PEOPLE v. DAVIS (2000)

Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered May 14, 1997, convicting defendant, after a jury trial, of assault in the second degree (three counts), reckless endangerment in the first degree and grand larceny in the fourth degree, and sentencing him, as a persistent violent felony offender, to three concurrent terms of 25 years to life, to run consecutively to consecutive terms of 3 1/212 to 7 years and 2 to 4 years, and an aggregate of fine of $25,000, unanimously modified, on the law, to the extent of vacating the sentences and remanding for re-sentencing, and otherwise affirmed.

 The court's denial of defendant's mid-trial request for new counsel was a proper exercise of discretion (see, People v. Sides, 75 N.Y.2d 822, 552 N.Y.S.2d 555, 551 N.E.2d 1233;  People v. Tineo, 64 N.Y.2d 531, 536, 490 N.Y.S.2d 159, 479 N.E.2d 795;  People v. Medina, 44 N.Y.2d 199, 404 N.Y.S.2d 588, 375 N.E.2d 768).   Defendant's disagreement with counsel's strategy was not the kind of fundamental conflict that would require assignment of new counsel (id.;   cf., People v. Colon, 90 N.Y.2d 824, 825, 660 N.Y.S.2d 377, 682 N.E.2d 978).   Counsel's refusal to adopt defendant's “misidentification” defense did not render counsel ineffective particularly since defendant was chased and apprehended by five police officers who never lost sight of him after he fled from the stolen car (see, People v. Benevento, 91 N.Y.2d 708, 712-713, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. DeFreitas, 213 A.D.2d 96, 630 N.Y.S.2d 755, lv. denied 86 N.Y.2d 872, 635 N.Y.S.2d 954, 659 N.E.2d 777;  People v. Odenthal, 217 A.D.2d 412, 629 N.Y.S.2d 414, lv. denied 86 N.Y.2d 845, 634 N.Y.S.2d 454, 658 N.E.2d 232).   Defendant's alternative request for hybrid representation was properly denied (People v. Garcia, 69 N.Y.2d 903, 516 N.Y.S.2d 194, 508 N.E.2d 929).   Defendant's decision to represent himself because of his dissatisfaction with his attorney was knowingly and voluntarily made.   The court thoroughly warned defendant, who was no stranger to the criminal justice system, about the dangers of self-representation (see, People v. Smith, 92 N.Y.2d 516, 520, 683 N.Y.S.2d 164, 705 N.E.2d 1205, People v. Wendley, 260 A.D.2d 185, 688 N.Y.S.2d 29 lv. denied 93 N.Y.2d 930, 693 N.Y.S.2d 514, 715 N.E.2d 517).

 The court properly removed defendant from the courtroom when, despite several warnings, he behaved in a disruptive manner on several occasions, and his conduct was admittedly designed to provoke a mistrial.   Defendant was not deprived of his rights to confrontation or counsel;  he alone was responsible for the manner in which the trial was conducted.   Defendant hurled racial epithets at the jurors when given the chance to cross-examine a witness who had testified in his absence, thereby causing his removal for a second time (see, People v. Geraci, 85 N.Y.2d 359, 366, 625 N.Y.S.2d 469, 649 N.E.2d 817;   People v. Palermo, 32 N.Y.2d 222, 225, 344 N.Y.S.2d 874, 298 N.E.2d 61;   People v. Brown, 243 A.D.2d 282, 663 N.Y.S.2d 26, lv. denied 91 N.Y.2d 870, 668 N.Y.S.2d 568, 691 N.E.2d 640).   Defendant repeatedly instructed the court that he did not want his attorney (serving as his standby legal advisor) to represent him in his absence (cf., People v. Byrnes, 33 N.Y.2d 343, 350, 352 N.Y.S.2d 913, 308 N.E.2d 435), while at other times seeking hybrid representation.

 As correctly conceded by the People, defendant's adjudication as a persistent violent felony offender based on an Illinois conviction for the unlawful use of a weapon involving a sawed-off shotgun is defective since the analogous crime in New York is not a violent felony.   Accordingly, the matter should be remanded for re-sentencing, at which time the People are not foreclosed from attempting to have defendant sentenced as a persistent violent felon (see, People v. Hunt, 162 A.D.2d 782, 557 N.Y.S.2d 694, affd. 78 N.Y.2d 932, 574 N.Y.S.2d 178, 579 N.E.2d 208, cert. denied 502 U.S. 964, 112 S.Ct. 432, 116 L.Ed.2d 451 [1991];  see also, People v. Sepulveda, 172 A.D.2d 223, 568 N.Y.S.2d 693).

We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief.

MEMORANDUM DECISION.