counsel's failure to reply to the People's motion to compel the
buccal swab. Under the circumstances here, that is not a proper
basis for finding defendant's consent.4    Further, as the record
unambiguously shows, shortly after the court granted retained
counsel's request to withdraw -- leaving defendant unrepresented
-- defendant appeared in court, expressly denied consent, and
repeatedly stated he wanted counsel to assist him in responding
to the People's motion.5   Yet, rather than appointing counsel,
the court told defendant there was no basis to oppose the motion.
Notwithstanding these facts, the dissent believes defendant was
represented on the motion for the DNA sample; we do not.
          The dissent also mistakenly ascribes to our narrow
decision some previously-unannounced, broad rule.     Here, we


     4
       The fact that a court may generally treat counsel's
failure to object as an affirmative decision not to challenge an
adversary (dissenting op at 6) is irrelevant to the matter before
us where the court's improper actions are independent of an order
issued based on counsel's "putative" consent. The record here
establishes that the court acknowledged defendant's objections
and requests for an attorney, and yet sought to persuade
defendant to acquiesce to the DNA test without benefit of
counsel.
     5
       Contrary to the dissent's suggestion (dissenting op at 6),
defendant has always maintained that he did not consent to the
DNA test. In fact, the court engaged in a substantive colloquy
because of defendant’s refusal to consent, not in spite of his
counsel's putative consent.


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                              - 5 -                        No. 123
solely apply settled law to the facts before us.   Where the court
grants counsel's motion to be relieved from the case in
defendant's absence but orders the taking of a DNA sample based
on that counsel's inaction, and defendant at the first
opportunity denies consent and requests assistance of counsel on
that motion, the court may not deny the request and inform an
unrepresented defendant that, in the court's opinion, there is no
legal recourse.   Thus, we conclude defendant was denied his right
to counsel in violation of the Sixth Amendment and Article 1,
Section 6 of the New York State Constitution.
          The legality of the remedy for that error is subject to
our review pursuant to CPL 470.35 (2) (c).   Based on the nature
and timing of the constitutional deprivation at issue here, the
dismissal of the indictment was not an appropriate corrective
action.   Under CPL 470.20, the Appellate Division may take "such
corrective action as is necessary and appropriate both to rectify
any injustice to the appellant resulting from the error or defect
which is the subject of the reversal or modification and to
protect the rights of the respondent."   The violation of
defendant's right to counsel, although serious, occurred post-
indictment and did not retroactively infect the grand jury
proceedings.   Nevertheless, the violation resulted in defendant
being denied the opportunity to confer with counsel regarding a
potential challenge to the taking of inculpatory DNA evidence.
This warranted the Appellate Division vacating defendant's pleas.


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                              - 6 -                       No. 123
Dismissal of the indictment, however, was not "necessary and
appropriate" to rectify the injustice to the defendant.
         Accordingly, the order of the Appellate Division should
be modified by reinstating the indictment and remitting the case
to Supreme Court for further proceedings in accordance with this
opinion and, as so modified, affirmed.




                             - 6 -
People v Dwight Smith
No. 123




GARCIA, J.(dissenting):
           I agree that the better course in this case would have
been for the trial court to adjourn the proceedings until new
counsel was appointed.    But I disagree with the majority's
conclusion that the court's failure to do so amounted to an error
of constitutional dimension.    Because defendant was never
unrepresented during a critical stage of the proceedings,
defendant's constitutional right-to-counsel argument -- his only
reviewable claim1 -- must be rejected.   Accordingly, I dissent.
                                 I.
           Defendant was indicted on a number of charges,
including second-degree murder, in connection with a burglary
during which one of the victims was shot and killed.    The three
surviving victims independently identified defendant from a photo
array and stated that defendant was the "ring leader" during the
crime.    Defendant was arrested and retained his own counsel.
           The Office of the Chief Medical Examiner of New York
City retrieved low copy human DNA from evidence recovered from
the crime scene, and the People later brought a motion to compel,

     1
       Defendant's remaining claims, including his asserted
statutory and due process violations, are beyond our review (see
CPL 470.35 [2] [b]).

