PEOPLE v. IVEZIC (2024)

Judgment, Supreme Court, New York County (April A. Newbauer, J.), rendered February 3, 2022, convicting defendant, after a jury trial, of gang assault in the first degree and assault in the first degree, and sentencing him, as a second felony offender, to an aggregate term of eight years, unanimously reversed, on the law, and the matter remanded for a new trial.

The court deprived defendant of his constitutional right to self-representation when it denied defendant's motion to proceed pro se despite defendant's knowing and voluntary waiver of his right to counsel.  A defendant may invoke the right to self-representation where “(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” (People v. McIntyre, 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 [1974]).  Here, defendant made a timely and unequivocal request to represent himself, and during an extensive inquiry, at which time the court repeatedly warned defendant of the dangers and disadvantages of proceeding pro se, defendant affirmed that he understood the risks and insisted on representing himself at trial (see People v. Vivenzio, 62 N.Y.2d 775, 776, 477 N.Y.S.2d 318, 465 N.E.2d 1254 [1984]).  Defendant's lack of familiarity with the law was not a proper basis for the denial of his motion (see People v. Davis, 49 N.Y.2d 114, 120, 424 N.Y.S.2d 372, 400 N.E.2d 313 [1979]).  Further, nothing in the record indicates that defendant's motion was calculated to undermine or delay the progress of the trial—indeed, the court determined that defendant was not malingering—and defendant's purported “outbursts” during two prior pretrial video conferences did not suggest an intent to disrupt the proceedings (see McIntyre, 36 N.Y.2d at 18, 364 N.Y.S.2d 837, 324 N.E.2d 322;  People v. Schoolfield, 196 A.D.2d 111, 117, 608 N.Y.S.2d 413 [1st Dept. 1994], lv dismissed 83 N.Y.2d 858, 612 N.Y.S.2d 390, 634 N.E.2d 991 [1994], lv denied 83 N.Y.2d 915, 614 N.Y.S.2d 397, 637 N.E.2d 288 [1994]).  Because the error is not subject to harmless error analysis (see People v. LaValle, 3 N.Y.3d 88, 106, 783 N.Y.S.2d 485, 817 N.E.2d 341 [2004]), the matter must be remanded for a new trial.