The People of the State of New York v. Kenneth J. Cicolella, Defendant. (2022)

On October 25, 2022, a hearing was held to determine the issues raised in the motion dated June 24, 2022, submitted by Kate Bellingham, Esq. of the Legal Aid Society of Orange County, Inc. (hereinafter referred to as "Legal Aid") to be relieved from representing defendant. Defendant consents to the application and requests to represent himself.

On April 10, 2022, defendant was charged with the felony of Kidnapping in the Second Degree. On April 25, 2022, defendant was arraigned with counsel at the Orange County Centralized Arraignment Part. Bail was set and Legal Aid was assigned to represent defendant. Defendant thereafter posted bail.

The matter was adjourned on numerous occasions to allow the Orange County District Attorney to evaluate the case for grand jury presentation or for reduction. Over six months have elapsed since defendant's arraignment and the District Attorney has yet to take any action to either present the matter to a grand jury or reduce the charge for adjudication in this court.

On June 24, 2022, Kate Bellingham, Esq., an attorney for Legal Aid submitted a notice of motion for an order to relieve Legal Aid on the ground that defendant was not screened by, nor does he want to be represented by Legal Aid. Defendant consents to the application and seeks to represent himself. He stated his primary reason to represent himself is that he is not satisfied with his Legal Aid attorney because, he alleges, the lawyer has not communicated with him and, in his opinion, has not adequately represented him. A hearing was held pursuant to People v Arroyo (98 NY2d 101) to determine whether defendant's decision to represent himself was made knowingly, intelligently and voluntarily.

During the hearing, which consisted solely of a colloquy between the court and defendant, defendant was made aware of the numerous and substantial risks of self-representation. Defendant stated several times that he recognizes and understands the risks of self-representation but also acknowledged that he does not have sufficient knowledge of the law and rules of evidence. He conceded that this would be a disadvantage if he represented himself. Defendant requested, if he was permitted to represent himself, that a lawyer be assigned to assist him as stand-by counsel.

It should be noted and emphasized that during the colloquy with the court, defendant stated "I want to be represented by an attorney" but then went on to state that he wants to have an attorney who would look out for his best interest and that he didn't believe his assigned attorney was doing that.

A court may grant a defendant's request to proceed pro se only if the request is unequivocal and reflects a purposeful decision to relinquish the benefit of counsel and proceed singularly (See, Matter of Kathleen K., v. Steven K, 17 NY3d 380 [2011] at page 386, emphasis added).

A defendant who seeks to proceed pro se because he is not satisfied with his present attorney has not made an unequivocal decision to relinquish the benefit of counsel. Similarly, a defendant who seeks to be represented by an attorney but who also wants stand-by counsel has not made an unequivocal request to represent himself (See, People v Silburn, 31 NY3d 144 (2018).

Based on the foregoing, the motion is denied.

The aforesaid constitutes the Decision and Order of the court

Dated: October 31, 2022

Newburgh, New York

E N T E R .

HON. RICHARD CLARINO

Town Justice of the Town of Newburgh

Richard Clarino, J.