| People v Grays |
| 2018 NY Slip Op 04392 [162 AD3d 1224] |
| June 14, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jerry D. Grays, Appellant. |
Rural Law Center of New York, Castleton (Keith Schockmel of counsel), for appellant, andappellant pro se.
John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
Clark, J. Appeals (1) from a judgment of the County Court of Otsego County (Burns, J.),rendered July 17, 2015, upon a verdict convicting defendant of the crimes of conspiracy in thesecond degree and criminal solicitation in the second degree, and (2) by permission, from anorder of said court, entered November 4, 2016, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment of conviction, without a hearing.
In October 2010, while serving a term of incarceration in the Otsego County jail, defendantindicated to a fellow inmate that he wanted to have his former girlfriend, the mother of hischildren, murdered and asked if the inmate knew of anyone he could hire for that purpose. Theinmate reported defendant's request to his attorney, who, in turn, contacted the authorities. Aspart of the ensuing investigation into the legitimacy of defendant's request, an undercover policeofficer posed as a hit man for hire. Over the course of two separate phone calls and a meeting atthe jail, defendant agreed to pay the purported assassin $100,000 to have his ex-girlfriend killed.In furtherance of the agreement, defendant provided the undercover officer with the address andphysical description of his ex-girlfriend, as well as two separate maps of the floor plan of herhome. Defendant was arrested shortly thereafter and charged by indictment with conspiracy inthe second degree. After a jury trial, defendant was convicted as charged and sentenced to8
The following month, a second grand jury charged defendant with conspiracy in the seconddegree and criminal solicitation in the second degree. Defendant was represented by counselthroughout pretrial proceedings; however, prior to trial, County Court granted defendant's requestto proceed pro se. After a jury trial, defendant was once again convicted as charged. CountyCourt sentenced him to an aggregate prison term of 8
Defendant initially contends that his motion to dismiss the indictment should have beengranted because, without any curative instruction having been given by the People, he wasrequired to testify before the grand jury in prison garb and restraints and while accompanied byan armed and uniformed correction officer. However, defendant failed to timely file this motionwithin five days of his arraignment, as required (see CPL 190.50 [5] [c]), and, thus,County Court properly denied the motion (see People v Littebrant, 55 AD3d 1151, 1153 [2008], lvdenied 12 NY3d 818 [2009]). Additionally, a review of the indictment belies defendant'sassertion that count 1 of the indictment, charging him with conspiracy in the second degree, didnot charge him with committing any overt acts in furtherance of the alleged conspiracy (seePeople v Lakomec, 86 AD2d 77, 78-79 [1982]; compare People v Pichardo, 160 AD3d 1044, 1048 [2018]).
Next, defendant asserts that County Court's searching inquiry was insufficient to ensure thathis waiver of his right to counsel was knowing, voluntary and intelligent. Where a defendantinvokes his constitutional right to forgo the assistance of counsel and proceed pro se (seeFaretta v California, 422 US 806, 819 [1975]; People v McIntyre, 36 NY2d 10, 15[1974]), the trial court must determine whether the defendant is knowingly, voluntarily andintelligently waiving the right to counsel (see People v Crampe, 17 NY3d 469, 481[2011], cert denied 565 US 1261 [2012]; People v Arroyo, 98 NY2d 101, 103[2002]). In ascertaining whether such a waiver is knowing, voluntary and intelligent, the courtmust "test an accused's understanding of the waiver" and be "reasonably certain that [he or she]appreciates the dangers and disadvantages of giving up the fundamental right to counsel"(People v Smith, 92 NY2d 516, 520 [1998] [internal quotation marks and citationsomitted]; see People v Slaughter, 78 NY2d 485, 491 [1991]; People v Sawyer, 57NY2d 12, 21 [1982], cert denied 459 US 1178 [1983]). The court must also "delve[ ] intoa defendant's age, education, occupation, previous exposure to legal procedures and otherrelevant factors bearing on a competent, intelligent, voluntary waiver" (People v Smith,92 NY2d at 520; see People vProvidence, 2 NY3d 579, 583 [2004]). While the required searching inquiry need not beconducted in any specific manner, it " 'must accomplish the goals of adequately warninga defendant of the risks inherent in proceeding pro se, and apprising a defendant of the singularimportance of the lawyer in the adversarial system of adjudication' " (People vArroyo, 98 NY2d at 104, quoting People v Smith, 92 NY2d at 520 [emphasisomitted]; see People v Kaltenbach, 60 NY2d 797, 799 [1983]).
