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

The PEOPLE, etc., Respondent, v. Leroy SMITH, Appellant.

Decided: October 27, 1997

Before MANGANO, P.J., RITTER, J.P., and THOMPSON, FRIEDMANN and McGINITY, JJ. Karen G. Leslie, New York City, for appellant. Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano and Athena Kehoe, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Flug, J.), rendered December 19,1994, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new trial.   The facts have been considered and determined to be established.

Several times prior to and during trial, the defendant expressed dissatisfaction with assigned counsel and requested that new counsel be appointed.   On at least one of these occasions, the defendant stated that he did not wish to represent himself.   The court denied each request for new counsel.   Eventually, during the trial, assigned counsel asked to be relieved because the defendant had verbally threatened him during a recess.   While granting the request, the court suggested to the defendant that counsel would continue to represent him if the defendant apologized.   The defendant refused and completed the trial pro se, with former counsel serving as a legal advisor.   At no time did the court warn the defendant as to the risks inherent in proceeding pro se.

 The judgment must be reversed.   A defendant's implied waiver of his right to counsel is ineffective absent “ ‘a sufficiently searching inquiry of the defendant to be reasonably certain that the dangers and disadvantages of giving up the fundamental right to counsel have been impressed upon the defendant’ ” (People v. Slaughter, 78 N.Y.2d 485, 491, 577 N.Y.S.2d 206, 583 N.E.2d 919, quoting Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562;  see, People v. Sawyer, 57 N.Y.2d 12, 21, 453 N.Y.S.2d 418, 438 N.E.2d 1133, cert. denied 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1024).   Here, the court's failure to make such an inquiry, or, indeed, to in any way warn the defendant concerning the risks of proceeding pro se, makes the defendant's waiver of his right to counsel ineffective (People v. Slaughter, supra).

Assuming, without deciding, that harmless error analysis applies here, the defendant's ineffective waiver of counsel, made during cross examination of the arresting officer, was not harmless (see, People v. Slaughter, supra).

The defendant's remaining contentions are without merit.

We respectfully dissent.

The record reveals that the Supreme Court carefully evaluated the defendant's requests for new counsel and correctly determined that they were not supported by good cause (see, People v. Sides, 75 N.Y.2d 822, 552 N.Y.S.2d 555, 551 N.E.2d 1233;  People v. Sawyer, 57 N.Y.2d 12, 453 N.Y.S.2d 418, 438 N.E.2d 1133).   The court did not err, on the facts presented, in compelling the defendant to choose between continuing with able assigned counsel or proceeding pro se (see, People v. Slaughter, 78 N.Y.2d 485, 577 N.Y.S.2d 206, 583 N.E.2d 919;  People v. Sawyer, supra;  People v. Hambric, 225 A.D.2d 633, 639 N.Y.S.2d 440;  People v. Howell, 207 A.D.2d 412, 615 N.Y.S.2d 728;  United Stats v. Pascarella, 84 F.3d 61, 67-68;  United States v. Bauer, 956 F.2d 693 cert. denied, 506 U.S. 882, 113 S.Ct. 234, 121 L.Ed.2d 169;  Maynard v. Meachum, 545 F.2d 273).

Clearly, it is essential that a defendant understand the considerable risk in proceeding pro se.   Here, however, it is apparent from numerous colloquies between the defendant and the court that the defendant was fully aware of the dangers and disadvantages of proceeding pro se and entered into his choice “with eyes open” (Maynard v. Meachum, 545 F.2d 273, 279;  see also, People v. Gloster, 175 A.D.2d 258, 572 N.Y.S.2d 370).   Indeed, the defendant flatly stated that he was “not qualified” to defend himself.   Requiring further discussion of a danger already understood would seem to elevate form over substance.   Moreover, in light of the defendant's alleged threat to “put a knife in [defense counsel's] head” if he were to be convicted, to hold that the defendant was not aware of the danger of proceeding pro se would be to reward his abusive conduct by allowing him to secure, through threats of violence, relief which the court had already properly denied (People v. Gloster, supra).

The case relied on by the majority, People v. Sawyer, 57 N.Y.2d 12, 453 N.Y.S.2d 418, 438 N.E.2d 1133, to the extent it may be read to suggest a contrary conclusion, is distinguishable.   The defendant in Sawyer, unlike here, was not accused of threatening his counsel (cf., People v. Gilchrist, 239 A.D.2d 306, 658 N.Y.S.2d 269;  U.S. v. McLeod, 53 F.3d 322 [defendant who is abusive toward counsel may “forfeit” right to counsel] ).   Further, the sole evidence in Sawyer that the defendant therein might have been aware of the dangers and disadvantages of proceeding pro se, i.e., the defendant's quotation of a passage from Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, did not occur until several months after the decision to proceed pro se had been made.

Because the defendant's remaining claims are unpreserved and/or without merit, we would affirm the judgment.


MANGANO, P.J., and FRIEDMANN and McGINITY, JJ., concur.

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