| People v Armstrong |
| 2012 NY Slip Op 03336 [94 AD3d 1552] |
| April 27, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JamesArmstrong, 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.), renderedDecember 1, 2009. The judgment convicted defendant, upon a jury verdict, of criminalpossession of marihuana in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal possession of marihuana in the third degree (Penal Law § 221.20). We rejectdefendant's contention that he was improperly permitted to proceed pro se. The record establishesthat defendant made a "knowing, voluntary and intelligent waiver of the right to counsel"(People v Arroyo, 98 NY2d 101, 103 [2002]). The record further establishes thatdefendant adhered to that waiver throughout the proceedings, despite the " 'searching inquir[ies]'" by County Court "to make him 'aware of the dangers and disadvantages of self-representation' "and the fact that the court impressed upon him the value of trained trial counsel knowledgeableabout criminal law and procedure (People v Providence, 2 NY3d 579, 582 [2004]; see People vCrampe, 17 NY3d 469, 481-482 [2011]). The court properly refused to permit standbycounsel, while defendant was proceeding pro se, to conduct jury selection on defendant's behalf(see People v Brown, 6 AD3d1125, 1126 [2004], lv denied 3 NY3d 657 [2004]). "A criminal defendant has noFederal or State constitutional right to hybrid representation . . . While the SixthAmendment and the State Constitution afford a defendant the right to counsel or toself-representation, they do not guarantee a right to both . . .[, and] a defendant whoelects to exercise the right to self-representation is not guaranteed the assistance of standbycounsel during trial" (People v Rodriguez, 95 NY2d 497, 501 [2000]).
By failing to move to dismiss the indictment within the five-day statutory period on theground that he was denied his right to testify before the grand jury (see CPL 190.50 [5][c]; People v Ray, 27 AD3d1056, 1057 [2006], lv denied 7 NY3d 761 [2006]), defendant thus waived his rightto testify before the grand jury and his contention that the indictment should have been dismissedbased on the denial of his right to testify before the grand jury lacks merit (see Ray, 27AD3d at 1057). Finally, the conclusory allegations made by defendant in support of hissuppression motion were not sufficient to warrant a hearing, and the court properly summarilydecided the motion (see CPL 710.60 [3] [b]; People v Haskins, 86 AD3d 794, 795-796 [2011], lv denied17 NY3d 903 [2011]; see also People v Jeffreys, 284 AD2d 550 [2001], lv denied99 NY2d 536 [2002]; People v Gadsden, 273 [*2]AD2d 701, 701-702 [2000], lv denied 95 NY2d 934[2000]). Present—Scudder, P.J., Smith, Fahey and Sconiers, JJ.