| People v Moore |
| 2009 NY Slip Op 02853 [61 AD3d 494] |
| April 14, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Kenneth Moore, Also Known as James Jackson,Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Olivia Sohmer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered November 15,2006, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance inthe third degree, and sentencing him, as a second felony drug offender, to a term of 4½years, unanimously affirmed.
The record taken as a whole (seePeople v Providence, 2 NY3d 579, 583 [2004]) demonstrates that defendant made aknowing and intelligent waiver of his right to counsel, and that the court's inquiry intodefendant's request to proceed pro se was sufficient in light of all the surrounding circumstances(see People v Reifsteck, 134 AD2d 876 [1987], lv denied 70 NY2d 1010 [1988];People v Whitted, 113 AD2d 454, 458 [1985], lv denied 67 NY2d 952 [1986]).Defendant had a lengthy criminal history and had just completed representing himself at trial onvery similar charges, and with the use of the same advisor who advised him in this case.Moreover, defendant told the court he wished to proceed pro se "for the time being." Thisequivocal statement, coupled with the apparent lead role his legal advisor took during subsequentplea negotiations, is akin to a situation where a defendant merely participates in his or herdefense, rather than completely waiving the right to counsel (see People v Cabassa, 79NY2d 722, 730-731 [1992], cert denied sub nom. Lind v New York, 506 US 1011[1992]). The record supports the conclusion that when defendant pleaded guilty, his legal advisorplayed essentially the same role he would have played had defendant not requested to representhimself. Furthermore, the disposition, in which defendant's sentence ran concurrently with alonger sentence he was already serving, was very favorable, and there is no reason to doubt theattorney rendered sound advice to accept the plea.
Since defendant pleaded guilty with the assistance of new counsel, he forfeited the right toargue that he was denied the opportunity to testify before the grand jury as a result of his priorattorney's conduct (see People v Petgen, 55 NY2d 529, 534-535 [1982]; People v Profitt, 23 AD3d 238[2005]; People v Bostick, 235 AD2d 287 [1997], lv denied 89 NY2d 1089[1997]). In any event, even assuming the prior attorney withdrew defendant's request to testifywithout consulting her client, this did not constitute ineffective assistance (see People vSimmons, 10 [*2]NY3d 946, 949 [2008]; People vWiggins, 89 NY2d 872 [1996]; People v Nobles, 29 AD3d 429 [2006], lv denied 7 NY3d792 [2006]; see also People v Cox, 19 Misc 3d 1129[A], 2007 NY Slip Op 52553[U][Sup Ct, NY County 2007]; compare People v Mason, 263 AD2d 73, 76-77 [2000][represented defendant retains personal right to testify at trial]). Since defendant has notmade any showing of what testimony he would have given or how it might have affected theoutcome of the grand jury proceeding, he has not established any prejudice.Concur—Saxe, J.P., Friedman, Sweeny, Acosta and Freedman, JJ.