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

The PEOPLE, etc., respondent, v. James PETTUS, appellant.

Decided: October 31, 2005

ROBERT W. SCHMIDT, J.P., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN, and JOSEPH COVELLO, JJ. Lynn W.L. Fahey, New York, N.Y. (Warren S. Landau of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mangano, Jr., J.), rendered June 18, 2003, convicting him of grand larceny in the third degree, welfare fraud in the third degree, and offering a false instrument for filing in the first degree (three counts), upon a jury verdict, and sentencing him to concurrent indeterminate terms of imprisonment of 3 1/212 to 7 years on the convictions of grand larceny in the third degree and welfare fraud in the third degree, and consecutive indeterminate terms of imprisonment of 2 to 4 years on each of the convictions of offering a false instrument for filing in the first degree, to run concurrently with the terms of imprisonment imposed on the other convictions, and imposing additional concurrent terms of imprisonment of one year each for the crimes of grand larceny in the fourth degree and welfare fraud in the fourth degree.

ORDERED that the judgment is modified, on the law, by (1) vacating the sentences imposed for the crimes of grand larceny in the fourth degree and welfare fraud in the fourth degree, and (2) directing that all the remaining sentences run concurrently with each other;  as so modified, the judgment is affirmed.

 After the defendant knowingly, voluntarily, and intelligently waived his right to counsel (see Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562;  People v. Arroyo, 98 N.Y.2d 101, 745 N.Y.S.2d 796, 772 N.E.2d 1154;  People v. Smith, 92 N.Y.2d 516, 683 N.Y.S.2d 164, 705 N.E.2d 1205), the Supreme Court, in the exercise of its discretion, appointed standby counsel to assist the defendant.   The defendant, however, purported to change his mind and request counsel only after it became clear to him that the Supreme Court would not permit standby counsel to provide dual representation at trial.   It appears that the defendant raised the specter of proceeding with counsel only as a means of procuring a hybrid form of representation, to which he was not entitled (see People v. Rodriguez, 95 N.Y.2d 497, 719 N.Y.S.2d 208, 741 N.E.2d 882;  People v. Mirenda, 57 N.Y.2d 261, 455 N.Y.S.2d 752, 442 N.E.2d 49).   When the Supreme Court properly explained to the defendant that he would not be permitted to control every facet of counsel's representation, he unequivocally reasserted his desire to proceed pro se.   Therefore, we reject his contention that he was denied his right to counsel based on the Supreme Court's comments, or that his application to proceed pro se was equivocal and therefore should have been denied (see Williams v. Bartlett, 44 F.3d 95;  People v. McIntyre, 36 N.Y.2d 10, 364 N.Y.S.2d 837, 324 N.E.2d 322;  cf. People v. LaValle, 3 N.Y.3d 88, 783 N.Y.S.2d 485, 817 N.E.2d 341 [defendant wavered in request for self-representation but when warned about perils of self-representation, smiled and said nothing] ).   Moreover, inasmuch as a defendant who elects to exercise the right to self-representation is not guaranteed the assistance of standby counsel during trial (see People v. Mirenda, supra), the Supreme Court providently exercised its discretion in limiting the defendant's access to standby counsel to breaks in the trial, and such limitation cannot be considered an infringement upon the defendant's rights to counsel or to due process (see People v. McIntyre, supra;  People v. Daniels, 298 A.D.2d 854, 747 N.Y.S.2d 821).

The claimed error in the jury charge is unpreserved for appellate review (see CPL 470.05[2];  People v. Whalen, 59 N.Y.2d 273, 464 N.Y.S.2d 454, 451 N.E.2d 212;  People v. Nuccie, 57 N.Y.2d 818, 455 N.Y.S.2d 593, 441 N.E.2d 1111;  People v. Holzer, 52 N.Y.2d 947, 948, 437 N.Y.S.2d 964, 419 N.E.2d 867;  People v. DeMauro, 48 N.Y.2d 892, 424 N.Y.S.2d 884, 400 N.E.2d 1336) and, under the circumstances of this case, we decline to review it in the exercise of our interest of justice jurisdiction (see CPL 470.15[3][c], [6][a] ).

As the defendant's convictions of offering a false statement for filing, grand larceny in the third degree, and welfare fraud in the third degree, were part of the same act, the Supreme Court erred in imposing consecutive sentences on the convictions of offering a false statement for filing.   Accordingly, we modify those sentences to run concurrently (see People v. Ramirez, 89 N.Y.2d 444, 452-453, 654 N.Y.S.2d 998, 677 N.E.2d 722;  People v. Laureano, 87 N.Y.2d 640, 644, 642 N.Y.S.2d 150, 664 N.E.2d 1212;  People v. Scotti, 232 A.D.2d 775, 649 N.Y.S.2d 55).   As so modified, the sentences imposed were neither harsh nor excessive (People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The People correctly concede that since the defendant was not convicted of the crimes of grand larceny in the fourth degree and welfare fraud in the fourth degree, he should not have been sentenced on those charges (see CPL 300.40 [3] [b];  People v. Lee, 39 N.Y.2d 388, 390, 384 N.Y.S.2d 123, 348 N.E.2d 579;  People v. Grier, 37 N.Y.2d 847, 378 N.Y.S.2d 37, 340 N.E.2d 471;  People v. Garofalo, 192 A.D.2d 619, 596 N.Y.S.2d 121).

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