The People, Appellant,v.Raymond Crespo, Respondent.

Brief

N.Y.February 8, 2018

APL-2017-00046 To be argued by BEN A. SCHATZ (15 minutes requested) €ourt of ~pptal~ State of New York THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - RAYMOND CRESPO, Defendant-Respondent. BRIEF FOR DEFENDANT-RESPONDENT Ben A. Schatz Of Counsel bschatz@cfal.org June 19, 2017 Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street New York, NY 10005 TEL (212) 577-2523 ext. 544 FAX (212) 577-2535 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT ......... .. .. . ... . .. . ....... ............... . 1 QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 RELEVANT PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The court refuses to permit defense counsel to withdraw. . . . . . . . . . . . 4 The court refuses to allow Mr. Crespo to represent himself. ......... 4 The prosecution joins Mr. Crespo's request for an inquiry. . . . . . . . . . . 8 Counsel tries the case in Mr. Crespo's absence, and Mr. Crespo is convicted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 The Appellate Division unanimously reverses Mr. Crespo's conviction ... ...... ........... ...... ... . . .. .. ...... 10 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 THE COURT SHOULD NOT ABROGATE THE WELL-SETTLED RULE THAT A REQUEST FOR SELF-REPRESENTATION IS TIMELY IF "INTERPOSED PRIOR TO THE PROSECUTION'S OPENING STATEMENT." PEOPLE v. MCINTYRE, 36 N.Y.2d 10 (1974). A. The constitutional right to self-representation is "cherished" in New York .................... ... ......... . . 12 1 B. Mcintyre's rule for when a self-representation request is timely has been followed for over 40 years. . . . . . . . . . . . . . . . 13 C. Stare decisis bars Mcintyre's reconsideration .................. 19 D. The prosecution misreads Mcintyre, the CPL, and out-of-state authority . .. .. .. . .... . .. . ... .... .. . ...... .. 22 1. The prosecution misreads Mcintyre. . ........ ..... .. . .. 23 2. The prosecution misreads CPL§ 1.20(11). . . .. .. ... .. . . 26 3. The prosecution misreads out-of-state authority. . . .. . . . 30 E . The prosecution's proposed rule would be unworkable and unfair to defendants, with no countervailing benefit ................... . . . .... . . . . 33 1. The prosecution's proposed rule is unworkable. . .. . . .. . 33 2. The prosecution's proposed rule would be unfair to criminal defendants. . . . . .... . ... . . .... ... . .. .... .. 34 3. The prosecution gives no good reason to change the rule ............ . ................. . .............. 36 F. Mr. Crespo was denied his constitutional right to proceed pro se. . ........................... ..... . . . .. . . 38 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Printing Specifications Statement . . . .. . . . . ...... ...... . . .. ... ........ 1-A 11 TABLE OF AUTHORITIES Cases Adams v. U.S. ex rel. McCann, 317 U.S. 269 (1942) . .. ... . ..... . ........ 36 Boyd v. State, 683 S.W.2d 542 (Tex. App. 1984) ....... . . . . . .. . ..... . .. 31 Chapman v. United States, 553 F.2d 886 (5th Cir. 1977) ....... 17, 31, 32, 34 Commonwealth v. Chapman, 392 N.E.2d 1213 (Mass. 1979) ........... 31-32 Commonwealth v. El, 33 A.2d 657 (Pa. Super. Ct. 2007) . . .... .. .... . .... 32 Commonwealth v. El, 977 A.2d 1158 (Pa. 2009) .... . ... . . ... . . .... .... . 32 Faretta v. California, 422 U.S. 806 (1975) . . ....... . .. .. .... . .. . . . . passim Fritz v. Spalding, 682 F.2d 782 (9th Cir. 1982) .. ..... . . . .. ....... .. .... 31 Gunning v. Codd, 49 N.Y.2d 495 (1980) ...... . .. . ....... ...... .. .... .. 28 Jackson v. Ylst, 921 F.2d 882 (9th Cir. 1990) .. . ..... . ... .. ..... . ...... 32 King v. Commonwealth, 374 S.W.3d 281 (Ky. 2012) ..... ... ... . . . ....... 31 Lanzano v. City ofN.Y., 71N.Y.2d208 (1988) . ... .. ......... . . . ... . .. 37 McKaskle v. Wiggins, 465 U.S. 168 (1984) ...... .. ... . .... . . . . . ..... . . . 39 Payne v. Tennessee, 501 U.S. 808 (1991) ............ . ......... .. ....... 20 People ex rel. Steckler v. Warden of City Prison, 259 N. Y. 430 (1932) ............ .. . . ........... .. ... . . 24, 28, 29 People v. Anderson, 398 Mich. 361 (1976) ... . ........ . .... . ............ 31 iii People v. Anderson, 16 N.Y.2d 282 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . 29-30 People v. Atkinson, 111A.D.3d1061 (3d Dept. 2013) ...... . ... . .... 10, 15 People v. Ayala, 75 N.Y.2d 422 (1990) ..... . ..... . . ...... . . . .. ..... .. 26 People v. Bing, 76 N.Y.2d 331 (1990) .. . . .. . ..... . .... ... .. . 13, 16, 19, 22 People v. Brensic, 136 A.D.2d 169 (2d Dept. 1988) ..... . ... .. .......... 26 People v. Crampe, 17 N.Y.3d 469 (2011) ............. ... . . ......... 13, 21 People v. Crespo, 144 A.D.3d 461 (1st Dept. 2016) ....... ... . . 14, 26, 38-39 People v. FfD!, 32 N.Y.2d 473 (1973) .... .. .. . .. .. . ... .. .. . .. . .... . . . . 37 People v. Gumbs, 42 Misc.3d 149(A) .. . .. .... .. ...... . . ..... .......... 26 People v. Herman, 78 A.D.3d 1686 (4th Dept. 2010) .... ... . . . .. . .... 10, 15 People v. Johnson, 27 N .Y.3d 199 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 People v. La Valle, 3 N.Y.3d 88 (2004) . ...... . . . .. .. .. ..... .. . .. ... 21, 38 People v. Maracle, 19 N.Y.3d 925 (2012) ............ . ................. 29 People v. Matsumoto, 2 Misc. 3d (A) ... ..... ..... ...... .... . .... . . . 15, 25 People v. Mcintyre, 36 N .Y.2d 10 (197 4) .. . .......... . ... .. .. .. ... passim People v. Montilla, 10 N.Y.3d 663 (2008) . . .. . ........ . . . ....... . . . ... 29 People v. Moore, 156 Misc. 2d 583 (N.Y. Co. Sup. Ct. 1993) . . .. .. . ... ... 26 People v. Peque, 22 N.Y.3d 168 (2013) ... . .. .... . ... . .. . ... .. ...... 19, 21 lV People v. Reason, 37 N.Y.2d 351 (1975) .... . .. .. ........ . .. . .... 16-18, 21 People v. Sawyer, 58 N.Y.2d 12 (1982) . .. ...... . . . ... . . . . ..... . ... . ... 21 People v. Sides, 75 N.Y.2d 822 (1990) . . ... . . . . . . .. .......... ... ... 35-36 People v. Slaughter, 78 N.Y.2d 485 (1991) .. ... . .... .. ..... .. . . ....... . 39 People v. Smith, 68 N.Y.2d 737 (1986) . . .... . ................. . .... 17-18 People v. Smith, 134 A.D.3d 1568 (4th Dept. 2015) . . .... . . . ... . . . .. . . . . 15 People v. Taylor, 9 N.Y.3d 129 (2007) . ...... ... . . .. .... .. .. . . . . . .. . .. . 20 People v. Windham, 19 Cal. 3d 121 (1977) .. . .. .. .. . . . . .... . . .. .... . . . . 17 Randall v. Sorrell, 548 U.S. 230 (2006) . . .. . . . . . ............. . .... . . 19-20 State v. Stenson, 132 Wash. 2d 668 (1997) .... . . .. ..... . . . ... .... . . . ... 31 State v. Cornell, 87 P.2d 1352 (Ariz. 1994) . .. . ... . . .. ... . ... .. ........ 32 State v. Cuddy, 22 Kan. App. 2d 605 (1996) . . . ... . ...... . ... . ....... . . 31 State v. De Nistor, 143 Ariz. 407 (1985) ...... . .. .. ...... . ... .. ... . . 31, 32 State v. Garcia, 149 N.M. 185 (2011) . ..... .. .... . ....... . . . ... . . .... . 31 State v. Sweeney, 151 N.H. 666 (2005) . .. ... ... . ..... .. ....... . . . ...... 31 State v. Wehr, 852 N.W2d 495 (Iowa Ct. App. 2014) ... .. . .. ... . . . ..... 31 United States v. Banko.ff, 613 F.3d 358 (3d Cir. 2010) ........ . .. .... . . . . . 30 United States v. Betancourt-Arretuche, 933 F.2d 89 (1st Cir. 1991) .... . .. . .. 30 v United States ex rel. Maldonado v. Denno, 348 F.2d 12 (2d Cir. 1965) .... 30, 32 United States v. Johnson, 223 F.3d 665 (7th Cir.2000) . . . . . . . . . . . . . . . . . . . . 31 United States v. Tucker, 451 F.3d 1176 (10th Cir. 2006) ........ . ........ 31 United States v. Young, 287 F.3d 1352 (11th Cir. 2002) ........... . ...... 30 Statutes CPL§1.10 . . . . ........ . .. . .............. . ... ... ............ . ..... 28 CPL§ 1.20 . ............... . ... . ................. . ......... .. . passim CPL § 260.30 ............... .. ........... . .. .... . .............. . . . 24 CPL § 270.05 ..... ... . ... ........... . .. .. ... .. .. . ......... .. ...... 27 PL§ 110/125.25 ... .. ... . . . . ..... .. .. . ................... . . . . .... .. 9 PL§ 120.10 1, 9 PL§ 265.02 1 9 Constitutional Provisions N.Y. Const. Art. I, § 6 ......... ... .. ... .. .... ..... . ..... . . .. ... . ... 