PEOPLE v. JACKSON (2012)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.), rendered April 23, 2010, convicting him of burglary in the third degree, criminal mischief in the fourth degree, petit larceny, and criminal possession of stolen property in the fifth degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the Supreme Court did not deprive him of his Sixth Amendment right to represent himself by denying his initial request to proceed pro se at the suppression hearing. “A defendant's request to represent himself ‘must be invoked clearly and unequivocally’ ” (People v. Gillian, 8 N.Y.3d 85, 88, 828 N.Y.S.2d 277, 861 N.E.2d 92, quoting People v. LaValle, 3 N.Y.3d 88, 106, 783 N.Y.S.2d 485, 817 N.E.2d 341). Here, the defendant's initial request to proceed pro se was not unequivocal because it was made in the context of expressing dissatisfaction with counsel's failure to highlight certain evidence at the suppression hearing, and did not “reflect an affirmative desire for self-representation” (Matter of Kathleen K. [Steven K.], 17 N.Y.3d 380, 387, 929 N.Y.S.2d 535, 953 N.E.2d 773; see People v. Scivolette, 40 A.D.3d 887, 888, 836 N.Y.S.2d 262; People v. Mitchell, 26 A.D.3d 159, 160, 812 N.Y.S.2d 464; People v. Hirschfeld, 282 A.D.2d 337, 338, 726 N.Y.S.2d 3, cert. denied 534 U.S. 1082, 122 S.Ct. 816, 151 L.Ed.2d 699; People v. Rainey, 240 A.D.2d 682, 683, 659 N.Y.S.2d 494). In any event, the defendant abandoned his request by subsequently acting in a manner indicating his satisfaction with counsel (see People v. Diaz, 83 A.D.3d 958, 959, 920 N.Y.S.2d 430; People v. Scivolette, 40 A.D.3d at 888, 836 N.Y.S.2d 262).

Further, the Supreme Court providently exercised its discretion in denying the defendant's motion to reopen the suppression hearing to elicit testimony from two additional police officers. The defendant failed to show that these officers would have testified to new facts, not discoverable with reasonable diligence before the determination of the motion, that would have affected the court's ultimate determination of the issue of probable cause (see CPL 710.40[4]; People v. Fuentes, 53 N.Y.2d 892, 894, 440 N.Y.S.2d 625, 423 N.E.2d 48; People v. McDonald, 82 A.D.3d 1125, 1126, 918 N.Y.S.2d 784; People v. Miller, 57 A.D.3d 568, 570, 869 N.Y.S.2d 150).

The defendant's claim that he was deprived of the constitutional right to the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and thus constitutes a “ ‘mixed claim’ ” of ineffective assistance (People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386, quoting People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457, cert. denied ––– U.S. ––––, 132 S.Ct. 325, 181 L.Ed.2d 201). It is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (cf. People v. Crump, 53 N.Y.2d 824, 440 N.Y.S.2d 170, 422 N.E.2d 815; People v. Brown, 45 N.Y.2d 852, 410 N.Y.S.2d 287, 382 N.E.2d 1149). Since the defendant's claim of ineffective assistance cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Hernandez, 96 A.D.3d 783, 945 N.Y.S.2d 419; People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386).

The defendant's contentions in his pro se supplemental brief relating to alleged Brady violations (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215) are largely unpreserved for appellate review (see People v. Thompson, 81 A.D.3d 670, 672, 916 N.Y.S.2d 151, lv. granted 18 N.Y.3d 998, 945 N.Y.S.2d 653, 968 N.E.2d 1009; People v. Murad, 55 A.D.3d 754, 756, 865 N.Y.S.2d 331), and, in any event, are without merit.