From Casetext: Smarter Legal Research

People v. Tabor

Appellate Division of the Supreme Court of New York, Fourth Department
Feb 1, 2008
48 A.D.3d 1096 (N.Y. App. Div. 2008)

Opinion

No. KA 06-02794.

February 1, 2008.

Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered April 21, 2005. The judgment convicted defendant, upon a jury verdict, of assault in the second degree.

FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (ROBERT R. REITTINGER OF COUNSEL), FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.

Before: Hurlbutt, J.P., Smith, Fahey, Peradotto and Pine, JJ.


It is hereby ordered that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05). We agree with defendant that County Court erred in summarily denying his request to proceed pro se. "A defendant in a criminal case may invoke 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 has not engaged in conduct which would prevent the fair and orderly exposition of the issues" ( People v Mclntyre, 36 NY2d 10, 17; see People v D'Antuono, 263 AD2d 968, 969). In determining that a defendant is acting knowingly and voluntarily, the court must "ensure that the defendant . . . is aware of the disadvantages and risks of waiving his right to counsel" ( People v Schoolfield, 196 AD2d 111, 115, lv dismissed 83 NY2d 858, lv denied 83 NY2d 915). Here, the record establishes that all three prongs of the test in Mclntyre were met ( see People v Ward, 205 AD2d 876, 877, lv denied 84 NY2d 873; cf. People v Lott, 23 AD3d 1088, 1089; see generally People v Arroyo, 98 NY2d 101, 103-104).

We do not reach defendant's remaining contentions in light of our determination.


Summaries of

People v. Tabor

Appellate Division of the Supreme Court of New York, Fourth Department
Feb 1, 2008
48 A.D.3d 1096 (N.Y. App. Div. 2008)
Case details for

People v. Tabor

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DAN TABOR, Appellant

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Feb 1, 2008

Citations

48 A.D.3d 1096 (N.Y. App. Div. 2008)
2008 N.Y. Slip Op. 836
849 N.Y.S.2d 852

Citing Cases

People v. Tabor

Both victims testified at trial, and defendant was convicted as charged. We reversed that judgment of…

People v. Tabor

Both victims testified at trial, and defendant was convicted as charged. We reversed that judgment of…