The People, Appellant,v.Raymond Crespo, Respondent.BriefN.Y.February 8, 2018APL-2017-00046 To be argued by STEPHEN J. KRESS (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - RAYMOND CRESPO, Defendant-Respondent. B R I E F F O R A P P E L L A N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Appellant One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 CHRISTOPHER P. MARINELLI STEPHEN J. KRESS ASSISTANT DISTRICT ATTORNEYS Of Counsel MAY 4, 2017 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii PRELIMINARY STATEMENT ......................................................................................... 1 QUESTION PRESENTED ................................................................................................ 2 JURISDICTIONAL STATEMENT ................................................................................... 2 INTRODUCTION................................................................................................................ 3 THE RELEVANT RECORD ............................................................................................. 5 The trial court denied the defense’s baseless requests to appoint new counsel on the eve of trial. ................................................................................. 5 After eleven jurors had been selected and sworn, defendant moved to proceed pro se, and the trial court denied that application. ................... 8 THE APPELLATE DIVISION’S DECISION .............................................................. 13 POINT THE TRIAL COURT CORRECTLY REJECTED AS UNTIMELY DEFENDANT’S END-OF-JURY SELECTION MOTION TO REPRESENT HIMSELF. ...................... 15 A. The Appellate Division misread McIntyre as holding, as a matter of law, that a jury trial “commences” with the People’s opening statement, thus rendering timely any pre-opening request to proceed pro se. ............................... 16 B. The Court should hold that a jury trial “commences” at the start of jury selection when deciding the timeliness of a request for self-representation. ......................... 26 CONCLUSION ................................................................................................................... 37 ii TABLE OF AUTHORITIES FEDERAL CASES Crist v. Bretz, 437 U.S. 28 (1978) ....................................................................................... 35 Faretta v. California, 422 U.S. 806 (1975) ........................................................................... 2 Fritz v. Spalding, 682 F.2d 782 (9th Cir. 1982) ................................................................. 34 Hill v. Curtain, 792 F.3d 670 (6th Cir. 2015) .................................................................... 30 Horton v. Dugger, 895 F.2d 714 (11th Cir. 1990) ............................................................ 35 Martinez v. Court of Appeal, 528 U.S. 152 (2000) ..................................................... 30, 35 Robards v. Rees, 789 F.2d 379 (6th Cir. 1986) ..................................................... 30-31, 34 Serfass v. United States, 420 U.S. 377 (1975).................................................................... 35 United States v. Betancourt-Arretuche, 933 F.2d 89 (1st Cir. 1991) ............................. 35 United States v. Dunlap, 577 F.2d 867 (4th Cir. 1978) .................................................... 30 United States v. Oakey, 853 F.2d 551 (7th Cir. 1988)...................................................... 34 United States v. Walker, 142 F.3d 103 (2d Cir. 1998) ...................................................... 34 United States v. Wright, 682 F.3d 1088 (8th Cir. 2012) ............................................ 30, 34 STATE CASES Brackley v. Donnelly, 53 A.D.2d 849 (2d Dep’t 1976) .................................................... 36 Commonwealth v. Chapman, 392 N.E.2d 1213 (Mass. 1979) ....................................... 34 Commonwealth v. El, 933 A.2d 657 (Pa. Super. Ct. 2007) ............................................. 30 Commonwealth v. El, 977 A.2d 1158 (Pa. 2009) ............................................................. 34 Commonwealth v. Vaglica, 673 A.2d 371 (Pa. Super. Ct. 1996) ............................... 32-33 Gunning v. Codd, 49 N.Y.2d 495 (1980) .......................................................................... 27 Lyons v. State, 796 P.2d 210 (Nev. 1990), abrogated on other grounds by Vanisi v. State, 22 P.3d 1164 (Nev. 2001) .................................................................... 34 iii Muto v. State, 843 A.2d 696 (Del. 2004) ........................................................................... 34 People v. Anderson, 16 N.Y.2d 282 (1965) ...................................................................... 29 People v. Atkinson, 111 A.D.3d 1061 (3d Dep’t 2013) ................................................... 14 People v. Blowe, 130 A.D.2d 668 (2d Dep’t 1987) .......................................................... 25 People v. Dashnaw, 116 A.D.3d 1222 (3d Dep’t 2014) .................................................. 29 People v. Harvall, 196 A.D.2d 553 (2d Dep’t 1993) ........................................................ 25 People v. Herman, 78 A.D.3d 1686 (4th Dep’t 2010) ..................................................... 14 People v. Hill, 773 N.W.2d 257 (Mich. 2009) ................................................................... 34 People v. Jamal, 181 Misc.2d 936 (Sup. Ct., Queens Cnty. 1999) ............................ 25, 36 People v. Kurtz, 51 N.Y.2d 380 (1980) ............................................................................. 21 People v. Maracle, 19 N.Y.3d 925 (2012) ..................................................................... 27-28 People v. Matsumoto, 2 Misc.3d 130(A) (App. Term 2d Dep’t 2004) .............. 14, 24-25 People v. McIntyre, 36 N.Y.2d 10 (1974) .....................................................................passim People v. McIntyre, 41 A.D.2d 776 (2d Dep’t 1973) ........................................... 16-17, 20 People v. Montilla, 10 N.Y.3d 663 (2008) ......................................................................... 27 People v. Smith, 68 N.Y.2d 737 (1986) ................................................................. 14, 22-23 People v. Stone, 22 N.Y.3d 520 (2014) .................................................................. 24, 32-33 People v. Valdez, 82 P.3d 296 (Cal. 2004) ......................................................................... 34 People ex rel. Steckler v. Warden of City Prison, 259 N.Y. 430 (1932) ...... 19-20, 26, 29 Russell v. State, 383 N.E.2d 309 (Ind. 1978) ........................................................ 30, 34, 36 Scott v. State, 278 P.3d 747 (Wyo. 2012)........................................................................... 34 State v. Abernathy, 2005 WL 3447672 (Tenn. Crim. App. Dec. 14, 2005) ................... 34 State v. Cassano, 772 N.E.2d 81 (Ohio 2002) .................................................................. 34 iv State v. Christian, 657 N.W.2d 186 (Minn. 2003) ................................................. 30, 34-35 State v. Cooper, 888 N.W.2d 247 (Wis. Ct. App. Oct. 12, 2016) ............................. 30, 34 State v. Cornell, 878 P.2d 1352 (Ariz. 1994) ..................................................................... 34 State v. Cuddy, 921 P.2d 219 (Kan. 1996) ......................................................................... 34 State v. Gomez, 863 S.W.2d 652 (Mo. Ct. App. 1993) ........................................ 30-31, 34 State v. Hardy, 4 A.3d 908 (Md. 2010) ............................................................ 30-32, 34, 36 State v. Holmes, 2012 WL 4093559 (N.J. Super. Ct. App. Div. Sept. 19, 2012) ................................................................................................................................. 34 State v. Pires, 77 A.3d 87 (Conn. 2013) ............................................................................. 34 State v. Sheppard, 310 S.E.2d 173 (W. Va. 1983) ............................................................. 34 STATE STATUTES Code Crim. Pro. §§ 354-87 .................................................................................................. 18 Code Crim. Pro. § 388 ............................................................................................. 18-19, 22 CPL, L. 1970, ch. 996, § 5 ....................................................................................... 18, 20-21 CPL 1.10(1)(a) ....................................................................................................................... 21 CPL 1.20(11) ...................................................................................... 2, 16, 19, 21, 24-28, 36 CPL 30.30(5)(a) ............................................................................................................... 