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

The PEOPLE of the State of New York, Respondent, v. Alfred WILCOTT, Defendant–Appellant.


Decided: January 10, 2019

Friedman, J.P., Gische, Oing, Singh, Moulton, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Hunter Haney of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Luis Morales of counsel), for respondent.

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J. at dismissal motion;  Daniel P. Conviser, J. at first trial;  Ann M. Donnelly, J., at second trial and sentencing), rendered March 23, 2015, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree and menacing in the second degree, and sentencing him, as a second felony offender, to an aggregate term of three to six years, unanimously affirmed.

Defendant's motion to dismiss the indictment was properly denied because he was not entitled to grand jury notice pursuant to CPL 190.50(5)(a) and did not file written notice of his intention to testify before the grand jury prior to the filing of the indictment.  A defendant is only entitled to notice of a grand jury presentation as to charges contained in a pending felony complaint (see People v. Thomas, 27 A.D.3d 292, 293, 811 N.Y.S.2d 369 [1st Dept. 2006], lv denied 6 N.Y.3d 898, 817 N.Y.S.2d 633, 850 N.E.2d 680 [2006] ), and here there was only a misdemeanor complaint.  The notice statute should be construed according to its plain language (People v. Small, 26 N.Y.3d 253, 259, 22 N.Y.S.3d 383, 43 N.E.3d 740 [2015] ).

Defendant's decision to represent himself was knowing and voluntary.  The combination of the colloquy conducted at defendant's first trial, which ended in a mistrial, and the second trial court's colloquy with defendant was sufficient to warn defendant of the disadvantages and risks of representing himself and of the important role of an attorney (see People v. Torres, 157 A.D.3d 458, 66 N.Y.S.3d 442 [1st Dept. 2018], lv denied 31 N.Y.3d 1088, 79 N.Y.S.3d 110, 103 N.E.3d 1257 [2018];  People v. Peterson, 273 A.D.2d 88, 89, 709 N.Y.S.2d 540 [1st Dept. 2002] ).  Furthermore, at the second trial, the court carefully ascertained that defendant still wanted to proceed pro se, and there is no evidence that defendant wanted an attorney at the second trial, or vacillated about representing himself at that trial.  In context, defendant's unelaborated remark that he had “no choice” but to represent himself did not cast any doubt on the voluntariness of his waiver of counsel.

We perceive no basis for reducing the sentence.