12 U.S. Const. Amend. VI ............. . ........ . ............ ... . . . ... 12 U.S. Const. Amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 V1 Law Review Articles Laura I. Appleman, The Ethics of Indigent Criminal Representation: Has New York Failed the Promise of Gideon?, 16.4 Prof. Law. 2 (2005) ................................. ... .... 35 Robert von Moschzisker, Stare Decisis in Courts of Last Resort, 3 7 Harv. L. Rev. 409 (1924) . .. ......... .. .. . .. ... .. . .. .......... 20 Sol Wachtler, Stare Decisis and a Changing New York Court of Appeals, 59 St. John's Law Rev. 3 (Spring 1985) ....... . .................... 20 Other Authorities Black's Law Dictionary (10th ed. 2014) .. . . . .. . ..... ... ...... .... ... . 23 Bluebook: A Uniform System of Citation (19th Ed. 2010) ............. 24 Final Report, Commission on the Future of Indigent Defense Services, at AD-8 Qune 18, 2006) ....... . ..... . ... ..... ....... ... 35 New York State Office of Indigent Legal Services, "A Determination of Caseload Standards pursuant to § IV of the Hurrell-Harring v. The State of New York Settlement" (Dec. 8, 2016) .................. 35 vii COURT OF APPEALS STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- RAYMOND CRESPO, Def endan t-Responden t. PRELIMINARY STATEMENT On November 10, 2016, the Appellate Division, First Department unanimously reversed a December 19, 2014 judgment of the Supreme Court, New York County (Thomas A. Farber, J.), convicting Raymond Crespo, after a jury trial, of one count each of assault in the first degree (PL§ 120.10(1)) and criminal possession of a weapon in the third degree (PL § 265.02(1)), and sentencing him as a persistent violent felony offender to concurrent terms of twenty years to life on the assault conviction and three-and-a-half to seven years on the weapon conviction. The Appellate Division vacated Mr. Crespo's convictions and remanded for a new trial. The Honorable Leslie E. Stein granted leave to the prosecution on March 6, 2017. Mr. Crespo is currently incarcerated pending retrial. 1 QUESTION PRESENTED Whether the Court should abrogate the well-settled rule that a request for self-representation is timely if "interposed prior to the prosecution's opening statement." People v. Mcintyre, 36 N.Y.2d 10, 18 (1974). 2 INTRODUCTION Criminal defendants have a constitutional right to represent themselves at trial. To invoke the right, they must ask the court's permission "prior to the prosecution's opening statement." People v. Mcintyre, 36 N.Y.2d 10, 18 (197 4). This rule is bright-line and sensible. Courts rely on it routinely. On this appeal, the prosecution asks the Court to make up a new rule requiring defendants to assert their right to self-representation earlier-before the "start of jury selection." Since stare decisis bars such judicial caprice, the prosecution comes up with a dubious work-around. It asks the Court to conclude that Mcintyre did not establish the above-quoted rule. It asks the Court to rely on a definition in the CPL that actually undermines its position. And it asks the Court to align itself with a "consensus" of out-of-state authority that does not exist. In short, the prosecution asks the Court to make bad law. It also asks the Court to make bad policy. The prosecution's proposed rule is unworkable because the "start of jury selection" is an amorphous phrase that would confuse courts and litigants. The rule is also unfair to defendants, who would lose the right to renounce counsel just when they are first able to meaningfully assess his or her assistance. The Court should affirm the Appellate Division's unanimous decision. 3 RELEVANT PROCEEDINGS The court refuses to permit defense counsel to withdraw. Mr. Crespo did "not feelO comfortable going to trial" with his assigned lawyer, who rarely contacted him and did not "explainD ... what [wa]s going on" at pretrial conferences (A60-61, A90-92). Defense counsel agreed that he and Mr. Crespo had reached a "complete breakdown of communication and trust" (A94). They had "zero relationship" (A 72). On October 22, 2014, the day before jury selection, counsel moved to withdraw (A69-72). The court denied the motion, faulting Mr. Crespo for not protesting sooner (in fact, Mr. Crespo had informed the court in April he wanted new counsel) (A63, A 73-74). The court was also concerned because the case was its "oldest," although Mr. Crespo was "not [to] blam[e]" for the delay (A91-92). The court urged Mr. Crespo to give counsel "another chance" (A98). But Mr. Crespo was adamant: "I made a decision. I don't want my lawyer [to] represent me" (A 100-01). He absented himself from the courtroom in protest (A100). The court refuses to allow Mr. Crespo to represent himself On the morning of October 24, 2014, the second day of jury selection, Mr. Crespo again protested "being forced to go to court with a lawyer" he did not want (A292). He asked to represent himself: 4 THE DEFENDANT: I don't want my lawyer to represent me, so I don't want him to say nothing, so that is the case I represent myself. I am entitled to represent myself. THE COURT: ... [T]hat you could have done at an earlier stage of the trial, but it is too late to make that request now in the middle of trial. At least at this stage of the proceeding. If you want me to consider whether after we complete the jury selection I will pause for a second and allow you to represent yourself and go pro se, I can do that. THE DEFENDANT: That is exact(y what I want to do. (A292). 1 The court thought Mr. Crespo's request was "most likely too late" but would "check on that" (A292-93). Moments later, Mr. Crespo insisted the jury know the court was "forc[ing]" counsel on him, and he reaffirmed his desire to represent himself: THE COURT: So what I am telling you is that you are not going to be allowed to speak and tell the jurors that. Do you still wish to be present or not be present? THE DEFENDANT: I want to be present and I want to represent myself. I don't need a lawyer then. Emphasis is added unless otherwise indicated. 5 (A294-95). Despite its promise to "check on" the timeliness issue, the court deemed the request untimely because jury selection was underway and trial was "about to start": THE COURT: Because we are in the middle of the round of jury selection .... This is not a timely request. THE DEFENDANT: So you still force me to go to trial with a lawyer that I don't get along with and now you deny me the right to represent myself because you saying that I am in the middle of the grand- THE COURT: This is the first time you have asked to represent yourself in the middle of trial. ... THE DEFENDANT: It is because I don't have the knowledge that I could represent myself. I didn't-if that could be the case I would have been represent myself THE COURT: So that is not happening at this stage of the trial. You are not going to be able to represent yourself because we are in the middle of jury selection, we are about to start the trial in less than half an hour. (A295-96). Mr. Crespo persisted, but the court again rejected his request: THE DEFENDANT: I don't want my lawyer represent me, so I want to represent myself, so I am interrupting the trial, I guess, because I don't want the, my lawyer to represent me. 6 THE COURT: If you speak then I am going to have to take the jury out and bring you out because you are not allowed to speak in front of the jury. THE DEFENDANT: That is exactly what is going to happen because I [am] not going to trial with a lawyer that is not helping me. THE COURT: All right, if you are going to, if you are going to tell me that you are going to disrupt the proceedings- THE DEFENDANT: You are forcing me to go to trial with somebody that I don't want to go to trial with . ... THE COURT: I am going to bring you back and if you ever determine that you can sit quietly then you are welcome to come to trial. Anytime you want to do that and tell me that you will not disrupt the proceedings then you can come and sit down. Otherwise you can't. THE DEFENDANT: I am not interrupting the proceeding. I