| People v Silburn |
| 2016 NY Slip Op 08377 [145 AD3d 799] |
| December 14, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Spence Silburn, Appellant. |
Lynn W.L. Fahey, New York, NY (John B. Latella and Alexis A. Ascher of counsel),for appellant, and appellant pro se.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove andHoward B. Goodman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J.Goldberg, J.), rendered September 10, 2013, convicting him criminal possession of aweapon in the second degree, aggravated unlicensed operation of a motor vehicle in thethird degree, and unlicensed operation of a motor vehicle, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
A "defendant's request to proceed pro se must be based on a knowing, voluntary, andintelligent waiver of the right to counsel" (People v Sanchez, 7 AD3d 645, 646 [2004]). Here, theSupreme Court did not violate the defendant's right to self-representation, since thedefendant made no such waiver. Contrary to the defendant's contentions, he neverasserted a desire to proceed pro se at trial, but only asked to "go pro se with standbycounsel," a request that was properly denied by the court (see People v Henriquez, 3NY3d 210, 215 [2004]; People v Rodriguez, 95 NY2d 497, 501[2000]).
Testimony from the arresting detective about his actions in response to a report of a"forcibly taken" vehicle was properly admitted to explain the events precipitating thedefendant's arrest (see People v Tosca, 98 NY2d 660, 661 [2002]; People v Goodson, 35 AD3d760, 761 [2006]). Moreover, since the defendant's admissions at the police precinctregarding any uncharged crimes were inextricably intertwined with his statementspertaining to the crimes of which he was subsequently indicted, introduction intoevidence of his entire pretrial statement was proper (see People v Irequi, 208AD2d 952, 953 [1994]).
The recordings of telephone calls made between the defendant and others while thedefendant was incarcerated at Rikers Island did not violate the defendant's right tocounsel, as there was no evidence that the people with whom the defendant spoke wereacting as agents of the police (see People v Jackson, 125 AD3d 1002, 1003 [2015]). Theportions of the transcripts of the calls to which the defendant objected were properlyintroduced at trial, as their content was necessary to complete the narrative of the eventsthat had transpired (see People v Tosca, 98 NY2d at 661). The defendant [*2]failed to preserve for appellate review his contention thatthe statements "I tried to set the precinct on fire" and "blow an L down the hall" shouldhave been redacted from the transcripts of the calls, as he never objected to the admissionof these statements (see CPL 470.05 [2]). In any event, even though theseparticular statements should have been redacted, the evidence of the defendant's guilt,without reference to the admission of these statements, was overwhelming, and there isno reasonable possibility that their admission might have contributed to the defendant'sconviction (see People v Crimmins, 36 NY2d 230, 237 [1975]; People v Barnes, 120 AD3d1355 [2014]). Moreover, the defendant also failed to preserve for appellate reviewhis contention that the statements "All I need is my gun on my hip, that's my license" and"No, he can't defend himself from me. I already box his ass up already, I already donebeat his ass. He know he ain't ready for me . . . dad's going down" shouldhave been redacted from the transcripts, as the defendant never objected to the admissionof these statements (see CPL 470.05 [2]). In any event, the defendant's contentionis without merit, as the content of these statements was necessary to complete thenarrative of the events that had transpired (see People v Tosca, 98 NY2d at661).
The Supreme Court also did not err in denying the admission of the defendant'spsychiatric history into evidence, as the defendant did not provide actual, timely notice ofhis intent to present psychiatric evidence (see CPL 250.10; People v Conley, 11 AD3d706, 707 [2004]). In any event, contrary to the defendant's contentions, the profferedpsychiatric evidence would not have established that the defendant had been unable toknowingly and voluntarily waive his right against self-incrimination at the time of hisapprehension.
The defendant failed to preserve for appellate review his contention that the SupremeCourt improperly delegated its duty when it directed prospective jurors who wereclaiming a hardship to speak with a clerk outside of the courtroom (see People v Cunningham, 119AD3d 601 [2014]; People vKing, 110 AD3d 1005, 1006 [2013]; People v Casanova, 62 AD3d 88, 92 [2009]; People v Toussaint, 40 AD3d1017, 1017-1018 [2007]). In any event, the defendant's contention is without merit(see People v Cunningham,119 AD3d 601 [2014]; People v Toussaint, 40 AD3d at 1017-1018).
The defendant's contention, raised in his pro se supplemental brief, that he wasdeprived of the effective assistance of counsel is based, in part, on matter appearing onthe record and, in part, on matter outside the record, and thus constitutes a "mixed claim[] of ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109 [2011] [internalquotation marks omitted]; seePeople v Evans, 16 NY3d 571, 575 n 2 [2011]). In this case, it is not evidentfrom the matter appearing on the record that the defendant was deprived of the effectiveassistance of counsel (cf. People v Crump, 53 NY2d 824, 825 [1981]; Peoplev Brown, 45 NY2d 852, 853 [1978]). Since the defendant's claim of ineffectiveassistance of counsel cannot be resolved without reference to matter outside the record, aCPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety(see People v Marryshow,135 AD3d 964, 965 [2016]; People v Freeman, 93 AD3d 805, 806 [2012]; People vMaxwell, 89 AD3d at 1109).
Finally, the defendant's contention that the sentence imposed by the Supreme Courtpunished him for exercising his right to a jury trial rather than accepting a plea offer isunpreserved for appellate review (see People v Hurley, 75 NY2d 887, 888[1990]; People v Brown, 38AD3d 676, 677 [2007]). In any event, the fact that the sentence imposed after trialwas greater than the sentence offered during plea negotiations does not, standing alone,establish that the defendant was punished for exercising his right to trial (see People v Bowers, 144AD3d 1049 [2d Dept 2016]; People v Gibbs, 120 AD3d 510 [2014]). We find that thesentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Dillon, J.P., Dickerson, Maltese and Duffy, JJ., concur.