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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Frank D'ANTUONO, Defendant-Appellant.

Decided: July 09, 1999


Defendant was convicted following a jury trial of robbery in the first degree (Penal Law § 160.15[4] ) and two counts of escape in the first degree (Penal Law § 205.15[2] ).   On appeal from that judgment of conviction, he maintained that County Court erred in denying his motion to dismiss the indictment pursuant to CPL 30.30 without conducting a hearing.   We agreed, held the case, reserved decision and remitted the matter to Niagara County Court for a hearing to resolve the factual issues raised by defendant in his motion to dismiss (People v. D'Antuono, 245 A.D.2d 1108, 666 N.Y.S.2d 93).

 Following the CPL 30.30 hearing held in accordance with our directive, the court denied defendant's motion to dismiss the indictment.   Upon our review of the record, we conclude that the court properly denied defendant's motion.   The record supports the court's determination that defendant, who had escaped from custody in New York and was being held on other criminal charges in Virginia, was “unavailable” and that the People were diligent in their efforts to obtain defendant's presence in New York (see, People v. Wills, 201 A.D.2d 519, 607 N.Y.S.2d 409, lv. denied 83 N.Y.2d 973, 616 N.Y.S.2d 26, 639 N.E.2d 766).   Thus, the period of time from January 1993 to August 15, 1995 is excludable pursuant to CPL 30.30(4)(c) and (e), as they then read.

 Defendant also maintains that the court erred in denying his request to proceed pro se.   We agree.   A defendant has a constitutional right to proceed pro se (see, U.S. Const. 6th, 14th Amends.;  N.Y. Const., art. 1, § 6;  Faretta v. California, 422 U.S. 806, 835-836, 95 S.Ct. 2525, 45 L.Ed.2d 562;  People v. Coleman, 210 A.D.2d 977, 621 N.Y.S.2d 244), however unwise the exercise of such right may appear to be, subject to certain restrictions.  “A defendant in a criminal case may invoke the right to defend pro se provided:  (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” (People v. McIntyre, 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322).

 The record establishes that defendant made a timely and unequivocal request to represent himself and that the court conducted a “thorough inquiry” to determine whether defendant's decision was made voluntarily and with full knowledge of the possible dangers and disadvantages of proceeding pro se (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, citing People v. McIntyre, supra, at 17, 364 N.Y.S.2d 837, 324 N.E.2d 322;  see, 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).   Although the court denied the motion based in part on its perception that defendant's legal skills were lacking, the lack of knowledge of legal principles and rules of law is not a proper ground for denial (see, People v. Ryan, 82 N.Y.2d 497, 507-508, 605 N.Y.S.2d 235, 626 N.E.2d 51;  People v. Coleman, supra ).   In addition, although defendant had previously been charged with escape, there was no evidence that defendant would engage in conduct that would prevent the fair and orderly exposition of the issues.   Because the court improperly denied defendant his right to proceed pro se (see, People v. Vivenzio, 62 N.Y.2d 775, 776, 477 N.Y.S.2d 318, 465 N.E.2d 1254;  People v. Schoolfield, 196 A.D.2d 111, 608 N.Y.S.2d 413, lv. dismissed 83 N.Y.2d 858, 612 N.Y.S.2d 390, 634 N.E.2d 991, lv. denied 83 N.Y.2d 915, 614 N.Y.S.2d 397, 637 N.E.2d 288), we reverse the judgment and grant a new trial.

Judgment unanimously reversed on the law and new trial granted.


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