Here, County Court went to great lengths to impress upon defendant the dangers anddisadvantages of self-representation. The court thoroughly tested defendant's knowledge andunderstanding of the law and criminal procedure and, in doing so, specifically pointed out todefendant several areas in which his knowledge and understanding were lacking, including withrespect to the applicable standard of proof and the rules governing cross-examination and the[*3]admission of evidence. The court emphasized that althoughdefendant demonstrated a "basic understanding" of the law, he would be at a distinctdisadvantage because his understanding was not "complete." The court stated thatself-representation was "fraught with peril" and repeatedly urged defendant to reconsider hisrequest to proceed pro se. Further, in conducting its inquiry, County Court elicited fromdefendant appropriate and relevant pedigree information, which revealed that defendant was ahigh school graduate and had previous experience with the criminal justice system. Upon ourreview of the record, we are satisfied that County Court engaged in a sufficient searching inquiryso as to enable a finding that defendant knowingly, voluntarily and intelligently waived his rightto counsel (see People v Jackson,160 AD3d 1125, 1126-1127 [2018]; People v Sanders, 295 AD2d 639, 640 [2002],lv denied 98 NY2d 771 [2002]; compare People v Myers, 160 AD3d 1029, 1032-1033 [2018]; People v Guarnieri, 122 AD3d1078, 1080-1081 [2014]). Moreover, contrary to his assertions, defendant was not entitled tohybrid representation (see People vSilburn, 31 NY3d 144, 151 [2018]; People v Rodriguez, 95 NY2d 497, 501[2000]; People v Mirenda, 57 NY2d 261, 265-266 [1982]), and County Court did notabuse its discretion in limiting stand-by counsel's role to that of an "advisor" (see People v Yu-Jen Chang, 92 AD3d1132, 1133 [2012]; People vHilts, 46 AD3d 947, 949 [2007], affd 13 NY3d 895 [2009]).
Nor do we find merit in defendant's argument that County Court should have charged thejury with respect to the defense of renunciation. A defendant facing charges for criminalsolicitation and/or conspiracy is entitled to the affirmative defense of renunciation only where,"under circumstances manifesting a voluntary and complete renunciation of his [or her] criminalpurpose, the defendant prevented the commission of such crime" (Penal Law§ 40.10 [4]). Here, assessed in the light most favorable to defendant (see Peoplev Taylor, 80 NY2d 1, 12 [1992]; People v Butts, 72 NY2d 746, 750 [1988]), there isno reasonable view of the evidence from which a jury could conclude that defendant took anyaffirmative steps that "would have prevented the crime in the event that [the undercover policeofficer] had intended to carry out the [solicited murder]" (People v Sisselman, 147 AD2d261, 264 [1989], lv denied 74 NY2d 819 [1989]). Accordingly, County Court properlyrejected defendant's request for a renunciation charge.
Defendant also argues that he was deprived of a fair trial because County Court indicated ontwo occasions during its final instructions to the jury that he had prior criminal convictions,thereby inviting the jury to unduly speculate as to the nature of those prior convictions. However,defendant failed to preserve this argument by objecting to the alleged improper instructions(see CPL 470.05 [2]; People vWright, 139 AD3d 1094, 1100 [2016], lvs denied 28 NY3d 939 [2016], 29NY3d 1089 [2017]; People vBriskin, 125 AD3d 1113, 1120-1121 [2015], lv denied 25 NY3d 1069 [2015]).In any event, were we to reach this argument, we would find it to be unpersuasive under thecircumstances of this case, as the jury knew that defendant was incarcerated at the time that hecommitted the acts giving rise to the present convictions through testimony and video recordingsof his calls and conversation with the undercover officer. In addition, defendant repeatedlyreferenced his prior criminal history, including his convictions for criminal contempt in thesecond degree, in both his own testimony and in questions he posed to various witnesses. Thus,we would find that County Court's instructions were proper.
Further, despite defendant's contentions to the contrary, County Court acted well within itsdiscretion in issuing an order of protection that expires in 2047 (see CPL 530.13 [4] [A][i]-[ii]). Defendant's assertion that County Court acted vindictively in imposing his sentence isunsupported by the record, particularly since County Court imposed the same sentence ondefendant's conviction for conspiracy in the second degree after retrial (see People vGrice, 98 [*4]AD3d 755, 755 [2012], lv denied 20NY3d 932 [2012]). Considering defendant's criminal history, which includes several convictionsfor violating orders of protection issued in favor of his ex-girlfriend, and the serious nature of theunderlying offenses, we find no abuse of discretion or extraordinary circumstances warranting areduction of the sentence in the interest of justice (see People v Gerenstein, 179 AD2d930, 934 [1992], lv denied 79 NY2d 1049 [1992]). The remaining arguments raised bydefendant in connection with his direct appeal have been examined and found to be withoutmerit. Finally, County Court properly denied defendant's CPL 440.10 motion inasmuch as thearguments raised by defendant therein could be—and have been—resolved ondirect appeal (see CPL 440.10 [2] [b]; People v Rebelo, 137 AD3d 1315, 1317 [2016], lv denied28 NY3d 936 [2016], cert denied 580 US &mdash, 137 S Ct 385 [2016]; People v Johnson, 24 AD3d 967,970 [2005], lv denied 6 NY3d 814 [2006]).
McCarthy, J.P., Lynch, Devine and Pritzker, JJ., concur. Ordered that the judgment and orderare affirmed.