Robert S. Dean, Center for Appellate Litigation, New York (Ben A. Schatz of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Stephen J. Kress of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Ben A. Schatz of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Stephen J. Kress of counsel), for respondent.
RENWICK, J.P., RICHTER, MANZANET–DANIELS, FEINMAN, KAPNICK, JJ.
Judgment, Supreme Court, New York County (Thomas A. Farber, J.), rendered December 19, 2014, convicting defendant, after a jury trial, of assault in the first degree and criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life and 3 ½ to 7 years, respectively, unanimously reversed, on the law, and the matter remanded for a new trial.
Prior to the start of jury selection, defendant's counsel moved to withdraw, telling the trial court that defendant would no longer speak with him. The court denied the motion. During jury selection, defendant told the court that he did not want his lawyer representing him and that he wished to represent himself. The court responded that it was “too late to make that request,” but offered to reconsider the issue after jury selection was complete. Defendant reaffirmed that representing himself “is exactly what I want to do.” Shortly after, defendant again told the court that he wanted to represent himself, and the judge again denied the request as untimely. The court did not make any inquiry into defendant's request to proceed pro se, even after the trial prosecutor asked the court to do so. Nor did the court revisit the issue after the jury was seated.
On appeal, defendant contends that the trial court violated his right to self-representation when it denied, without inquiry, his requests to proceed pro se. It is well-settled that a criminal defendant has a constitutional right to forgo the advantages of counsel and represent himself or herself at trial (People v. Arroyo, 98 N.Y.2d 101, 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154  ; People v. McIntyre, 36 N.Y.2d 10, 15, 364 N.Y.S.2d 837, 324 N.E.2d 322  ). “It is a ‘nearly universal conviction ... that forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so’ ” (Arroyo, 98 N.Y.2d at 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154, quoting Faretta v. California, 422 U.S. 806, 817, 95 S.Ct. 2525, 45 L.Ed.2d 562  ).
The right to self-representation, however, is not absolute, and is subject to several restrictions (McIntyre, 36 N.Y.2d at 16–17, 364 N.Y.S.2d 837, 324 N.E.2d 322 ). Thus, “[a] defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” (id. at 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 ). When a defendant timely invokes the right to self-representation, “the trial court should conduct a thorough inquiry to determine whether the waiver was made intelligently and voluntarily” (People v. Smith, 68 N.Y.2d 737, 738, 506 N.Y.S.2d 322, 497 N.E.2d 689 , cert. denied 479 U.S. 953, 107 S.Ct. 444, 93 L.Ed.2d 392  ).
Judged by these principles, we conclude that defendant's right to self-representation was violated. Contrary to the trial court's finding, defendant's requests to proceed pro se, made during jury selection, were timely asserted (see McIntyre, 36 N.Y.2d at 18, 364 N.Y.S.2d 837, 324 N.E.2d 322 [finding the defendant's motion timely because it was made before the prosecution's opening statement]; People v. Atkinson, 111 A.D.3d 1061, 1062, 975 N.Y.S.2d 227 [3d Dept.2013] ; People v. Herman, 78 A.D.3d 1686, 1686, 910 N.Y.S.2d 833 [4th Dept.2010], lv. denied 16 N.Y.3d 831, 921 N.Y.S.2d 195, 946 N.E.2d 183  ). We reject the People's argument that the request to proceed pro se must be made before jury selection (see People v. Matsumoto, 2 Misc.3d 130[A], *1, 2004 WL 415283 [App.Term., 1st Dept.2004], lv. denied 3 N.Y.3d 741, 786 N.Y.S.2d 820, 820 N.E.2d 299  ).
Defendant's requests to represent himself were clear and unequivocal. On multiple occasions during jury selection, defendant unambiguously expressed his desire to proceed pro se, stating that it was “exactly” what he wanted to do. The trial court erred in concluding that the requests were equivocal simply because they were made shortly after the court refused to appoint new counsel. “The fact that [the] defendant's request to proceed pro se had been preceded by an unsuccessful request for new counsel did not render the request equivocal” (People v. Lewis, 114 A.D.3d 402, 404, 980 N.Y.S.2d 389 [1st Dept.2014] ; see People v. LaValle, 3 N.Y.3d 88, 107, 783 N.Y.S.2d 485, 817 N.E.2d 341  [“conditioning a request for new attorneys with a request for self-representation does not necessarily make the latter request equivocal”] ). Indeed, a criminal defendant's desire to proceed pro se is “[f]requently ... motivated by dissatisfaction with the trial strategy of defense counsel or a lack of confidence in his attorney” (McIntyre, 36 N.Y.2d at 16, 364 N.Y.S.2d 837, 324 N.E.2d 322 ; see Lewis, 114 A.D.3d at 404, 980 N.Y.S.2d 389 [the defendant's right to represent himself was violated where his request to proceed pro se was made after the court made it clear that new counsel would not be appointed] ).
There is no merit to the People's argument that defendant forfeited his right to represent himself by engaging in “conduct which would prevent the fair and orderly exposition of the issues” (McIntyre, 36 N.Y.2d at 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 ). Contrary to the People's view, the record does not reflect any disruptive behavior before the trial court denied defendant's repeated requests to proceed pro se. Nor did the court make any explicit findings that defendant would not comply with the court's directives if he were allowed to proceed pro se. In any event, even if the trial court believed defendant's motion was “a disingenuous attempt to subvert the overall purpose of the trial,” it was nevertheless required “to conduct a dispassionate inquiry into the pertinent factors” (id. at 19, 364 N.Y.S.2d 837, 324 N.E.2d 322 ). Here, the court summarily rejected defendant's request to represent himself without determining whether it was knowingly or intelligently made (see Smith, 68 N.Y.2d at 739, 506 N.Y.S.2d 322, 497 N.E.2d 689 ). Accordingly, defendant's right to self-representation was violated and a new trial is required (see Lewis, 114 A.D.3d at 404–405, 980 N.Y.S.2d 389 [reversing conviction where court did not ask a single question, let alone conduct a thorough inquiry into the defendant's request to represent himself] ).