PEOPLE v. BROWN

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Antonio BROWN, Defendant-Appellant.

Decided: April 30, 2004

PRESENT:  WISNER, J.P., HURLBUTT, SCUDDER, KEHOE, AND GORSKI, JJ. Victor Berger, Canandaigua, for Defendant-Appellant. Antonio Brown, Defendant-Appellant Pro Se. Richard E. Swinehart, District Attorney, Waterloo (John A. Cirando of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him, following a jury trial, of promoting prison contraband in the first degree (Penal Law § 205.25 [2] ).   Contrary to defendant's contention, there was no Rosario violation.   The material that defendant allegedly did not receive was in the possession and control of the Department of Correctional Services and was not in the People's control (see People v. Rivera, 212 A.D.2d 1040, 1041, 623 N.Y.S.2d 445, lv. denied 85 N.Y.2d 979, 629 N.Y.S.2d 739, 653 N.E.2d 635).   In any event, defendant in fact received that material and had the opportunity to use it during his questioning of the pertinent witnesses.   Also contrary to defendant's contention, County Court did not err in granting the midtrial request of defendant to represent himself.   The court undertook the requisite inquiry to ascertain that defendant understood the “risks inherent in proceeding pro se, and ․ the singular importance of the lawyer in the adversarial system of adjudication” (People v. Smith, 92 N.Y.2d 516, 520, 683 N.Y.S.2d 164, 705 N.E.2d 1205;  see People v. Spirles, 275 A.D.2d 980, 981, 713 N.Y.S.2d 434, lv. denied 96 N.Y.2d 807, 726 N.Y.S.2d 385, 750 N.E.2d 87).   The record establishes that defendant's waiver of the right to counsel was unequivocal, voluntary, and intelligent (see Spirles, 275 A.D.2d at 981, 713 N.Y.S.2d 434).   The court properly refused to permit defendant, while proceeding pro se, to seek the advice of counsel with respect to the proper manner in which to use prior inconsistent statements to cross-examine witnesses.  “A criminal defendant has no Federal or State constitutional right to hybrid representation ․ While the Sixth Amendment and the State Constitution afford a defendant the right to counsel or to self-representation, they do not guarantee a right to both ․ [, and] a defendant who elects to exercise the right to self-representation is not guaranteed the assistance of standby counsel during trial” (People v. Rodriguez, 95 N.Y.2d 497, 501, 719 N.Y.S.2d 208, 741 N.E.2d 882).

 Contrary to the contention of defendant in his pro se brief, he was afforded effective assistance of counsel during the period of counsel's representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Defendant failed to preserve for our review his further contention that he was denied a fair trial by prosecutorial misconduct on summation (see People v. Burse, 299 A.D.2d 911, 912-913, 749 N.Y.S.2d 350, lv. denied 99 N.Y.2d 613, 757 N.Y.S.2d 823, 787 N.E.2d 1169).   In any event, it cannot be said that defendant was thereby denied due process of law (see People v. Rubin, 101 A.D.2d 71, 77, 474 N.Y.S.2d 348, lv. denied 63 N.Y.2d 711, 480 N.Y.S.2d 1038, 469 N.E.2d 114).

 Defendant was properly sentenced as a persistent felony offender (see CPL 400.20[7];  Penal Law § 70.10[1][a];  see also People v. Elliot, 283 A.D.2d 183, 184, 726 N.Y.S.2d 7, lv. denied 96 N.Y.2d 901, 730 N.Y.S.2d 798, 756 N.E.2d 86) and the sentence, which is the minimum authorized term of imprisonment for a persistent felony offender, is neither unduly harsh nor severe.

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

MEMORANDUM: