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. REPLY BRIEF FOR APPELLANT 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 JULY 18, 2017 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii INTRODUCTION................................................................................................................ 1 POINT THIS COURT HAS NEVER ESTABLISHED A RULE THAT A REQUEST TO PROCEED PRO SE IS TIMELY IF MADE BEFORE THE PEOPLE’S OPENING STATEMENT, AND REQUIRING DEFENDANTS TO INVOKE THE RIGHT TO SELF- REPRESENTATION BEFORE THE START OF JURY SELECTION IS WORKABLE, FAIR, AND BEST SERVES THE GOALS OF THE TIMELINESS REQUIREMENT ........................................................................................... 1 CONCLUSION ................................................................................................................... 18 ii TABLE OF AUTHORITIES FEDERAL CASES Hill v. Curtain, 792 F.3d 670 (6th Cir. 2015) .............................................................. 13, 16 Serfass v. United States, 420 U.S. 377 (1975).................................................................... 16 United States ex rel. Maldonado v. Denno, 348 F.2d 12 (2d Cir. 1965)........................ 16 United States v. Betancourt-Arretuche, 933 F.2d 89 (1st Cir. 1991) ............................. 16 United States v. Walker, 142 F.3d 103 (2d Cir. 1998) ................................................. 16-17 STATE CASES Blair v. Maynard, 324 S.E.2d 391 (W. Va. 1984) .............................................................. 15 Crane v. Bennett, 177 N.Y. 106 (1904) ................................................................................ 4 Gunning v. Codd, 49 N.Y.2d 495 (1980) ......................................................................... 7-8 Matter of Brackley v. Donnelly, 53 A.D.2d 849 (2d Dep’t 1976) .................................. 17 People v. Anderson, 16 N.Y.2d 282 (1965) ..................................................................... 7-8 People v. Arroyo, 98 N.Y.2d 101 (2002) ........................................................................... 15 People v. Ayala, 75 N.Y.2d 422 (1990) ......................................................................... 5, 7-8 People v. Bethea, 67 N.Y.2d 364 (1986) ............................................................................ 10 People v. Dashnaw, 116 A.D.3d 1222 (3d Dep’t 2014) .................................................. 15 People v. Garifo, 47 Misc.3d 136(A) (App. Term 2d Dep’t 2015) ................................ 15 People v. Hightower, 18 N.Y.3d 249 (2011) ....................................................................... 4 People v. Hill, 773 N.W.2d 257 (Mich. 2009) ................................................................... 16 People v. Hobson, 39 N.Y.2d 479 (1976) ........................................................................... 5 People v. Hues, 92 N.Y.2d 413 (1998) ................................................................................ 5 People v. Jamal, 181 Misc.2d 936 (Sup. Ct., Queens County 1999)................................. 5 iii People v. King, 27 N.Y.3d 147 (2016) ........................................................................... 9, 13 People v. Martin, 16 N.Y.3d 607 (2011) .............................................................................. 4 People v. McIntyre, 36 N.Y.2d 10 (1974) .....................................................................passim People v. Morales, 168 A.D.2d 85 (2d Dep’t 1991) ........................................................... 6 People v. Peque, 22 N.Y.3d 168 (2013) ............................................................................... 3 People v. Reason, 37 N.Y.2d 351 (1975) ...................................................................... 10-11 People v. Rodriguez, 71 N.Y.2d 214 (1988) ........................................................................ 5 People v. Steward, 17 N.Y.3d 104 (2011) .......................................................................... 13 People v. Stone, 22 N.Y.3d 520 (2014) ................................................................................ 5 People v. Toliver, 89 N.Y.2d 843 (1996) ...................................................................... 4-5, 7 People v. Velasco, 77 N.Y.2d 469 (1991) ........................................................................ 4, 7 State v. Bentley, 2000 WL 1638997 (Ohio Ct. App. Oct. 30, 2000) ......................... 11-13 State v. Christian, 657 N.W.2d 186 (Minn. 2003) ............................................................. 17 State v. Cooper, 888 N.W.2d 247 (Wisc. Ct. App. Oct. 12, 2016) ................................. 13 State v. Cornell, 878 P.2d 1352 (Ariz. 1994) ..................................................................... 16 State v. Wehr, 852 N.W.2d 495 (Iowa Ct. App. 2014) ............................................... 16-17 STATE STATUTES CPL 1.10(1)(b) ........................................................................................................................ 7 CPL 1.10(2) ........................................................................................................................... 12 CPL 1.20(11) ........................................................................................................................ 4-7 CPL 260.30(1) ......................................................................................................................... 6 CPL 270.05 .............................................................................................................................. 5 CPL 270.05(1) ......................................................................................................................... 6 iv CPL 270.10(2) ......................................................................................................................... 