| People v Yu-Jen Chang |
| 2012 NY Slip Op 01381 [92 AD3d 1132] |
| February 23, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Yu-JenChang, Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Gordon W. Eddy of counsel), forrespondent.
Spain, J. Appeal from a judgment of the Supreme Court (Cholakis, J.), rendered October 22,2008 in Rensselaer County, upon a verdict convicting defendant of the crimes of aggravatedharassment in the second degree and stalking in the fourth degree.
Defendant was convicted as charged, following a jury trial, of stalking in the fourth degreeand aggravated harassment in the second degree. The charges stem from defendant's unrelentingpattern of conduct between January 2005 and August 2006 in sending hundreds of e-mails to hisformer wife (hereinafter the victim), using an account she had set up for the sole stated purposeof coordinating his parenting time with their two teen-age sons of whom she had sole custody.The e-mails escalated and persisted long after the victim and her attorney directed defendant tocease sending e-mails unrelated to visitation issues and advised defendant that the victim viewedthem as harassing and abusive; they contained fleeting references to visitation issues but werepredominantly attacks on the victim, including wide-ranging accusations and disparagements.Previously, this Court upheld findings that defendant had committed a family offense based uponthe same underlying conduct. Upon his conviction, defendant was sentenced to one year in jailand a no contact order of protection was issued in favor of the victim and children.[*2]
As a threshold matter, defendant challenges the subjectmatter jurisdiction of Supreme Court's Integrated Domestic Violence (hereinafter IDV) part to tryand sentence him on these unindicted misdemeanor charges. The summons and accusatoryinstruments with supporting depositions were filed in Brunswick Town Court, which acquiredjurisdiction over the matter (see CPL 1.20 [1], [24]; 210.05). That jurisdiction was thentransferred to Supreme Court's IDV part (see 22 NYCRR 41.1 [b]; 141.1 [b]), and thattransfer was in all respects proper. Subject to certain limitations not relevant here, "the New YorkConstitution vests Supreme Court with the power to hear any case that any other court in the[Unified Court System] could hear" (People v Correa, 15 NY3d 213, 228 [2010]; see NY Const,art VI, § 7). Indeed, subsequent to this trial the Court of Appeals upheld the trialjurisdiction of Supreme Court IDV parts over unindicted misdemeanors charged in misdemeanorinformations, upon a proper transfer (People v Correa, supra; see People v Hallenbeck, 81 AD3d1077, 1078 [2011]).
Defendant's claim that he was improperly permitted to proceed pro se is meritless, given thathe made a "knowing, voluntary and intelligent waiver of the right to counsel" (People vArroyo, 98 NY2d 101, 103 [2002]); he unequivocally adhered to that waiver throughout theproceedings, after "searching inquir[ies]" by Supreme Court in which the "dangers anddisadvantages" of proceeding pro se and the value of trained trial counsel knowledgeable aboutcriminal law and procedure were impressed upon him, again and again (People v Providence, 2 NY3d 579,582 [2004] [internal quotation marks and citations omitted]; see People v Crampe, 17NY3d 469, 481-482 [2011]). At the June 25, 2007 appearance, defendant, who had dischargedhis retained counsel, unequivocally declined to accept assigned counsel and indicated that hewould retain counsel and, in the meantime, would represent himself. At numerous courtappearances up until the September 2008 trial, well over a year later, defendant never retainedcounsel and steadfastly adhered to his desire to represent and speak for himself; defendant did sodespite the court generously affording him repeated adjournments, imploring him to retaincounsel or accept an assigned attorney, and advising him that he lacked the necessary skills andknowledge to effectively protect his legal rights.
On the initial trial date in June 2008, Supreme Court reviewed defendant's options, includinghaving assigned counsel (or retaining counsel promptly) or proceeding pro se, and, in itsdiscretion, also offered stand-by counsel to provide legal advice (see People v Mirenda,57 NY2d 261, 265-266 [1982]); defendant elected to accept stand-by counsel with theunderstanding that counsel could not speak for him or control his defense. When defendantsubsequently expressed dissatisfaction with or confusion about stand-by counsel's role, the court,on numerous occasions, meticulously and endlessly explained counsel's limited role (i.e., to offerlegal advice to defendant); the court also correctly informed defendant that he was not entitled tohybrid representation, which the court in its provident discretion had denied, and that stand-bycounsel was not "co-counsel" (see People v Rodriguez, 95 NY2d 497, 501-502 [2000]).