want to represent myself, that is what I mean. THE COURT: What I am telling you is you cannot represent yourself at this point in the trial. (A297-98). When the court proposed that Mr. Crespo "sit there and watch" counsel represent him, he again demanded the jury know he had disavowed counsel's assistance (A300). The court sent Mr. Crespo to his cell (A300). The court speculated that Mr. Crespo was "finding new ways to disrupt the proceedings ... and be manipulative" (A342). That view was apparently informed by a comment Mr. Crespo made on a Rikers call over a year earlier that 7 he would be "screwed" if the case moved fast but "might have a chance" if it did not (A412-13, A492-93). Mr. Crespo's self-representation request, however, was not accompanied by an adjournment request. The prosecution joins Mr. Crespo 's request for an inquiry. Midway through trial, the prosecutor asked the court to allocute Mr. Crespo on his competence to waive counsel: MR. MCMAHON: Sorry, Your Honor, after speaking to some of my bosses about the defendant's request to go pro se, it would be my request that Your Honor conduct an inquiry into the defendant's level of education, his understanding of the law. (A495). The prosecutor believed Mr. Crespo would "fall short" on the waiver inquiry (A496). The court rejected the prosecutor's suggestion, explaining that the "only purpose" of allocuting Mr. Crespo would be to grant his request, which the prosecutor acknowledged he did not want to happen (A495-96). The court was "reasonably confident," in any event, that Mr. Crespo was competent to waive counsel, and it would have granted his request had he "asked to go prose the week before trial" (A496). 8 Counsel tries the case in Mr. Crespo 's absence, and Mr. Crespo is convicted. The prosecution presented the following evidence. On January 21, 2013, complainant Pedro Garcia Guzman and his brother encountered Mr. Crespo and a friend in a Manhattan restaurant (A605-08). Guzman called Mr. Crespo a "fucking Puerto Rican," an argument ensued, and the two went outside to fight (A608, A622). After an initial scuffle, Mr. Crespo borrowed a knife from his friend and challenged Guzman to a second round (A609, A698). Guzman charged at Mr. Crespo who stabbed Guzman's torso (A608-09). Two police officers, who happened to be nearby, apprehended Mr. Crespo (A378-94). Guzman suffered a collapsed lung and broken rib, but he recovered and testified at trial (A441-42, A616). The defense did not present a case, and Mr. Crespo remained absent the entire trial. The jury acquitted him of second-degree attempted murder (PL§ 110/125.25(1)) but convicted him of first-degree assault (PL§ 120.10(1)) and third-degree weapon possession (PL§ 265.02(1)) (A833). On December 19, 2014, the court sentenced Mr. Crespo to concurrent terms of twenty-to-life on the assault conviction and three-and-a-half to seven on the weapon-possession conviction (A851). 9 The Appellate Division unanimous!J reverses Mr. Crespo 's conviction. On November 10, 2016, the Appellate Division, First Department, unanimously reversed Mr. Crespo's conviction (A2). The court recognized the "nearly universal conviction that forcing a lawyer upon an unwilling defendant is contrary to his basic right to represent himself if he truly wants to do so" (A3). 2 It then applied the test, established in People v. Mcintyre, 36 N.Y.2d 10 (1974), that a defendant may represent himself 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." (A3-4) . The court concluded Mr. Crespo's self-representation requests, made during jury selection, were timely: Contrary to the trial court's finding, defendant's requests to proceed prose, made during jury selection, were timely asserted (see Mcintyre, 36 NY2d at 18 (finding the defendant's motion timely because it was made before the prosecution's opening statement); People v. Atkinson, 111AD3d1061, 1062 (3d Dept 2013); People v. Herman, 78 AD3d 1686, 1686 (4th Dept 2010)) .... (A4). The court rejected "the People's argument that a request to proceed prose must be made before jury selection" (A4). 2 For clarity, citations and internal punctuation have been omitted from case quotations throughout. All modifications are non-substantive. 10 The court also held that Mr. Crespo "unambiguously expressed his desire to proceed pro se" and rejected the trial court's view that the "requests were equivocal simply because they were made shortly after the court refused to appoint new counsel" (A4-5). Finally, there was no evidence of "disruptive behavior before the trial court denied defendant's repeated requests to proceed pro se," and the trial court did not find "that defendant would not comply with the court's directives if he were allowed to proceed pro se" (AS-6). Accordingly, Mr. Crespo's "right to self-representation was violated," and he deserved a new trial (A6). 11 ARGUMENT THE COURT SHOULD NOT ABROGATE THE WELL-SETTLED RULE THAT A REQUEST FOR SELF-REPRESENTATION IS TIMELY IF "INTERPOSED PRIOR TO THE PROSECUTION'S OPENING STATEMENT." PEOPLE v. MCINTYRE, 36 N.Y.2d 10, 18 (1974); U.S. CONST. AMENDS. VI, XIV; N.Y. CONST. ART. I, § 6. A. The constitutional right to self-representation is "cherished" in New York. The right to self-representation is founded on the principle that our constitution "does not force a lawyer upon a defendant." Faretta v. California, 422 U.S. 806, 815 (197 5). Our "respect for individual autonomy" and "the right of an individual to determine his own destiny" entitles him to "go to jail under his own banner if he so desires and ifhe makes the choice with eyes wide open." Mcintyre, 36 N.Y.2d at 14. A year before the Supreme Court in Faretta found the right to self- representation implicit in the Sixth Amendment, this Court in Mcintyre observed that the right is "deeply ingrained in our common law" and "clearly recognize[d]" in the New York Constitution. Id. at 14-15; see N.Y. Const. Art. I, § 6 ("In any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel ... "). 12 The right to self-representation is "correlative" to the right to counsel, 36 N.Y.2d at 15, an area in which New York courts "provide[] protection to accuseds far more expansive than the Federal counterpart." People v. Bing, 76 N.Y.2d 331, 339 (1990). So too, Mcintyre explained, does the "the right to self- representation embod[y] one of the most cherished ideals of our culture." 36 N.Y.2d 10, 14. B. Mcintyre's rule for when a self-representation request is timely has been followed for over 40 years. Mcintyre is the seminal case in New York on "the nature and extent of a criminal defendant's right to conduct his own defense." 36 N.Y.2d at 14; see People v. Crampe, 17 N.Y.3d 469, 481 (2011) (Mcintyre is "the foundation stone of our self-representation jurisprudence."). Mcintyre established that a defendant may represent himself 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." 36 N.Y.2d at 17. On timeliness, the Court explained generally that a self-representation request is timely if "asserted before the trial commences." Id. at 17. After that point, the self-representation right all but disappears: an 13 untimely request "will be granted in the trial court's discretion and only in compelling circumstances." Id. Because Mcintyre made his request "[a]fter the jury had been drawn but not yet impaneled," id. at 12, the Court provided additional guidance. It held that his request was timely because it was "interposed prior to the prosecution's opening statement,'' id. at 18, the point the Court deemed "trial" to commence for purposes of a self-representation motion. This determination followed the Court's consideration of when "the potential for obstruction and diversion is minimal," so as to permit the court to "conduct a thorough inquiry thereby averting delay and confusion." Id. at 17. 