| People v Mercer |
| 2009 NY Slip Op 06926 [66 AD3d 1368] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CleotisMercer, Appellant. |
—[*1] Cleotis Mercer, defendant-appellant pro se. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered March23, 2005. The judgment convicted defendant, upon a jury verdict, of murder in the second degree(two counts), robbery in the first degree (two counts), robbery in the second degree and criminalpossession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby directing that the sentence imposed on count four of the indictment shall run concurrentlywith the sentences imposed on counts two, three, five, six and seven of the indictment and asmodified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of,inter alia, two counts of murder in the second degree (Penal Law § 125.25 [1], [3]). Wereject defendant's contention that the People should have made the confidential informantavailable to defendant for questioning. The informant was not an agent of the government as amatter of law (see People v Cardona, 41 NY2d 333, 335 [1977]), and he was not actingas such during the commission of the crime or when he was incarcerated with defendant. CountyCourt did not abuse its discretion in refusing to appoint a handwriting expert to examine the notethat defendant allegedly wrote to the informant (see generally People v Olivares, 34 AD3d 602 [2006], lvdenied 9 NY3d 879 [2007]). Contrary to defendant's further contention, the court properlysubmitted the annotated verdict sheet to the jury inasmuch as it had been provided to andexpressly approved by defense counsel (see People v Angelo, 88 NY2d 217, 224[1996]). We further conclude that the court did not abuse its discretion in removing defendantfrom the courtroom during the Huntley hearing. The record establishes that defendantcontinuously interrupted the court and that the court warned defendant that he would be removedfrom the courtroom if he continued to act in a disruptive manner (see CPL 260.20;People v Byrnes, 33 NY2d 343, 349-350 [1974]).
Further, defendant was not denied his constitutional right to represent himself. The transcriptof the Huntley hearing establishes that, after a comprehensive inquiry, the court granteddefendant's repeated requests to proceed pro se. When defendant thereafter indicated that hewanted to testify at the Huntley hearing, the court directed him to take the witness stand.[*2]Defendant, however, unequivocally then stated at least fourtimes that he wanted to be represented by defense counsel again, and the court granted hisrequests. The record thus establishes that defendant abandoned his requests at theHuntley hearing to proceed pro se (see People v McClam, 297 AD2d 514[2002], lv denied 99 NY2d 537 [2002]). The court properly denied defendant'ssubsequent request to proceed pro se at trial. "The request was untimely and made at anadvanced stage of the trial, and the defendant failed to set forth a compelling reason for therequest" (People v Venticinque, 301 AD2d 619, 619-620 [2003], lv denied 100NY2d 566 [2003]). We further conclude that defendant was not denied effective assistance ofcounsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
We agree with defendant, however, that the court erred in directing that the sentenceimposed on count four of the indictment, criminal possession of a weapon in the second degree(Penal Law § 265.03 [former (2)]), shall run consecutively with the sentences imposed oncounts two, three, five, six and seven of the indictment. Here, "the weapon possession was notseparate and distinct from the shooting[ ]" and consecutive sentences thus are prohibited (People v Hamilton, 4 NY3d 654,659 [2005]; see Penal Law § 70.25 [2]; People v Boyer, 31 AD3d 1136, 1139 [2006], lv denied 7NY3d 865 [2006]; People vRudolph, 16 AD3d 1151, 1152-1153 [2005], lv denied 5 NY3d 809 [2005]). Wetherefore modify the judgment accordingly.
We have considered defendant's remaining contentions and conclude that none requiresreversal. Present—Martoche, J.P., Smith, Peradotto, Carni and Green, JJ.