25, 36 CPL 260.30 ..................................................................................................... 19, 21-22, 24-26 CPL 260.30(1) ........................................................................................................... 19, 22, 25 CPL 260.30(2) ....................................................................................................................... 25 CPL 260.30(3) ....................................................................................................................... 25 CPL 450.90(1) ......................................................................................................................... 2 CPL 450.90(2)(a) ..................................................................................................................... 2 CPL 710.40 ............................................................................................................................ 25 v Penal Law § 110.00 ........................................................................................................... 4, 12 Penal Law § 120.10(1) ............................................................................................................ 1 Penal Law § 125.25(1) ...................................................................................................... 4, 12 Penal Law § 265.02(1) ............................................................................................................ 1 OTHER AUTHORITIES New York Consolidated Laws Service Statutes Annotations Forms: Criminal Procedure Law Vol. 2B (1971) ................................................................ 21, 26 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- RAYMOND CRESPO, Defendant-Respondent. BRIEF FOR APPELLANT PRELIMINARY STATEMENT By permission of the Honorable Leslie E. Stein, granted March 6, 2017, the People of the State of New York appeal from a November 10, 2016 order of the Appellate Division, First Department. That order reversed a December 19, 2014 judgment of the Supreme Court, New York County (Thomas A. Farber, J.), convicting defendant, after a jury trial, of one count each of Assault in the First Degree (Penal Law § 120.10[1]) and Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[1]). The trial court sentenced defendant, as a persistent violent felony offender, to concurrent prison terms of twenty years to life on the assault charge and three-and-a-half to seven years on the weapon charge. The Appellate Division vacated defendant’s convictions and remanded the matter for a new trial. Defendant is currently incarcerated pending retrial. 2 QUESTION PRESENTED Under the New York and Federal Constitutions, criminal defendants have the right to represent themselves at trial. N.Y. Const. Art. I, § 6; Faretta v. California, 422 U.S. 806 (1975). But that right is not absolute. In People v. McIntyre, 36 N.Y.2d 10 (1974), this Court held that a trial court may deny a defendant’s request to proceed pro se if the request is untimely. A request is untimely, McIntyre explained, if it is not made “before the trial commences.” Id. at 17. Under the Criminal Procedure Law, “[a] jury trial commences with the selection of the jury” (CPL 1.20[11]). In light of the foregoing, is a criminal defendant’s request to proceed pro se untimely if the request comes after the commencement of jury selection? JURISDICTIONAL STATEMENT The Court has jurisdiction to entertain this appeal. The Appellate Division’s order reversed the judgment of conviction and was therefore “adverse” to the People, who were the respondent in the Appellate Division (CPL 450.90[1]). Additionally, the Appellate Division reversed the judgment “on the law” (CPL 450.90[2][a]). The Court also has jurisdiction to review the question presented, which was fully preserved for appellate review. Here, defendant orally moved to proceed pro se after eleven jurors had been selected and sworn, and the trial court denied the motion as untimely (A292-96, 298, 300-01; see also A410-11, 491-92).1 1 Numerical citations preceded by “A” are to the People’s Appendix. 3 INTRODUCTION At about 2:30 p.m. on January 21, 2013, defendant committed what the trial court would describe at sentencing as a “vicious” and “unprovoked” stabbing (A850). Pedro Garcia and his brother were ordering takeout at a restaurant in Manhattan’s East Harlem neighborhood when they encountered defendant and his friend Luis Velazquez. Defendant, who is Puerto Rican, and Pedro, who is Mexican, traded ethnically charged insults and eventually agreed to step outside to fight. After they exchanged blows, Pedro ended the fight by throwing defendant to the ground. Pedro then went back inside to pick up his food, while defendant, apparently upset about losing the fight, retrieved a knife from Velazquez. Outside the restaurant, as the Garcias were about to leave, defendant initiated a second fight with Pedro. During this second fight, defendant stabbed Pedro in the back. Police officers on patrol saw defendant punching Pedro’s torso and approached. Defendant, his clothes and hands covered in blood, fled upon seeing them. One officer chased down defendant, arrested him, and later recovered the knife used in the stabbing. Another officer arrested Velazquez and recovered a second knife. Pedro, meanwhile, was rushed to the hospital, where he remained for three weeks being treated for a collapsed lung and a broken rib. Defendant later said during recorded calls that he “got caught red-handed” after he “went and stabbed” a man he was fighting (A700-01). By New York County Indictment Number 519/2013, filed on February 11, 2013, a grand jury charged defendant and Velazquez with one count each of Attempted 4 Murder in the Second Degree (Penal Law §§ 110.00, 125.25[1]), first-degree assault, and third-degree weapon possession. The grand jury also charged Velazquez with a second count of third-degree weapon possession.2 On October 17, 2014, immediately after a hearing at which the court denied his motion to suppress physical evidence, defendant moved to substitute the attorney who had been representing him for nearly twenty months. The trial court denied the motion. In response, defendant refused to return to the courtroom after a recess in the proceedings, later promised to inform the jury of his purported dissatisfaction with counsel, and ultimately absented himself from the start of jury selection, which began on October 23, 2014. That day, the parties selected, and the court swore, eleven jurors. The next morning, before jury selection resumed, defendant told the trial court that he wished to represent himself. The trial court denied defendant’s application to proceed pro se as untimely. The court and counsel then completed jury selection and proceeded that day with opening statements and the beginning of the People’s case-in-chief. On October 30, 2014, the jury returned a verdict acquitting defendant of attempted murder but convicting him of first-degree assault and third-degree weapon possession. On December 19, 2014, the trial court sentenced defendant, as a persistent 2 On January 23, 2014, Velazquez pleaded guilty to one weapon-possession count in full satisfaction of the indictment. On January 31, 2014, he was sentenced to a term of one to three years’ imprisonment, which he has completed. He did not appeal his conviction. 5 violent felony offender, to concurrent prison terms of twenty years to life on the assault charge and three-and-a-half to seven years on the weapon charge. On appeal to the Appellate Division, First Department, defendant argued that the trial court had violated his right under the New York and Federal Constitutions to represent himself. On November 10, 2016, the Appellate Division reversed defendant’s convictions, agreeing that the trial court had erred by not allowing him to proceed pro se. Accordingly, the Appellate Division remanded the case for a new trial. On March 6, 2017, the Honorable Leslie E. Stein granted the People’s application for leave to appeal from the Appellate Division’s order. THE RELEVANT RECORD The trial court denied the defense’s baseless requests to appoint new counsel on the eve of trial. On October 17, 2014, at the end of a two-day suppression hearing, the Honorable Thomas A. Farber denied defendant’s motion to suppress the knife used in the stabbing and the “blood soaked” clothes that defendant was wearing when arrested. The court then began discussing procedures for jury selection, which was scheduled to begin on October 22nd (A50-53). During that discussion, defense counsel informed the court that defendant wanted another attorney, and that if defendant “d[id]n’t get his way … he [wa]s not gonna come to court” for trial. The court explained to defendant that his case would not be delayed, so he either had to proceed with his current attorney or hire a lawyer 6 who could try the case by October 22nd. The court then told defendant to “take some time to