3 The Appellate Division's decision below is the most recent in an unbroken line of cases to rely on Mcintyre's holding that a mid-jury-selection self-representation request is timely. People v. Crespo, 144 A.D.3d 461, 462 (1st Dept. 2016); see also, e.g.: The Mcintyre Court concluded the trial judge erroneously denied the self- representation request. Id. at 19. The judge conducted only a brief colloquy, and, although the defendant made an inappropriate outburst, the "court denied the motion without eliciting the information which might have warranted [such] a denial." Id. 14 People v. Smith, 134 A.D.3d 1568, 1569 (4th Dept. 2015) ("[A] new trial [is] granted because the court erred in summarily denying, as untimely, his request to proceed pro se. Although requests to proceed pro se on the eve of trial are discouraged, the Court of Appeals has found that a request may be considered timely when it is 'interposed prior to the prosecution's opening statement,' as here") (quoting Mcintyre); People v. Atkinson, 111 A.D.3d 1061, 1061-62 (3d Dept. 2013) (A request made "[f]ollowing jury selection, but prior to opening statements" was timely because "the Court of Appeals has found that a request may be considered timely when it is 'interposed prior to the prosecution's opening statement."') (quoting Mcintyre); People v. Herman, 78 A.D.3d 1686, 1686 (4th Dept. 2010) ("Here, defendant's request to proceed prose was timely inasmuch as it was made 'prior to the prosecution's opening statement."') (quoting Mcintyre); People v. Matsumoto, 2 Misc. 3d 130(A) (App. Term 2d and 11th Dists. 2004) ("[T]he trial court denied defendant's motion for pro se representation, made prior to the prosecution's opening statement, on the ground of untimeliness. This was error and the judgment is accordingly reversed .... Mcintyre hold[s] that for the purpose of a motion for pro se representation, the juncture at which the 'trial' commences is prior to the prosecution's opening statement.") (quoting Mel ntyre). We assume that trial judges, making real-time bench rulings, also rely on Mcintyre's holding to resolve mid-jury-selection self-representation requests. The prosecutor in this case was evidently aware, "after speaking to some of [his] bosses," that the trial court's ruling violated Mcintyre. That would explain his 15 request that the court proceed to the waiver inquiry-he hoped the court would find an invalid waiver, rendering the timeliness issue moot. This Court has not expressly reaffirmed Mcintyre's holding that mid-jury- selection requests are timely, but subsequent decisions have done so implicitly. One decision, People v. Reason, 37 N.Y.2d 351 (1975), came only a year after Mcintyre. Reason was charged with two brutal stabbings and assigned two lawyers.See Respondent's Brief, People v. Reason, at 2, 11. On April 10, 1972, after the prosecution "moved the case against Arnold Reason to trial," he requested permission to represent himself. Id. at 11 (internal brackets removed). He had already "witnessed the voir dire thus far," had "observed the [c]ourt questioning prospective jurors," and had "seen the District Attorney questioning the prospective jurors," when the court advised him of the potential risks involved in proceeding pro se, id. at 16, and, after further colloquy "while [the] jury was being selected," the court permitted Reason to represent himself. 37 N.Y.2d at 360 n.2 (dissenting opinion). On appeal, Reason argued that the court should have denied his request because he had diminished mental capacity. Id. at 353. The New York County District Attorney asserted that the Mcintyre test was "met" and that Reason's day-of-jury-selection request "satisfied the first requirement of Mcintyre." 16 Respondent's Brief, People v. Reason, at 15. This Court, in an opinion by Judge Wachtler, affirmed the conviction. 37 N.Y.2d at 356. Courts have observed that Reason reaffirmed Mcintyre's holding on timeliness. A federal appellate court cited Reason as holding that a "pro se motion is timely if presented prior to the prosecution's opening statement.'' Chapman v. United States, 553 F.2d 886, 894 (5th Cir. 1977). The Supreme Court of California made a similar observation: "In a pre-Faretta decision, the New York Court of Appeals, that state's highest tribunal, held that a pro se motion was timely because it had been presented prior to the prosecutor's opening statement .... Restatement of the Mcintyre rule in a post-Faretta decision indicates that the New York Court of Appeals continues to adhere to the same timeliness requirement." Peoplev. Windham, 19 Cal. 3d 121, 127 (1977). In People v. Smith, 68 N.Y.2d 737 (1986), this Court again addressed a mid- jury-selection request for self-representation. Smith did not make his request until after "voir dire [had] proceeded" and the court had "addressed the first panel of prospective jurors." Id. at 7 40-41, 7 42. 4 The Court nonetheless held the 4 These facts come from the dissenting opinion in Smith. Although the majority opinion stated the defendant's request came "[p]rior to jury selection," id. at 738, the dissenting opinion makes clear that the selection process had commenced. The discrepancy is likely a problem of semantics, with the majority intending to convey that the request came prior to the jury's complete selection. As explained in Section D.1 below, this subtle but important distinction eludes the prosecution, leading it to misread CPL § 1.20(11). As explained in Section E.1 below, the problem of defining when the jury selection process begins counsels against the standard the prosecution proposes. 17 request "timely" and reversed his murder conviction because the trial judge did not conduct an inquiry. Id. at 738-79 (quoting Mcintyre). The prosecution claims the dissent in Smith undermines Mcintyre's timeliness rule (PB 23). The prosecution is wrong. The Smith dissent is just that-a dissent-and does not even reflect the view of this Court, let alone "dispelO" (PB 23) what Mcintyre held. The Smith dissent does not engage with the facts of Mcintyre or otherwise explain how Smith's request could be untimely when Mcintyre's request, which came around the same time, was timely. The Smith dissent could have questioned Mcintyre's scope or validity, but it did not. Our respectful view is that the Smith dissent's analysis reflects its frustration with the defendant's motives, 5 rather than a full engagement with the controlling law. Similarly unpersuasive is the prosecution's argument that Judge Wachtler's dissenting vote in Smith is "[t]ellingD" about what Mcintyre held (PB 23). If Judge Wachtler wanted to retreat from what he wrote in plain English in Mcintyre, he could have done so in Reason. Instead, he wrote the majority opinion in Reason, which found the defendant's request timely under facts very similar to Smith. 5 See 68 N.Y.2d at 742-43 (criticizing majority for "overlook[ing] a factual record that, when read in its entirety, leaves one wondering exactly what defendant was seeking"). 18 The prosecution's reliance on a dissenting opinion-and speculation about the intent of a single judge who did not author it-is "[t]ellingD" of one thing: the prosecution lacks authority to support its position. The prosecution does not cite, and we are not aware of, any New York authority impugning the rule that a self-representation request is timely if "interposed prior to the prosecution's opening statement." Mcintyre, 36 N.Y.2d at 18. C. Stare decisis bars Mcintyre's reconsideration. There is no compelling justification to deviate from the norm of stare decisis to revisit Mcintyre's holding on the timeliness of a self-representation request. "The doctrine of stare decisis provides that once a court has decided a legal issue, subsequent appeals presenting similar facts should be decided in conformity with the earlier decision." People v. Bing, 76 N.Y.2d 331, 337-38 (1990). The purpose of the doctrine is to "provide guidance and consistency in future cases by recognizing that legal questions, once settled, should not be reexamined every time they are presented." Id. at 338. A case "may be overruled," therefore, "only when there is a compelling justification for doing so," such as where a prior holding leads to an "unworkable rule" or "no longer serves the ends of justice." People v. Peque, 22 N.Y.3d 168, 194 (2013) (plurality). This is "especially true where, as