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                              - 2 -                       No. 123
seeking saliva samples from defendant and two co-defendants. The
next day, in court, with defendant present, the People served a
copy of the motion on the defense.     Defense counsel indicated
that he would "discuss it with [his] client."     The court then
asked:    "If your client is not inclined to agree, would you put
in your answer?"    Defense counsel responded:   "Yes, I will."
Defense counsel did not file papers or otherwise oppose the
motion.
           During a later appearance, before defendant had been
produced, defense counsel "ma[d]e an application to be excused
from th[e] case."    After a brief dialogue, including an off-the-
record discussion, the court relieved defense counsel.    At the
close of the proceeding, the prosecutor stated:     "We're going to
ask the card be held so we can go get a swab."
           Later that day, defendant appeared before the trial
court without an attorney.   The court informed defendant that his
attorney had appeared "earlier today," stating:     "When I called
the case at that time, I signed an order for a buccal swab.       It's
for a swab of your cheek with a swab, Q-tip, for purposes of
providing [a] DNA sample.    I have signed that order."   The court
then asked defendant if he would "mind doing [the swab] without
your lawyer here in light of the fact that there has been an
order signed by this Court indicating that you have to do that?"
Defendant responded that he would "probably wait for [his]
attorney."   A lengthy colloquy ensued, during which the court


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                              - 3 -                          No. 123
implored defendant to comply with the order.     Defendant stated
several times that he "want[ed] to wait for [his] attorney,"
indicating that he "wasn't aware of [the] buccal swab," that he
"didn't have contact [for] two months," and that he would
"probably want to . . . oppose" the People's motion to compel.
The court stated that "[t]he motions are finished" and that
defendant had "no basis" for opposing the signed order; the court
was just "ask[ing]" defendant "to cooperate" and to do what the
court had already "ordered [him] to do" in order to avoid harming
defendant's already "injured arm."     Ultimately, the court
presented defendant with a copy of the signed order and he agreed
to the swab.
            Defendant's new counsel later appeared on defendant's
behalf and informed the court that his predecessor had provided
him with the case file.    New counsel subsequently filed an
omnibus motion but did not address the motion to compel DNA
evidence.    Defendant eventually pleaded guilty to first-degree
manslaughter and first-degree burglary.
            The Appellate Division, with two Justices dissenting,
reversed defendant's convictions, vacated his guilty plea, and
dismissed the indictment (People v Smith, 143 AD3d 31 [1st Dept
2016]).   The court determined that defendant's right to counsel
had been violated, reasoning that "[t]he pretrial proceedings
concerning the DNA test were 'critical'" (id. at 35) and that
"[p]roceeding without counsel under the circumstances violated


                               - 3 -
                              - 4 -                        No. 123
defendant's Sixth Amendment rights" (id. at 33).   The court
further held that "[t]he deprivation of [defendant's] Sixth
Amendment right is of constitutional dimension and is not subject
to harmless error analysis," and that the "appropriate remedy
under the circumstances is to vacate both pleas, and to dismiss
the indictment" (id. at 36).
         The two dissenting Justices disagreed, emphasizing the
"salient fact" that, "prior to the time the defendant claims he
was unconstitutionally without counsel, the motion to compel the
saliva sample had already been considered by the court and a
decision made" (id. at 37 [Kapnick, J., dissenting]).   The
dissent noted that "the colloquy that ensued between the court
and defendant was not a 'critical stage' of the proceedings
because the motion had already been decided and there was no
indication that the court was reconsidering its ruling" (id.
[Kapnick, J., dissenting]).    The dissent further disagreed with
the court's decision to dismiss the indictment because "the
alleged violation" -- which "occurred almost one year after
defendant was indicted and during proceedings related to a
discovery motion" -- did not "taint or call the validity of the
indictment into question" (id. at 38-39 [Kapnick, J.,
dissenting]).
         A Justice of the Appellate Division granted defendant's
application for leave to appeal (28 NY3d 976 [2016]).




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                             - 5 -                            No. 123
                              II.
         The right to counsel attaches at arraignment and
"guarantees a defendant the right to have counsel present at all
'critical' stages of the criminal proceedings" (Montejo v
Louisiana, 556 US 778, 786 [2009] [citations omitted]).      A
"critical stage" includes "any stage of the prosecution, formal
or informal, in court or out, where counsel's absence might
derogate from the accused's right to a fair trial" (United States
v Wade, 388 US 218, 226 [1967]).       A "mere preparatory step," such
as "systematized or scientific analyzing" of "fingerprints, blood
sample[s], clothing, and the like," does not constitute a
"critical stage[] at which the accused has the right to the
presence of his counsel" since there is "minimal risk that his
counsel's absence at such stages might derogate from his right to
a fair trial" (id. at 227-228).
                                  A.
         The parties do not dispute that the motion practice
surrounding the buccal swab amounted to a critical stage of the
proceeding, entitling defendant to the assistance of counsel.
However, as the record confirms, all motion practice was complete
while defendant was represented by his retained counsel.         During
that time, defendant's retained attorney informed the court that
he would oppose the People's motion if defendant was "not
inclined to agree" to the swab, and the court relied on that
representation -- and the defense's failure to oppose the motion


