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The PEOPLE of the State of New York, Respondent, v. Kenneth MOORE, also known as James Jackson, Defendant-Appellant.
Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered November 15, 2006, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of 4 1/212 years, unanimously affirmed.
The record taken as a whole (see People v. Providence, 2 N.Y.3d 579, 583, 780 N.Y.S.2d 552, 813 N.E.2d 632 [2004] ) demonstrates that defendant made a knowing and intelligent waiver of his right to counsel, and that the court's inquiry into defendant's request to proceed pro se was sufficient in light of all the surrounding circumstances (see People v. Reifsteck, 134 A.D.2d 876, 522 N.Y.S.2d 48 [1987], lv. denied 70 N.Y.2d 1010, 526 N.Y.S.2d 945, 521 N.E.2d 1088 [1988]; People v. Whitted, 113 A.D.2d 454, 458, 496 N.Y.S.2d 767 [1985], lv. denied 67 N.Y.2d 952, 502 N.Y.S.2d 1046, 494 N.E.2d 131 [1986] ). Defendant had a lengthy criminal history and had just completed representing himself at trial on very similar charges, and with the use of the same advisor who advised him in this case. Moreover, defendant told the court he wished to proceed pro se “for the time being.” This equivocal statement, coupled with the apparent lead role his legal advisor took during subsequent plea negotiations, is akin to a situation where a defendant merely participates in his or her defense, rather than completely waiving the right to counsel (see People v. Cabassa, 79 N.Y.2d 722, 730-731, 586 N.Y.S.2d 234, 598 N.E.2d 1 [1992], cert. denied sub nom. Lind v. New York, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 563 [1992] ). The record supports the conclusion that when defendant pleaded guilty, his legal advisor played essentially the same role he would have played had defendant not requested to represent himself. Furthermore, the disposition, in which defendant's sentence ran concurrently with a longer sentence he was already serving, was very favorable, and there is no reason to doubt the attorney rendered sound advice to accept the plea.
Since defendant pleaded guilty with the assistance of new counsel, he forfeited the right to argue that he was denied the opportunity to testify before the grand jury as a result of his prior attorney's conduct (see People v. Petgen, 55 N.Y.2d 529, 534-535, 450 N.Y.S.2d 299, 435 N.E.2d 669 [1982]; People v. Profitt, 23 A.D.3d 238, 806 N.Y.S.2d 10 [2005]; People v. Bostick, 235 A.D.2d 287, 653 N.Y.S.2d 303 [1997], lv. denied 89 N.Y.2d 1089, 660 N.Y.S.2d 382, 682 N.E.2d 983 [1997] ). In any event, even assuming the prior attorney withdrew defendant's request to testify without consulting her client, this did not constitute ineffective assistance (see People v. Simmons, 10 N.Y.3d 946, 949, 862 N.Y.S.2d 852, 893 N.E.2d 130 [2008]; People v. Wiggins, 89 N.Y.2d 872, 653 N.Y.S.2d 91, 675 N.E.2d 845 [1996]; People v. Nobles, 29 A.D.3d 429, 815 N.Y.S.2d 77 [2006], lv. denied 7 N.Y.3d 792, 821 N.Y.S.2d 822, 854 N.E.2d 1286 [2006]; see also People v. Cox, 19 Misc.3d 1129(A), 2007 WL 5160499 [Sup. Ct., N.Y. County 2007]; compare People v. Mason, 263 A.D.2d 73, 76-77, 706 N.Y.S.2d 1 [2000] [represented defendant retains personal right to testify at trial ] ). Since defendant has not made any showing of what testimony he would have given or how it might have affected the outcome of the grand jury proceeding, he has not established any prejudice.
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Decided: April 14, 2009
Court: Supreme Court, Appellate Division, First Department, New York.
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FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
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