I

SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION; THIRD DEPARTMENT

In the Matter of CHARLES COLLINS,

P e t i t i o n e r ,

- a g a i n s t -

PETITION OP CHARLES COLLINSn m o O F p r o h i b i t i o nPPRSUANT TO CPT.P tp.TifiT.p no

LAMONT, ACTING SUPREME COURTcnr COUNTY OP ALBANY, ANDgreenberg, district attorney of

COUNTY, AND HIS AGENTS, SERVANTSA N D E M P L O Y E E S , - K V A j M i f a ,

R e s p o n d e n t s .

STATE OF NEW YORK )) S S . ;COUNTY OF ALBANY ) '*

says the following statements are true:1. Petitioner Charles Collins is the Petitioner is this

p r o c e e d i n g .N . ,2. Petitioner brings this Petition to costnenoe an Article 78

Proceeding for a Writ of Prohibition to prohibit Hon. Dan LamontActrng Supreme Court Uustice, in Supreme Court, County of Albanyfrom bringing to trial Albany County Indictment No. 3-5546currently pending against me, entitled "The People of the State ofNew Yorh v. Charles Collins" which is scheduled to commence insupreme Court, Albany County, on Decemb-er 13, 1999,

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3. Respondent Dan Lament is an Acting Supreme Court Justiceassigned to Supreme Court, Albany County, and respondent SolGreenberg is the District Attorney of Albany County.

4. The remedy of prohibition is available under CPLR Article78 to raise a claim of immunity from prosecution and to prohibitthe holding of a trial in order to prevent a violation of thepetitioner's constitutional rights and statutory grant oftransactional immunity as a result of testimony in the grand jury.Brockway v. Monroe. 89 AD2d 771 (3rd Dept. 1982), aff'd. 59 NY2d179 (1983) (writ of prohibition proper to prohibit supreme courtjudge and district attorney from prosecuting defendant on groundsdefendant had been granted transactional immunity); carev vuts. 41 AD2d 50 (2nd Dept. 1983) (writ of prohibition was propermethod of claiming transactional immunity as a bar to prosecutingfor tax fraud); Altman v. Bradley, 184 AD2d 131 (1st Dept. 1992),related proceeding 597 NYS2d 843 (S.C. NY Co., 1992), laterproceeding 595 NYS2d 1011, and appeal dismissed and denied 81 NY2d775 (1993) (writ of prohibition proper remedy where defendantclaimed double jeopardy and immunity from prosecution).

5. On January 26, 1998, petitioner was arrested by membersof the Albany Police Department and accused of the crime ofCriminal Mischief in the Second Degree in violation of Penal Law ofthe State of New York section 145.10, a class D felony, and

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Cr im ina l Tamper ing i n t he 3 rd Deg ree i n v i o l a t i on o f Pena l Law

sect ion 145.14. Cop ies o f the accusatory ins t ruments fi led in the

Albany City Court are attached hereto as Exhibit A and made a parth e r e o f .

6. On January 26/ 1998 petitioner was arraigned in theAlbany City Court before Hon. Stephen Herrick, Albany City CourtJudge, on the charges. A transcript of the arraignment in AlbanyCity Court on January 26, 1998 and the transcript of an appearanceon February 3, 1998 are attached hereto an Exhibit B and made a

p a r t h e r e o f .

7. On or about February 3, 1998, and again on February 4,

1998, and again on April 25, 1998, petitioner sent letters to the

Albany County District Attorney requesting that petitioner beallowed to testify in the Grand Jury and give evidence on a pro sebasis. A copy of letters requesting the right to testify in thegrand jury are attached hereto collectively as Exhibit C and madea p a r t h e r e o f .

8. On April 28, 1999, petitioner appeared without counsel in

the Grand Jury of the Supreme Court, Albany County, and attemptedt o t e s t i f y i n h i s o w n b e h a l f . A t r a n s c r i p t o f p e t i t i o n e r ' s

appearance in the Albany County Grand Jury is attached hereto as

E x h i b i t D a n d m a d e a p a r t h e r e o f .

