| People v Herman |
| 2010 NY Slip Op 08500 [78 AD3d 1686] |
| November 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Scott S. Herman,Appellant. |
—[*1] 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 August 6,2007. The judgment convicted defendant, upon a jury verdict, of murder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of murder in thesecond degree (Penal Law § 125.25 [1]), defendant contends that County Court erred ingranting his application to proceed pro se. We reject that contention. It is well settled that a defendantin a criminal case has the right to represent himself (see NY Const, art I, § 6; CPL210.15 [5]). A defendant may invoke that right "provided: (1) the request is unequivocal and timelyasserted[;] (2) there has been a knowing and intelligent waiver of the right to counsel[;] and (3) thedefendant has not engaged in conduct [that] would prevent the fair and orderly exposition of the issues"(People v McIntyre, 36 NY2d 10, 17 [1974]; see People v Tabor, 48 AD3d 1096 [2008]). Here, defendant's requestto proceed pro se was timely inasmuch as it was made "prior to the prosecution's opening statement"(McIntyre, 36 NY2d at 18), and the request was clearly unequivocal. Also, prior to grantingthe request, the court engaged in the requisite "searching inquiry" to ensure that defendant's waiver ofthe right to counsel was knowing, voluntary and intelligent (People v LaValle, 3 NY3d 88, 106 [2004]), and defendant did notengage in any conduct that disrupted the trial.
We reject the contention of defendant that his deficient representation of himself demonstrated thathis waiver of the right to counsel was not knowing, voluntary and intelligent. Although the performanceof defendant at trial was far from flawless, "respect for individual autonomy requires that he be allowedto go to jail under his own banner if he so desires and if he makes the choice with eyes open"(People v Duffy, 299 AD2d 914 [2002], lv denied 99 NY2d 628 [2003] [internalquotation marks omitted]), and that is the case here. Based on our review of the record before us, wereject the further contention of defendant that the proceedings resulted in a "travesty of justice" such thathe was denied his right to due process (McIntyre, 36 NY2d at 18). Present—Smith,J.P., Fahey, Lindley, Sconiers and Gorski, JJ.