| People v Chandler |
| 2013 NY Slip Op 06210 [109 AD3d 1202] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vSamuel Chandler, Appellant. |
—[*1] Samuel Chandler, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Michael D. Smith of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered September 12, 2011. The judgment convicted defendant, upon a juryverdict, of promoting prison contraband in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofpromoting prison contraband in the first degree (Penal Law § 205.25 [1]),defendant contends in his main brief that Supreme Court erred in granting his request attrial to proceed pro se. We reject that contention. "A defendant in a criminal case mayinvoke the right to defend [pro se] provided: (1) the request is unequivocal and timelyasserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and(3) the defendant has not engaged in conduct which would prevent the fair and orderlyexposition of the issues" (People v McIntyre, 36 NY2d 10, 17 [1974]). "If atimely and unequivocal request has been asserted, then the trial court is obligated toconduct a 'searching inquiry' to ensure that the defendant's waiver is knowing, intelligent,and voluntary" (Matter ofKathleen K. [Steven K.], 17 NY3d 380, 385 [2011]; see People v Crampe, 17 NY3d 469, 481-482 [2011], cert denied sub nom. New York v Wingate,565 US —, 132 S Ct 1746 [2012]).
Here, defendant does not dispute that his request to represent himself wasunequivocal, nor does he contend that he engaged in conduct that would prevent the fairand orderly disposition of the trial. Even assuming, arguendo, that defendant's requestwas not timely asserted, we conclude that he was not prejudiced by the court's implicitdetermination to the contrary. We further conclude, upon our review of "the wholerecord, not simply . . . [the] waiver colloquy" (People v Providence, 2 NY3d579, 582 [2004]), that defendant made a knowing, voluntary and intelligent waiverof his right to counsel. Before granting defendant's request to proceed pro se, the courtconducted the requisite searching inquiry, during which defendant stated, inter alia, thathe had successfully represented himself at trial in a prior case. From his initialappearance to his mid-trial request to proceed pro se, defendant expressed dissatisfactionwith his assigned attorneys, against whom he had filed multiple complaints with theAttorney [*2]Grievance Committee, and he engaged inconcerted efforts to assist in his defense. The court "had numerous opportunities to seeand hear . . . defendant firsthand, and, thus, had general knowledge ofdefendant's age, literacy and familiarity with the criminal justice system" (People v Anderson, 94 AD3d1010, 1012 [2012], lv denied 19 NY3d 956 [2012], reconsiderationdenied 19 NY3d 1101 [2012] [internal quotation marks omitted]). In addition, thecourt fulfilled its obligation to ensure that defendant was "aware of the dangers anddisadvantages of self-representation" (Providence, 2 NY3d at 582 [internalquotation marks omitted]).
Defendant contends in his main and pro se supplemental briefs that he was deniedeffective assistance of counsel during the period of counsel's representation. To theextent that defendant's contention concerns matters outside the record on appeal, it mustbe raised by way of a motion pursuant to CPL article 440 (see People v Ocasio, 81 AD3d1469, 1470, lv denied 16 NY3d 898 [2011], cert denied 565 US—, 132 S Ct 318 [2011]). On the record before us, we conclude that defendantwas afforded effective assistance (see People v Brown, 6 AD3d 1125, 1126 [2004], lvdenied 3 NY3d 657 [2004]).
We have reviewed the remaining contentions in defendant's main brief and pro sesupplemental brief and conclude that none warrants reversal or modification of thejudgment. Present—Centra, J.P., Peradotto, Carni and Lindley, JJ.