| People v Malone |
| 2014 NY Slip Op 05073 [119 AD3d 1352] |
| July 3, 2014 |
| Appellate Division, Fourth Department |
[*1]
| 1 The People of the State of New York, Respondent, vTyrone L. Malone, Appellant. |
Jeffrey Wicks, PLLC, Rochester (Jeffrey Wicks of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Daniel J. Doyle, J.),rendered July 19, 2010. The judgment convicted defendant, upon a jury verdict, ofattempted criminal sexual act in the first degree and sexual abuse in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of,inter alia, attempted criminal sexual act in the first degree (Penal Law§§ 110.00, 130.50 [4]), defendant contends that he did not knowingly,voluntarily and intelligently waive his right to counsel before proceeding pro se at trial.We reject that contention. It is well settled that, before proceeding pro se, " 'adefendant must make a knowing, voluntary and intelligent waiver of the right tocounsel' " (People v Crampe, 17 NY3d 469, 481 [2011], certdenied 565 US &mdash, 132 S Ct 1746 [2012]), and we must determine whether hedid so by reviewing "the whole record, not simply . . . waiver colloquy" (People v Providence, 2 NY3d579, 583 [2004]). When defendant sought to proceed pro se, Supreme Court wasrequired to conduct a " 'searching inquiry' . . . aimed at insuring thatthe defendant 'was aware of the dangers and disadvantages of proceeding withoutcounsel' " (id. 582, quoting People v Slaughter, 78 NY2d 485,492 [1991]). Based on our review of the court's inquiry, as well as the earlier proceedingsin the case, we conclude that defendant knowingly, intelligently and voluntarily waivedhis right to counsel.
Defendant further contends that his request to proceed pro se was not unequivocaldue to his repeated statements that he did not wish to represent himself and that hewanted a new attorney. We reject that contention. Defendant's first attorney was relievedshortly after arraignment due to a conflict of interest arising from defendant's wish to filea motion pursuant to CPL 190.50 (5) and 210.20, and the attorney's stated inability tosupport that motion. A second attorney was assigned to defendant and, after the secondattorney filed and argued, inter alia, the above-referenced motion, defendant indicatedthat he wanted to proceed pro se with standby counsel, or to have new counsel assigned,on the ground that he was not satisfied with his second attorney's representation. Inresponse, the court assigned a third attorney to represent defendant. Several weeks beforethe scheduled trial date, defendant again sought permission either to proceed pro se withstandby counsel or to have new counsel assigned. The court, [*2]indicating its concerns that defendant again would beunable to work with a new assigned attorney and that the trial would be unnecessarilydelayed, denied the request. The court, however, ordered an examination of defendantpursuant to CPL article 730, the results of which confirmed that defendant was not anincapacitated person (see generally CPL 730.30 [2]). Finally, several days beforetrial, defendant again sought new counsel, or permission to proceed pro se at trial. At thatpoint, the court questioned defendant regarding his education and experience with trials,explained the procedures that would govern the trial, noted the frequent lack of successexperienced by pro se defendants, and denied defendant's request for another newattorney. When the court then asked defendant if he wanted to proceed pro se, defendantinitially equivocated and then indicated that he wanted to have new counsel assigned, butwhen the court subsequently asked him if he wanted to proceed pro se with standbycounsel, defendant replied, "[y]eah. I can do that. Yeah." When the court again asked ifthat was how defendant wanted to proceed, defendant consulted with the third assignedattorney and unequivocally replied "[y]es."
It is well-settled that a "defendant's conditioning of his request for new counsel witha request for self-representation [does] not necessarily render the latter requestequivocal" (People vGillian, 8 NY3d 85, 88 [2006]). Here, based on our review of the record, weconclude that "[t]he fact that defendant's request to proceed pro se had been preceded byan unsuccessful request for new counsel did not render the request equivocal. . . Defendant was not hesitant to represent himself, nor were his requests'overshadowed' by numerous requests for new counsel, obstreperous demands or severelydisruptive behavior" (People vLewis, 114 AD3d 402, 404 [2014]; see People v DePonceau, 96 AD3d 1345, 1346-1347[2012], lv denied 19 NY3d 1025 [2012]; cf. People v Jackson, 97 AD3d 693, 694 [2012], lvdenied 20 NY3d 1100 [2013]).
We also reject defendant's further contention that he was unable to waive his right tocounsel by reason of his alleged mental health difficulties. It is well settled that adefendant's mental capacity is just one of many issues that the court must consider indetermining whether defendant has intelligently and voluntarily waived his right tocounsel (see People v Stone,22 NY3d 520, 527 [2014]). Here, the court directed that defendant be evaluatedpursuant to CPL article 730 before deciding whether to grant his request to proceed prose, and the results of that evaluation demonstrate that defendant was mentally competent,a factor that weighs in favor of our conclusion that defendant knowingly, voluntarily andintelligently waived his right to counsel (see People v Pelto, 172 AD2d 1027,1027 [1991], lv denied 78 NY2d 972 [1991]; cf. People v Tafari, 68 AD3d 1540, 1541-1542 [2009];see generally Stone, 22 NY3d at 525-527).
Finally, we reject defendant's contention that his poor performance at trialdemonstrates that the court erred in granting his request to represent himself. "Regardlessof his lack of expertise and the rashness of his choice, defendant could choose to waivecounsel [where, as here, the record reflects that] he did so knowingly and voluntarily"(People v Vivenzio, 62 NY2d 775, 776 [1984]). It is well settled that, "even incases where the accused is harming himself by insisting on conducting his own defense,respect for individual autonomy requires that he be allowed to go to jail under his ownbanner if he so desires and if he makes the choice with eyes open" (People vMcIntyre, 36 NY2d 10, 14 [1974] [internal quotation marks omitted]; see UnitedStates ex rel. Maldonado v Denno, 348 F2d 12, 15 [2d Cir 1965]; see alsoVivenzio, 62 NY2d at 776). Present—Scudder, P.J., Smith, Carni, Lindley andWhalen, JJ.