5 CPL 270.15 ........................................................................................................................ 9, 13 CPL 270.15(3) ......................................................................................................................... 6 CPL 270.25 .............................................................................................................................. 5 CPL 360.10(1) ......................................................................................................................... 6 CPL 360.15(2) ......................................................................................................................... 5 CPL 670.10(1) ..................................................................................................................... 5, 8 Public Officers Law § 30(1)(e) .............................................................................................. 8 OTHER AUTHORITIES 28 N.Y. Jur. 2d, Courts and Judges § 213 ............................................................................ 5 ABA Standing Committee on Legal Aid and Indigent Defendants (2004) available at http://texaswcl.tamu.edu/reports/2004_ABA_ Gideon%27s_Broken_Promise.pdf .............................................................................. 14 Appleman, Laura I., The Ethics of Indigent Criminal Representation: Has New York Failed the Promise of Gideon?, 16 No. 4 Prof. Law. (2005) ................................................................................................................................ 14 Black’s Law Dictionary 1446 (9th ed. 2009) ....................................................................... 2 Donnino, William C., Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 11A (2014). ........................................................................................... 4-6 Keeton, Robert E., Judging (1990) .................................................................................... 2-3 McKinney’s Cons. Laws of N.Y., Book 1 (2014) ............................................................... 6 New York Consolidated Laws Service, Statutes Annotations Forms: Criminal Procedure Law Vol. 2B (1971) ............................................................................. 7 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- RAYMOND CRESPO, Defendant-Respondent. REPLY BRIEF FOR APPELLANT INTRODUCTION The People respectfully submit this brief in reply to the brief filed by defendant. POINT THIS COURT HAS NEVER ESTABLISHED A RULE THAT A REQUEST TO PROCEED PRO SE IS TIMELY IF MADE BEFORE THE PEOPLE’S OPENING STATEMENT, AND REQUIRING DEFENDANTS TO INVOKE THE RIGHT TO SELF-REPRESENTATION BEFORE THE START OF JURY SELECTION IS WORKABLE, FAIR, AND BEST SERVES THE GOALS OF THE TIMELINESS REQUIREMENT. The parties agree that People v. McIntyre, 36 N.Y.2d 10 (1974), laid down a rule that a request to proceed pro se is timely if made “before the trial commences.” Id. at 17. There is also no dispute that McIntyre then “appl[ied]” that “principle[]” to the facts of that case and held that the defendant’s request to represent himself was timely, “having been interposed prior to the prosecution’s opening statement.” Id. at 18. Implicit in that holding is the conclusion that the trial in that case “commenced” with the People’s opening statement. Defendant, however, argues that McIntyre went much 2 further and declared, as a matter of constitutional law, that “trial” necessarily begins with the People’s opening statement (DB: 14, 24).1 Thus, in defendant’s view, McIntyre established a “rule” that a request to proceed pro se is timely if made at any point “‘prior to the prosecution’s opening statement’” (DB: 2-3, 12, 19, 26). Defendant is mistaken. On its face, McIntyre does not state that trial “commences,” as a matter of law, with the People’s opening statement. Indeed, the Court did not give any explanation for its conclusion that the defendant’s request to represent himself was timely; the Court merely offered citations, the first and foremost to the Code of Criminal Procedure. McIntyre, 36 N.Y.2d at 18. Defendant is correct that “[t]he Court of Appeals does not speak in secret code, hoping that courts and the public will correctly decipher its opinions” (DB: 25). For that reason, it is nonsensical to read McIntyre as establishing such a broad rule of law when the Court never, in fact, announced it. In arguing that McIntyre set forth a “rule” that a pro se request is timely if made before the People’s opening statement, defendant fails to grasp the difference between a “rule” and a “ruling” (see DB: 23). A “rule” is “a legal proposition of general application.” Robert E. Keeton, Judging 68 (1990). A “rule” thus applies prospectively, “mandating or guiding conduct or action in a given type of situation.” Black’s Law Dictionary 1446 (9th ed. 2009). A “ruling,” by contrast, “is a term ordinarily used to signify the outcome of applying a legal test …. The immediate effect is to decide an 1 “PB” and “DB” refer to the People’s opening brief and defendant’s brief, respectively. 