determining that trial court had discretion to allow standby counsel to question defendant at trialSummary of this case from State v. Rosales
Argued March 23, 1987
Decided April 23, 1987
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Blossom Heller, J.
Elaine D. McKnight for appellant.
Elizabeth Holtzman, District Attorney (Carol Teague Schwartzkopf, Barbara D. Underwood and Steven H. Kessler of counsel), for respondent.
The order of the Appellate Division should be affirmed.
Supreme Court granted defendant's motion to defend himself pro se, but appointed standby counsel to assist him if necessary. At the suppression hearing, defendant's standby counsel informed the court that defendant wished to take the stand. Defendant then asked, "Within the Court's discretion, could I not be questioned by the defense —?" At this juncture, the court afforded defendant the choice of continuing his pro se defense or of having the standby counsel represent him for the balance of the case. The court informed defendant that counsel would not be allowed to represent him solely for the purpose of questioning him on direct examination.
Defendant's primary contention on this appeal, that he was deprived of his right to counsel by the court's ruling, lacks merit. A defendant has no right to a hybrid form of representation under either the Federal or State Constitutions (People v Mirenda, 57 N.Y.2d 261; United States v Williams, 791 F.2d 1383, 1389; United States v Weisz, 718 F.2d 413, 425 [exercise of right of self-representation requires "waiver of the preeminent right to the assistance of counsel"], cert denied 465 U.S. 1027, 1034). Moreover, the trial court did not abuse its discretion in denying defendant's request (see, People v Mirenda, 57 N.Y.2d, at 266, supra; United States v Klee, 494 F.2d 394, 396, cert denied 419 U.S. 835). Here, the court repeatedly advised defendant of the dangers of pro se representation, again extended him the opportunity to elect between his inconsistent rights when he sought to assert them simultaneously at the suppression hearing, and allowed him to testify in narrative fashion on that occasion to facilitate the presentation of his defense.
We also reject defendant's argument that the Double Jeopardy Clause prohibited the court from correcting its own sentencing error (People v Minaya, 54 N.Y.2d 360, 365-366, cert denied 455 U.S. 1024). His remaining contentions are either unpreserved or lack merit.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
Order affirmed in a memorandum.