| People v Paulin |
| 2016 NY Slip Op 04735 [140 AD3d 985] |
| June 15, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Rakim Paulin, Appellant. |
Terry D. Horner, Poughkeepsie, NY, for appellant, and appellant pro se.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County(Greller, J.), rendered June 29, 2011, convicting him of criminal sale of a controlledsubstance in the third degree (five counts), criminal possession of a controlled substancein the third degree (seven counts), and criminal possession of a controlled substance inthe fifth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
During pretrial proceedings, the defendant unsuccessfully moved to relieve hiscounsel. Shortly thereafter, at the outset of a pretrial hearing pursuant to People vRodriguez (79 NY2d 445 [1992]), the defendant made his first of three timelyapplications to proceed pro se. As he did so, he referred to the recent denial of his motionto relieve his counsel, and the County Court made clear that his counsel would be his"last attorney." When the court asked the defendant why he wanted to represent himself,he explained that his counsel failed to challenge a search warrant and failed to take up a"number of issues" that the defendant wanted to raise. At that point, defense counselwent on record stating that, in his view, there was no good faith basis upon which tochallenge the search warrant, the legal arguments raised by the defendant were notrelevant, and his client was like a "broken record" and was asking him "to do certainthings that [he didn't] agree with." The court then asked the defendant questions todetermine whether he was knowingly and intelligently waiving his right to counsel andwhether his request to proceed pro se was unequivocal. The court also questioned thedefendant about his level of education and tested his knowledge of the law. Although thedefendant's desire to represent himself was unequivocal, the court denied his application,in part because the defendant was admittedly not prepared to proceed that day with theRodriguez hearing. The court also made clear, however, that the defendant couldrenew his application prior to trial.
Four months later, before a different Judge and at the outset of a pretrial hearingpursuant to People v Sandoval (34 NY2d 371 [1974]), defense counsel moved tobe relieved. The motion was denied. The defendant then renewed his application toproceed pro se. The County Court summarily denied the application, relying on thequestioning of the defendant by the prior Judge. [*2]Atthat point, defense counsel explained that he and the defendant were "very much at oddsover the strategy" and indicated that he "[did] not want to act as an agent for [thedefendant's] witness tampering." When the defendant vigorously objected to his owncounsel's use of the term "witness tampering," defense counsel told him to "shut [his]mouth for a minute" and implored the court to let the defendant represent himself, addingthat he should not "be held here prisoner for this garbage." The court refused to eitherrelieve defense counsel or allow the defendant to proceed pro se.
Finally, just before the start of jury selection, defense counsel once again renewedthe defendant's application to represent himself. The County Court reiterated that it wasrelying on the prior Judge's searching inquiry and conclusion that the defendant wasunable to represent himself, which the court had "no reason to upset."
"A defendant in a criminal case may invoke the right to defend pro seprovided: (1) the request is unequivocal and timely asserted, (2) there has been aknowing and intelligent waiver of the right to counsel, and (3) the defendant has notengaged in conduct which would prevent the fair and orderly exposition of the issues"(People v McIntyre, 36 NY2d 10, 17 [1974]; see People v Smith, 68NY2d 737, 738 [1986]).
Here, the defendant made three timely applications to proceed pro se. Contrary to thePeople's contention, the fact that these applications were accompanied by unsuccessfulrequests for new counsel did not, under the circumstances, render the applicationsequivocal (see People vMalone, 119 AD3d 1352, 1354 [2014]; People v Lewis, 114 AD3d 402, 404 [2014]; cf. People v Gillian, 8 NY3d85 [2006]). Rather, the defendant's repetitious, explicit reassertions of his right atevery opportunity served to dispel any possible misunderstanding of his intentions or ofhis sincerity in desiring to represent himself (see People v Davis, 49 NY2d 114,119 [1979]).
As to the second requirement that the defendant's waiver of counsel be knowing andintelligent, the record shows that the County Court's precautionary inquiry and warningsto the defendant regarding the perils of representing himself and the value of legalrepresentation were sufficient to impress upon him the dangers and disadvantages ofgiving up the fundamental right to counsel (see Faretta v California, 422 US 806,835 [1975]; People v White, 56 NY2d 110, 117 [1982]; People v Powe,234 AD2d 397, 397 [1996]).
To the extent that the County Court based its denial of the defendant's application onthe ground that he had a history of mental illness, this was error. "New York courts can,in appropriate circumstances, deny a self-representation request if a severely-mentally-illdefendant who is competent to stand trial otherwise lacks the mental capacity to waivecounsel and proceed pro se" (People v Stone, 22 NY3d 520, 527 [2014]). This is notsuch a case. While the defendant acknowledged prior hospitalizations for mental illness,there is no indication in the record that the defendant was severely mentally ill at the timehe made his requests to proceed pro se, or that any mental condition at that time renderedhim incapable of intelligently and voluntarily waiving his right to counsel andrepresenting himself.
To the extent that the County Court based its denial of the defendant's application onhis failure to correctly answer the prior Judge's questions about certain legal terms, theCourt of Appeals has pointed out that "[t]o accept a defendant's lack of knowledge oflegal principles and rules of law or his unfamiliarity with courtroom procedures as theground for concluding that he is not qualified to represent himself would in effect be toeviscerate the constitutional right of self-representation; such limitations couldconfidently be said to exist in nearly every criminal case in which the defendant had notreceived legal training" (People v Davis, 49 NY2d at 120; see People vMcIntyre, 36 NY2d at 17-18). In fact, the defendant informed the court that he hadrepresented himself twice before in civil matters, attended a legal research class providedby the Department of Corrections, worked in a prison law library, and obtained acertificate in legal research and basic law library management. Under suchcircumstances, "[t]he inference may be drawn that the trial court—unquestionablyin furtherance of what it perceived to be defendant's best interests—wasdetermined to deny defendant's applications no matter what he said or what the recordotherwise [*3]showed" (People v Davis, 49 NY2dat 120).
With regard to the third and final prong of the McIntyre test, there is noindication in the record that the defendant's overall conduct was disruptive, obstreperous,or "calculated to undermine, upset or unreasonably delay the progress of the trial"(People v McIntyre, 36 NY2d at 18; see People v Schoolfield, 196 AD2d111, 117 [1994]).
What is perhaps most troubling about this record is that the County Court wouldneither agree to relieve defense counsel, even after he took positions that were plainlyadverse to his client (see Peoplev Mitchell, 21 NY3d 964, 966 [2013]), nor permit the defendant to proceed prose, despite his timely and unequivocal requests to do so. This placed the defendant in anuntenable position.
Since the denial of the right of self-representation is not subject to harmless erroranalysis (see People vLaValle, 3 NY3d 88, 106 [2004]), the judgment must be reversed and a newtrial ordered (see People v Forney, 303 AD2d 763 [2003]; People vTejada, 289 AD2d 516 [2001]).
We note that the People correctly concede on appeal that the terms of the defendant'spostrelease supervision were illegal. The range of postrelease supervision permitted uponconviction, as a second felony drug offender with a prior violent felony conviction, is1
The defendant's remaining contentions, including those raised in his pro sesupplemental brief, are without merit. Chambers, J.P., Hall, Austin and LaSalle, JJ.,concur.