PEOPLE v. SPELLICY (2023)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the third degree (Penal Law § 140.20), possession of burglar's tools (§ 140.35), and attempted petit larceny (§§ 110.00, 155.25). We affirm.

Defendant contends that his constitutional right to self-representation (see generally US Const 6th, 14th Amends; NY Const, art I, § 6; People v. LaValle, 3 N.Y.3d 88, 106, 783 N.Y.S.2d 485, 817 N.E.2d 341 [2004]) was violated when Supreme Court did not grant his request to proceed pro se until six days before trial. Specifically, defendant contends that, as a result of the delay, he “was unable to properly prepare for trial.” Initially, we note that defendant's contention with respect to the delay in granting his request and its effects on trial preparation is subject to harmless error analysis. That is because defendant's contention is not that his right to self-representation was violated; rather, he challenges the timing and manner of the court's decision to permit him to proceed pro se (cf. McKaskle v. Wiggins, 465 U.S. 168, 177 n 8, 104 S.Ct. 944, 79 L.Ed.2d 122 [1984], reh denied 465 U.S. 1112, 104 S.Ct. 1620, 80 L.Ed.2d 148 [1984]; People v. LaValle, 3 N.Y.3d 88, 106, 783 N.Y.S.2d 485, 817 N.E.2d 341 [2004]; see generally People v. Lott, 23 A.D.3d 1088, 1089, 804 N.Y.S.2d 881 [4th Dept. 2005]; People v. Hicks, 205 A.D.2d 478, 478, 614 N.Y.S.2d 14 [1st Dept. 1994], lv denied 84 N.Y.2d 868, 618 N.Y.S.2d 14, 642 N.E.2d 333 [1994]). Even assuming, arguendo, that the court erred in that regard, we conclude that the error was harmless under the circumstances of this case (see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]). We further conclude that defendant's remaining contentions with respect to the right to self-representation lack merit.

Contrary to defendant's further contention, the court did not err in allowing the People to introduce into evidence at trial a statement made by defendant after his arrest, which the court had originally suppressed. We conclude that the court properly determined that defendant opened the door to that evidence during his cross-examination of one of the police officers who had been present at the time of defendant's arrest (see People v. Gonzales, 145 A.D.3d 1432, 1433, 43 N.Y.S.3d 616 [4th Dept. 2016], lv denied 29 N.Y.3d 1079, 64 N.Y.S.3d 169, 86 N.E.3d 256 [2017]; see generally People v. Melendez, 55 N.Y.2d 445, 451, 449 N.Y.S.2d 946, 434 N.E.2d 1324 [1982]). Inasmuch as defendant's cross-examination of that witness may have created a misimpression, the People were entitled to correct that misimpression, even through testimony regarding defendant's suppressed statement (see People v. Paul, 171 A.D.3d 1467, 1469, 99 N.Y.S.3d 529 [4th Dept. 2019], lv denied 33 N.Y.3d 1107, 106 N.Y.S.3d 681, 130 N.E.3d 1291 [2019], reconsideration denied 34 N.Y.3d 953, 110 N.Y.S.3d 625, 134 N.E.3d 624 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 1151, 206 L.Ed.2d 203 [2020]; People v. Cordero, 110 A.D.3d 1468, 1470, 972 N.Y.S.2d 787 [4th Dept. 2013], lv denied 22 N.Y.3d 1137, 983 N.Y.S.2d 496, 6 N.E.3d 615 [2014]; see generally People v. Hill, 284 A.D.2d 193, 194, 726 N.Y.S.2d 103 [1st Dept. 2001], lv denied 96 N.Y.2d 919, 732 N.Y.S.2d 636, 758 N.E.2d 662 [2001]).