speak to” his attorney. Defendant replied, “I won’t talk, I won’t talk” (A58-60). Defendant complained that he “just d[id]n’t feel comfortable” with his lawyer, who had told him “there ain’t much you can do” in light of inculpatory statements that defendant made over the phone while incarcerated on Rikers Island awaiting trial (A62-63). As would later be revealed at trial, during one such call, defendant stated that while “fighting with the guy … I was so angry” that “I told my friend to give me what he would give me, [and] I went and stabbed him” (A700). On another call, defendant lamented that he had been caught “red-handed,” so there was “nothing, nothing, nothing, nothing” he could do (A701). He also said during calls that delaying the trial would be “better” for him because there would be a greater chance that the victim, Pedro Garcia, would return to Mexico or “simply [not] come to court” (A489-90). The court reassured defendant that delivering “bad news” is “part of [a] lawyer’s job,” and that defense counsel was “an experienced lawyer.” The court then instructed defendant again to talk to counsel and declared a recess. After the recess, a court officer reported that, when he went to bring defendant back to court, defendant was “laying on the floor” of a holding area and said, “I am not coming to court.” Accordingly, the court adjourned the case to October 22, 2014, for jury selection (A64-68). On the morning of October 22, 2014, before defendant was brought into the courtroom, defense counsel moved to be relieved. Counsel claimed that there had been “a complete breakdown of communication and trust” with defendant (A94). The court 7 denied the motion. The court explained that, if counsel had given “a single reason to think” that defendant’s purported dissatisfaction with him was rooted in anything other than the realities of his case, then the court would appoint a new attorney (A76). But the cause of any breakdown was defendant’s “unhappiness with being told about” his “very bad situation,” as he faced a minimum of twenty years to life in prison if convicted and “the evidence against him appear[ed] to be strong” (A74). Counsel acknowledged that the problem was indeed “the message and not necessarily the messenger,” and that “it [wa]s not based on anything that [he] ha[d] actually done” (A71, 94). The court thus concluded that, given that the case was nearly two years old and that counsel had devoted “an enormous amount of time” to it, “to assign new counsel to have to go back to ground zero really does nobody any service” (A79). The court then directed counsel to visit defendant in his holding cell to see whether he wished to attend jury selection. Counsel did so, but later reported that defendant refused to speak to him. The court ultimately signed a force order to produce defendant so that he could be fully informed of his right to be present at trial (A77-80). Once defendant was in the courtroom, the court warned him about the pitfalls of absenting himself from trial (A83-87). When defendant responded by complaining about his lawyer, the court engaged him in a lengthy colloquy about his claimed dissatisfaction with counsel. Defendant said repeatedly that he “d[id]n’t feel comfortable” with his lawyer, adding at one point that he “didn’t feel the vibe” (A87, 92-93, 98). The court told defendant that “the only effect” of appointing new counsel 8 would be to delay the trial “for another six months or something” (A95). The court assured defendant that counsel had “actually put a whole lot of work into [the] case,” and urged defendant to “give [him] another chance” (A90, 98). Yet, defendant still refused to speak with his attorney. Defendant then said that he did not want to be in the courtroom for jury selection, and he was returned to his cell (A98-101). After eleven jurors had been selected and sworn, defendant moved to proceed pro se, and the trial court denied that application. Jury selection took place over the next two days, October 23-24, 2014 (A115- 338). At the start of the proceedings on October 23rd, the judge stated that he had sent a court officer “to see if the defendant would come out to court,” but defendant had again “refus[ed]” (A115). Later that morning, however, after temporarily excusing a panel of potential jurors, the court stated that “apparently the defendant wants to come out and tell me why he is not being present” (A133). When defendant was produced, he told the court that he still did not understand why he could not “change [his] lawyer” (A135). The court explained to him, “[Y]ou don’t get to choose your attorney if we assign the attorney to you, you just get to have the attorney replaced if he’s not doing the job that he is supposed to be doing for you” (A136). The court added that if “something [were to] happen[]” to demonstrate that counsel was not “representing [defendant] effectively,” the court would appoint a new attorney. However, defendant had not yet “said anything … substantively” to warrant substitution of counsel (A136). 9 Defendant responded, “If you all going to let the lawyer stay with me I am going to come up here, I am going to say over and over that I don’t feel comfortable with my lawyer … every single day I am going to come here and say I don’t feel comfortable with” him. Before leaving, defendant repeated that “when the jury come through I am gonna say over and over that I don’t feel comfortable with my lawyer” (A137-38). The court and counsel continued with jury selection, ultimately selecting and swearing eleven jurors that day (A138-289). On the morning of October 24, 2014, a court officer reported that defendant wanted to “come out” to say that “he [did]n’t want [defense counsel] as a lawyer.” Defendant was brought before the court and asked whether he “wish[ed] to be here now for the trial?” He answered, “I want to be here present for the trial and I want to let the people know that I don’t want my lawyer to represent me and I told you yesterday that I am going to be saying the same thing, but I want everybody to know that I am being forced to go to court with a lawyer that I don’t …” The court interjected, “[Y]ou are not going to be able to say [that] because … only your lawyer gets to speak till you testify, if you wish to testify.” Defendant then claimed that he did not “even know what you all doing” and did not “understand what is going on now.” But the court rejoined that it had taken “every opportunity” to “let [him] know what is going on,” and that it had explained the jury selection process to him “in open court” (A290-93). Amid this colloquy, defendant stated, “I don’t want my lawyer to represent me … so that is the case I represent myself. I am entitled to represent myself.” The court 10 told defendant that it was “too late to make that request now in the middle of trial,” but, if defendant wished, once jury selection was completed, the court would “pause” to consider whether to allow defendant to represent himself. “That is exactly what I want to do,” defendant answered. The court added that the request was “most likely too late, but I want to check on that to make sure that that is the situation” (A292-93). Moments later, however, defendant asked the court if the jury knew about his “problem with [his] lawyer.” The court made clear that the jury “will not have that knowledge” because defendant’s relationship with counsel was “not relevant to anything that we are doing in this proceeding.” Defendant replied, “I want the jury to know that you all force me to go to trial with a lawyer that … is not helping me.” When the court told him that the jury had “seen [his] lawyer helping” at voir dire, defendant interrupted, “That is what you said he is helping me. That is not, that is not what I see.” The court then reiterated that defendant was “not going to be allowed to speak” to the jury and asked him if he “still wish[ed] to be present.” Defendant stated, “I want to be present and I want to represent myself. I don’t need a lawyer then” (A293-95). The court responded, “[T]hat is not happening at this stage …[b]ecause we are in the middle of the round of jury selection.” When defendant continued to protest, the court stated, “This is not a timely request,” and pointed out that this was the first time that defendant had asked to represent himself, and “in the middle of the trial” no less. The court began to say, “[T]hat is --” and defendant cut the court off again, this time to claim that he had only just learned about the right to proceed pro se (A295-96). 