| People v Gregory |
| 2018 NY Slip Op 05332 [163 AD3d 847] |
| July 18, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kendel R. Gregory, Appellant. |
Paul Skip Laisure, New York, NY (Barry Stendig of counsel), for appellant, and appellantpro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Anastasia Spanakos, Christine DiSalvo, and John F. McGoldrick of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (BarryKron, J.), rendered January 27, 2010, convicting him of burglary in the second degree (threecounts), attempted burglary in the second degree, criminal possession of stolen property in thefifth degree (two counts), and petit larceny (two counts), upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing (Joel L. Blumenfeld, J.), ofthose branches of the defendant's omnibus motion which were to suppress physical evidence andstatements made by the defendant to law enforcement officials.
Ordered that the judgment is affirmed.
We agree with the hearing court's determination denying suppression of a knapsack whichwas recovered by the police that contained electronic equipment. A police officer testified at thesuppression hearing that he and two other officers were investigating a pattern of at least 25burglaries that had recently occurred between 3:00 a.m. and 5:00 a.m. in the area of 200th Streetand 113th Avenue in Queens. While in that area, at that time of night, the police officer observedthe defendant place a glass bottle on the sidewalk and walk away from it into a backyard. Theofficers attempted to approach the defendant, but he fled through another backyard. The officerspursued the defendant. During the course of this chase, the defendant discarded a knapsackcontaining electronic equipment, which the officers recovered. The officers also recovered theglass bottle, which contained money.
The defendant's actions, combined with the fact that the police officers were [*2]investigating a pattern of at least 25 burglaries that had occurredrecently at that location at approximately that time of night, provided the police officers withreasonable suspicion that the defendant had committed a crime, such that their pursuit wasjustified by the defendant's flight and trespass (see People v Leung, 68 NY2d 734, 736[1986]; People v Stephens, 47AD3d 586, 589 [2008]). By abandoning the knapsack, the defendant engaged in anindependent act involving a calculated risk that it would be retrieved (see People v Coleman, 125 AD3d879, 880 [2015]; People v Santiago, 206 AD2d 492, 493 [1994]). Because theofficers had reasonable suspicion to pursue the defendant, the defendant's abandonment of theknapsack was not precipitated by any illegal police conduct. Accordingly, we agree with thehearing court's determination declining to suppress the knapsack and its contents (see People v Buie, 89 AD3d 748,749 [2011]).
Contrary to the defendant's contention, the police officers had probable cause to arrest him(see generally People v Sahadeo,140 AD3d 1093 [2016]). Moreover, we agree with the hearing court's determinationdeclining to suppress the defendant's post-arrest statements to law enforcement officials, becausethe statements were not the product of an illegal search or seizure (see People v Owens, 127 AD3d788 [2015]).
The defendant also contends that the trial court erred in denying his application to proceedpro se. "A criminal defendant has a constitutional right to self-representation" (People v Littlejohn, 92 AD3d 898,898 [2012]; see Faretta v California, 422 US 806, 814 [1975]; People v McIntyre,36 NY2d 10, 14-15 [1974]). But, "to best promote the orderly administration of justice andinsulate convictions from claims of deprivation of fundamental fairness, the right toself-representation is necessarily a qualified right" (People v Arroyo, 98 NY2d 101, 103[2002]; see People v McIntyre, 36 NY2d at 16-17). "A defendant in a criminal case mayinvoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2)there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant hasnot engaged in conduct which would prevent the fair and orderly exposition of the issues"(People v McIntyre, 36 NY2d at 17).
Here, the defendant did not make an unequivocal request to proceed pro se. Moreover, hewas unable to knowingly, voluntarily, and intelligently waive his right to counsel and proceedpro se due to his insistence that the Uniform Commercial Code governed the criminal proceedingand his unwillingness to engage with the trial court or communicate effectively with defensecounsel (see United States v Pryor, 842 F3d 441 [6th Cir 2016]; cf. People v Stone, 22 NY3d 520[2014]). Consequently, the trial court did not improvidently exercise its discretion in denying thedefendant's request to represent himself (see People v Littlejohn, 92 AD3d at 898).
The defendant's contention, raised in his pro se supplemental brief, that certain physicalevidence that was found on his person should have been suppressed is unpreserved for appellatereview (see CPL 470.05 [2]) and, in any event, without merit. Dillon, J.P., Chambers,Maltese and Barros, JJ., concur.