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                              - 6 -                      No. 123
-- in signing the order to compel. Defendant's retained attorney
was also aware of the decision on the motion; during defense
counsel's final appearance, the prosecutor stated in court that
he intended to "go get a swab" that same day.    The court later
confirmed, on the record, that defendant's retained attorney had
"understood and accepted" that the court had "signed an order for
a buccal swab"; "in fact, he consented" to it.
         The majority concludes that there was no "proper basis
for finding consent" because there was no "express" statement or
other "affirmative conduct" that adequately conveyed the
defense's consent (majority op at 3-4).   As an initial matter,
defendant does not raise this argument on appeal, nor did he
appeal from Supreme Court's decision on the motion to compel.
Rather, defendant concedes that his retained counsel consented to
the motion, arguing that, "[h]ad the court appointed new counsel,
he or she could have withdrawn consent" (emphasis added).
         In any event, the majority's claim of inadequate
consent is undermined by the record.   Defense counsel expressly
stated, on the record, that he would oppose the motion if the
defense did not consent; his subsequent failure to submit
opposition papers, by itself, constitutes an adequate basis for
the court to grant the People's motion (see People v Cole, 73
NY2d 957, 958 [1989] [noting that the defendant's motion was
"conceded by the People when they failed to submit opposition
papers"]).   The court ultimately confirmed, on the record, that


                              - 6 -
                              - 7 -                         No. 123
defense counsel had "consented" to the motion.    On this record,
defendant could not plausibly contend (and unsurprisingly, does
not contend) that the People's motion was not properly granted on
consent.
           Of course, a defendant may not retroactively unravel a
signed order by simply revoking consent after the motion has
already been decided.    And to the extent defendant argues that he
never consented to begin with -- that he "wasn't aware" of the
People's motion, that he "didn't have contact [for] two months,"
and that his counsel failed to effectively oppose the motion --
those arguments amount to a classic claim of ineffective
assistance of counsel.   Defendant cannot now raise that claim,
based on matters outside the record, under the guise of a
constitutional right-to-counsel violation.
           By crediting defendant's self-serving claim that he
never consented to the swab -- and that "he had not spoken with
his attorney about the prosecution's motion" -- the majority
effectively presumes defense counsel's ineffectiveness based
solely on defendant's unsubstantiated allegations regarding
matters beyond the record (majority op at 2-4).    But defendant's
bare assertions of inadequate representation on the motion -- a
pure claim of ineffectiveness -- are "of the type where 'it would
be better, and in some cases essential, that an appellate attack
on the effectiveness of counsel be bottomed on an evidentiary
exploration by collateral or post-conviction proceeding brought


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                              - 8 -                       No. 123
under CPL 440.10'" (People v Henderson, 28 NY3d 63, 66 [2016],
quoting People v Brown, 45 NY2d 852, 854 [1978]). Indeed, on this
record, we are unable to discern whether or not defendant in fact
consented to the motion -- and communicated that consent to
counsel -- only to later regret his decision.    If anything,
defendant's claim that he was "wasn't aware" of the motion is
undermined by the record, as the People served the motion on
defense counsel in defendant's presence.    And while "[t]he
colloquy between the court [and defendant] is on the record"
(majority op at 3 [emphasis added]), defendant's allegations
during that colloquy concern out-of-court matters relating to his
attorney's performance.   Because those arguments of
ineffectiveness are "based on matters outside the record," they
must be raised by CPL 440.10 motion and, as such, are "beyond
review on this appeal" (Henderson, 28 NY3d at 66).
         In essence, the majority's ruling allows a defendant to
assert, on a direct appeal in a criminal case, unsubstantiated
allegations of counsel's deficient performance that -- when
styled as a "right to counsel" violation -- will be fully
credited without further inquiry.     In doing so, the majority
permits a defendant to end-run the longstanding requirement that,
"unless it is clear from the record" that reversible error
occurred, claims of ineffective assistance must be brought under
CPL 440.10 (People v Evans, 16 NY3d 571, 575 [2011]; see also
People v Campbell, 30 NY3d 941, 941 [2017]; Henderson, 28 NY3d at