here, the principle has become settled through 19 iteration and reiteration over a long period of time." Randall v. Sorrell, 548 U.S. 230, 244 (2006) (plurality) . "The doctrine also rests upon the principle that a court is an institution, not merely a collection of individuals, and that governing rules of law do not change merely because the personnel of the court changes." People v. Taylor, 9 N.Y.3d 129, 148 (2007). It reflects the "preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Id. (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)); see also Sol Wachtler, Stare Decisis and a Changing New York Court of Appeals, 59 St.John's Law Rev. 3 at 445-46, 455 (Spring 1985) (writing-at the time of "ongoing personnel changes in the Court of Appeals"-about "the importance of the doctrine of stare decisis, which assures an element of stability in the Court"). Stare decisis principles are of utmost importance when the government urges the curtailment of a criminal defendant's constitutional rights. Id. at 453 ("In criminal cases, any change in rule or statutory interpretation that would be detrimental to a defendant should be avoided, and may indeed violate due process."); see also Robert von Moschzisker, Stare Decisis in Courts of Last Resort, 37 Harv. L. Rev. 409, 418 (1924) ("In the field of criminal law, the doctrine of stare decisis must be rigidly applied to prevent judicial changes 20 which might operate to prejudice materially the rights of an accused.") . The Court must adhere to stare decisis in this case. Mcintyre is not just any decision. It is the "foundation stone of our self-representation jurisprudence." Crampe, 17 N.Y.3d at 481. The Court's subsequent decisions have carefully built, upon that foundation, a jurisprudential framework strongly supportive of the right to proceed pro se. 6 There is no compelling reason to start chipping away. The rule that mid-jury-selection requests are timely is regularly followed by lower courts. It is supported by this Court's decisions in Reason and Smith. And the U.S. Supreme Court has not weighed in. 7 Nor have subsequent developments rendered the Mcintyre rule unworkable or inconsistent with the ends of justice. To the contrary, "the multifaceted problems generated by a motion to proceed prose" identified in Mcintyre are "as true today as ... in 1974." Crampe, 17 N.Y.3d at 483; cf. Peque, 22 N.Y.3d at 195 (overruling earlier decision where "the weight of authority and the will of 6 See, e.g., People v. Sawyer, 57 N.Y.2d 12, 21 (1982) (Under prong two of Mc!nryre, the court must conduct a " searching inquiry" to ensure a valid waiver.); Smith, 68 N.Y.2d at 738 (reaffirming principle, established in M c!nryre, that even where "a court feels that the motion is a disingenuous attempt to subvert the overall purpose of the trial the proper procedure is to conduct a dispassionate inquiry into the pertinent factors"); People v. La Va/le, 3 N.Y.3d 88, 107 (2004) (Even while upholding conviction, making clear that "conditioning a request for new attorneys with a request for self-representation does not necessarily make the latter request equivocal.") . 7 Timeliness was not an issue in Faretta because the defendant requested pro se status "weeks before trial." 422 U.S. at 835 . Justice Blackmun' s dissent noted that the timeliness question was an open one. Id. at 852 (Blackmun, J., dissenting). 21 Congress have shifted since [the] decision"); Bing, 76 N.Y.2d at 342 (overruling earlier decision where rule created "uncertainty" and "destabiliz[ed] the law"). The prosecution does not identify any real-world problems that make the Mcintyre rule unworkable or unfair. It argues instead that the "very evils" Mcintyre considered (delay, confusion, etc.) should convince this Court to make a new rule (PB 33). But this is exactly what stare decisis prohibits: new rules without new reasons. Mcintyre already considered the "very evils" the prosecution claims support a new rule and concluded they did not justify barring mid-jury-selection requests. This case presents nothing more than a "subsequent appealD presenting similar facts" and it "should be decided in conformity with the earlier decision." Bing, 76 N.Y.2d at 337-38. D. The prosecution misreads Mcintyre, the CPL, and out-of-state authority. The prosecution tries to side-step stare decisis by asking the Court to accept three flawed arguments: (1) that Mcintyre's true holding on timeliness lies hidden in a parenthetical, undetected by courts for decades; (2) that CPL § 1.20(11) defines "trial" to include the voir dire process despite this Court's determination to the contrary; and (3) that there is a "weight of authority" in other jurisdictions, which is not true and does not matter. 22 1. The prosecution misreads Mcintyre. The prosecution argues that Mcintyre's "only" rule 1s that a self-representation request is timely if made "before the trial commences" (PB 20). True, Mcintyre announced that general rule. But because Mcintyre's request came mid-jury-selection, the Court had occasion to issue a more precise ruling: "trial" commenced with the "prosecution's opening," and the defendant's request, which came before that point, was therefore timely. 36 N.Y.2d at 17-18. That is literally Mcintyre's holding on timeliness. 8 Recognizing it loses if that holding applies here, the prosecution argues that what Mcintyre said about the prosecution's opening only applies to cases brought before September 1, 1971, the effective date of the CPL, which amended the definition of "trial" (PB 26). Beginning on that date, the prosecution claims, defendants were required to make self-representation requests before the "start of jury selection" (PB 26). Mcintyre doesn't say a word of this. But the prosecution claims it can be discerned from the parenthetical following the Court's express holding: Bryan A. Garner, Ed., Black's Law Dictionary, HOLDING (10th ed. 2014) (A "holding" is a "court's determination of a matter of law pivotal to its decision."). 23 [T]he pro se motion was unequivocal and timely having been interposed prior to the prosecution's opening statement (Code Crim. Pro., § 388, subd. 1; People ex rel. Steckler v. Warden of City Prison, 259 N.Y. 430; see CPL 1.20, subd. 11; 260.30). 36 N.Y.2d at 18. The natural reading of this parenthetical is that the Court found CCP § 388(1) and Steckler to provide direct support for its holding. The CCP best defined where "trial" should commence in the self-representation context-when the prosecutor "open[s] the case." CCP § 388(1). And it did not matter that CCP § 388(1) was outdated when Mcintyre was decided because Steckler makes clear that "[t]he meaning of the word 'trial' as a law term depends on the connection in which it is used." 259 N.Y. at 431-32. In connection with a motion for self-representation, "trial" commences with the prosecutor's opening. 36 N.Y.2d at 17-18. Mcintyre's citation to CPL § 1.20(11) after a "see" signal means that provision indirectly supports its holding. 9 CPL § 1.20(11) defines "trial" as commencing with the jury's "selection." By defining "trial" to commence before the prosecutor's opening but still after voir dire (during which Mcintyre evidently made his request), CPL§ 1.20(11) supported the Court's holding that the request was timely. Hence the "see" signal. 10 See Bluebook: A Uniform System of Citation (19th Ed. 2010) ("see" is used "when the proposition is not directly stated by the cited authority but obviously follows from it"). 10 The same goes for CPL § 260.30, which states that the trial begins when the jury is "selected and sworn." 