3 issue in a single case.” Keeton, Judging 67-68. The distinction between a “rule” and “ruling” is not merely semantic. A rule “will generally be followed in subsequent cases presenting the same legal problem.” People v. Peque, 22 N.Y.3d 168, 194 (2013) (internal quotation marks omitted). A “ruling,” however, may be distinguished on its facts; after all, it simply “decide[d] an issue in a single case.” Keeton, Judging 67-68. McIntyre illustrates this distinction well. The Court there plainly announced a “rule” in stating: “[W]e deem a pro se application to be timely interposed when it is asserted before the trial commences.” McIntyre, 36 N.Y.2d at 17. The Court’s language made clear that it was articulating a general principle of law that would extend beyond the facts of that case. Just the opposite is true with respect to the Court’s conclusion that “the pro se motion”—i.e., the motion in that case—“was … timely” having come before the People’s opening statement. Id. at 18 (emphasis added). As the Court explained, it reached that result by “applying” the “principle[]” that a pro se request is timely if made “before the trial commences.” Id. Thus, McIntyre did not establish a “rule” that any pro se request made before the People’s opening statement is timely simply because the Court issued a “ruling” that such a request was timely in that case. In other words, the McIntyre Court found that the request in that case was timely, not that “a self-representation request is timely if ‘interposed prior to the prosecution’s opening statement’” (DB: 26) (emphasis added). Critically, as explained in the People’s opening brief, the trial in McIntyre was conducted under the Code of Criminal Procedure, which provided that “trial” began 4 with the People’s opening statement (PB: 18-19). However, defendant’s trial was governed by the Criminal Procedure Law, which provides that “[a] jury trial commences with the selection of the jury” (CPL 1.20[11]). And, since McIntyre, this Court has reaffirmed that jury selection is part of a jury trial when defining the scope of a defendant’s rights to a jury trial, People v. Toliver, 89 N.Y.2d 843, 844 (1996), to be present for material stages of a trial, People v. Velasco, 77 N.Y.2d 469, 472-73 (1991), and to a public trial, People v. Martin, 16 N.Y.3d 607, 611 (2011). In short, today “[t]he selection of a fair jury is a critical part of a trial.” William C. Donnino, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 11A, CPL 270.15, p. 171 (2014). Accordingly, the rationale underlying McIntyre’s timeliness ruling simply does not apply in this case. See generally People v. Hightower, 18 N.Y.3d 249, 255 (2011) (declining to extend rationale of prior case to different set of facts); Crane v. Bennett, 177 N.Y. 106, 112 (1904) (“what may have been said in an opinion should be confined to and limited by the facts of the case under consideration … and should not be extended to cases where the facts are essentially different”). The People therefore are not asking the Court to “abrogate” McIntyre (DB: 2, 12), but to apply its rule that requests to proceed pro se must be made “before the trial commences” to the facts of this case, in which the trial commenced “with the selection of the jury” (CPL 1.20[11]). Defendant’s discussion of stare decisis (DB: 19-22) is, consequently, beside the point. Defendant further contends that the point at which trial commences under the CPL is not, in fact, meaningfully different from the point at which trial began under the 5 Criminal Code. According to defendant, the phrase “selection of the jury” in CPL 1.20(11) actually means “when the ‘jury is sworn’” (DB: 26) (quoting People v. Ayala, 75 N.Y.2d 422, 429 [1990]). The Court should reject this reading of the CPL. To begin, “selection of the jury” does not “naturally refer[] to the point when the trial jury has been selected, sworn, and empaneled” (DB: 26). On the contrary, that phrase “naturally” refers to the process of selecting the jury. Indeed, that is how this Court has used it. See, e.g., Toliver, 89 N.Y.2d at 844; People v. Rodriguez, 71 N.Y.2d 214, 218 (1988) (noting that through CPL 270.05-270.25 the Legislature “provided for the defendant and the People to participate fully in the selection of the jury”).2 And, that is also how the phrase is used elsewhere in the CPL. See CPL 270.10(2), 360.15(2) (challenge to venire panel must be made before “the selection of the jury commences”); see also Donnino, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 11A, CPL 260.30, p. 106 (“The statutory sequence of the trial 2 While in Ayala the Court did note that the trial “began only after the jury was sworn,” Ayala, 75 N.Y.2d at 428-29 (citing CPL 1.20[11]), that statement is dicta, as the issue in Ayala was whether the term “trial” as used in CPL 670.10(1) encompasses suppression hearings. See Ayala, 75 N.Y.2d at 425; 28 N.Y. Jur. 2d, Courts and Judges § 213 (“Statements made by a court in an opinion which are unnecessary to the holding are dicta.”). Ayala’s reading of CPL 1.20(11) therefore has no more bearing on this case than the Court’s more recent observations in People v. Stone, 22 N.Y.3d 520 (2014), and People v. Hues, 92 N.Y.2d 413 (1998). In Stone, the Court noted that the defendant’s mid-jury selection request to proceed pro se was made “[a]t his jury trial,” Stone, 22 N.Y.3d at 522 & n.1, while in Hues the Court stated that the “[d]efendant’s trial commenced with jury selection,” Hues, 92 N.Y.2d at 415. And, the fact that at least one lower court post-Ayala has held that “selection of the jury” in CPL 1.20(11) means “commencement of jury selection” only underscores the insignificance of Ayala’s dicta. People v. Jamal, 181 Misc.2d 936, 939 (Sup. Ct., Queens County 1999); see also People v. Hobson, 39 N.Y.2d 479, 490 (1976) (“precedent is less binding if it is little more than an ipse dixit, a conclusory assertion of result”). 