9. On April 28, 1998, the Albany County Supreme Court Grand

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Ju ry handed up a one coun t i nd i c tmen t A lbany Coun ty Ind i c tmen t No .

3 - 5 5 4 6 w h e r e i n p e t i t i o n e r w a s a c c u s e d o f t h e c r i m e o f C r i m i n a l

M i s c h i e f i n t h e S e c o n d D e g r e e i n v i o l a t i o n o f P e n a l L a w s e c t i o n

145.10, a c lass D fe lony. The ind ic tment a l leges tha t on January

26, 1998, petitioner allegedly sprayed the Court of Appealsb u i l d i n g l o c a t e d o n E a g l e S t r e e t i n t h e C i t y o f A l b a n y w i t h c h i c k e n

feces causing property damage in excess of $1,500.00. A copy of

t h e i n d i c t m e n t i s a t t a c h e d h e r e t o a E x h i b i t E a n d m a d e a p a r t

h e r e o f .

1 0 . O n o r a b o u t M a y 8 , 1 9 9 8 , p e t i t i o n e r w a s a r r a i g n e d o n t h e

s a i d i n d i c t m e n t i n A l b a n y C o u n t y C o u r t b e f o r e H o n . L a r r y J . R o s e n .

A cop of the transcript of an adjournment of the arraignment on May

4 , 1 9 9 8 , a n d t h e a r r a i g n m e n t o n M a y 5 , 1 9 9 8 , a r e a t t a c h e d h e r e t o a s

E x h i b i t F a n d m a d e a p a r t h e r e o f .

1 1 . T h e r e a f t e r p e t i t i o n e r fi l e d m o t i o n s s e e k i n g a d i s m i s s a l

o f t h e i n d i c t m e n t o n s e v e r a l g r o u n d s , i n c l u d i n g t h e g r o u n d t h a t i s

r e l e v a n t t o t h i s p r o c e e d i n g , t h a t p e t i t i o n e r r e c e i v e d

t ransact iona l immuni ty by tes t i fy ing before the Grand Jury in th is

c a s e , b e c a u s e p e t i t i o n e r w a s n o t a c c o m p a n i e d b y c o u n s e l a n d

p e t i t i o n e r d i d n o t w a i v e t h e r i g h t t o c o u n s e l . A c o p y o f t h e

m o t i o n t o d i s m i s s t h e i n d i c t m e n t i s a t t a c h e d h e r e t o a s E x h i b i t G

a n d m a d e a p a r t h e r e o f .

12. On February 3 , 1999 and March-31, 1999 a hear ing was he ld

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in Albany County Court before the Hon. Larry j. Rosen, AlbanyCounty court Judge, upon the motion to dismiss. A copy of theminutes of the said hearing are attached hereto as Exhibit H andm a d e a p a r t h e r e o f .

13. By a Decision ahd Order dated May 19, 1999, Hon. Larry J.Rosen, Albany County Court Judge, denied petitioner's motion todismiss the indictment on the grounds that petitioner had waivedhis right to counsel when appearing before Judge Herrick in AlbanyCity Court on the charges and therefore there was sufficientcompliance with the requirements of CPL 190.45(3) and 190.50 (5) (a)when petitioner appeared in the grand jury to render petitioner'salleged waiver of immunity effective. A copy of the Decision andOrder of Judge Rosen dated May 19, 1999, is attached hereto asExhibit I and made a part hereof,

14. By order of Hon. Dan A. Lamont, Acting Supreme CourtJustice, the indictment against petitioner is scheduled to go totrial in Supreme Court,"Albany County, at 9:30 AM on December 13,1999. A copy of the calendar notice from Justice Lamont schedulingDecember 13, 1999 as a day certain for trial is attached hereto asExhibit J and made a part hereof,

15. It is respectfully requested that this Court issue a Writof Prohibition against Justice Lamont and Mr. Greenberg directingthat the trial in this case be forever prohibited on the grounds

that petitioner received transactional immunity when he testifiedbefore the Grand Jury in this case because petitioner did not

effectively waive his right to counsel and because petitioner'sconstitutional rights and CPL 190.45 and 190.50 were violatedpursuant to People v. Chapman, 69 NY2d 497 (1987).

