| People v Hassan |
| 2018 NY Slip Op 01741 [159 AD3d 1390] |
| March 16, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMuzzammil S. Hassan, Also Known as Mo Hassan, Appellant. |
Kathryn Friedman, Buffalo, for defendant-appellant.
Muzzammil S. Hassan, defendant-appellant pro se.
John J. Flynn, District Attorney, Buffalo (Donna A. Milling of counsel), for respondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered March9, 2011. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]). Defendant contends that heis entitled to a new trial because County Court improperly limited the scope of his pretrialstatements to the press to the general nature of the charges against him and his intended defense,thereby allegedly preventing him from adequately responding to press coverage purportedlyfavorable to the People. He argues that the court's ruling "unconstitutionally infected" the jurypool and precluded him from finding jurors who were not biased against him. Even assuming,arguendo, that the court abused the discretion afforded to it to take affirmative measures toensure a fair trial and to prevent or reduce prejudicial pretrial publicity (see generallySheppard v Maxwell, 384 US 333, 363 [1966]; Matter of National Broadcasting Co. vCooperman, 116 AD2d 287, 289 [2d Dept 1986]), we conclude that defendant failed topreserve his contention for our review because he never moved for a change of venue or otherrelief based on the purportedly tainted jury pool (see People v Perkins, 62 AD3d 1160, 1162 [3d Dept 2009], lvdenied 13 NY3d 748 [2009]). Instead, subsequent to the court's ruling, defense counselparticipated in five full days of jury selection, during which time the prospective jurors werethoroughly questioned on their media exposure and potential biases, and counsel acquiesced tothe selected jurors being sworn without objection (see id.). We decline to exercise ourpower to review defendant's contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
We reject defendant's further contention that the court committed a mode of proceedingserror by granting defendant's midtrial request to proceed pro se. Although the right to representoneself is "severely constricted" once a trial has begun, an otherwise untimely motion to proceedpro se may still "be granted in the trial court's discretion and . . . in compellingcircumstances" (People v McIntyre, 36 NY2d 10, 17 [1974]; see People v Dashnaw, 116 AD3d1222, 1231-1232 [3d Dept 2014], lv denied 23 NY3d 1019 [2014]). We conclude,upon our review of "the whole record, not simply . . . the waiver colloquy" (People v Providence, 2 NY3d 579,583 [2004]), that the requisite compelling circumstances existed. For instance, defendant's serialtermination of multiple prior attorneys evidenced his unrealistic expectations of counsel's role inhis defense. In addition, trial counsel informed the court that, despite midtrial conciliatory efforts,the attorney-client relationship had reached an unresolvable impasse because of counsel'sinability to adhere to defendant's requests while ethically representing defendant (see People v Chandler, 109 AD3d1202, 1203 [4th Dept 2013], lv denied 23 NY3d 1019 [2014]).
[*2] Defendant's contention that the court failed to make asufficient inquiry into juror misconduct when informed that an unidentified female juror mayhave been discussing defendant's guilt or innocence before deliberations had begun isunpreserved for our review, inasmuch as defendant acquiesced in the court's decision not tointerview the other jurors with whom the female juror was speaking (see People v Hodge, 147 AD3d1502, 1503 [4th Dept 2017], lv denied 29 NY3d 1032 [2017]; see also People v Hicks, 6 NY3d737, 739 [2005]; see generallyPeople v Morgan, 96 AD3d 1418, 1418 [4th Dept 2012], lv denied 20 NY3d 987[2012]). We decline to exercise our power to review defendant's contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]).
Finally, we have considered the contentions raised by defendant in his pro se supplementalbrief and conclude that none warrants modification or reversal of the judgment.Present—Whalen, P.J., Smith, Lindley, DeJoseph and NeMoyer, JJ.