6 includes the following: Subdivision one. The jury must be selected pursuant to the procedures set forth in CPL [] 270”). Accordingly, reading “selection of the jury” in CPL 1.20(11) to refer to the point when the jury is sworn, rather than the entire selection process, violates the canon of statutory construction that a statute “is to be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent.” McKinney’s Cons. Laws of N.Y., Book 1, Statutes § 97. Defendant’s interpretation also violates the interpretative canon that “effect and meaning must, if possible, be given to the entire statute and every part and word thereof.” Id. § 98. In that vein, CPL 260.30(1), 270.05(1), 270.15(3), and 360.10(1) all explicitly distinguish between when the jury is “selected and sworn” (CPL 260.30[1]; 270.05[1]; 270.15[3]; 360.10[1]) (emphasis added). If the “selection of the jury” includes swearing the jurors, it would make little sense for the CPL to differentiate—four times no less—between the jury being “selected” and “sworn.” Additionally, if defendant were correct that a jury trial does not begin under the CPL until the last juror is sworn, that would mean that the trial does not start until the end of its “initial stage.” People v. Morales, 168 A.D.2d 85, 87-88 (2d Dep’t 1991) (“the initial stage” of jury trial is “when the jury is selected and sworn”) (citing CPL 260.30[1]) (brackets and internal quotation marks omitted). Logically, a jury trial “commences” at the beginning of its “initial stage,” not at the end. Notably, as discussed in the People’s opening brief (PB: 21-22, 25-26), the Temporary Commission on Revision of the Penal Law and Criminal Code, which 7 drafted the CPL, consciously departed from the “distinctly archaic” Criminal Code and altered the definition of “trial” to “encompass everything from the selection of the jury through the verdict” (Staff Comment to CPL 1.20, N.Y. Cons. Laws Serv. Statutes Annotations Forms: CPL Vol. 2B [1971], pp. 1-18, 1-24, 1-25). It is hard to imagine the Commission meant to exclude the jury selection process itself from that definition. Defendant, to no surprise, says nothing about CPL 1.20(11)’s legislative history. Instead, he pivots and claims that CPL 1.20(11) means “absolutely nothing” in this case because “[t]he self-representation right is a constitutional right” (DB: 27). But, as noted above, this Court has held that jury selection is part of a defendant’s constitutional rights to a “jury trial” and to be present for the material stages of a “trial.” See Toliver, 89 N.Y.2d at 844; Velasco, 77 N.Y.2d at 472-73. Additionally, in People v. Anderson, 16 N.Y.2d 282 (1965), this Court observed that it was “not bound to accept” the recognized definition of a particular term “if [that definition] is not in keeping with the purpose of the statute before” the Court. Id. at 288 (internal quotation marks omitted). That statement implies that courts should not depart from the prevailing definition of a term when applying that definition would, in fact, be “in keeping with” the purpose of the law at issue (see PB: 29-33; infra, Point II). See generally Gunning v. Codd, 49 N.Y.2d 495, 499 & n.1 (1980) (“By its plain terms, the provisions of the CPL apply to ‘All matters of criminal procedure.’”) (citing CPL 1.10[1][b]).3 Indeed, in Ayala, the 3 Although defendant accuses the People of “selectively quoting from CPL 1.10(1)(b)” (Continued…) 8 Court adhered to the CPL’s definition of “trial,” reasoning that Anderson’s “rationale” for abandoning a term’s “technical definition” was “inapplicable” because applying the CPL’s definition of trial was consistent with the purpose of CPL 670.10. Ayala, 75 N.Y.2d at 430. And, notably, Anderson did not merely involve a question of statutory interpretation; the Court also considered whether the defendant’s right to due process had been violated. Anderson, 16 N.Y.2d at 285-86. Moreover, as defendant concedes, McIntyre explicitly relied on the Criminal Code’s definition of “trial” to find that the defendant’s request to proceed pro se came before the start of the trial (DB: 27). But, according to defendant, McIntyre could not possibly have concluded that the trial in that case began with the People’s opening statement simply because that is when the Criminal Code said “trial” began. Rather, in defendant’s view, McIntyre must have thought that drawing the timeliness line at the People’s opening statement struck “the optimal constitutional balance among the manifold and conflicting principles permeating the assertion of the right to defend pro se” (DB: 27) (brackets and internal quotation marks omitted). McIntyre contains no such constitutional balancing analysis. Indeed, as noted above, the majority opinion contains no analysis at all with respect to the Court’s (DB: 28 n.12), the People directly quoted Gunning, which relied on “the broad applicability of the CPL to ‘All matters of criminal procedure’ and the lack of any limiting language therein” to conclude that it would have been “incongruous” not to apply the CPL’s definition of “conviction” when deciding the meaning of that term as used in Public Officers Law § 30(1)(e). Gunning, 49 N.Y.2d at 499 n.1 (citation omitted). 9 timeliness ruling. Nor is it plausible that the Court would believe that the point at which trial commenced under a “distinctly archaic” statute struck “the optimal constitutional balance” between a defendant’s right to self-representation and society’s interest in fair and orderly judicial proceedings (DB: 27). Simply put, McIntyre held that the request to proceed pro se in that case was timely because, at the time the request was made, “trial” began with the People’s opening statement under the Criminal Code. Indeed, as explained in the People’s main brief (PB: 22-23), in People v. Smith, three judges, including McIntyre’s author, found the defendant’s request to go pro se untimely because it came after the trial court had “addressed the first panel of prospective jurors”—still well before the People’s opening statement. Smith, 68 N.Y.2d at 740-41 (1986) (Kaye, J., dissenting). Rather than address the clear import of that opinion, defendant instead brushes the Smith dissent aside as not “reflect[ing] the view of this Court” (DB: 18).4 Obviously, that dissent is not binding. But the fact that three judges relied on McIntyre to conclude that a pre-opening request to proceed pro se was untimely undercuts defendant’s argument that McIntyre set forth a “rule” that all pre-opening pro se requests are timely.5 Indeed, that the Smith dissenters found 4 The majority in Smith found the defendant’s request was timely, noting that the request was made “[p]rior to jury selection.” Smith, 68 N.Y.2d at 738. Although defendant contends that “[p]rior to jury selection” actually meant after the start of jury selection (DB: 17 n.4), the more sensible reading is that “[p]rior to jury selection” meant prior to the “formal voir dire” of the prospective jurors. See People v. King, 27 N.Y.3d 147, 155-56 (2016) (defining “formal voir dire” by reference to procedures set forth in CPL 270.15). 