| People v Atkinson |
| 2013 NY Slip Op 07769 [111 AD3d 1061] |
| November 21, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vKarseen J. Atkinson, Appellant. |
—[*1] Gwen Wilkinson, District Attorney, Ithaca (Andrew M. McElwee of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Tompkins County(Rowley, J.), rendered March 23, 2012, upon a verdict convicting defendant of thecrimes of criminal possession of a controlled substance in the third degree (two counts)and criminal possession of a weapon in the fourth degree.
Police officers located defendant, who they were seeking to arrest on an active paroleviolation warrant, as the passenger in a vehicle. When the officers effected a traffic stop,defendant ignored orders to show his hands and get out of the vehicle, so an officerremoved him from the vehicle and placed him on the ground. After noticing somethingin defendant's mouth, officers ordered him to spit it out. When he failed to comply, atleast one officer tased him. Defendant still did not comply, so he was tased again. Thistime, defendant spit out a plastic bag that contained cocaine. Officers found another bagof cocaine in defendant's pocket upon conducting a search of his person. During a searchof the vehicle, they found a handgun hidden in the trunk.
Defendant was charged in an indictment with criminal possession of a controlledsubstance in the third degree (two counts) and criminal possession of a weapon in thefourth degree. County Court denied defendant's pretrial suppression motion without ahearing. Following jury selection, but prior to opening statements, defendant made arequest to proceed pro se. County Court granted the request, after conducting an inquiry.At the conclusion of the [*2]trial, the jury convicteddefendant on all counts. The court sentenced him to concurrent prison terms of eightyears followed by three years of postrelease supervision on the drug counts and one yearon the weapon count. Defendant appeals.
County Court properly allowed defendant to proceed pro se. "A defendant in acriminal case may invoke the right to defend pro se provided: (1) the request isunequivocal and timely asserted, (2) there has been a knowing and intelligent waiver ofthe right to counsel, and (3) the defendant has not engaged in conduct which wouldprevent the fair and orderly exposition of the issues" (People v McIntyre, 36NY2d 10, 17 [1974] [italics omitted]). Although requests on the eve of trial arediscouraged, the Court of Appeals has found that a request may be considered timelywhen it is "interposed prior to the prosecution's opening statement," as here (People vMcIntyre, 36 NY2d at 18; see People v Eady, 301 AD2d 965, 965-966[2003], lv denied 100 NY2d 538 [2003]).
Defendant unequivocally expressed his desire to represent himself, despite alsoexpressing dissatisfaction with counsel and his opinion that she was being bullied (compare People v Wimberly,86 AD3d 806, 807 [2011], lv denied 18 NY3d 863 [2011]). County Courtconducted a searching inquiry to determine whether defendant was aware of the chargesagainst him, the legal process and the pitfalls of proceeding without an attorney (see People v Providence, 2NY3d 579, 582 [2004]; People v Arroyo, 98 NY2d 101, 103-104 [2002]).While some of defendant's answers to the court's questions were not entirely accurate, heshowed a basic understanding of the proceedings and was not shy about asking when hedid not understand a concept. Defendant had a limited education and no prioremployment, but he had prior experience with the criminal justice system from his 12prior arrests and seven prior convictions (three for felonies and four for misdemeanors).His counsel informed the court that defendant had been participating in his defense,conducting his own legal research and had drafted many of the motion papers. The courtallowed counsel to remain as an assistant to defendant during the trial. Defendant wasnot disruptive and conducted himself appropriately throughout the proceedings. Underthe circumstances, the court did not err by granting defendant's request to proceed pro se(see People v Providence, 2 NY3d at 582-584).
County Court did err, however, in denying defendant's request for a suppressionhearing regarding the cocaine recovered from defendant's mouth. Initially, defendantdoes not contest on appeal the search of the vehicle that produced the handgun, as he hasno standing to challenge that search that was conducted based on consent by the vehicle'sowner. Hence, the court properly denied suppression of the handgun without a hearing.The bag of cocaine located in defendant's pocket was found during a search incident to alawful arrest on a parole violation warrant, and defendant did not raise any factual issuesconcerning that piece of evidence, so the court properly denied suppression of that bag ofcocaine without a hearing (seePeople v Kindred, 60 AD3d 1240, 1241 [2009], lv denied 12 NY3d 926[2009]).
As for the cocaine recovered from defendant's mouth after he was tased more thanonce, defendant raised a question as to whether that evidence was seized from himthrough the use of excessive force, which requires an analysis "under the FourthAmendment's 'objective reasonableness' standard" (Graham v Connor, 490 US386, 388 [1989]; accord Peoplev Smith, 95 AD3d 21, 26 [2012]). Defendant's affirmation described his versionof the arrest and search, and his motion papers asserted that use of a taser constitutedexcessive force under the circumstances. The People failed to substantively respond tothis argument. As the motion papers raised a factual dispute concerning the use of a taserand whether it might be considered [*3]excessive force,giving rise to a potentially unreasonable search and seizure that may require suppressionof the evidence, a hearing was required (see CPL 710.60 [3]; People vMendoza, 82 NY2d 415, 426-427 [1993]; compare People v Smith, 95AD3d at 26, with People v Matherine, 166 AD2d 322, 322-323 [1990], lvdenied 76 NY2d 1022 [1990]). We therefore hold this appeal in abeyance pendingthe completion of a suppression hearing on this issue (see People v Mabeus, 47AD3d 1073, 1075 [2008]; People v Cole, 187 AD2d 873, 874 [1992]).
Lahtinen, J.P., Spain and Egan Jr., JJ., concur. Ordered that the decision is withheld,and matter remitted to the County Court of Tompkins County for further proceedings notinconsistent with this Court's decision.