| People v Rush |
| 2007 NY Slip Op 07730 [44 AD3d 799] |
| October 9, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v EddieRush, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Margaret E.Mainusch of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Brown, J.),rendered May 20, 2003, convicting him of burglary in the first degree, robbery in the first degree(two counts), robbery in the second degree, criminal use of a firearm in the first degree, criminaluse of a firearm in the second degree, criminal possession of a weapon in the second degree,grand larceny in the third degree, and grand larceny in the fourth degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
During jury selection, the defendant, who had expressed dissatisfaction with his assignedcounsel, alerted the court that he had spoken with a new attorney who might potentially appearon the next court date. He requested that the court recess until then. When the court denied hisrequest, the defendant, in effect, requested to proceed pro se. After the court denied the request toproceed pro se, the defendant's assigned counsel continued to conduct jury selection for theremainder of the day. When the new attorney with whom the defendant had conversed did notappear on the next court date, the defendant requested that he be permitted to proceed pro se forthe remainder of the trial. After conducting an inquiry, the court granted this request and thedefendant represented himself for the remainder of the trial. Contrary to the defendant'scontention, the court properly denied his initial request to proceed pro se, as the initial requestwas only to proceed pro se temporarily until his new counsel arrived, was in the alternative, andwas not clear and unequivocal (seePeople v Gillian, 8 NY3d 85, 88 [2006]).[*2]
Also contrary to the defendant's contention, there was a"reasonable basis, articulated on the record" for the defendant's legs to be shackled during thetrial (People v Rouse, 79 NY2d 934, 935 [1992]; see People v Mendola, 2 NY2d270, 277 [1957]). The prosecutor and court officer stated on the record at a pretrial hearing thatthey had learned from Corrections Department staff that the defendant had said on more than oneoccasion that he planned to attempt an escape when he came to court and that he planned to gethold of a court officer's gun (see People v Tedesco, 143 AD2d 155, 159 [1988]). Further,any prejudice was limited by the fact that the shackles were concealed by brown papersurrounding both counsel tables (seePeople v Pruitt, 28 AD3d 588 [2006]; People v Bailey, 205 AD2d 789, 790[1994]).
The defendant's contention that the admission of a statement of his codefendant, made in theback of a police car after the codefendant was arrested, violated the defendant's rights under theConfrontation Clause (see Crawford v Washington, 541 US 36 [2004]) is not preservedfor appellate review (see People vMarino, 21 AD3d 430, 431 [2005], cert denied, — US —, 126 S Ct2930 [2006]; People v Mack, 14AD3d 517 [2005]; People v Hughes, 251 AD2d 513 [1998]). In any event, theevidence of the defendant's guilt, without reference to the alleged error, was overwhelming, andthere is no reasonable possibility that the alleged error might have contributed to the defendant'sconviction. Thus, any error was harmless beyond a reasonable doubt (see People vCrimmins, 36 NY2d 230, 237 [1975]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Crane, J.P., Florio, Lifson andCarni, JJ., concur.