11 The court then reiterated that defendant was “not going to be able to represent [him]self because we are in the middle of jury selection,” and asked defendant if he “wish[ed] to be here or not?” When defendant said yes, the court, once more, informed him that he could not speak to the jury unless he chose to testify. In response, defendant stated, “I don’t want my lawyer represent me, so I want to represent myself.” Defendant then acknowledged that he was “interrupting the trial.” And, after the court again stated that defendant would “not [be] allowed to speak in front of the jury,” defendant vowed, “That is exactly what is going to happen because I not going to trial with a lawyer that is not helping me.” The court advised defendant, “[I]f you ever determine that you can sit quietly then you are welcome to come to trial.” When defendant repeated that he wanted to represent himself, the court again told him that he could not do so “at this point in the trial” (A296-98). Defendant proceeded to blame the court and defense counsel for not telling him earlier that he could represent himself, and the court suggested that defendant “sit here for a little while and watch [counsel] represent[]” him. Defendant rejected the suggestion and began griping about how counsel had supposedly met with him only infrequently prior to trial. The court, refusing “to go through this,” told defendant once more that it was “too late to ask to represent yourself,” and repeated its suggestion that defendant watch counsel and then make a determination “as to whether he is actually helping.” The court then expressed its willingness to “discuss [the matter] further” if defendant agreed to its suggestion. But, the court advised, “if you are going to tell me 12 that when I bring the jury in you’re going to jump up and disrupt the court proceedings and say he is not my lawyer, I am not going to have that.” Defendant responded, “That is exactly what’s going to happen” (A298-300). In light of this response, the court had defendant removed from the courtroom. The court observed, “At this point, frankly, this is just simply manipulation” (A300-01). The court rejected defendant’s claim that counsel “never visit[ed]” him, and further derided as “nonsense” any suggestion that defendant was unaware that jury selection had commenced (A301). And the court added again that defendant’s motion to proceed pro se was “not a timely request” (id.). The court later reiterated that defendant’s application to proceed pro se, “as we [we]re literally about to finish jury selection and begin openings,” was neither “timely” nor “unequivocal,” but rather was “a manipulative request” made only because the court had refused to “reassign counsel on the eve of trial” (A491-92). The prosecutor never expressed disagreement with that assessment, but nonetheless asked the court to “conduct an inquiry into the defendant’s level of education, [and] his understanding of the law” (A495). In response to a subsequent question from the court, the prosecutor made clear that he did not believe that defendant should be allowed to proceed pro se, even if he “passe[d]” such an inquiry (A495-96). The court ultimately declined to conduct the inquiry, explaining that, had defendant asked to proceed pro se before jury selection, the court would have “allocuted him” and let him do so, but it would be “crazy” to allocute him “in the middle of trial” (A496). As the court put it, “[i]t would 13 be a travesty to let somebody go pro se in those circumstances…” (A492). The prosecutor “defer[red]” to the court (A496). After the court denied defendant’s requests to represent himself, the court and counsel completed jury selection and proceeded that day to opening statements and the People’s direct case (A302-485). On October 30, 2014, the jury acquitted defendant of attempted murder but convicted him of first-degree assault and third-degree weapon possession (A832-33). On December 19, 2014, the court sentenced defendant, as a persistent violent felony offender, to concurrent prison terms of twenty years to life on the assault charge and three-and-a-half to seven years on the weapon charge (A851). THE APPELLATE DIVISION’S DECISION Defendant appealed his convictions to the Appellate Division, First Department. On appeal, he argued that the trial court had violated his right to self-representation under the New York and Federal Constitutions (see A3). By order entered November 10, 2016, the Appellate Division reversed defendant’s convictions “on the law” and remanded the matter for a new trial (A2). The Appellate Division held that, under the principles set forth by this Court in People v. McIntyre, 36 N.Y.2d 10 (1974), “defendant’s right to self-representation was violated” (A4). McIntyre held that a trial court must grant a defendant’s request to proceed pro se if: “‘(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’” 14 (A3-4, quoting McIntyre, 36 N.Y.2d at 17). The Appellate Division explained that, when a defendant’s request to proceed pro se is timely, the trial court must “‘conduct a thorough inquiry to determine whether the waiver was made intelligently and voluntarily’” (A4, quoting People v. Smith, 68 N.Y.2d 737, 738 [1986]). Addressing first the timeliness of defendant’s requests to represent himself, the Appellate Division concluded that, “[c]ontrary to the trial court’s finding, defendant’s requests to proceed pro se, made during jury selection, were timely” (A4). In support of that conclusion, the Appellate Division cited McIntyre and noted that, there, this Court found that the defendant’s request to represent himself was timely “because [the request] was made before the prosecution’s opening statement” (A4, citing McIntyre, 36 N.Y.2d at 18). The Appellate Division also cited cases from other Departments likewise relying on McIntyre to find requests made prior to the People’s opening statement to be timely (A4, citing People v. Atkinson, 111 A.D.3d 1061, 1062 [3d Dep’t 2013]; People v. Herman, 78 A.D.3d 1686, 1686 [4th Dep’t 2010]). The Appellate Division then “reject[ed] the People’s argument that the request to proceed pro se must be made before jury selection” to be timely (A4, citing People v. Matsumoto, 2 Misc.3d 130(A), at *1 [App. Term 2d Dep’t 2004]). Turning to McIntyre’s unequivocality requirement, the Appellate Division found that “[d]efendant’s requests to represent himself were clear and unequivocal,” despite the fact that “they were made shortly after the court refused to appoint new counsel” (A4-5). As for McIntyre’s third prong, the Appellate Division found that defendant did 15 not engage in “any disruptive behavior before the trial court denied [his] repeated requests to proceed pro se,” and that the trial court did not “make any explicit findings that defendant would not comply with the court’s directives if he were allowed to proceed pro se” (A5-6). “Accordingly,” the Appellate Division concluded, the trial court violated defendant’s right to represent himself by denying his request to go pro se “without determining whether it was knowingly or intelligently made” (A6). POINT THE TRIAL COURT CORRECTLY REJECTED AS UNTIMELY DEFENDANT’S END-OF-JURY SELECTION MOTION TO REPRESENT HIMSELF. As noted, McIntyre held that a trial court must grant a defendant’s request for self-representation only if the request is “timely asserted.” McIntyre, 36 N.Y.2d at 17. The Court laid down a rule for determining whether a request to proceed pro se at trial is timely: A pro se application is “timely interposed when it is asserted before the trial commences.” Id. However, contrary to the Appellate Division’s decision below, this Court has never established, as a matter of law, that a jury trial “commences” with the People’s opening statement, thus rendering timely any request to proceed pro se made before then. When, exactly, a jury trial “commences” for purposes of deciding the timeliness of a request for self-representation is the issue presented in this case. In deciding that issue, this Court should hold that a jury trial “commences” at the start of jury selection—not with the People’s opening statement—meaning that, to be timely, a request to proceed pro se must be made before the start of jury selection. 