16. The facts of this case when applied to the law asannunciated by the Court of Appeals in People v. Chapman. 6 9 NY2d497 (1987), clearly demonstrate that petitioner was deprived of hisbasic and fundamental right to counsel prior to and during histestimony before the grand jury that later handed up the one counti n d i c t m e n t a g a i n s t m e .

1*7 • The facts of this case also definitively establish that,as a matter of law, petitioner did not waive his right to be

represented by counsel at any stage of the proceedings in thiscase. Any purported waiver of counsel and decision to representhimself pro-se was uninformed and totally ineffective. Suchdecision was not made with a full knowledge of the ramifications ofwhat could and did in fact happen to him during petitioner'sa p p e a r a n c e i n t h e g r a n d j u r y i n t h i s c a s e .

18. Petitioner's decision to go pro-se in the grand jury hashurt his case and caused him to do and say things on the recordboth in the grand jury and in motions that will be referred tohereafter, that have caused petitioner great prejudice and

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petitioner would not have appeared pro-se in the grand jury andt h e r e a f t e r h a d I b e e n a w a r e o f t h e d a n g e r s a n d p i t f a l l s o f

r e p r e s e n t i n g m y s e l f .

19. A brief description of the facts is required: Again, on

January 26, 1998, petitioner was arrested by members of the AlbanyPolice Department and accused by accusatory instruments filed bythem in the A lbany Ci ty Cour t w i th the fo l lowing cr imes: Cr imina l

M isch ie f i n the Second Degree , in v io la t ion o f sec t ion 145 .10 o f

the Penal Law of the State of New York, class D felony, andCriminal Tampering in the Third Degree, in violation of section

1 4 5 . 1 4 o f t h e P e n a l L a w a c l a s s B m i s d e m e a n o r .

20. The felony complaint charging Criminal Mischief, allegedthat on January 16, 1998 at about 5:45 A.M. at the Court of Appeals

Building, in the City of Albany, with intent to damage property andhaving no right to do so nor any reasonable ground to believe that

he had such right, defendant sprayed chicken excrement on the front

of the Court of Appeals building and on a tapestry in front of the

building. It was alleged that the damage was in excess of $1,500.The misdemeanor complaint accused defendant of Criminal tamperingf o r t h e s a m e c o n d u c t . S e e E x h i b i t A .

21 . A f te r my ar res t and the fi l ing o f the accusatoryinstruments, petit ioner was brought in custody before the Hon.

Stephen W. Herrick, Albany City Court -Judge and arraigned on the

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a c c u s a t o r y i n s t r u m e n t s .

2 2 . P e t i t i o n e r w a s n o t r e p r e s e n t e d b y c o u n s e l a t t h e

arraignment. Only at the conclusion of the arraignment did JudgeHerrick advise petitioner of his right to counsel on the chargesupon which I had just been arraigned. The following colloquy theno c c u r r e d ;

"THE COURT: You have a right to an attorney and the right toan adjournment in order to obtain an attorney. if you cannotafford an attorney, I will appoint one to represent you. Cany o u a f f o r d a n a t t o r n e y ?

M R . C O L L I N S : N o . I c a n ' t .

THE COURT: I am going to enter a plea of not guilty. I willhave the public defender speak to you.

MR. COLLINS: I would prefer not to have the public defender's

office. The last time I had them, they lied to me. Theydidn't do their job. They refused to discuss this case withm e .

THE COURT: What is your proposal regarding representation:M R . C O L L I N S : I w i l l r e p r e s e n t m y s e l f . . .