Significantly, Supreme Court at all times—including at trial—made it known todefendant that assigned counsel was available to him and could be brought in to defend him, andmade every effort possible to persuade him that it was a mistake to proceed pro se and that hewas harming his defense, all of which defendant consistently rejected. The court, having presidedover defendant's divorce and the family offense petition against him at which he representedhimself the majority of the time, and with full knowledge of the court files, was well aware ofdefendant's advanced college education, work history and experience with legal proceedings, andmade sufficiently searching inquiries of defendant's unwavering choice to represent himself,including at trial (see People v Crampe, 17 NY3d at 481-482; People v [*3]Providence, 2 NY3d at 583-584). As defendant timely andunequivocally asserted his constitutional right to self-representation, and the record, viewed as awhole, reflects that he knowingly and intelligently waived his right to counsel and that, while hemade the proceedings exceedingly difficult, he did not engage in conduct that prevented "the fairand orderly" disposition of the charges, defendant was entitled to proceed pro se (People vMcIntyre, 36 NY2d 10, 17 [1974]; see People v Crampe, 17 NY3d at 481-483;People v Providence, 2 NY3d at 582-583; cf. People v Arroyo, 98 NY2d at103-104), "[r]egardless of his lack of expertise and the rashness of his choice" (People vVivenzio, 62 NY2d 775, 776 [1984]).
Relatedly, we reject defendant's contention that Supreme Court erred by failing to order, suasponte, a CPL 730.30 mental health examination. "A defendant is presumed to be competent andis not entitled, as a matter of law, to a competency hearing unless the court has reasonablegrounds to believe that, because of mental disease or defect, the defendant is incapable ofassisting in his or her own defense or of understanding the proceedings against him [or her]"(People v Planty, 238 AD2d 806, 807 [1997], lv denied 89 NY2d 1098 [1997];see CPL 730.30 [1]; People vVolfson, 79 AD3d 1532, 1533 [2010], lv denied 16 NY3d 900 [2011]). "Thedetermination of whether to order a competency hearing rests in the sound discretion of the trialcourt" (People v Kulakov, 72 AD3d1271, 1272 [2010], lv denied 15 NY3d 775 [2010], lv dismissed 16 NY3d896 [2011]; see People v Tortorici, 92 NY2d 757, 765 [1999], cert denied 528US 834 [1999]). Upon a review of the record, we cannot conclude that the court, which observedand interacted with defendant at great length in this and prior trials, erred in not ordering such aninquiry prior to or during the trial. While defendant was argumentative, often noncompliant,repetitious in the extreme, obstinate and obsessive in making objections, motions and a recordfor appeal, he was also calm, polite and controlled, and his behavior was not suggestive ofincapacity (see CPL 730.10 [1]).
After the verdict, defendant discharged stand-by counsel, and Supreme Court ordered amental health evaluation as part of the presentence investigation (see CPL 390.30 [1],[2]); defendant repeatedly failed to cooperate even after successive adjournments and hisconfinement for that purpose, which also violated the terms of probation he was then serving forhaving violated a prior order of protection. The court imposed sentence, after taking intoconsideration the report from the psychiatric center where defendant had been held, in whichmental health professionals made observations of defendant and suggested a possible mentalhealth diagnosis. We discern no error or abuse of discretion.
Next, as the People concede, it was error to proceed with opening statements, in which theprosecutor made reference to defendant's prior bad acts against the victim, in the absence of aruling pursuant to People v Molineux (168 NY 264 [1901]) outside the presence of thejury, as requested by defendant prior to trial (see People v Small, 12 NY3d 732, 733 [2009]; People vVentimiglia, 52 NY2d 350, 356 [1981]; People v Fleegle, 295 AD2d 760, 762[2002]). After defendant objected, i.e., after opening statements but before testimony, the Peoplemade a proffer and Supreme Court ruled that defendant's violations of orders of protection wereinadmissible, but allowed the underlying facts to be elicited, and precluded reference to pendingcharges, but allowed limited testimony of the underlying facts. We discern no error in this ruling(see People v Doyle, 48 AD3d961, 963 [2008], lv denied 10 NY3d 862 [2008]).
When the victim testified on direct examination, she briefly recounted her history withdefendant, and the prosecutor did not elicit testimony in violation of the Molineux ruling.While defendant is correct that the prosecutor had already referenced, in her opening statement,matters [*4]subsequently precluded by Supreme Court's ruling,we find this error to be harmless in view of the truly overwhelming evidence of defendant's guiltof the charges here. Indeed, we find no "significant probability" that the jury would haveacquitted defendant in the face of that compelling proof had it not been for this error (Peoplev Smith, 2 NY3d 8, 12-13 [2004]; see People v Rabideau, 82 AD3d 1283, 1285 [2011], lvdenied 17 NY3d 799 [2011]). Moreover, defendant himself explored the prohibited materialin greater depth during his voir dire and cross-examination of the victim, thereby waiving anyclaim of prejudice, and appropriate limiting instructions were provided to the jury.
Finally, the order of protection issued by Supreme Court directing defendant to stay awayfrom and refrain from communicating with the victim and their children for a period of five yearsis permissible and, under these circumstances, is not an abuse of discretion (see CPL530.12 [5]). "When a crime has been committed between members of the same family orhousehold [see CPL 530.11 (1) (c), (d) (includes former spouses living apart and personswith children in common)], an order of protection may be issued in favor of the victim of suchcrime and members of the family or household of the victim" (People v La Motte, 285AD2d 814, 816-817 [2001]; see People v Goodband, 291 AD2d 584, 585 [2002]). Givendefendant's protracted conduct against the victim, using his children as a means to harass andstalk her, we find no abuse of discretion.
Mercure, A.P.J., Rose, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.