16 To begin, the Criminal Procedure Law expressly provides that “[a] jury trial commences with the selection of the jury” (CPL 1.20[11]). Moreover, a rule requiring defendants to invoke the right to self-representation before the start of jury selection better serves the purposes underlying the timeliness requirement—namely, avoiding delay and confusion. And, holding that mid-jury selection requests to proceed pro se are untimely would align this State’s jurisprudence with the weight of authority, which confirms the commonsense notion that jury selection is part of a jury trial. Accordingly, the Court should reverse the Appellate Division’s decision and reinstate defendant’s convictions. A. The Appellate Division misread McIntyre as holding, as a matter of law, that a jury trial “commences” with the People’s opening statement, thus rendering timely any pre-opening request to proceed pro se. In finding that defendant’s end-of-jury selection application to represent himself was timely, the Appellate Division read McIntyre as holding that a request to proceed pro se at a jury trial is necessarily timely as long as the request comes before the People’s opening statement. McIntyre set forth no such rule. In McIntyre, “[a]t the beginning of the trial—after the jury had been chosen, but before the opening by the prosecution—defendant asked that he be permitted to try his own case, with assigned counsel as an adviser.” People v. McIntyre, 41 A.D.2d 776, 777 (2d Dep’t 1973) (Hopkins, J., dissenting). The trial court summarily denied the request without determining if the defendant’s purported waiver of his right to counsel was knowing and intelligent. McIntyre, 36 N.Y.2d at 13, 19. The jury subsequently convicted the defendant of murder and robbery. On June 3, 1971, the trial court 17 sentenced him to life in prison. The defendant appealed, arguing principally that he was denied his right to self-representation. The Second Department affirmed. McIntyre, 41 A.D.2d at 776-77 (memorandum decision). This Court reversed in an opinion examining “the nature and extent of a criminal defendant’s right to conduct his own defense,” a right that was, at that time, “largely undefined.” McIntyre, 36 N.Y.2d at 14-15. At the outset, the Court recognized that the right to self-representation is “inherently antagonistic” to “the equally powerful ideal that our criminal justice system must determine the truth or falsity of the charges in a manner consistent with fundamental fairness.” Id. at 14. The Court was, therefore, “hesitant to sanction the unfettered exercise of this right.” Id. at 15. Ultimately, “[i]n light of the manifold and conflicting principles permeating the assertion of [the] right to defend pro se,” the Court concluded that the right “is not absolute but subject to certain restrictions.” Id. at 16-17. “Such limitations,” the Court explained, “must be implemented in order to promote the orderly administration of justice and to prevent subsequent attack on a verdict claiming a denial of fundamental fairness.” Id. at 17. The Court thus articulated a three-part test for invoking the right to self-representation: 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. Id. The Court then discussed each element of this test in more detail. Id. at 17-18. 18 With respect to the timeliness of a defendant’s request to proceed pro se, the Court observed that, “[p]rior to the commencement of the trial, the potential for obstruction and diversion is minimal.” McIntyre, 36 N.Y.2d at 17. “Therefore,” the Court held, “we deem a pro se application to be timely interposed when it is asserted before the trial commences.” Id. The Court reasoned that “[a]t that juncture the court may conduct a thorough inquiry thereby averting delay and confusion.” Id. But “[o]nce the trial has begun,” the Court warned, “the right is severely constricted and will be granted in the trial court’s discretion and only in compelling circumstances.” Id. After discussing the tenets of the other requirements for proceeding pro se, the Court “[a]ppl[ied] these principles to the instant case.” McIntyre, 36 N.Y.2d at 18. On the question of timeliness, the Court concluded that the defendant’s request to represent himself was timely, “having been interposed prior to the prosecution’s opening statement.” Id. Notably, the Court gave no substantive explanation for that conclusion; it simply provided citations. The Court first cited directly to Section 388 of the Code of Criminal Procedure, which was still in effect at the time of the defendant’s trial. McIntyre, 36 N.Y.2d at 18; see L. 1970, ch. 996, § 5 (stating that the CPL became effective Sept. 1, 1971). Section 388 was the first section in Title VII of the Criminal Code, which governed “the Trial.” Title VI, by comparison, addressed the “proceedings on the indictment, before trial,” including the “[f]ormation of the trial jury” (Code Crim. Pro. §§ 354-87) (emphasis added). Section 388 provided, in pertinent part: “The jury having been impaneled and 19 sworn, the trial must proceed in the following order: 1. The district attorney … must open the case” (Code Crim. Pro. § 388[1]). After citing Section 388, the Court next cited People ex rel. Steckler v. Warden of City Prison, 259 N.Y. 430 (1932). There, the Court determined that a statute authorizing “the trial of specified classes of offenses or offenders” in certain New York City courts empowered magistrates in those courts to hold preliminary hearings. Id. at 431-33 (emphasis in original). Of importance to McIntyre’s timeliness ruling, the Court in Steckler observed—although ironically did not find controlling—that, under the Criminal Code, “‘trial’ covers only so much of a criminal prosecution as begins with the opening of the case to the jury and ends with the verdict; the actual trial of the defendant by the jury. It does not include the information, arrest, examination, indictment, arraignment, plea, formation of the trial jury or sentence.” Steckler, 259 N.Y. at 432. Following its citations to the Criminal Code and Steckler, the McIntyre Court added a “see” citation to CPL 1.20(11) and 260.30. McIntyre, 36 N.Y.2d at 18. As relevant here, those sections stated then, as they do now, that “[a] jury trial commences with the selection of the jury” while a “non-jury trial commences with the first opening address, if there be any” (CPL 1.20[11]), and that “[t]he order of a jury trial, in general, is as follows: 1. The jury must be selected and sworn” (CPL 260.30[1]). Having concluded that the defendant’s request to go pro se was timely, the Court also found that the request was unequivocal and that the defendant had not forfeited the right to represent himself. McIntyre, 36 N.Y.2d at 18-19. Accordingly, because the 20 trial court had denied the request without “conduct[ing] a dispassionate inquiry into the pertinent factors,” the Court reversed and remanded the case for a new trial. Id. at 19.3 Based on the foregoing, it is evident that McIntyre announced only one rule with respect to the timeliness of requests to proceed pro se at trial: those requests are timely if they are made “before the trial commences.” McIntyre, 36 N.Y.2d at 17. The Court then merely “appl[ied] th[at] principle[]” to the facts of that case. Id. at 18. In that case, the defendant’s trial took place when the Code of Criminal Procedure was still in effect. See McIntyre, 41 A.D.2d at 776 (noting defendant appealed from a judgment rendered June 3, 1971); L. 1970, ch. 996, § 5 (stating that CPL became effective Sept. 1, 1971). Under the Criminal Code, “trial” commenced with the People’s opening statement. Code Crim. Pro. § 388(1); Steckler, 259 N.Y. at 432. Thus, because the defendant had asked to represent himself “before the opening by the prosecution,” McIntyre, 41 A.D.2d at 777 (Hopkins, J., dissenting), the Court concluded that the request in that 3 In determining that the defendant had not forfeited the right to represent himself, the Court found that a “postruling outburst” into which the trial court had “goad[ed]” the defendant could not be used to justify the summary denial of his application to proceed pro se. McIntyre, 36 N.Y.2d at 19. In that regard, when the defendant asked to proceed pro se, the trial court speculated that the defendant “thinks he’s probably the greatest lawyer and God’s gift to the legal profession”; that he was being counseled by “three or four jailhouse lawyers”; and that, during trial, he would probably “start looking at the ceiling” and the wall to convey dissatisfaction with counsel. When the court asked if the jury was on its way to the courtroom, the defendant protested, “F * * * the jury. I’m not going to trial,” and “jumped up, knock[ing]” over his chair. Id. at 13. Judge Gabrielli, joined by Judge Jasen, dissented, disagreeing with the majority that the defendant’s “unruly and disruptive behavior” was “the result of goading by the Trial Judge.” Id. at 19-20 (Gabrielli, J., dissenting). 