[A bail hearing was then had wherein the defendant representedh i m s e l f a n d b a i l w a s s e t ] . . .

THE COURT:...you will get a telephone call so you can have

somebody help you with the bail. Are you going to be able to

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m a k e t h a t [ $ 7 , 5 0 0 ] ?

MR. COLLINS: I hope so .

THE COURT: In the event you don't make that, I will put thematter down for a hearing on Thursday, in the event you don'tm a k e b a i l ,

M R , C O L L I N S : E x c u s e m e :

THE COURT: In the event you don't make bail, you are entitledto a preliminary hearing on the felony this Thursday, the 29that 2:00 or sometime after 2. Judge Egan will be there. Ifyou do make bail, you need to be back here on the 29th, todiscuss another adjourned date and where we are going with thep r o c e e d i n g . A l l r i g h t , s i r .

[ S e e E x h i b i t B ]

23. Petitioner did make bail and he appeared in the AlbanyCity Court, before Judge Herrick on February 3, 1998. Thefollowing dialogue was had between the Court and myself:

THE COURT: Mr. Collins appears on his own, appearing pro se,in the matter. The People have indicated that this matter isbeing considered by their office for possible presentation toa g r a n d j u r y ,

Mr. Collins, at this point in time, how do you want me toproceed? These are -- the charges contained a felony. How doyou wish the Court to proceed:

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MR. COLLINS: I'd like to go to the Grand Jury.

THE COURT: You want to waive this matter today for purposesof presentat ion to the Grand Jury?

MR. COLLINS: Yes, I would like to know when I am going toreceive a date as to when to appear before the Grand Jury.The last time they took it up, they waited two, months andn e v e r t o o k i t t o t h e G r a n d J u r y.

THE COURT: I can't fix the date when this case is going to be

presented to the Grand Jury. I will mark this case waived tot h e G r a n d J u r y .

The People are represented here today. They will notifyyou of the date. I am going to ask you, before you leave thismorning, to make sure they have your correct mailing addressphone number, whatever information you wish to give to them,so they may properly be in compliance with the Criminal

procedure regarding any presentation to the Grand Jury.M R . C O L L I N S : Y e s

THE COURT: This Court has now lost jur isdict ion of this

matter, and make sure I have your correct address, Mr.

Co l l i ns , i n case th i s ma t te r i s remanded back he re fo r

r e c o n s i d e r a t i o n .

M R . C O L L I N S : Y e s .

(Whereupon, the proceedings in the above-entitled action were

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c o n c l u d e d . )

[ S e e E x h i b i t B ]

24. Thereafter, petitioner was given written notice by theprosecutor that the matter was going to be presented to an AlbanyCounty Supreme Court Grank Jury for their consideration. Pursuant,the notice of grand jury presentment, petitioner presented himselfat the Albany County Courthouse for purposes to testifying beforethe Grand Jury on April 28, 1998. Petitioner was without counsel.I did in fact appear before the Grand Jury and testified. I havenever testified in the grand jury before in any capacity and wasnot familiar with the rules and law pertaining to the grand jury.

25. The minutes of the Grand Jury, which are attached heretoas Exhibit D will show, that petitioner was asked to sign a pieceof paper that I was told was a waiver of immunity,

26. The petitioner is informed at this time, the prosecutionhas lost the piece of paper which was supposed to be a waiver ofimmunity, so it is not Visible at this time to even verify thatthe so-called waiver was properly worded or was sufficient on itsface to constitute a proper waiver of immunity. Petitioner assertsthat the absence of the alleged document allegedly comprising thewaiver of immunity is a separate ground for granting this writ ofp r o h i b i t i o n h e r e i n .