5 The Smith dissent also undercuts defendant’s argument that the McIntyre Court read (Continued…) 10 the request untimely without “question[ing] McIntyre’s scope or validity” only bolsters the conclusion that McIntyre did not articulate the rule defendant says it did (DB: 18). Defendant further contends that the Court should accord no significance to the fact that McIntyre’s author, Judge Wachtler, joined the Smith dissent because he also wrote the majority opinion in People v. Reason, 37 N.Y.2d 351 (1975), which defendant claims “implicitly” reaffirmed McIntyre’s purported rule that “mid-jury-selection requests [to proceed pro se] are timely” (DB: 16). Reason did no such thing. Neither the majority nor dissenting opinion in Reason discussed the timeliness of the defendant’s request once. The Court therefore did not “f[i]nd the defendant’s request timely” (DB: 18). And it is unsurprising that the Court did not address timeliness. For starters, the issue in Reason was whether the defendant “intelligently and voluntarily waive[d] his right to be represented by counsel.” Reason, 37 N.Y.2d at 353. Additionally, there was no reason to question the timeliness of the defendant’s request in that case because it was made before the start of jury selection.6 the CPL as stating that a jury trial “commences” with the swearing of the jury, since the defendant’s request in Smith came well before the jury was sworn. Indeed, “[i]t is inconceivable that—in a case as significant and carefully[]considered as McIntyre—the Court” would adopt an interpretation of the CPL that violates two canons of statutory interpretation, ignores legislative history, and undercuts the very objectives that the timeliness requirement was meant to serve (DB: 25). At the very least, the Smith dissent supports the notion that McIntyre’s citation to the CPL was no more than “dictum and, as such, [is] not entitled to stare decisis effect.” People v. Bethea, 67 N.Y.2d 364, 368 n.1 (1986). 6 In a supplementary appendix filed with this reply brief, the People have provided a copy of the respondent’s brief in Reason, which is cited in defendant’s brief (DB: 15-16), as well as the relevant pages of the appendix filed in Reason. Citations preceded by “SA” are to (Continued…) 11 No more availing is the argument that McIntyre “considered the court’s interest in ‘averting delay and confusion’ and concluded the defendant’s mid-jury-selection request did not threaten that interest” (DB: 36; see also id. at 14, 22, 30). That McIntyre found the request in that case to be timely does not mean that the Court must have determined that allowing defendants to go pro se during jury selection comports with the objectives underlying the timeliness requirement—averting delay and confusion so as to promote the orderly administration of justice and ensure a fair trial. In that vein, McIntyre offered no explanation for how stopping in the middle of voir dire to conduct a “thorough inquiry” into a defendant’s desire to proceed pro se would somehow prevent the delay and confusion that the Court believed would result from granting a pro se request at a later point. McIntyre, 36 N.Y.2d at 17. Indeed, it is hard to fathom how the Court possibly could have thought so, given that delay and confusion are near-certain outcomes of granting pro se requests mid-jury selection (see PB: 30-33). On that score, in State v. Bentley, the Ohio Court of Appeals found the supplementary appendix. As the People’s brief in Reason makes clear, when the People “moved the case … to trial,” the defendant “immediately informed the court that he wished to defend himself” and the court “agreed to the defendant’s request” (SA13 [citing pages 3-4, 13 of trial transcript]). The court and prosecutor then began questioning prospective jurors (see SA22 [page 13 of trial transcript, noting voir dire examination of jurors]; SA18 [citing pages 13-15 of trial transcript, where court stated that the defendant had, by then, already observed court and prosecutor questioning jurors]). The court soon took a brief recess, during which it warned the defendant of the pitfalls of self-representation (see SA22-26 [pages 13, 17, 21-23 of trial transcript]; SA13, 18-19 [citing pages 13-15, 17-18, and 22 of trial transcript]). But when the defendant insisted, the court again acquiesced, and the defendant proceeded to “represent[] himself during the voir dire of the jury” (SA14; see also SA22-26). 