Opinion
March 13, 1992
Appeal from the Supreme Court, Monroe County, Doyle, J.
Present — Callahan, J.P., Green, Pine, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that the trial court erred in denying his request to proceed pro se. At arraignment the court granted defendant permission to proceed pro se. Before his next court appearance, however, defendant requested counsel and counsel was duly assigned. Defense counsel made and argued pretrial motions and a date was scheduled for a probable cause and suppression hearing. When defendant appeared at the hearing, he again requested to proceed pro se. While the court was considering that request, defendant suddenly changed his position and decided to continue with counsel. In a subsequent court appearance, defendant requested for the third time leave to proceed pro se. That request was denied by the court.
A defendant in a criminal case may invoke the right to defend pro se provided: (1) that the request is clear, unconditional, unequivocal and timely made; (2) there is a knowing and intelligent waiver to the right to counsel; and (3) defendant had not engaged in conduct which would prevent the fair and orderly exposition of the issues (see, People v McIntyre, 36 N.Y.2d 10, 17). The right to proceed pro se has been restricted "in order to promote the orderly administration of justice and to prevent subsequent attack on a verdict claiming a denial of fundamental fairness" (People v McIntyre, supra, at 17).
Because defendant repeatedly changed his position regarding pro se representation, his request to proceed pro se cannot be deemed unequivocal. Such conduct undermines the orderly administration of justice (see, People v McIntyre, supra; see generally, People v Kelly, 60 A.D.2d 220, 223-224, affd 44 N.Y.2d 725). We therefore find no error in the trial court's denial of defendant's request to proceed pro se.
We have reviewed defendant's remaining contentions and find them to be without merit.