PEOPLE v. SANDERS (2002)

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered April 13, 2000, upon a verdict convicting defendant of the crime of rape in the first degree.

At trial, the People's proof that defendant engaged in sexual intercourse with a nine-year-old girl included his statements to police, DNA evidence, the victim's sworn testimony, and an expert witness's description of the physical indicators of penetration revealed upon examination of the victim.   Representing himself, defendant was ultimately convicted of rape in the first degree and sentenced as a second violent felony offender to a determinate prison term of 25 years.   He now appeals.

 Initially, defendant contends that the failure of police to re-administer Miranda warnings after a break in his questioning made his subsequent statements involuntary.   However, statements made up to three hours after Miranda warnings have been held to be admissible, despite a complete break in questioning, where, as here, the suspect is continuously in custody (see, e.g., People v. Vasquez, 183 A.D.2d 864, 584 N.Y.S.2d 104;  People v. Glinsman, 107 A.D.2d 710, 710, 484 N.Y.S.2d 64, lv. denied 64 N.Y.2d 889, 487 N.Y.S.2d 1036, 476 N.E.2d 1013, cert. denied 472 U.S. 1021, 105 S.Ct. 3487, 87 L.Ed.2d 621).   Since the interrogating officers' testimony indicates that defendant's statements were made no more than 2 1/212 hours after Miranda warnings were administered, and there is no proof that defendant exercised his right to remain silent or that the officers used tactics that overbore his will, County Court properly denied his suppression motion.

 We also find that County Court properly permitted defendant to represent himself.   To exercise one's constitutional right to self-representation in a criminal trial (see, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562), “there must be (1) a timely and unequivocal request to appear pro se, (2) a knowing and intelligent waiver of the right to counsel, and (3) no conduct on the defendant's part that would interfere with a fair and orderly trial” (People v. McRae, 284 A.D.2d 657, 657, 728 N.Y.S.2d 516, lv. denied 96 N.Y.2d 921, 732 N.Y.S.2d 638, 758 N.E.2d 664;  see, People v. Smith, 68 N.Y.2d 737, 738, 506 N.Y.S.2d 322, 497 N.E.2d 689, cert. denied 479 U.S. 953, 107 S.Ct. 444, 93 L.Ed.2d 392;  People v. McIntyre, 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322;  People v. Ward, 205 A.D.2d 876, 877, 613 N.Y.S.2d 490, lv. denied 84 N.Y.2d 873, 618 N.Y.S.2d 19, 642 N.E.2d 338).  “To pass muster, a ‘searching inquiry’ [by the trial court] must reflect record evidence that defendants know what they are doing and that choices are exercised ‘ “with eyes open” ’ ” (People v. Smith, 92 N.Y.2d 516, 520, 683 N.Y.S.2d 164, 705 N.E.2d 1205, quoting Faretta v. California, supra, at 835, 95 S.Ct. 2525, quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268).   County Court here extensively questioned defendant, probing his knowledge of the charge against him as well as the possible defenses and potential pitfalls of self-representation.   Despite the court's advice against proceeding without counsel, defendant persisted in his request.   Since the record supports County Court's determination that defendant's desire to proceed without counsel, though ill-advised, was thoughtfully considered, we find no error in the grant of his request.

 Nor is defendant's sentence as a second violent felony offender barred by the holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435.   The ruling in Apprendi specifically permits a sentence enhancement based on a predicate offense, without first requiring notice, trial or proof beyond a reasonable doubt, where the enhanced sentence does not exceed the maximum penalty permitted by statute (see, id., at 490, 120 S.Ct. 2348;  People v. Rosen, 96 N.Y.2d 329, 334, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160;  People v. Harris, 288 A.D.2d 610, 619, 732 N.Y.S.2d 664, lvs. granted 97 N.Y.2d 703, 739 N.Y.S.2d 103, 765 N.E.2d 306, 97 N.Y.2d 705, 739 N.Y.S.2d 105, 765 N.E.2d 308).   Here, the maximum sentence for defendant's conviction is 25 years in prison (see, Penal Law § 70.04[3][a];  § 130.35[3] ).   As that was the sentence imposed by County Court, we find no merit in defendant's claim that his sentence was improperly enhanced due to a prior conviction.

Defendant's remaining contentions have been considered and found to be equally unavailing.

ORDERED that the judgment is affirmed.

ROSE, J.

CARDONA, P.J., MERCURE, CREW III and SPAIN, JJ., concur.