24 The prosecution claims the above-quoted parenthetical means much-much-more. It argues that Mcinryre's reference to the CPL after a "see" signal announces what will "govern the question of when 'trial commences' in all cases brought after September 1, 1971, in which the CPL alone would apply" (PB 26). This is not a "more plausible" explanation for why the Court cited the CPL (PB 26); it is an unthinkable one. The Court of Appeals does not speak in secret code, hoping that courts and the public will correctly decipher its op1n10ns. It 1s inconceivable that-in a case as significant and carefully-considered as Mcinryre-the Court set down one rule in plain English but then indicated, through cryptic misuse of a "see" signal, that courts and the public should ignore that rule and apply a different one only hinted at in a citation to a couple general definitions. The Mcinryre Court does not even explain that the defendant's trial predated September 1, 1971. The prosecution had to mine the appellate division's decision for that fact (PB 20). We are unaware of a single court to read Mcinryre to mean what the prosecution says it does. The prosecution tendered this argument to one appellate court (other than this Court and the court below), and it was handily rejected. See People v. Matsumoto, 2 Misc. 3d 130(A) (App. Term 2d and 11th Dists. 2004) ("Contrary to the People's argument ... the citations to [the] CPL . . . indicate supporting authority for the Mcinryre holding that for the purpose 25 of a motion for pro se representation, the juncture at which the 'trial' commences 1s pr10r to the prosecution's opening statement."); Crespo, 144 A.D.3d at 461. The Court should read Mcintyre to mean what it says: a self- representation request is timely if "interposed prior to the prosecution's opening statement." 36 N.Y.2d at 18. 2. The prosecution misreads CPL§ 1.20(11 ). Even were the prosecution's reading of Mcintyre correct, it still loses because its reading of CPL § 1.20(11) is incorrect. This Court has made clear that the phrase "selection of the jury" in CPL§ 1.20(11) means when the "jury [i]s sworn." People v. Ayala, 75 N.Y.2d 422, 428-29 (1990) ("[D]efendant's trial ... began only after the jury was sworn (CPL§ 1.20(11))"). 11 The prosecution is wrong in thinking that "trial" under CPL§ 1.20(11) encompasses the voir dire process (PB 27) . This reading of CPL§ 1.20(11) makes sense. The phrase "selection of the jury" naturally refers to the point when the trial jury has been selected, sworn, and empaneled. Before that point, there is no "jury" at all, only an unaffiliated 11 Lower courts also read CPL§ 1.20(11) this way. See, e.g., People v. Gumbs, 42 Misc.3d 149(A) (App. Term 9th and 10th Dists. 2014) ("[T]he trial had commenced, since the jury had been empaneled and sworn (CPL 1.20(11 ... )");People v. Brensic, 136 A.D.2d 169, 172 (2d Dept. 19 88) (" [C] ommencement of the trial" was "signal[ ed]" when "jurors were selected and sworn.") (citing CPL§ 1.20(11)); People v. Moore, 156 Misc. 2d 583, 586 (N.Y. Co. Sup. Ct. 1993) ("The statute defines 'trial' in terms of the period following selection of a jury ... (CPL 1.20(11)."). 26 pool of prospective jurors from which the trial jury is drawn. See CPL§ 270.05 (distinguishing between the "trial jury" (subd. 1) and the "panel from which the jury is drawn" (subd. 2)). Even after one or two-or even 11-individual jurors are selected during voir dire, that is still not a "jury." The prosecution assumes the statutory phrase "selection of the jury" is interchangeable with the phrase "jury selection," the phrase we colloquially use to describe the voir dire process. But these terms are not the same. And, as explained in Section E.1 below, the phrase "jury selection" is too vague to define when "trial" begins. The prosecution also misunderstands what CPL§ 1.20(11) means to this case-which is absolutely nothing. The self-representation right is a constitutional right, and Mcintyre addressed the "constitutional dimension of th[at] right." 36 N.Y. 2d at 14-15. Although the Court found the CCP's definition of "trial" instructive, it was not compelled to apply that definition simply because Mcintyre's trial "took place when the Code of Criminal Procedure was still in effect" (PB 20). The Court evidently considered the CCP's definition of "trial" as striking the optimal constitutional balance among the "manifold and conflicting principles permeating the assertion of [the] right to defend prose." 36 N.Y.2d at 16. The Court chose to define "trial" narrowly so it could define the scope of the self-representation right broadly. The prosecution concedes that "courts are not always bound to apply the accepted definition of a criminal procedure term" (PB 28). That is a huge 27 understatement. Unless the provision being construed is in the CPL, courts are never bound to apply those definitions. That should be obvious, especially in a constitutional case, but the CPL makes it clear anyway: "[t]he provisions of this chapter apply exclusive(y to ... [a]ll matters of criminal procedure prescribed in this chapter." CPL§ 1.10(1) (b) (emphasis added) .12 This Court has eschewed common definitions of "trial" where applying them would not make sense. Steckler itself illustrates the point. The issue in Stecklerwas whether special magistrates' courts could hold preliminary hearings under a statute authorizing such courts to hold "special sessions for the trial of specified classes of offenses ... " 259 N.Y. 430 at 431-32 (emphasis in original). As stated above, the Steckler Court observed that: "The meaning of the word 'trial' as a law term depends on the connection in which it is used." Id. at 432. Like Mcintyre, the Steckler Court looked to CCP § 338, observing that it "cover[ed] only so much of a criminal prosecution as begins with the opening of the case ... " Id. at 432. Unlike Mcintyre, however, the Steckler Court did not consider this definition to be consistent with the statute's intent and adopted a 12 When the prosecution claims CPL § 1.20 extends to "[a]ll matters of criminal procedure," (PB 27) (citing Gunning v. Codd, 49 N.Y.2d 495, 499 & n.1 (1980)), it is just selectively quoting from CPL§ 1.10(1)(b). 28 different one "broad enough to include the examination of criminal cases by a court in all their stages." Id. at 432-33. 13 The Court's decision in People v. Anderson is also instructive. 16 N.Y.2d 282 (1965). In that case, the defendant asserted he was denied his statutory right to be present "at trial" after the court held a suppression hearing in his absence. Id. at 285-86. The Court agreed with the defendant that a suppression hearing "is in reality a part of the 'trial'." Id. at 286. Although a suppression hearing "[wa]s, of course, not within the specific meaning of 'trial' as heretofore defined," the Court was not "bound to accept" a definition "not in keeping with the purpose of the statute" where "another sensible meaning" was available. Id, at 288. To define "trial" so narrowly as to deprive a defendant a right to be present at suppression hearings would be "an unwarranted departure from the clear public policy of New York as well as a violation of fundamental fairness." Id. at 288. 14 13 The prosecution misunderstands Steckle-ls relevance. Stecklerwas not "[o]f importance to Mcintyre's timeliness ruling" because it cited CCP § 338 (PB 19). Steckler was "[o]f importance to Mcintyre's timeliness ruling" because it held that "[t]he meaning of the word 'trial' ... depends on the connection in which it is used." 259 N.Y. at 432. It was not "ironicO" (PB 19) that Steckler did not rely on the CCP's definition of "trial," it was simply that the Court found that definition as unhelpful as Mcintyre found it instructive. 14 The prosecution refers to the "Anderson exception" (PB 29). That phrase-which the prosecution apparently makes up-implies that this Court is normally bound to apply CPL definitions to interpret non-CPL issues, including constitutional ones. That is not the case, and the prosecution does not cite any supporting authority. In the cases it does cite (PB 27-28), the Court referred to definitions in CPL § 1.20 as interpretive aids, not because it was bound by those definitions. See People v. Maracle, 19 N.Y.3d 925, 928 (2012) (looking to the CPL's definitions of "conviction" and "sentence" to analyze court's language during plea colloquy). 29 The prosecution claims that Anderson is "inapposite" because adopting the CPL's definition of "trial" would "be in keeping with the purposes of the timeliness requirement" and would "better serve those purposes than a rule drawing the line at the People's opening statement" (PB 29). But the Mcintyre Court already made that determination. It was fully aware of the CPL's definition of "trial," which had been in effect for years. 