| People v Lindsey |
| 2010 NY Slip Op 06183 [75 AD3d 906] |
| July 22, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v LarryLindsey, Appellant. |
—[*1] Richard J. McNally Jr., District Attorney (Gordon W. Eddy of counsel), forrespondent.
Garry, J. Appeal from a judgment of the Supreme Court (Egan Jr., J.), rendered November 9,2007 in Rensselaer County, upon a verdict convicting defendant of the crimes of aggravatedharassment in the second degree and criminal contempt in the second degree (three counts).
Following a jury trial, defendant was convicted of aggravated harassment in the seconddegree and three counts of criminal contempt in the second degree and was sentenced to, amongother things, an aggregate term of imprisonment of two years. The charges arose fromdefendant's conduct with respect to his wife and his violation of an order of protection in herfavor. Defendant appeals.
Initially, defendant contends that he was allowed to proceed pro se without a sufficientinquiry by Supreme Court to determine that the choice was knowing, voluntary, and intelligent.Before a defendant can proceed pro se, it must be determined, following a " 'searching inquiry,' "that the defendant has knowingly, voluntarily and intelligently waived the right to counsel (People v Providence, 2 NY3d579, 580 [2004], quoting People v Arroyo, 98 NY2d 101, 103 [2002]; see People v Whitted, 16 AD3d905, 907 [2005], lv denied 4 NY3d 892 [2005]). Here, Supreme Court inquired intodefendant's age, mental and physical condition, education, employment history, priorinvolvement with the criminal justice system and the motivation for his decision. The court alsoexplored, at length, defendant's understanding of the process and [*2]what his role in it would be, and explained the risks ofself-representation. When he expressed his dissatisfaction with his present appointed counsel,defendant was offered an opportunity to be appointed new counsel and was given time to consultwith his prospective counsel. Following this consultation, defendant, who had previouslyrepresented himself in a criminal matter, reaffirmed his desire to forgo representation by counsel.On this record, we find that Supreme Court conducted a searching inquiry into defendant'swaiver of counsel and that his unequivocal waiver was knowing, voluntary and intelligent (see People v Lagas, 49 AD3d1025, 1026 [2008], lv denied 10 NY3d 866 [2008]; People v McEachin, 29 AD3d1221, 1222 [2006], lv denied 7 NY3d 903 [2006]; People v Whitted, 16AD3d at 907-908).
Defendant next contends that Supreme Court erred in its Molineux ruling,improperly admitting evidence regarding prior bad acts. Before commencement of the trial, thePeople sought a ruling on the admission of evidence relating to prior violent and abusiveincidents between defendant and the victim, including the conduct underlying the issuance of theorder of protection that defendant violated. When afforded an opportunity to respond to thePeople's application, defendant failed to present any relevant argument on the issues ofadmissibility or prejudice regarding the bad acts that the People sought to admit, insteadchoosing to revisit an unrelated issue that had been previously addressed and ruled upon, andthen denying that any of the uncharged conduct had occurred. Supreme Court ultimatelyconcluded that it would permit admission of evidence of the prior alleged bad acts that led up tothe issuance of the order of protection. This evidence was probative of, among other things,defendant's intent, and thus admissible as a matter of law; however, the record fails to reveal therequisite balancing of the probative value of the evidence against its potential for prejudice (see People v Westerling, 48 AD3d965, 966-968 [2008]; People vWlasiuk, 32 AD3d 674, 676-678 [2006], lv dismissed 7 NY3d 871 [2006]; People v Wright, 5 AD3d 873,876 [2004], lv denied 3 NY3d 651 [2004]). Further, although noting that this issue wasnot preserved, we find that the failure to issue limiting instructions to the jury regarding theproper purpose of this evidence was error (see People v Westerling, 48 AD3d at 968; People v De Fayette, 16 AD3d708, 709 [2005], lv denied 4 NY3d 885 [2005]; People v Ward, 10 AD3d 805, 807 [2004], lv denied 4NY3d 768 [2005]; People v Wright, 5 AD3d at 876). Nonetheless, in light of theoverwhelming evidence of defendant's guilt, we find these errors to be harmless (see People v Meseck, 52 AD3d948, 950 [2008]; People v De Fayette, 16 AD3d at 709-710; see also People v Echavarria, 53 AD3d859, 863 [2008], lv denied 11 NY3d 832 [2008]; People v Ward, 10 AD3dat 807; People v Wright, 5 AD3d at 876-877).
Finally, defendant's argument that he was compelled by Supreme Court to appear in prisonattire during trial has been considered and found without merit; the record reveals no compulsion(see People v Cruz, 14 AD3d730, 732 [2005], lv denied 4 NY3d 852 [2005]).
Mercure, J.P., Malone Jr., Kavanagh and Stein, JJ., concur. Ordered that the judgment isaffirmed.