27. Although petitioner was not represented by counsel in the

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Grand Jury, I was not brought before the Supreme Court Justice who

empaneled the Grand Jury to be advised of my right to berepresented by an attorney in the Grand Jury and to have anattorney present with me^while I testified before that body. Thatportion of the grant jury transcript which contains the so-calledw a i v e r o f i m m u n i t y i s a s f o l l o w s ;

CHARLES—E_; COLLINS, III, after being dulysworn by the Foreman of the Grand Jury, was

e x a m i n e d a n d t e s t i fi e d a s f o l l o w s :

E X A M I N E D B Y M R . H O R N :

Q Would you please state your name and occupation fort h e c o u r t s i r :

A My name is Charles E. Collins, III and I am a

p a r a l e g a l .

Q And you are aware that the Grand Jury of AlbanyCounty .is investigating an incident which occurredon January 26, 1998, at the Court of Appealslocated at 20 Eagle Street in the City of Albany,C o u n t y o f A l b a n y, S t a t e o f N e w Yo r k , i s t h a tc o r r e c t ?

A W h a t d a t e d i d y o u s a y ?

Q J a n u a r y 2 6 t h .

A T h a t ' s c o r r e c t .

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And you have decided to proceed here pro se, asy o u r o w n a t t o r n e y , c o r r e c t ?

T h a t ' s c o r r e c t .

And you are aware that under CPL Section 190.52 youhave a right to have an attorney present in theroom with you during this proceeding, if you sodesire, and if you are unable to afford one onewill be provided for you free of charge, is thatc o r r e c t ?

T h a t ' s c o r r e c t .

Okay. Now, you are charged with certain offensesrelated to this incident in Albany Police court, inconnection with this incident, is that correct?That's correct, two charges.And you have indicated in your capacity as your ownattorneir that you wish to testify and give evidencebefore this Grand Jury?

T h a t ' s c o r r e c t .

NOW, prior to testifying I'm going to ask you toexecute a document entitled waiver -- are youfamiliar with what it means to waive immunity?Y e s , I a m .

And do you understand that by signing this document

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you give up certain legal rights?T h a t ' s c o r r e c t .

Now, I gave you a copy of this document prior toyou coming in here, is that correct?T h a t ' s c o r r e c t .

Please don't sign it quite yet.O k a y.

Have you had time to review that document?Y e s , I h a v e .

Okay. And you understand specifically that you giveup any immunity from prosecution which you wouldotherwise obtain by testifying before the GrandJ u r y ?

T h a t ' s c o r r e c t .

And do you understand that any statements you maketo this Grand Jury will definitely be used againstyou in this proceeding and any other proceedings?T h a t ' s c o r r e c t .

With those admonitions in mind I furnished youalready a copy of the waiver. Please take a fewmoments and examine i t .

(The witness examines the document).MR. HORN: And if you wish to execute this document

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please do so in the presence of the Grand JuryF o r e m a n .

(Whereupon, the witness executes the waiver ofimmunity; the Foreman of the Grand Jury signs thedocument as a witness thereto; and the officialGrand Jury stenographer, a notary a public, takesthe witness's acknowledgment).

[See Exhibit D]

. . . h . t ^ ^r . p r . . . „ t . d b , „ i „ t b .~ ..b ■« b. i. „,bb. „ bbbbib bbb...b, „.b» .h.U b. by bb. bo.„ .bibb l.p.„.ibb bbigrand jury." [CPL 190.52].

29. Petitioner is informed by his attorney, that defendantsrxght to counsel safeguards under the New York State Constitutionare greater than those recognized by the Federal Constitution asexpressed by the United States Supreme Court. This tradition inthxs State was plainly stated in a recent case where the Supremecourt had reinstated a confession under the Federal Constitutionand on remand the Court of .ppeals relying on the StatlConstxtutxon against suppressed the confession under its right tocounsel provisions fNY Const, ar X,

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s t a t e d :