3. The prosecution misreads out-ofstate authority. Lacking authority in New York, the prosecution resorts to other jurisdictions claiming its proposed rule would "align this State's jurisprudence with the weight of authority" (PB 16). The Court should disregard this claim. As best we can tell, no other jurisdiction's decisional law reflects the same "cherished" appreciation for the right of self-representation as New York's. Mcintyre, 36 N.Y.2d at 14. In any event, there 1s no such "weight of authority." Most federal jurisdictions follow a rule similar to Mcintyre's, holding a self-representation request is timely until the trial jury is empaneled or sworn. 15 Many states have Indeed, the Court in one of those cases acknowledged it was merely "borrowing the Criminal Procedure Law's definition of 'conviction' to give meaning to the word 'convicted' in [a provision of the] Penal Law." People v. Montilla, 10 N.Y.3d 663, 668 (2008). 15 See, e.g., United States v. Betancourt-Arretuche, 933 F.2d 89, 96 (1st Cir. 1991) (stating that, "[i]n general, a Faretta request is timely only "if it is asserted before the jury is empaneled," but denying request made after the "jury had already been selected and sworn"); U.S. ex rel. Maldonado v. Denno, 348 F.2d 12, 16 (2d Cir. 1965) ("We hold that if [defendants] clearly sought to represent themselves, after their cases had been called on the calendar but before 30 adopted a similar rule. 16 As one of the cases the prosecution cites explains, "[c]ourts from other jurisdictions have taken differing positions concerning day- of-trial and near-day-of-trial motions" to proceed pro se. State v. Cudc!J, 22 Kan. App. 2d 605, 610 (1996). The string of out-of-state authorities the prosecution cites is padded with cases that weaken its position. The prosecution cites a Massachusetts case, Commonwealth v. Chapman, 392 N.E.2d 1213, 1217 (Mass. 1979), claiming it is among a "consensus" of cases that deny as untimely requests made after the "selection of jurors begins" (PB 34). But that is not what Chapman says. Chapman the jury had been chosen, they had an unqualified right to have their requests granted."); United States v. Banko.ff, 613 F.3d 358, 373 (3d Cir. 2010) ("[A]fter trial has commenced-i.e., at least after the jury has been empaneled-the right of self-representation is curtailed.); Chapman v. United States, 553 F.2d 886, 894 (5th Cir. 1977) (A request to proceed pro se is timely if asserted "before the jury is empaneled."); United States v. Johnson, 223 F.3d 665, 668 (7th Cir. 2000) ("[A] motion for self-representation is timely if made before the jury is empaneled unless made for the purpose of delaying or disrupting the trial."); Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir. 1982) ("[A] motion to proceed prose is timely if made before the jury is empaneled unless it is shown to be a tactic to secure delay."); United States v. Tucker, 451 F.3d 1176, 1181 (10th Cir. 2006) (acknowledging same as "the prevailing rule"); United States v. Young, 287 F.3d 1352, 1354 (11th Cir. 2002) ("[W]e conclude that a defendant's request to proceed pro se is untimely if not made before the jury is empaneled."). 16 See, e.g., State v. De Nistor, 143 Ariz. 407, 412 (1985) ("[A] motion to proceed without counsel is timely if it is made before the jury is empaneled."); People v. Anderson, 398 Mich. 361 (1976) (The trial court violated the defendant's right to self-representation when it denied the defendant's self-representation request after voir dire had begun.); State v. Sweenry, 151 N.H. 666, 671 (2005) ("[A] request to proceed prose is timely if made before the jury is empanelled."); King v. Commonwealth, 37 4 S.W.3d 281, 291 (Ky. 2012) ("[A] request is timely if made before the jury is selected or before the jury is empaneled."); State v. Garcia, 149 N.M. 185, 194 (2011) (A request is timely until "the jury has been selected."); State v. Wehr, 852 N.W.2d 495, 501 (Iowa Ct. App. 2014) (A request made "prior to the jury being impaneled" was timely.); Bf!Yd v. State, 683 S.W.2d 542, 543 (Tex. App. 1984) ("Appellant's request for self-representation was timely, since it was made before the jury was empaneled."); see also State v. Stenson, 132 Wash. 2d 668, 767 (1997) ("Overwhelming authority holds a request to proceed pro se is timely if made before the jury is impaneled.") (dissenting opinion). 31 held that the defendant's "motion to proceed pro se was timely because it was made before the start of the empanelling of the jury, generally recognized as the point at which the trial begins." Id. at 1217. It then goes on to cite federal cases (including Chapman (no relation) and Denno cited in note 15 above), making clear it endorsed the prevailing federal timely-before-empanelment rule . The prosecution also cites an Arizona case, State v. Cornell, for the proposition that "it is uniformly held that all motions for pro [ se] status made after jury selection has begun are untimely." 878 P.2d 1352, 1364 (Ariz. 1994) (PB 34). Cornell does state that, but it relies on two cases directly supporting our position. Id. at 1364 (citing De Nistor, 143 Ariz. at 412-13 (1985) ("[A] motion to proceed without counsel is timely if it is made before the jury is empaneled."); and Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir. 1990) ("A Faretta request is timely if it is asserted before the jury is empaneled, unless it is made for the purpose of delay.")). Further, the Cornell court was focused on whether a pro se defendant could enlist advisory counsel to question a witness mid-trial; it was not focused on the timeliness issue. 878 P.2d at 1364. The prosecution also repeatedly cites two decisions from a Pennsylvania case called Commonwealth v. El (PB 30, 34). But the defendant in El opted for a bench trial. 33 A.2d 657, 662 (Pa. Super. Ct. 2007), aff'd, 977 A.2d 1158, 1161 (Pa. 2009). A case from another state not involving a jury is not instructive about whether a mid-jury-selection request to a New York court is timely. 32 We could go on. Suffice it that the prosecution is wrong that the Mcintyre rule is against the "weight of authority." E. The prosecution's proposed rule would be unworkable and unfair to defendants, with no countervailing benefit. The prosecution argues there is "no good reason" not to curtail the self- representation right at the "start of jury selection" (PB 26, 27). Sections A through D above set forth many good legal reasons, and this Section adds two more practical ones: the prosecution's rule is unworkable, and it is unfair to defendants. This Section also explains why the prosecution provides "no good reason" to change the Mcintyre rule. 1. The prosecution's proposed rule is unworkable. The prosecution asks the Court to hold that a self-representation request made after "the start of jury selection" is untimely (PB 27). While such a rule would require reversal in this case, it would leave future courts with an unworkable standard because "the start of jury selection" is an imprecise phrase that could refer to any number of different points in the proceeding. Does jury selection start when the calendar is called on the day voir dire is scheduled to commence? When a pool of prospective jurors has gathered in the courtroom? When the court welcomes the prospective jurors and explains the process? When the court begins dismissing jurors who have travel plans, who do not speak English, etc.? When a subset of the pool has filled the box? When counsel 33 begins to voir dire the panel? When the first trial juror is actually selected? The prosecution will surely scramble to clarify what it meant all along by "the start of jury selection." But the standard it proposes does not, on its face, begin to do so. By contrast, the Mcintyre rule is crystal clear: a self-representation request is timely before the prosecutor opens. 36 N.Y.2d at 18. 