| People v Lewis |
| 2014 NY Slip Op 00592 [114 AD3d 402] |
| February 4, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Brandon Lewis, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Sheryl Feldman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered April23, 2010, convicting defendant, after a jury trial, of assault in the second degree,attempted assault in the second degree, aggravated criminal contempt, criminal contemptin the first degree, intimidating a witness in the third degree, bribing a witness, andtampering with a witness in the third degree, and sentencing him to an aggregate term of9
The court deprived defendant of his constitutional rights when, rather thanconducting the requisite "dispassionate inquiry," it summarily denied his repeatedrequests to proceed pro se (People v Smith, 68 NY2d 737, 738 [1986], certdenied 479 US 953 [1986]).
A criminal defendant's right to represent himself is a fundamental right guaranteed byboth the federal and state constitutions. "[F]orcing a lawyer upon an unwilling defendantis contrary to his basic right to defend himself if he truly wants to do so" (Faretta vCalifornia, 422 US 806, 817 [1975]). The only function of the trial court, inassessing a timely request to proceed pro se, is to ensure that the waiver was madeintelligently and voluntarily (see People v Schoolfield, 196 AD2d 111, 115 [1stDept 1994], lv denied 83 NY2d 915 [1994]). This requirement is not satisfied"simply by repeated judicial entreaties that a defendant persevere with the services ofassigned counsel, or by judicial observations that a defendant's interests are probablybetter served through a lawyer's representation" (People v Smith, 92 NY2d 516,521 [1998]).
Defendant's requests to proceed pro se were denied by the court without any inquirywhatsoever. At the Huntley hearing on February 18, 2010, after requesting a newattorney, defendant stated, "If I can't get reassignment of counsel, at least let me go prose, represent myself," explaining that for over three months counsel had failed to providehim with information about his case. The court, without asking a single question,immediately replied, "I don't think so." When defendant asked, "Is it possible if I can gopro se?" the court responded, "Anything is possible, sir, but you clearly don't want to gopro se. You just want me to assign a new lawyer."[*2]
Defendant then stated, "If I can't get areassignment of counsel, I would like to go pro se." He further explained that he wishedto proceed pro se because his attorney "ha[d] no information about [his] case," and"ha[d]n't asked [him] nothing about [his] case," and "[didn't] know what [was] goingon." The court did not inquire further but merely recited the procedural history of thecase and stated, "I presume you have gotten copies of your motions and of the response,"failing to understand "what else [he] want[ed] to know about [his] case." Whendefendant reiterated that his attorney "didn't know [his] side of the story," the courtstated, "Well, apparently you're willing enough to talk, Mr. Lewis, but all you do in theback is yell, [and it's] hard to tell a story by yelling."
During a recess on the third day of trial, defendant again made a request to "go prose." The court did not grant the request. Following a recess and apparently referring tothe colloquy during the Huntley hearing, the court stated: "[W]e had a verylengthy conversation, Mr. Lewis and I, with regard to his unexplained request for newcounsel, and when I said, 'no,' he said that if I didn't give him a new lawyer he would gopro se, which is denied, an unconditional request to go pro se. So we will notdeal with it any further and I will not deal with it any further now."
On February 18th, which was prior to the start of trial, when defendant stated that hewished to "go pro se," the court's "only function" was to inquire as to whether defendantwas "aware of the disadvantages and risks of waiving his right to counsel"(Schoolfield, 196 AD2d at 115; Smith, 68 NY2d at 739 [trial courtviolated defendant's rights when it summarily rejected defendant's pro se request withoutdetermining whether it was knowingly and intelligently made]; People vYoungblood, 225 AD2d 346, 346 [1st Dept 1996] [reversing and remanding for newtrial where court, prior to jury selection, summarily denied defendant's request to proceedpro se on the basis of counsel's statement that the defendant was not satisfied withcounsel's representation], lv denied 88 NY2d 888 [1996]).
The fact that defendant's request to proceed pro se had been preceded by anunsuccessful request for new counsel did not render the request equivocal. "A request toproceed pro se is not ipso facto 'equivocal' merely because it is made in the alternative"(People v Hayden, 250 AD2d 937, 938 [3d Dept 1998] [emphasis omitted],lv denied 92 NY2d 879 [1998]). The Court of Appeals has recognized that a prose defendant is frequently motivated by dissatisfaction with trial strategy or a lack ofconfidence in counsel (People v McIntyre, 36 NY2d 10, 16 [1974]). Here, it wasonly after the court made it perfectly clear that new counsel would not be appointed thatdefendant specifically asked to represent himself (see People v Anderson, 41 AD3d 274 [1st Dept 2007],lv denied 9 NY3d 959 [2007]).
Defendant was not hesitant to represent himself, nor were his requests"overshadowed" by numerous requests for new counsel, obstreperous demands orseverely disruptive behavior (compare People v Jimenez, 253 AD2d 693 [1stDept 1998], lv denied 92 NY2d 1033 [1998]). Indeed, even the courtcharacterized his request as "unconditional." Nonetheless, without asking a singlequestion or stating its reasons, let alone conducting a "thorough inquiry" as to whetherthe decision to waive the right to counsel and represent himself was undertakenknowingly and voluntarily, the court denied defendant's application. This was error of aconstitutional magnitude.
People v Gillian (8NY3d 85 [2006]) does not compel a different result. The defendant in [*3]Gillian proceeded to trial with a new attorney, raisingno further objection, thus abandoning his request to proceed pro se.
We need not decide whether defendant's untimely midtrial request required furtheraction by the court (see Matterof Kathleen K. [Steven K.], 17 NY3d 380 [2011]; People v McIntyre,36 NY2d at 17). The critical error here occurred before the trial commenced.
Since we are ordering a new trial, we find it unnecessary to discuss defendant's otherarguments, except that we find that the verdict was based on legally sufficient evidenceand was not against the weight of the evidence. Concur—Acosta, J.P., Andrias,Moskowitz, Richter and Manzanet-Daniels, JJ.
Motion to strike reply brief denied.