The safeguards guaranteed by this State; s Rioht toClause are unique (NY Const, art I, 60. By constrtutwrindstatutory interpretation, we have established a protective body oflaw in this area resting on concerns of due prootss selfincrimination, and the . right to counsel orovisionn of f"Constitution which is substantially greater than that recr.,,^- ^other State lurisdictions and ' far m ore e .n Tyfcounterpart, (emphasis added)...The Court has described nIC YorkRule as a cherished principal' rooted in this State'sprorevolutionary constitutional law and developed 'independenrof

Ffderal Counterpart' (People v Stettlea 45 NY2d 160 161)The highest degree of - judic ia l v ig i lance is remH,-^,^It' (emphasis added). Manifestly, protectior of the righT tocounsel has become a matter of singular concern in New York °P e o p l e V . H a r r i s . 7 7 N Y 2 d 4 3 4 , 4 3 9 • •west, 81 NY2d iTo, 373 [1993 - Kayo, p"!l.'

30. My attorney has informed me that it is well establishedby People v. Samuels, 49 NY2d 218 and numerous successive caseshanded down by the Court of Appeals, that "the State Right tocounsel attaches indelibly upon the commencement of formalproceedings, whether the defendant has actually retained orrequested a lawyer. Underlying this principal... is a recognitionthat once formal proceedings have commenced, the character of thematter changes from investigatory to accusatory. The right tocounsel both protects the accused in dealing with the coercivepower of the State and insures that any waiver of the right will beknowing and intelligent (emphasis added). People v w^»^ 81 NY2d3 8 0 , 3 7 3 ( 1 9 9 3 ) .

31. My attorney has informed me that the Court of Appeals hasheld when a defendant has already been accused of a crime, "...his

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appearance before the Grand Jury was unquestionably an occasion'When legal advise is most critically needed'". People v69 NY2d 497, 499 [1987].

32. in Ch , the defendant had been represented by anattorney at the arraignment of the felony charges filed in thelocal court. Several months after the arraignment, the defendant'slawyer was relieved by court order when the defendant was unable topay the legal fee. The defendant received notice that his case wasgoing to be presented to a grand jury and he appeared,unrepresented, and informed the assistant district attorneyhandling the matter that he wished to testify. The defendant wasbrought before the presiding judge of the Grand Jury. The judgeashed Chapman whether he wished to testify without the advise ofcounsel and the defendant only stated that he was unable to affordan attorney. "Rather than pursuing the inquiry, the court shiftedsubjects, explaining to the defendant that he would have to signand irrevocable waiver of ix unity before he would be permitted totestify... and that he might regret his decision down the road."

pg 500] . Chapman did then sign a waiver of immunitybefore the Grand Jury and thereafter testified. m holding thatthe defendant received transactional immunity, the Court of Appealsh e l d i n C h a p m a n ;

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immxinity waiver and his subseguent Grand .TiiT~.ra violation of his State constitutional riSt trthe' a °o»stitutedcounse l a t eve ry c r i t i ca l s tage o f t he ass i s tance o fwhether he was actually represented at the ti t ho''the Grand Jury, defendant's indelible right ot beforewhen the felony complaint against him was filo^continued throughout the criminal proceeding notwith i- ^^order relieving the specific attornev who "^"^"^bstanding thethe arraignment. . .Furthermore, the ta it resultino fof counsel was not mitigated by the limited iudiM on°" i'® absencethat occurred in this case. Althouah tho f interventionthe Grand Jury proceedings informed defendantof waiving his right to remain silent no moot-° consequencesimportance of independent legal counsel or 1 " T® "'®'^®the decision to appear, and test rwithout firsf T.®advice of a trained and experienced attornev fo m i s s i o n s , i t c a n h a r d l y b e s a i d h h a ^ l i g h t o f t h e s es u f fi c i e n t l y s e a r c h i n g t o a s s u r e t h a t a n v w a scounsel that may have occurred was made inteUioenKi ®.f u l l k n o w l e d g e o f t h e ' d a n g e r a n d a n d w i t h t h econstitutional protection" disadvantages' of foregoing

[Chapman. 501] .