2. The prosecution's proposed rule would be unfair to criminal defendants. A rule cutting off the self-representation right before the "start of jury selection" would be unfair to defendants. For many criminal defendants in New York, voir dire is the first opportunity to assess their lawyer's competency. Unless there has been a pretrial hearing, the defendant has not seen his lawyer meaningfully engage with the court. And unless there has been a prior mistrial, the defendant knows nothing of his lawyer's ability to advocate before a jury. A defendant may learn in voir dire that his lawyer misunderstands key facts or that his lawyer's strategy is at odds with his own. The Fifth Circuit made similar observations in finding a request made during voir dire to be timely: If there is to be a Rubicon beyond which the defendant has lost his unqualified right to defend prose, it makes far better sense to locate it at the beginning of defendant's trial, when the jury is empaneled and sworn ... [A defendant's] first opportunity directly to address the court regarding his counsel may be the day of his trial [and] the defendant may acquire disconcerting information about the substance or manner of his counsel's planned defense only once his counsel begins the voir dire. 34 Chapman, 553 F.2d at 894. These concerns are heightened for indigent defendants like Mr. Crespo, who are represented by assigned counsel who may lack the time or resources to meaningfully engage with clients before trial. 17 Indigent criminal defendants are also less likely to make bail, limiting their opportunity to interact with counsel. 18 In some cases, an indigent client and his assigned lawyer do not meet until the day of trial. See Laura I. Appleman, The Ethics of Indigent Criminal Representation: Has New York Failed the Promise of Gideon?, 16.4 Prof. Law. 2, 8 (2005) ("[T]hese overloaded public defenders and assigned counsel often meet their clients for the first time at trial."). The prosecution's proposed rule-that the self-representation right vanishes just when the defendant can first meaningfully assess his lawyer's assistance-is a cruel one. A defendant who determines, during voir dire, that his lawyer is unhelpful will probably not get replacement counsel. See, e.g., People 17 See New York State Office of Indigent Legal Services, "A Determination of Caseload Standards pursuant to § IV of the Hurrell-Harring v. The State of New York Settlement," at 8 (Dec. 8, 2016) ("New York's public defense system suffers from excessive attorney caseloads, resulting in public defense attorneys lacking the time needed to meet their professional and ethical responsibilities and to fully protect their clients' constitutional rights."). 18 See Final Report, Commission on the Future of Indigent Defense Services, at AD-8 Oune 18, 2006) ("[D]efenders report losing so much time traveling between courts that they cannot meaningfully meet with their clients"); cf. People v. Johnson, 27 N.Y.3d 199, 210 (2016) ("A defendant free on bail or on his own recognizance can ... make good use of that liberty by consulting and participating fully with counsel.")(Pigott, J., concurring). 35 v. Sides, 75 N.Y.2d 822, 824 (1990) (requiring "good cause" to replace counsel) . Assuming that defendant "reasonably deems himself the best advisor for his own needs," forcing counsel upon him would be to "imprison [him] in his privileges." Adams v. U.S. ex rel. McCann, 317 U.S. 269, 280 (1942) . 3. The prosecution gives no good reason to change the rule. The prosecution argues that allowing self-representation requests during voir dire could cause "delay and confusion" (PB 16). The problem with this argument is that the Mcintyre Court already considered the court's interest in "averting delay and confusion" and concluded the defendant's mid-jury- selection request did not threaten that interest. 36 N.Y.2d at 17-18; see also Section C, above. Apparently recognizing this, the prosecution asserts that cutting off a defendant's self-representation right sooner would "better" avoid delay and confusion (PB 16). But the prosecution's concerns about delay are not even implicated in this case because Mr. Crespo's self-representation request was not accompanied by a request to adjourn trial, and there is no evidence that granting his request would have caused delay. There are no doubt cases in which a defendant's request threatens delay. But in those cases, the court can simply exercise its discretion to grant or deny an adjournment, a procedural determination that does not necessarily affect the defendant's constitutional 36 rights. See People v. Ff!Y, 32 N.Y.2d 473, 476 (1973) (citing the "general rule that the granting or denial of any adjournment by a Trial Judge is a matter of discretion"). Courts are well-equipped to make those determinations. For example, the trial court in People v. Stone granted defendant's self-representation request while "voir dire was underway and four jurors had been selected." 22 N.Y.3d 520, 523n (2014). It then "dismissed the sworn jurors" and permitted him to "commence voir dire anew." Id. A different trial judge might have required the defendant to proceed without delay. A speculative concern about potential delay in some future case is not a good reason to curtail a constitutional right. The prosecution's other concern is jury "confusion." Yet the prosecution does not explain what "confusion" it believes follows from a defendant's decision to proceed prose during voir dire. Perhaps the prosecution believes the jury will be confused by the defense lawyer's sudden absence. In that case, the court can explain that the defendant has decided to represent himself, which is his right and is not to be held against him. That sort of instruction should do the trick. See Lanzano v. City of N. Y, 71 N.Y.2d 208, 212 (1988) Ouries should be "treated as sensible, intelligent human beings capable of following instructions .... "). 37 F. Mr. Crespo was denied his constitutional right to proceed pro se. This Court should affirm the Appellate Division's decision. There is no reason to disrupt the clear rule on timeliness Mcintyre established, and the prosecution does not challenge any other aspect of the Appellate Division's decision. Nor could it. Mr. Crespo's request was unequivocal because he clearly asked to proceed pro se six times. The Appellate Division was correct that his previous requests for replacement counsel did not diminish the force of his self- representation requests. See, e.g., La Valle, 3 N.Y.3d at 107 ("[C]onditioning a request for new attorneys with a request for self-representation does not necessarily make the latter request equivocal."). The Appellate Division also correctly held that Mr. Crespo did not forfeit his right to proceed pro se. The record did not reflect any disruptive behavior before the trial court denied his requests, and the trial court did not make any findings on the forfeiture issue. The prosecution's recitation of the facts includes irrelevant details about Mr. Crespo's pre-trial behavior. But the conduct it cites was driven by Mr. Crespo's dissatisfaction with his lawyer, and was only further evidence of his tenacious insistence that he be permitted to represent himself. 38 In light of Mr. Crespo's timely and unequivocal invocation of his self- representation right, the court was required to conduct a "searching inquiry ... to be reasonably certain that he understood the dangers and disadvantages of proceeding pro se." People v. Slaughter, 78 N.Y.2d 485, 488 (1991). The trial court's out-of-hand rejection of Mr. Crespo's request without that inquiry is constitutional error not amenable to harmless-error analysis. McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) ("The right is either respected or denied; its deprivation cannot be harmless."). CONCLUSION The Court should affirm the Appellate Division's decision. Of Counsel June 19, 2017 39 Respectfully submitted, ROBERTS. DEAN Center for Appellate Litigation PRINTING SPECIFICATIONS STATEMENT The brief was prepared in Wordperfect, using a 14-point Garamond font. It totals 9,036 words. 1-A