| People v Kulakov |
| 2010 NY Slip Op 02993 [72 AD3d 1271] |
| April 15, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v VladimirKulakov, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.),rendered January 4, 2007, upon a verdict convicting defendant of the crimes of attempted murderin the first degree, assault in the first degree, criminal possession of a weapon in the seconddegree, criminal possession of a weapon in the third degree, grand larceny in the third degree,criminal possession of stolen property in the third degree and criminal possession of stolenproperty in the fourth degree.
Defendant was indicted on numerous charges following an incident during which he stole atruck, led police on a vehicular chase and then a foot chase, shot a State Trooper twice, fled, andwas apprehended following another vehicular chase in a different stolen truck. At a pretrialhearing, defendant requested to proceed pro se, but agreed to allow counsel to continuerepresenting him. Before the trial commenced, defendant again sought to proceed pro se. Afterdiscussing the matter with defendant and counsel, County Court permitted defendant to representhimself, but required his attorney to remain as standby counsel. Defendant did not ask anyquestions during voir dire, but did challenge potential jurors for cause and exercised peremptorychallenges. Several of his challenges for cause were granted by the court. After two witnesseshad completed their testimony, defendant informed the court that he could not properlyformulate questions and was in need of counsel. His attorney then resumed representing him. Atthe [*2]conclusion of the People's case, defendant againrequested to proceed pro se, but the court denied that request. Defendant testified in his ownbehalf, against counsel's advice, and no other defense evidence was presented. The juryconvicted defendant of seven felonies—attempted murder in the first degree, assault in thefirst degree, criminal possession of a weapon in the second and third degrees, grand larceny inthe third degree and criminal possession of stolen property in the third and fourthdegrees—and the court sentenced him as a second felony offender. Defendant appeals.
County Court did not err in failing to order, sua sponte, a mental examination of defendantpursuant to CPL 730.30. The determination of whether to order a competency hearing rests in thesound discretion of the trial court, and the court here never indicated that it considered defendantan incapacitated person, i.e., someone unable to understand the proceedings against him orincapable of assisting in his defense by reason of a mental disease or defect (see People vTortorici, 92 NY2d 757, 765 [1999], cert denied 528 US 834 [1999]; seealso CPL 730.10 [1]; 730.30 [1]; People v Francabandera, 33 NY2d 429, 436[1974]). Some of defendant's answers or statements which he now points to as unresponsive ordelusional may instead be attributable to a slight language barrier, as English is not his firstlanguage. Defendant made statements that were argumentative and may have reflected anincorrect understanding of some aspects of the law, but these statements showed that he wasdefiant and distrustful of lawyers and the criminal justice system rather than delusional ormentally unstable (see People v Daley, 302 AD2d 745, 746 [2003]). His threat to speakonly Russian for the remainder of the trial was similarly a manipulative attempt to gain delay orforce the court to grant his request, but he rejected that tactic when he realized that it wasunsuccessful. Defendant answered the court's questions, explained his positions, and madelogical arguments while representing himself during voir dire and at other times (see People v Poquee, 9 AD3d781, 782-783 [2004], lv denied 3 NY3d 741 [2004]). In his dealings with the court,defendant did not act in a bizarre manner such that the court was required to order a mentalexamination, especially where none was requested.
County Court did not err in permitting defendant to proceed pro se. The court discussed withdefendant the advantages of representation by counsel as well as the pitfalls ofself-representation, and allowed his assigned attorney to remain as standby counsel (see People v Hilts, 46 AD3d 947,949 [2007], affd 13 NY3d 895 [2009]). When defendant made statements indicating thathe misunderstood the role of counsel or the court, the court explained that hybrid representationwas not permitted and that the court could not advise defendant on the law during the trial.Defendant's request prior to the commencement of jury selection was timely, he was unequivocalin his desire to represent himself, he had not been disruptive and his discussion with the courtexhibited a knowing and intelligent waiver of his right to counsel (see People vMcIntyre, 36 NY2d 10, 17-18 [1974]; People v Tafari, 68 AD3d 1540, 1541 [2009]). He answered thecourt's questions regarding the roles of the prosecutor and defense, as well as the general natureof the charges,[FN*]and detailed his prior self-representation in two separate cases. Having satisfied itself thatdefendant was informed of the consequences of forgoing counsel and [*3]knowingly chose to proceed pro se, the court properly granteddefendant's request, but continued his attorney as standby counsel.
Defendant cannot now argue that County Court should have assigned him new counsel.Although he stated prior to his pretrial hearing that he was dissatisfied with counsel and did notknow what he wanted to do if he could not get another attorney, he waived his request byagreeing with the court's suggestion to allow continued representation by his assigned counselfor the hearing (cf. People vGillian, 8 NY3d 85, 88 [2006]). When he became dissatisfied with hisself-representation, he told the court that he did not want to continue pro se, but also did notwant assigned counsel to represent him. That was not a clear request for the court to assign himnew counsel. In any event, the court would have been justified in denying a request for newcounsel that was made during the trial (see People v Moore, 149 AD2d 739, 739 [1989],lvs denied 74 NY2d 744, 898 [1989]; cf. People v Medina, 44 NY2d 199,207-208 [1978]). Hence, the court was never in a position where it was required to assign newcounsel to represent defendant.
Defendant was not denied the effective assistance of counsel. The only alleged errors raisedby defendant are that counsel failed to present an insanity defense and did not request a CPLarticle 730 examination. Defendant believed that he was being illegally detained in the UnitedStates due to immigration concerns, that any attempt to secure him—even bypolice—constituted kidnapping and that he was justified in using deadly force to preventsuch a kidnapping. He relied upon the defense of justification in Penal Law article 35 to supporthis argument. While this was clearly an incorrect interpretation of the law, these beliefs did notrender him insane. As the record does not support defendant's current contention that he had avalid insanity defense, and counsel pursued other rational defenses while zealously representingdefendant, we cannot say that counsel was ineffective (cf. People v Wheeler, 249 AD2d774, 775 [1998]; compare People v Horan, 290 AD2d 880, 884-886 [2002], lvdenied 98 NY2d 638 [2002]). For the same reasons that County Court did not err in failingto order a mental examination, counsel was not ineffective for failing to request such an exam(see People v Poquee, 9 AD3d at 783; People v Wojes, 306 AD2d 754, 755[2003], lv denied 100 NY2d 600 [2003]).
Mercure, J.P., Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: On appeal, defendant's counselcontends that defendant was unaware of the charges against him. While defendant stated thattrial counsel never gave him a copy of his paperwork, he mentioned the basic nature of thecharges without knowing the degree or precise name of the crimes, and properly used legal termssuch as "superceding indictment."