| People v Jackson |
| 2012 NY Slip Op 05546 [97 AD3d 693] |
| July 11, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v WillieJackson, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Amy Appelbaum, andBruce Alderman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.),rendered April 23, 2010, convicting him of burglary in the third degree, criminal mischief in thefourth degree, petit larceny, and criminal possession of stolen property in the fifth degree, after anonjury trial, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court did not deprive him of his SixthAmendment right to represent himself by denying his initial request to proceed pro se at thesuppression hearing. "A defendant's request to represent himself 'must be invoked clearly andunequivocally' " (People v Gillian, 8NY3d 85, 88 [2006], quoting People v LaValle, 3 NY3d 88, 106 [2004]). Here, the defendant'sinitial request to proceed pro se was not unequivocal because it was made in the context ofexpressing dissatisfaction with counsel's failure to highlight certain evidence at the suppressionhearing, and did not "reflect an affirmative desire for self-representation" (Matter of Kathleen K. [Steven K.], 17NY3d 380, 387 [2011]; see Peoplev Scivolette, 40 AD3d 887, 888 [2007]; People v Mitchell, 26 AD3d 159, 160 [2006]; People vHirschfeld, 282 AD2d 337, 338 [2001], cert denied 534 US 1082 [2002]; Peoplev Rainey, 240 AD2d 682, 683 [1997]). In any event, the defendant abandoned his request bysubsequently acting in a manner indicating his satisfaction with counsel (see People v Diaz, 83 AD3d 958,959 [2011]; People v Scivolette, 40 AD3d at 888).
Further, the Supreme Court providently exercised its discretion in denying the defendant'smotion to reopen the suppression hearing to elicit testimony from two additional police officers.The defendant failed to show that these officers would have testified to new facts, notdiscoverable with reasonable diligence before the determination of the motion, that would haveaffected the court's ultimate determination of the issue of probable cause (see CPL 710.40[4]; People v Fuentes, 53 NY2d 892, 894 [1981]; People v McDonald, 82 AD3d 1125, 1126 [2011]; People v Miller, 57 AD3d 568,570 [2008]).
The defendant's claim that he was deprived of the constitutional right to the effective [*2]assistance of counsel is based, in part, on matter appearing on therecord and, in part, on matter outside the record, and thus constitutes a " 'mixed claim' " ofineffective assistance (People vMaxwell, 89 AD3d 1108, 1109 [2011], quoting People v Evans, 16 NY3d 571, 575 n 2 [2011], cert denied565 US —, 132 S Ct 325 [2011]). It is not evident from the matter appearing on therecord that the defendant was deprived of the effective assistance of counsel (cf. People vCrump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]). Since thedefendant's claim of ineffective assistance cannot be resolved without reference to matter outsidethe record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in itsentirety (see People v Hernandez,96 AD3d 783 [2d Dept 2012]; People v Freeman, 93 AD3d 805, 806 [2012]; People vMaxwell, 89 AD3d at 1109).
The defendant's contentions in his pro se supplemental brief relating to alleged Bradyviolations (see Brady v Maryland, 373 US 83 [1963]) are largely unpreserved forappellate review (see People vThompson, 81 AD3d 670, 672 [2011], lv granted 18 NY3d 998 [2012]; People v Murad, 55 AD3d 754,756 [2008]), and, in any event, are without merit. Rivera, J.P., Florio, Eng and Cohen, JJ.,concur.