21 case was timely. But nowhere in McIntyre did the Court broadly proclaim that “trial” forever and always “commences” with the People’s opening statement. Indeed, the Court had good reason to avoid making that sweeping declaration. As noted, in 1971 the Legislature replaced the “distinctly archaic” Criminal Code with the CPL (Commission Staff Comment to Chapter 11-A, New York Consolidated Laws Service Statutes Annotations Forms: Criminal Procedure Law Vol. 2B [1971], p. 1-18; see L. 1970, ch. 996, § 5). The CPL makes clear that its provisions alone apply in all criminal cases commenced after September 1, 1971 (CPL 1.10[1][a]). Among those provisions are CPL 1.20 and 260.30. CPL 1.20 contains a “partial lexicography” of frequently used terms in criminal procedure (Commission Staff Comment to CPL 1.20, p. 1-24), while CPL 260.30 “sets forth the order of events in a criminal jury trial.” People v. Kurtz, 51 N.Y.2d 380, 384 (1980). Significantly, the Temporary Commission on Revision of the Penal Law and Criminal Code, which drafted the CPL, explained that some of the definitions in CPL 1.20 were “deliberately designed to change the meanings which certain terms ha[d] or [we]re construed to have under the Criminal Code” (Commission Staff Comment to CPL 1.20, p. 1-24). The definition of the term “trial” was one such definition. As the Commission observed, CPL 1.20(11) “probably changes the meaning of the word ‘trial,’ at least with respect to a jury ‘trial’” (id.). “[U]nder the Criminal Code,” a jury trial “commence[d] with the people’s opening address and conclude[d] with the court’s 22 charge” (id. at 1-24–1-25). By contrast, “[u]nder the proposed section, it encompasses everything from the selection of the jury through the verdict” (id. at 1-25). CPL 260.30, for its part, reinforces that jury selection is part of a jury trial. To that end, CPL 260.30 states that “[t]he order of a jury trial, in general, is as follows: 1. The jury must be selected and sworn” (CPL 260.30[1]). CPL 260.30 thus differs from Section 388 of the Criminal Code, which, by its plain terms, made clear that the selection and swearing of the jury preceded, and thus were not part of, “the trial,” which began with the People’s opening statement (Code Crim. Pro. § 388[1] [“The jury having been impaneled and sworn, the trial must proceed in the following order: 1. The district attorney … must open the case.”]). Accordingly, given that (1) the CPL had replaced the Criminal Code by the time McIntyre was decided, and (2) the CPL deliberately departed from the Criminal Code’s definition of “trial,” under which trial did not begin until the People’s opening statement, it makes little sense to read McIntyre as laying down a prospective rule that a request for self-representation in a jury trial is timely so long as it comes before the People’s opening statement. McIntyre, 36 N.Y.2d at 17. Any doubt that McIntyre stopped short of holding, as a matter of law, that a jury trial “commences” with the People’s opening statement is laid to rest by People v. Smith, 68 N.Y.2d 737, 738 (1986). There, by a 4-3 margin, the Court held that the trial court had erred in summarily denying a request to proceed pro se made just after the trial court had “addressed the first panel of prospective jurors.” Id. at 738 (majority 23 opinion), 740-41 (Kaye, J., dissenting). In so holding, the majority found the request timely, observing that it came “[p]rior to jury selection.” Id. at 738 (majority opinion). The dissent, however, written by then-Judge Kaye, found the request both ambiguous and, critically, untimely. Applying McIntyre’s rule that “‘a pro se application [is] timely interposed when it is asserted before the trial commences,’” the dissent determined that the request was untimely because it came “at the commencement of trial, when the court had a panel of 75 prospective jurors ready and had cleared its own calendar for the trial, and counsel for both sides were ready to begin.” Smith, 68 N.Y.2d at 743 (Kaye, J., dissenting) (quoting McIntyre, 36 N.Y.2d at 17). Tellingly, then-Chief Judge Wachtler—who authored the majority opinion in McIntyre—joined Judge Kaye’s dissent. Certainly, the three dissenting judges in Smith would not have concluded that the request for self-representation there was untimely had they read McIntyre as holding, as a matter of law, that a jury trial “commences” with the People’s opening statement. And, just as certainly, Judge Wachtler—as McIntyre’s author—was in the best position to know whether McIntyre had, in fact, established that rule. Thus, the fact that McIntyre’s author and two other judges agreed that the request in Smith was untimely, though it was made before the People’s opening statement, dispels any notion that McIntyre held, as a matter of law, that a jury trial “commences” at that point.4 4 As noted, the majority in Smith held that the defendant’s request was timely because it was made “[p]rior to jury selection.” Smith, 68 N.Y.2d at 738. Thus, although the majority and dissent disagreed over when precisely jury selection commenced, both opinions support (Continued…) 24 Despite all of this, the Appellate Division read McIntyre as establishing a rule that a jury trial “commences” with the People’s opening statement (see A4). Consequently, the Appellate Division rejected the People’s argument that, in light of CPL 1.20(11) and 260.30, requests for self-representation must be made before jury selection to be timely (A4). In so doing, the Appellate Division relied on People v. Matsumoto, 2 Misc.3d 130(A) (App. Term 2d Dep’t 2004), which likewise rejected that same argument (A4). Matsumoto reasoned that McIntyre’s “see” citation to CPL 1.20(11) and 260.30 demonstrated that McIntyre actually viewed those provisions as supporting the proposition that a jury trial “commences” with the People’s opening statement. Matsumoto, 2 Misc.3d 130(A), at *1. But Matsumoto’s interpretation of McIntyre does not withstand scrutiny. For starters, the plain terms of CPL 1.20(11) and 260.30 belie any suggestion that these provisions support the idea that a jury trial “commences” with the People’s opening—or at any other time after the start of jury selection. As noted, CPL 1.20(11) explicitly states that “[a] jury trial commences with the selection of the jury,” not after the principle that the People ask the Court to adopt in this case—that a request to go pro se is timely only if made before the start of jury selection. Here, with eleven jurors selected and sworn prior to defendant’s request, jury selection was, by any definition, well underway. Notably, in People v. Stone, the Court recently characterized the defendant’s mid-jury selection request to proceed pro se as having been made “[a]t his jury trial.” Stone, 22 N.Y.3d 520, 522 (2014). The issue in Stone, however, was whether the defendant’s constitutional rights were violated “by the trial court’s failure to sua sponte inquire into his mental capacity to represent himself prior to granting his application to proceed pro se.” Id. 25 the selection of the jury, and not with the People’s opening statement, which is explicitly when a non-jury trial “commences” (CPL 1.20[11]) (emphasis added). And, just as importantly, CPL 260.30 lists the selection and swearing of the jury as the first stage of a jury trial, while the People’s “opening address” is third, after the court’s preliminary instructions (CPL 260.30[1]-[3]). It defies logic to read the CPL, as Matsumoto did, as supporting the idea that a jury trial “commences” after the first stage of the trial has been completed, that is, after “[t]he jury is selected and sworn” (CPL 260.30[1]). The more logical reading is that a jury trial “commences” when the first phase of the trial commences—at the start of jury selection. See People v. Blowe, 130 A.D.2d 668, 670 (2d Dep’t 1987) (holding that, under CPL 710.40, which states that “trial may not be commenced” until suppression motions have been decided, “the ‘commencement’ of the trial is the start of jury selection”) (citing CPL 1.20[11]); People v. Jamal, 181 Misc.2d 936, 940 (Sup. Ct., Queens Cnty. 1999) (trial “commences” at the start of jury selection for purposes of declaring a mistrial under CPL 30.30[5][a]) (citing CPL 1.20[11]); see also People v. Harvall, 196 A.D.2d 553, 554-55 (2d Dep’t 1993) (speedy trial motion, which must be made “prior to the commencement of the trial,” was untimely when made “with a panel of prospective jurors waiting outside the courtroom door”). Putting aside the fact that CPL 1.20(11) and 260.30, on their face, do not support McIntyre’s conclusion that the defendant’s pro se request in that case was timely, it is clear that the intent of those provisions was to broaden the definition of “trial” to include jury selection. As explained above, the CPL’s drafters—by “deliberate[] 26 design[]”—abandoned the definition of a jury trial prevailing under the Criminal Code (Commission Staff Comment for CPL 1.20, pp. 1-24–1-25). In the drafters’ words, while under the “distinctly archaic” Criminal Code a jury trial “commence[d] with the people’s opening address,” under CPL 1.20(11) a jury trial “encompasses everything from the selection of the jury through the verdict” (id. pp. 1-18, 1-24–1-25). For these reasons, the idea that McIntyre read the CPL as supporting its timeliness ruling is untenable. The more plausible explanation for McIntyre’s citation to CPL 1.20 and 260.30 using the signal “see,” after having already cited directly to the Criminal Code and Steckler, is that the Court was merely identifying the CPL provisions that would govern the question of when “trial commences” in all cases brought after September 1, 1971, in which the CPL alone would apply. In sum, while McIntyre established that a timely request for self-representation must be made “before the trial commences,” McIntyre did not hold—as the Appellate Division erroneously concluded—that, as a matter of law, a jury trial “commences” with the People’s opening statement. McIntyre, 36 N.Y.2d at 17. At what point a jury trial “commences” is the issue