                              - 8 -
                              - 9 -                       No. 123
66; People v Maracle, 19 NY3d 925, 929 [2012]; People v Haffiz,
19 NY3d 883, 885 [2012]; People v Ramos, 63 NY2d 640, 643 [1984];
Brown, 45 NY2d at 853-854).
                                 B.
            With regard to the later proceeding, during which
defendant was unrepresented, defendant argues -- and the majority
appears to agree2 -- that this proceeding also amounted to a
critical stage and therefore defendant's right to counsel was
violated.    Although the better course would have been for the
trial court to adjourn the proceedings until new counsel was
appointed, the court's failure to do so did not amount to a
violation of defendant's constitutional right to counsel because
the "proceeding" was not a critical stage within the meaning of
the Sixth Amendment.
            As the trial court made clear, at the time defendant's


     2
       The majority does not purport to endorse the Appellate
Division's conclusion that defense counsel's allegedly deficient
performance on the motion, by itself, constituted a right to
counsel violation because defendant's claims are properly
understood to allege "nonrepresentation rather than ineffective
representation" (135 AD3d at 35, citing Hurrell-Harring v State
of NY, 15 NY3d 8, 22 [2010]). Hurrell-Harring involved a civil
class action claim and reviewed the disposition of a motion to
dismiss -- a stage of the litigation where "[t]he allegations of
the complaint must . . . be deemed true and construed in
plaintiffs' favor, affording them the benefit of every reasonable
inference" (Hurrell-Harring, 15 NY3d at 20). In this case, the
Appellate Division's willingness to accept defendant's "non
representation" claim, based solely on his self-serving remarks,
would represent a dramatic expansion of the constitutional right
to counsel: it would permit a defendant's allegations of
ineffectiveness -- pertaining to matters outside the record -- to
establish an automatic error of constitutional dimension.

                               - 9 -
                             - 10 -                       No. 123
counsel was relieved, the People's motion had already been
decided:
           "THE COURT: . . . When I called the case at
           that time ["earlier today"], I signed an
           order for a buccal swab . . . I have signed
           that order.
           "Now, [defendant's attorney] understood and
           accepted that; in fact, he consented."
Once that order was signed, defendant's "consent" was no longer
required; the court was simply asking defendant to comply with
the already-signed order:
           "THE COURT: . . . [Y]ou mind doing that . . .
           in light of the fact that there has been an
           order signed by this Court indicating that
           you have to do that?
           . . .
           "THE COURT: . . . The motions are finished.
           All I want to ask you is to cooperate. . . .
           "I'm going to ask you to do what I ordered
           you to do
           . . .
           "THE COURT: . . . Only reason I'm asking as
           opposed to telling is because I don't see any
           reason to get in a wrestling match
           downstairs, especially with the arm like you
           with an injured arm. . . .
           "I'm going to tell the officer that they have
           to do it and force you to do it; but it's
           going to be done . . . because I issued an
           order."
Patently, the court's colloquy with defendant had no significance
with regard to the underlying motion.   By definition, a
proceeding cannot be "critical" within the meaning of the Sixth
Amendment where, as here, it "was not only noncritical, but, as a
matter of law, unnecessary" (see People v Contreras, 12 NY3d 268,

                              - 10 -
                                    - 11 -                           No. 123
273 [2009]).
             Nor was defendant entitled to have counsel present
during the administration of the buccal swab -- a purely
ministerial task (see People v Wade, 338 US 218, 227-228 [1967];
majority op at 2).     Indeed, it was by sheer happenstance that the
swab was not taken in lockup where, presumably, counsel would not
have been present and there would have been no record of
defendant's effort to relitigate the already-decided motion.
                                    III.
             Defendant was represented by counsel for the duration
of the motion practice on the DNA swab, and his claim of
inadequate representation on that motion is beyond the scope of
our review.     The subsequent proceeding had no bearing on the
already-decided motion and therefore cannot amount to a critical
stage.   I disagree with the majority's conclusion that
defendant's unsupported claims of dissatisfaction with counsel
somehow change that.       I would reverse.
*   *    *     *   *   *    *   *     *      *   *   *   *   *   *    *   *
Order modified by reinstating the indictment and remitting the
case to Supreme Court, Bronx County, for further proceedings in
accordance with the opinion herein and, as so modified, affirmed.
Opinion by Judge Rivera. Chief Judge DiFiore and Judges Wilson
and Feinman concur. Judge Garcia dissents in an opinion, in
which Judges Stein and Fahey concur.

Decided December 19, 2017




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