33. The Court held that because the waiver was tainted anddefective, the defendant was granted immunity - "Transactionalimmunity was automatically conferred when defendant testifiedbefore the Grand Jury without having an effective waiver and hethereafter could not be prosecuted for any transaction, matter orthing concerning which he gave evidence." chapman, pg. 503, 504;

also. People v. Valano, 131 AD2d 615 (1987), People,,209 AD2d 530 (1994).

34. Petitioner was not brought before the Supreme CourtJustice who impaneled the Grand Jury and advised of his right tocounsel. Thus, petitioner is informed by my counsel that there was

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no effective waiver of counsel by him in the Grand Jury. The grandjury minutes display how I damaged my case and myself, if i hadadvice of counsel, I would not have gone in to the grand jury andmade the same s ta tements .

35. My attorney has also referred me to Criminal ProcedureLaw 190.52 which codifies a defendant's right to be represented bycounsel throughout the grand jury proceedings. That statuterequires that the Superior Court that impaneled the grand juryadvise the defendant of such right and to appoint him or hercounsel if the defendant cannot afford one. Here, the Supremecourt Judge that impaneled the grand jury was never consulted ormade a part of the proceeding so as to advise petitioner of myright to counsel and made an serious inquiry of me as to thedangers and pitfalls of self representation, which would haveprevented me from acting in the manner in which I did.

36. The City Cour.t Judge Herrick likewise did not advise meof my right to counsel during the grand jury proceedings but merelydirected me to give the district attorney my address so that Icould receive notice of the grand jury proceedings. it must benoted that I was never advised by Judge Herrick that I had theright to be represented by counsel at all stages of the proceedingsin my case. 1 was merely advised at my first court appearance thatI had a right to be represented by counsel at that proceeding. I

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was not advised of my right to have counsel appointed for me in thegrand jury by Judge Herrick.

, 37. When petitioner appeared at the Albany County Courthouseto appear before the grand jury, petitioner had never been advisedby his right Of counsel before that body and there is an absence ofany evidence that X was aware of such right and Knowingly andxntellrgently chose to represent myself. My attorney states thatX could not waive my right to counsel absent the presence ofc o u n s e l .

38. According to my attorney a reading of the transcripts ofthe proceedings in the Albany City Court, without doubt show thatno effective waiver of counsel was made by me in this court. Thetranscripts of the proceeding in that Court, oted above andattached to herein, show a complete failure to maKe any inquiryWhatsoever me as to whether my decision to waive my right tocounsel and proceed pro se was a Knowing and intelligent one Iassure the Court it was not. Moreover, pursuant to Criminalrocedure Law Sec. 0.30 Oudge HerricK, as a City Court Judge, did

not have ourisdiction to waive my right to counsel or determine myatatus as to legal representation in the Albany County Court or thegrand jury organized under the County Court.

38. "For such a waiver to be effective, the court must besatisfied that it was -...Xi3CagAl._vgl^^

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' V / -

• v^

(eiq)hasis added). To ascertain that it is, the court shouldundertake a sufficiently searching inquiry... to be reasonablycertain that the dangers of giving up the fundamental right tocounsel have been impressed on the defendant (see, Faretha vCalifornia, 422 US 806, 835, People v. 56 NY2d 110, 117)»People V. Slaughter. 78 Ny2d 485, 491 (1991).

40. The transcripts of the Albany City Court Proceedings inthis case show that there was no inquiry at all -- not even theminimal inquiry that the Court of Appeals found in Chapn,e. ndrejected as inadecjuate.

41. My lawyer tells me that a review of the cases citedherein, reflect that it is dubious that any waiver of counsel inthe lower court would have been an effective waiver of counsel inthe grand jury. It appears that I would have had to, in any event,been advised further of his right to counsel before testifying inthe Grand Jury. A defendant is entitled to counsel at all stagesof the proceeding. The Grand Jury proceedings would have had toresult in my receiving immunity from prosecution unless there wasan effective waiver of counsel where counsel was present.