to be decided in this case. B. The Court should hold that a jury trial “commences” at the start of jury selection when deciding the timeliness of a request for self-representation. Here, defendant asked to represent himself after eleven jurors had been selected and sworn. The question in this case is whether pro se requests made after the start of jury selection occur “before the trial commences,” and are thus timely under McIntyre, 27 36 N.Y.2d at 17. The CPL provides the answer: because “[a] jury trial commences with the selection of the jury” (CPL 1.20[11]), mid-jury selection requests to proceed pro se do not come “before the trial commences,” and are therefore untimely. There is no good reason to disregard the CPL’s plain terms and hold that a jury trial begins at a later point. Indeed, a rule requiring invocation of the right to self-representation before jury selection better serves the objectives of the timeliness requirement, which are to prevent delay and confusion. Additionally, drawing the line at jury selection would be consistent with the weight of authority holding that mid-jury selection requests to proceed pro se are untimely. Accordingly, the Court should clarify that, in applying McIntyre’s rule that requests to proceed pro se must be made “before the trial commences,” McIntyre, 36 N.Y.2d at 17, a jury trial “commences” at the start of jury selection. In McIntyre, after establishing the rule that defendants must invoke the right to self-representation “before the trial commences,” the Court determined when the “trial” there commenced by applying the statutory definition of “trial” in effect at the time of the defendant’s request. See McIntyre, 36 N.Y.2d at 18. The Court should follow the same approach here and apply the definition of “trial” in CPL 1.20(11). Indeed, since McIntyre this Court has reaffirmed that the provisions of the CPL—including the definitions in CPL 1.20—extend to “[a]ll matters of criminal procedure.” Gunning v. Codd, 49 N.Y.2d 495, 499 & n.1 (1980) (internal quotation marks omitted). For that reason, when courts are asked to decide the meaning of a particular term used in criminal procedure, they should generally apply the CPL’s 28 definition of that term. See id.; People v. Maracle, 19 N.Y.3d 925, 928 (2012); People v. Montilla, 10 N.Y.3d 663, 667 (2008). In People v. Maracle, for example, the trial court advised the defendant during a plea colloquy “that, by pleading guilty, she was voluntarily waiving her right to appeal her conviction” on grand larceny and forgery charges. Maracle, 19 N.Y.3d at 926 (brackets and internal quotation marks omitted) (emphasis in original). The court later sentenced the defendant to the maximum term on each charge. Id. at 927. On appeal, the defendant argued that her sentence was excessive. Id. The Appellate Division, Fourth Department, affirmed, concluding that defendant’s waiver of her right to appeal encompassed her challenge to the severity of her sentence. Id. But this Court reversed, explaining that “[w]hile it is evident that defendant waived her right to appeal her conviction, there is no indication in the record that defendant waived the right to appeal the harshness of her sentence.” Id. at 928 (emphasis in original). In deciding that the trial court’s use of the term “conviction” during the plea colloquy was insufficient to apprise the defendant that she was waiving her right to appeal her sentence, the Court relied on the fact that CPL 1.20 defines “conviction” and “sentence” differently, with “conviction” defined essentially as a guilty plea to, or a guilty verdict on, a charged count. Id. Thus, Maracle simply applied the statutory definition of “conviction” to decide what the trial court had conveyed to the defendant when it used that term. To be sure, this Court has held that courts are not always bound to apply the accepted definition of a criminal procedure term. However, the Court has made clear 29 that courts may deviate from that definition only “‘if it is not in keeping with the purpose of the statute’” or rule at issue, “‘and another sensible meaning may be given to the word.’” People v. Anderson, 16 N.Y.2d 282, 288 (1965) (quoting Steckler, 259 N.Y. at 432-33). For example, in People v. Anderson, the defendant argued that his absence from a suppression hearing violated his right under Section 356 of the Criminal Code to be present at the “trial” of a felony. Id. at 285-86. Although the Court acknowledged that a “suppression hearing is, of course, not within the specific meaning of ‘trial’ as heretofore defined,” the Court held that “trial” as used in Section 356 encompassed such hearings. Id. at 288. The Court reasoned that “[t]he significance of the suppression hearing is such that the rationale for requiring the defendant’s presence at the trial”—which is “to prevent the ancient evil of secret trials and to guarantee the defendant’s right to be present at all important stages of his trial”—“applies with equal force to require his presence at the suppression hearing.” Id. at 287 (citation omitted). But the Anderson exception is inapposite here. In this case, adopting the CPL’s definition of “trial” would not only be “in keeping with” the purposes of McIntyre’s timeliness requirement, Anderson, 16 N.Y.2d at 288, but would also better serve those purposes than a rule drawing the line at the People’s opening statement. McIntyre explained that the purposes behind its requirement that pro se requests be made before trial were to “avert[] delay and confusion,” which, in turn, would “promote the orderly administration of justice and [] prevent subsequent attack on a verdict claiming a denial of fundamental fairness.” McIntyre, 36 N.Y.2d at 17; accord 30 People v. Dashnaw, 116 A.D.3d 1222, 1231-32 (3d Dep’t 2014). As McIntyre reasoned, “[p]rior to the commencement of the trial, the potential for obstruction and diversion is minimal.” McIntyre, 36 N.Y.2d at 17. Other courts have offered similar rationales for requiring timely invocation of the right to self-representation. See, e.g., United States v. Dunlap, 577 F.2d 867, 868 (4th Cir. 1978) (“In justifying the need to timely raise the right of self-representation, the courts recognized, among other things, the need to minimize disruptions, to avoid inconvenience and delay, to maintain continuity, and to avoid confusing the jury.”); see also Martinez v. Court of Appeal, 528 U.S. 152, 162 (2000) (“[M]ost courts” require defendants to invoke the right to go pro se “in a timely manner,” as “the government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer.”). Yet, a number of courts have recognized that permitting a defendant to proceed pro se during, or even just before, jury selection typically results in either a delay of the trial or, absent delay, an unprepared defendant trying the case before a confused jury. See Hill v. Curtain, 792 F.3d 670, 681 (6th Cir. 2015); United States v. Wright, 682 F.3d 1088, 1090 (8th Cir. 2012); State v. Cooper, 888 N.W.2d 247, at *6 (Wis. Ct. App. Oct. 12, 2016); State v. Hardy, 4 A.3d 908, 917 (Md. 2010); Commonwealth v. El, 933 A.2d 657, 663 (Pa. Super. Ct. 2007), aff’d, 977 A.2d 1158 (Pa. 2009); State v. Christian, 657 N.W.2d 186, 192-93 (Minn. 2003) (quoting Robards v. Rees, 789 F.2d 379, 382 [6th Cir. 1986]); State v. Gomez, 863 S.W.2d 652, 656 (Mo. Ct. App. 1993); Russell v. State, 383 N.E.2d 309, 315 (Ind. 1978); see also Wayne R. LaFave, et al., 3 Crim. Proc. 31 § 11.5(d) (4th ed. 2016). Either way, granting a mid-jury selection request to proceed pro se thwarts the goals of “averting delay and confusion” so as to ensure “the orderly administration of justice” and “fundamental fairness.” McIntyre, 36 N.Y.2d at 17. Delay is a natural and nearly unavoidable by-product of granting a mid-jury selection request to proceed pro se when the defendant also requests time to prepare a defense. See Robards, 789 F.2d at 384 (“Had the [defendant’s mid-jury selection] request been granted, the trial judge would have been obliged to postpone the commencement of the trial for an extended period of time in order to allow [defendant] a sufficient amount of time to prepare his defense.”); see also LaFave, 3 Crim. Proc. § 11.5(d) (on eve of trial, it is “impossible (without a continuance) to explain to the defendant his responsibilities and give him enough time to prepare in light of those responsibilities.”). Indeed, delaying the trial to give defendants time to prepare may better achieve the goal of “prevent[ing] subsequent attack[s] on a verdict claiming a denial of fundamental fairness” than requiring defendants to proceed pro se without a continuance. McIntyre, 36 N.Y.2d at 17. On that point, as the Missouri Court of Appeals observed in State v. Gomez, granting a defendant’s morning-of-trial request for self-representation without also delaying the trial “would not be fair to the parties involved, especially an unprepared defendant.” Gomez, 863 S.W.2d at 656. And, as