12 that granting a request to proceed pro se made at almost the exact same juncture as the request in McIntyre—“just prior to opening statement, after the jury had been empaneled and sworn”—would have produced “obvious delay.” Bentley, 2000 WL 1638997, at *1 (Ohio Ct. App. Oct. 30, 2000). The court also observed that “the specter of absent defense counsel who had functioned during voir dire would have prejudicially affected [the defendant’s] case” because “[t]he jury would have been left to speculate as to why [the defendant] was no longer represented by counsel.” Id. Thus, it seems more likely that the McIntyre Court felt compelled to find the pro se request in that case timely because it would have been unfair to hold otherwise. After all, under the criminal procedure statute in effect at the time of the trial, “trial” began with the People’s opening statement. See CPL 1.10(2) (authorizing courts to apply Criminal Code in cases still pending on CPL’s effective date if applying CPL “would work injustice”). In short, nothing warrants defendant’s assumption that McIntyre implicitly determined that granting mid-jury selection requests to go pro se jibes with the goal of averting delay and confusion. In fact, defendant even concedes that “[t]here are no doubt cases in which a defendant’s request threatens delay” (DB: 36). But that is no problem, he posits, because a “court can simply exercise its discretion to grant or deny an adjournment” (id.). This argument makes no sense. Granting an adjournment results in delay; denying an adjournment forces an unprepared defendant to try the case before likely confused jurors (see PB: 31-32). Either way, the timeliness requirement’s goals are thwarted. 13 Defendant also asserts that delay was not a concern in this case because his request for self-representation “was not accompanied by a request to adjourn trial” (DB: 36). But one “may fairly infer on the day of trial … that a defendant’s last-minute decision to represent himself would cause delay, whether or not [he] requests a continuance.” Hill v. Curtain, 792 F.3d 670, 681 (6th Cir. 2015); accord State v. Cooper, 888 N.W.2d 247, at *6 (Wisc. Ct. App. Oct. 12, 2016). Unsurprisingly, defendant offers no proposal for alleviating the juror confusion resulting from an unexpected change in voir dire strategy (see PB: 31-32). And although he contends that a jury instruction explaining that “the defendant has decided to represent himself, which is his right,” would cure any confusion caused by defense counsel’s sudden absence (DB: 37), the jury would still be “left to speculate as to why” the defendant chose to represent himself. Bentley, 2000 WL 1638997, at *1. Next, defendant claims that “‘the start of jury selection’ is an imprecise phrase that could refer to any number of different points in the proceeding” (DB: 33). As an initial matter, the Court need not decide in this case when exactly jury selection begins. Given that defendant did not ask to represent himself until eleven jurors had been selected, jury selection was, by any definition, well under way at the time of his request. Regardless, determining when jury selection begins is not as difficult as defendant would have it seem. In criminal trials, “jury selection is governed by CPL 270.15.” People v. Steward, 17 N.Y.3d 104, 110 (2011). It follows that “jury selection” begins when the process described in CPL 270.15 begins. See King, 27 N.Y.3d at 155-56. 14 Defendant does no better with his claim that requiring defendants to invoke the right to self-representation before the start of jury selection “would be unfair” (DB: 34). This argument rests on the premise that, “[f]or many criminal defendants in New York, voir dire is the first opportunity to assess their lawyer’s competency” (id.). That assertion has no basis in reality.7 Criminal cases in this State do not just proceed from arraignment to trial without the defendant having any opportunity to assess counsel’s performance. Defendant’s case illustrates the point. Here, before defendant asked to represent himself, defense counsel made nineteen court appearances (most of which defendant attended), had video conferences with defendant, and met with him outside of court—all before representing him at a suppression hearing (A7-44, 82, 94, 299). Even assuming that there are cases in which voir dire truly is the defendant’s first opportunity to evaluate counsel, or the defendant learns “disconcerting information” at that time about counsel’s strategy (DB: 34), the defendant is not without recourse. McIntyre made clear that trial courts have discretion to grant untimely requests to proceed pro se “in compelling circumstances.” McIntyre, 36 N.Y.2d at 17. Although 7 Defendant’s only “authority” for this proposition is a twelve-year-old article in which the author asserted that “overloaded public defenders and assigned counsel often meet their clients for the first time at trial” (DB: 35) (quoting Laura I. Appleman, The Ethics of Indigent Criminal Representation: Has New York Failed the Promise of Gideon?, 16 No. 4 Prof. Law. 2, 8 [2005]). That assertion was apparently based on a discussion of indigent criminal defense practice in Washington and Louisiana. See Appleman, at 8; Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice, ABA Standing Committee on Legal Aid and Indigent Defendants (2004), at 12, 17, available at http://texaswcl.tamu.edu/reports/ 2004_ABA_Gideon%27s_Broken_Promise.pdf. 15 defendant would have the Court believe that such circumstances exist only in theory (see DB: 13), that is simply not the case. See People v. Dashnaw, 116 A.D.3d 1222, 1232 (3d Dep’t 2014); People v. Garifo, 47 Misc.3d 136(A), at *2 (App. Term 2d Dep’t 2015). Thus, in circumstances where a defendant could show that it really would be “cruel” to deny his mid-jury selection request (DB: 35), the trial court may well grant it. Lest there be any doubt that a rule requiring defendants to invoke the right to self-representation before the start of jury selection is neither unworkable nor unfair, courts around the country have adopted just that rule (see PB: 34) (citing cases). Although defendant claims that none of these jurisdictions “‘cherishe[s]’” the right to self-representation like New York (DB: 30), he is mistaken. See Blair v. Maynard, 324 S.E.2d 391, 395 (W. Va. 1984) (civil litigants have right to self-representation under state constitution, as the right “‘embodies one of the most cherished ideals of our culture’”) (quoting McIntyre, 36 N.Y.2d at 14). In any event, it bears reminding that the right to go pro se is “not absolute.” McIntyre, 36 N.Y.2d at 17. It is “necessarily a qualified right,” People v. Arroyo, 98 N.Y.2d 101, 