42. That by decision dated May 19, 1999, the Honorable LarryJ. Rosen, Albany County Judge, denied my motion to dismiss on theground that I had been granted immunity by testifying in the grandjury without counsel and without having Been properly advised on my

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rights to counsel and the problems and pitfalls of representingm y s e l f . S e e E x h i b i t I .

43. The petitioner has a clear legal right to have the trialon the Albany County Indictment No. 3-5546 prohibited and theindictment dismissed because Supreme Court has no jurisdiction toprosecute petitioner on the indictment in that petitioner receivedimmunity from prosecution for acts alleged in the indictmentpursuant to CPL 50.10, 190.40(2)(a), and 190.52(1).

44. Hon. Dan Lament and Sol Greenberg are about to act inexcess of jurisdiction by commencing a criminal trial againstpetitioner on an indictment for which petitioner has receivedi m m u n i t y .

45. This Court should grant relief in the nature of the writof prohibition because the gravity of the harm which might becaused by the conviction of petitioner of a felony is severe;corrective action by -an appeal may cause petitioner to beincarcerated while the appeal is pending; correction by an appealwould take many months or years; the petitioner's constitutionalright to counsel in the grand jury and to immunity would beinfringed by exercise of jurisdiction by the court below inprosecuting petitioner; prohibition will furnish a more completeand efficacious remedy, even though an appeal after conviction istechnically available; because the petitioner would be deprived of

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hie freedom for a protracted period if required to await theoutcome of an appeal from an adverse jury verdict while awaitingthe outcome of an appeal to determine the constitutional issues.Rush V. Mordna. 68 NY2d 348 (1986) .

46. This writ of prohibition is properly commenced in theAppellate Division, Third Department pursuant to CPLR 506(b)(1)because it is a proceeding against a justice of the supreme courtor a judge of the county court in.the judicial department where theaction sought to be restrained originated and is triable, seePollack v. Morqanthaw, 114 AD2d 640 (3rd Dept. 1985) (writ ofprohibition against county judge and district attorney seeking toprohibit them from proceeding with prosecution of indictment wasrequired to be commenced in Appellate Division); People bvGreenberq v. Conway, 62 AD2d 1107 (3rd Dept. 1978) (Writ ofprohibition against acting supreme court justice should have beenconra ienced i n Appe l l a te D iv i s ion ) .

47. The petitioner has no other adequate remedy at law or ate c [ u i t y .

48. The petitioner has made no previous application to anycourt or justice or judge for the relief sought herein.

WHEREFORE, petitioner respectfully requests that this Courtissue a final judgment determining that petitioner Charles Collinshas received immunity from prosecution for the conduct alleged in

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•■V f r . .

under Albany County Indictment No. 3-5546J 0546, and directing andforever prohibiting respondents Dan Lamont, Actino j <-4

Ac t i ng Jus t i ce o f t heSupreme Court, and Sol Greenberg, District it.-3, District Attorney of Albany< , o .

< o . « y o , 1 . 1 1 , 1 1 . 1 . 1 1P , o c . . „ . , . 1 . i i i „ ^

. „ „ i i „ , i . . , „ . . . i i , ^ p „ i i . , i . i i i ^prohibit!., th. p„..o.tlo„ ..i, l.,,.!.^. „111 ^< . . t . „ l . . t l . „ . „ , , l „ . l 1 ,hppoll.t. „1«.1„. ihit, „.p..t.„t o. th. „.it., .^^1oth.i ,.„h„ 1.11.1 .. th. „.,t ..V J...DATED: December 7, 1999

Swc^n to before me this*/7j day of December, 1999

CHARLES COLLINS108 Brunswick RoadTroy, New York 12180

notary public ' y /'L e w i s B . O l i v e r, J r.

#4647067" "'Qualified in Albany CountyCommission Expires 8/31/2001

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