the Maryland Court of Appeals explained in State v. Hardy, allowing the defendant to take over the defense during jury selection “would risk confusing the prospective jurors,” who may become puzzled 32 either “by seeing the defendant appear with an attorney one moment and without one the next,” or if “defendant embarks on abrupt and apparent change” in voir dire strategy. Hardy, 4 A.3d at 917. Thus, when a defendant is permitted to proceed pro se during jury selection and requests a continuance, a trial court must either delay the trial or risk reversal by requiring an unprepared defendant to try the case before potentially confused jurors—either of which undercuts the objectives of McIntyre’s timeliness rule. Even if the defendant is prepared to defend the case at the time of the mid-jury selection request to proceed pro se, delay or confusion may still be inevitable. In that vein, the defendant will likely wish to proceed before different jurors than those selected by counsel. See People v. Stone, 22 N.Y.3d 520, 522-23 & n.1 (2014); see also McIntyre, 36 N.Y.2d at 16 (“Frequently, the pro se defendant is motivated by dissatisfaction with the trial strategy of defense counsel.”); Commonwealth v. Vaglica, 673 A.2d 371, 373 (Pa. Super. Ct. 1996) (“A defendant’s trial strategy can influence the jurors selected, and the jurors selected can determine trial strategy.”). Accordingly, if allowed to proceed pro se after the start of jury selection, a defendant may well seek and obtain a mistrial, thereby causing delay. Such was the case in People v. Stone, where the defendant asked to represent himself while “voir dire was underway,” with four jurors already having been selected. Stone, 22 N.Y.3d at 523 n.1. After the trial court granted the defendant’s request to go pro se, the court then “granted his motion for a mistrial, dismissed the sworn jurors and permitted him to commence voir dire anew.” Id. Of course, should 33 a trial court decide not to declare a mistrial under such circumstances, the court again risks the sort of juror confusion identified in Hardy. And, even if the defendant is prepared to proceed immediately and does not request a mistrial, delay or confusion may yet be inescapable because the People could request and obtain a mistrial. Indeed, a defendant’s new pro se status would almost certainly alter the People’s strategies for voir dire and trial, thus warranting a new venire panel so that the People may properly inquire into the jurors’ feelings about pro se defendants. See McIntyre, 36 N.Y.2d at 16 (stating that “the most common reason” for a defendant to go pro se “is the desire to evoke the jury’s sympathy for a lone defendant pitted against the Goliath of the State”); Vaglica, 673 A.2d at 373. In short, delay and confusion—the very evils that McIntyre sought to prevent by requiring defendants to assert the right to self-representation before trial—are probable outcomes of allowing defendants to invoke the right to self-representation during jury selection or later. But by requiring defendants to invoke that right before the start of jury selection, this Court could certainly mitigate, if not entirely eliminate, “the potential for obstruction and diversion.” McIntyre, 36 N.Y.2d at 17. To that end, there would be no need to declare a mistrial and “commence voir dire anew” on account of a defendant deciding to proceed pro se if that decision must be made before voir dire begins in the first place. Stone, 22 N.Y.3d at 523 n.1. And there can be no risk of juror confusion arising out of the discharge of counsel in the middle of jury selection if defendants must discharge counsel before any jurors have been selected. 34 Given the potential delay or confusion flowing from granting a mid-jury selection request to proceed pro se, it is no surprise that the “consensus” among courts is that “meaningful trial proceedings” start “as soon as the selection of jurors begins,” rendering subsequent requests for self-representation untimely. El, 977 A.2d at 1163; accord United States v. Walker, 142 F.3d 103, 108 (2d Cir. 1998) (motion to go pro se made “just after the start of jury selection was a motion made after the start of trial” and, thus, untimely) (citation and internal quotation marks omitted); State v. Cornell, 878 P.2d 1352, 1364 (Ariz. 1994) (“It is uniformly held that all motions for pro per status made after jury selection has begun are untimely.”) (brackets omitted); Christian, 657 N.W.2d at 192-93; Robards, 789 F.2d at 382; Hardy, 4 A.3d at 917; Gomez, 863 S.W.2d at 656; United States v. Oakey, 853 F.2d 551, 553 (7th Cir. 1988); Wright, 682 F.3d at 1090; People v. Valdez, 82 P.3d 296, 299 (Cal. 2004); State v. Pires, 77 A.3d 87, 106 (Conn. 2013); Muto v. State, 843 A.2d 696, at *1-2 (Del. 2004); Russell, 383 N.E.2d at 315; State v. Cuddy, 921 P.2d 219, 223 (Kan. 1996); Commonwealth v. Chapman, 392 N.E.2d 1213, 1217 (Mass. 1979); People v. Hill, 773 N.W.2d 257, 257 (Mich. 2009), habeas denied, Hill, 792 F.3d at 681; Lyons v. State, 796 P.2d 210, 214 (Nev. 1990), abrogated on other grounds by Vanisi v. State, 22 P.3d 1164 (Nev. 2001); State v. Holmes, 2012 WL 4093559, at *5 (N.J. Super. Ct. App. Div. Sept. 19, 2012); State v. Cassano, 772 N.E.2d 81, 91 (Ohio 2002); State v. Abernathy, 2005 WL 3447672, at *4 (Tenn. Crim. App. Dec. 14, 2005); State v. Sheppard, 310 S.E.2d 173, 189-90 (W. Va. 1983); Cooper, 888 N.W.2d 247, at *6; Scott v. State, 278 P.3d 747, 752-53 (Wyo. 2012). 35 To be sure, some courts have held that a request to proceed pro se is timely as long as it comes before the jury is sworn. See, e.g., Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir. 1982); Horton v. Dugger, 895 F.2d 714, 717 (11th Cir. 1990). “The[ir] logic leans upon a Supreme Court holding that in a criminal trial, jeopardy attaches when the jury is sworn.” United States v. Betancourt-Arretuche, 933 F.2d 89, 96 (1st Cir. 1991) (citing Serfass v. United States, 420 U.S. 377 [1975]); accord Christian, 657 N.W.2d at 192. But “their focus on jury empanelment is made in the abstract and … is based on an incomplete analysis.” Christian, 657 N.W.2d at 192. In short, the rationale for the rule that jeopardy attaches when the jury is sworn is entirely different from the rationale for requiring defendants to invoke the right to self-representation in a timely manner. “The reason for holding that jeopardy attaches when the jury is empaneled and sworn lies in the need to protect the interest of an accused in retaining a chosen jury.” Crist v. Bretz, 437 U.S. 28, 35 (1978). The rule is grounded in the “strong tradition that once banded together a jury should not be discharged until it had completed its solemn task of announcing a verdict.” Id. at 36. By contrast, the rule requiring that defendants timely invoke the right to self-representation is not designed to protect the interests of the defendant; just the opposite, the rule reflects the principle that “the government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer.” Martinez, 528 U.S. at 162. Thus, aligning the point at which a request to proceed pro se becomes untimely with the point at which jeopardy attaches does nothing to advance the objectives of the 36 timeliness requirement. Accordingly, the Court should not delineate when “trial commences” for timeliness purposes by referring to double jeopardy principles. See Brackley v. Donnelly, 53 A.D.2d 849, 850 (2d Dep’t 1976) (“Despite the fact that this case did not proceed to a state in which defendant was placed in jeopardy, the trial itself commenced with the jury selection process.”) (citing CPL 1.20[11]); Jamal, 181 Misc.2d at 940 (declining to rely on double jeopardy jurisprudence to decide whether trial had “commenced” for purposes of declaring a mistrial under CPL 30.30[5][a]). Tellingly, none of the cases defining timeliness in relation to the swearing of the jury substantively explains how allowing defendants to take over the defense in the middle of jury selection would actually advance the goals of the timeliness requirement. The same can be said of the decisions from courts in this State—including the Appellate Division here—that have read McIntyre as holding that a request to proceed pro se is timely as long as it precedes the People’s opening statement (see A4, citing cases). Thus, while defendants certainly have an interest in representing themselves and in retaining a chosen jury, the Court should not “enshroud last minute whim and caprice as a constitutional guarantee.” Russell, 383 N.E.2d at 314. In sum, in applying McIntyre’s rule that a request to proceed pro se is timely if made before the trial commences, the Court should hold that a jury trial commences at the start of jury selection, as stated in the CPL and as recognized by a majority of courts. Those authorities recognize the commonsense principle that jury selection is an integral part of a jury trial. After all, “[t]here can be no trial without a trier of fact,