103 (2002), because allowing its “unfettered exercise” would all but guarantee its abuse by “experienced and wily defendant[s],” McIntyre, 36 N.Y.2d at 16, such as persistent violent felons who strategize about how to delay their trials (see PB: 6). Although defendant is correct that some courts have held that a request to proceed pro se is timely as long as it comes before the jury is sworn (DB: 30-31 & 16 n.15-16),8 “[t]he[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]). But, as the People explained in their opening brief, 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 (PB: 35-36). Significantly, none of the cases drawing the timeliness line at the jury’s swearing explains how such a rule furthers the objectives of the timeliness requirement; how a pre- swearing request to go pro se is any less likely to cause delay and confusion than a post- swearing request; or how the risk of delay and confusion is any less severe if eleven jurors have been selected and sworn instead of twelve.9 Neither does defendant. Thus, 8 Defendant mistakenly asserts that the Second Circuit is one of those courts (DB: 30 n.15) (citing United States ex rel. Maldonado v. Denno, 348 F.2d 12 [2d Cir. 1965]). But in United States v. Walker, 142 F.3d 103 (2d Cir. 1998), the Second Circuit expressly rejected the defendant’s argument that his request to proceed pro se, which was made when “the voir dire of jurors was virtually completed,” was nonetheless timely because “it was made before the jury was empaneled and sworn and before jeopardy had attached.” Id. at 108-09. The court made clear that a motion to proceed pro se “made just after the start of jury selection [i]s a motion made after the start of trial.” Id. at 108 (citation and internal quotation marks omitted). Defendant is also wrong in claiming that Arizona and Michigan draw the timeliness line at the empaneling of the jury (DB: 31 n.16). See 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); People v. Hill, 773 N.W.2d 257, 257 (Mich. 2009) (pro se request made before jury selection “was not timely”), habeas denied, Hill, 792 F.3d at 674. 9 In fact, State v. Wehr, 852 N.W.2d 495 (Iowa Ct. App. 2014), which defendant cites (DB: 31 n.16), suggests that, even if the formal rule is that a request to go pro se is timely if asserted “prior to the jury being impaneled,” a pro se request made “when jury selection ‘was virtually completed’” is still untimely. Wehr, 852 N.W.2d at 500-01 (quoting Walker, 142 F.3d at 108). That is because there is no meaningful difference, insofar as the goals of the timeliness (Continued…) 17 as one court held, “the[] focus on jury empanelment” in deciding when a request to proceed pro se becomes untimely “is made in the abstract and, in our view, is based on an incomplete analysis.” State v. Christian, 657 N.W.2d 186, 192 (Minn. 2003); see also Matter of Brackley v. Donnelly, 53 A.D.2d 849, 850 (2d Dep’t 1976) (concluding that “trial” began under CPL 1.20[11] “with the jury selection process,” even though jeopardy had not attached when mistrial was declared). In sum, as McIntyre explained, a defendant’s right to “to go to jail under his own banner” must be balanced against the “equally powerful” interest that society has in ensuring the orderly administration of justice and the integrity of the truth-seeking process. McIntyre, 36 N.Y.2d at 14, 17. Adopting a rule that requests to proceed pro se are timely if made at any time before the People’s opening statement, or at any time before the jury is sworn, would defeat the very objective McIntyre sought to achieve when imposing a timeliness limitation: “averting delay and confusion.” Id. at 17. Defendant does not—and cannot—explain how the delay and confusion that McIntyre evidently believed would result from a defendant’s decision to go pro se in the middle witness testimony would not also result if the defendant is allowed to assume his own requirement are concerned, between the “virtual[] complet[ion]” of jury selection and the empanelment of the jury. By this logic then, even if the Court were to conclude here that a request to proceed pro se is timely as long as it is made before the jury is sworn, defendant’s request would still have been untimely because “jury selection ‘was virtually completed’” when he made the request. Wehr, 852 N.W.2d at 500 (quoting Walker, 142 F.3d at 108). defense during jury selection. If defendant's eleventh-hour request to proceed pro se in this case was timely, then Mcintyre's timeliness requirement loses all purpose. CONCLUSION The order of the Appellate Division should be reversed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY:~~ ' STEEN .SS Assistant District Attorney CHRISTOPHER P. MARINELLI STEPHEN J. KRESS Assistant District Attorneys Of Counsel July 18, 2017 18 PRINTING SPECIFICATIONS STATEMENT I certify that the word count for this brief is 5282, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2016. The brief is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes. ~!LK s PHENZf KRESS Assistant District Attorney SA1 PAl-f. J. .JS/ Argued by JUDITH K BUBJNSDIN ITAU OP NEW YOU THE PEOPLE OF THE STATE OF NEW YORK, Rupotltlettl, agaiMt ARNOLD BEASON, Deferatla•l-Affellawl. RESPONDENT'S BRIEF T. J.AllU BB.YAN BoBBBT M. :MoBGBNTlliU District A.ttorwey New York County Attonrey for Bespotltle91 155 Leonard Street New York, New York 10013 (212) 732-7300 JUDITH K RUBINSTEIN Assistant District Attorneys Of CovMel SA2 TABLE OF CONTENTS PAGE Statement 1 Introduction 2 The Trial . 4 The People's Case . 4 The Defense . 6 The Post-Conviction Competency Hearing 7 The People's Evidence 7 The Defense . 8 The Court's Ruling . 9 Point I-Arnold Reason's g-uilt of urnrder and at- tempted murder was proved beyond a reasonable doubt and is not contested 011 appeal 9 Point II-At no stage of the proceedings has appel- lant been denied bis constitutional right to counsel 11 Conclusion 18 SA3 i'. : fAi7T 3r, Ind. 50Zi/71'} --------------------------------- -----x ':'iiE ?EOPLS OF 'i'H:-: ~T/li'E O? :IE'.