Court Vacates Burglary Conviction Because Defendant Did Not Have a Lawyer at Trial


Nathaniel Issac, then 52, was arrested and charged with breaking into a Queens warehouse in May 2008. Prosecutors presented a witness who claimed to have seen Issac on the roof of the building next to the warehouse the same week of the break-in. Police found Issac in possession of items from the warehouse.

In a September 2010 bench trial, a Queens Supreme Court judge found Issac guilty of burglary.

Four years later, an appeals court overturned the conviction.

The trial judge, the appeals court stated in a ruling last week, had improperly removed Issac’s right to a lawyer and forced Issac to represent himself.

“It is undisputed that the defendant did not validly waive the right to counsel,” The Appellate Division of the Queens Supreme Court stated. “Indeed, the record shows that he consistently sought the assistance of assigned counsel.”

The trial court had provided Issac an attorney from the start. He had problems with that attorney, and so requested a new one, which the court gave him. But he had problems with that one, too. And the next one. And the next one. He refused to cooperate with the attorneys. He argued with them. He yelled at one of them in the courtroom.

When he requested a new attorney for the fifth time, the judge rejected the application and ruled that he had forfeited his right to counsel.

To the appeals court, this decision was too strict and its impact on the trial too great.

“A finding of a forfeiture of the right to counsel is an ‘extreme, last resort,’ ” the appeals court stated. “Here, the record does not show that the defendant engaged in any conduct warranting a forfeiture finding.”

Without a lawyer there to defend Issac, the flaws in the prosecution’s case went unchallenged.

The prosecution, the appeals court stated, did not provide “sufficient evidence” tying Issac to the burglary. While a witness had seen Issac on the roof next to the warehouse on May 27, 2008, the police did not determine that the break-in had taken place on that day. The police had only narrowed down the date of the crime to between May 23 and May 27. “The evidence showed only that those events [the break-in and Issac’s presence on the roof] occurred at some point during a four-day period prior.

“The defendant was found in possession of some of the alleged proceeds of the burglary on the date of his apprehension,” the appeals court noted. “However, there was no other evidence connecting him to the burglary or the damage to the warehouse, and, under these circumstances, his possession of the alleged burglary proceeds was not shown to be ‘recent and exclusive’ ” — the standard for using possession of stolen property to prove guilt in a burglary.

The only charge backed by sufficient evidence was that of possession of stolen property, the court said. But because Issac had no lawyer, the appeals court dismissed that count, too.