-i Ynm: De f'!'nt:!a.nt. --------------------------------------x !iev York, tie•., York Af_•r!l 10 • 1972 ' Before: • Ho:;. JQJ;;j '·' ~'UR'fAOii, J .~.c •• and a Petit Jur-J • . l\prear~nc(!s: F'<'R TIU:: P;~OPL£: - ~. ·- DA:nEL P. PI?ZGEP.ALD. ZSQ. , A~sistant D!strict Attorne1 P:i!I.TP EDZLBAU1··, 3~~., ~net ,! E~O:"E TO!:! r:i. Er:o. Derencant !~dieted fer ~urder nn~ atte~pted Inclictirer;t f'1 led ,r':lr.u:'lrv 30, l'.)70. THE QUALI~ OF THIS HICROFILll IS EQUIVALENT TO THE CONDITION OF THE ORIGINAL WORK WILLIAN S. HEIN & CO•, INC• A33 SA22 in order to ~sA:'..st coun0el. (Hhereup<'>n l"?"O:>~ective Juror:; are ex:uiined on the votr dire until until. no jurors ~at1sracto!'Y to both sides. h::i-11np: !Jeer. se lectec1 n.nd s;··o:rn, th~ rollow1n~ occurs:) Tl!E COUR'l': At this t~".'e \o\'e w! 11 have n brier reces3, rive ~L~ute :recess. I will aak all nrosp- pective JuroM1 to step out or the courtroo~ dur1n~ the five-~inute recess. (As the Jurors 1':'..le out or the courtroom the follow1nr. occurs:) (The Court signals to wait.) prospect 1 ve (The/.1 uror::- ~!! thdra:-r rro~ the courtroom.) THE COURT: ~!r. Reason, bef'ore a:lother Justice, and before rrie this r.iornin~, you indicated that you ·4ould :irerer to serve as your o-rm la1-::-•er dur1np; the trial. If' this ls your w1sb, theCourt w111 abtde by I I I I present I it, a:ik1n11; r'essrs. Tobin and Edefoaum to :reJ:".ain to r:uide ant'.i lfadv1 se you durinr- the t r1nl. i3ut before I 'do that, ! want .:1ou to f"u~ u.11der- ~tand l-:hat in involved. In fairne3s to your:'l'!lf :;·ou rnu3t re~l1z~ that a trjal is a techr.1cnl matt~r that tnvolven n cons1dera~le a~pl!cntion or the la~3 of * * * THE QUALITY OF THIS NICROFILH IS EQUIVALENT TO THE CONDITION OF THE ORIGINAL WORK WILLIAN S. HEIN & CO, , INC, I i SA23 -17- * * * Honor? Tl!E cou~r: Ju:::t c!on 't be un~~!' any a~:->rehem~1o!'l. E.!ther J'ot:1~111 try the ca:1~ or coU.'1!';el "1111. both of you wfll not. THE O:::FF.JDA:lT: ':hen T :·1111 try t'he case. 'l'H;~ COURT: Let i":";e r.-.nke 1t r'errectly c lenr that 1f ;ou start undertak1n~ the d~rense of the case you :1111 have to b2ar your L>wn def'-'n3e. The Co1Jrt cannot countenace your renre~ent1n~ yourself at one r.or.ient and ~llow1n~ counsel to assume the role t~e next rnor.ent. It 1~ one or the oth~r. ~'f!E DEPElIDAN'l': I wil 1. I hnve two attorneys. 'l'HE COtJRT: You have two attomey:s, either one or who?!' 1s :r:ost competent to repre~ent you. !lowever, if you ;,,:ish. you may re.,resent your:lelf. But I stron~ly urpe you to leave your derense In their hands. T!IT:: Dr:FE:JDA?JT: Thttt has been r:r'J requeat all the while to nm represent r.?y!:elf. TEE COTJP.T: t.11 rtr:ht, your renuest :·1111 be ir.anted. llowever. 1t is ry ol>l1r:at1on to explain to ::ou '.1?1nt :ts involved lest you nake n serious error. i It 1a often ~a!d 1n ¢cP.t, but tt 1s extre11'1el7 true, I I that t"ie person :1ho represents * * * I h!rrs p:r-otect:1r.r; your::;elf ader;u:?tely. liow, 11' you .i"ully understa"ld that :i."'lc'! :-io:ie-the-· les:; w1t.h to exercise your riCJt U."!der the' l~\:, r r.u:-.t THE QUALITY OF THIS /llICROFILN IS EQUIVALENT ro THE CONDITION OF THE ORIGINAL WORK flILLIAll S. HEIN & CO. , INC. L SA25 nr.; 22 -22- A37 and 11111 perf."l!t you. <;ut r.c-t unle'.O:> you full·,: 1.iuue!' stand what I am talkinr: about. Do :;ou !"eel t::n.t Y<"l! !'ull~ u.~de:r:itaod? THE DEPEJ':DA1iT: I !'ully unde'!"Stnne!, :•our !Jonor. THE COURT: You under:;tand th~t in ro:v co:wide?"t:,~ judf'.N!nt ;,·ou :ire mnk:tng a crave ir.1::tfil:'=? Tl!E COURT: And none-the-les:1 you wish to J"'ef)resent yourself'? TllE DZf'ENDMJT: I do. and I re1:1pect and a:-pre- ciate ~rour Hcnor •s ~arnjnr. T!~E COt'PT: All right. The Court adv1i::es you that ~r. Edelbaum and Yr. Tob!n, who is rnomentnr!ly delayed but who will be he!"e u con!ntarlly • will be at your side to counsel and adYise you at all t1r.-.es. flow. ! also want ~ou to fully wide!"Btend tbat, tbourh 1t w111 be d11't'icult 1'or you to cor.prehend it, at times I must insist that you conduct yourself within the l1m1tet1orus that are 1.rnpos~d on a ls~yer renre:o:entinf: a def'endant. In other ...-ord:; , I cn.rmot t:1ve you anv wide'!" latitude t!um 1r you were sl:illeC.: 1n the r.·ract!ce of' lat.:~ Your o:ue~t1on:; \:~11 !Je 117"1ted by thE: sar.e i;tenc!a!'Cs that ccunsel 's w.1.11 · and T •·:111 have to interrupt and pN>vent. you frN: THE QUALITY OF THIS ltICROFILlf IS EQUIVALENT TO THE CONDITION OF THE ORIGINAL liORK WILLIAN S. HEIN & CO. , INC. SA26 n;s 23 -23- A38 e,xerci:o:1nr: broader !'!Cope. In .Yi:-u:- l::ic!< o!' ~r:o~.lec' r;: ::ou ca:inot seek r:reater r1F"):t::; th:m :,•ou would h:tve ! f you t:~c! t?mt kno;rledre. !Jo you U."lderstarid tilet? 'i'ii2 CQU'lT: All r1,,..t.t, We r.ay have tl~c .~Ul"'.1 1n. (!'.r . .l:delbaur and r-·r. rit:gerald approac:! the Benc!1 !'or a d1Rcui::s!on o!'r t:ie :record.) (The pro:;pective Juror:; enter the courtroo!":. 'i'he tT'elve Juror"! previously st.-orr. on the VO!r dire taJ:e t~1<>1r ?"el'lpective seats 1n the Jur.: !>ox.) T!!E CLE~K: Jill the prospective ,1uror:; are p:re:;ent, your Honor. THE COUP.T: The def'endant is rep:reser.te~ by ~·r. Zc!elbau!'l and ~'.r. 'I'obin. The oe!'endant, however, electr.', to represent h11!1Sel!' !n court. The Court is l".C!n,: to !'.Tant that re'!uest. T"lle Court has explained to the ' de.fendant the \o:isdol'! or lack Of' l:!lSd.ol!l o!' the ernit h!n. !'o, at thi::; poir.t I w.111 perm5t tl":e de1'enc:mt t·::> i!0<·;ever, n~ I hnve caut.loned You before th:1•; i~ :i dPC1n1on ~·ou nl'!i-:e and ::ou nu~·t Lt; held to ti!-:; ~ar.£! * * * THE (}UALITY OF THIS NICROFILll IS EQUIVALENT TO THE CONDITION OF THE ORIGINAL WORK flfILLIAll S. HEIN & CO. , INC•