The People, etc., respondent, v. Darryl Littlejohn, appellant.

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

The People, etc., respondent, v. Darryl Littlejohn, appellant.

2009–00892 (Ind.No. 1110/06)

Decided: February 21, 2012

DANIEL D. ANGIOLILLO, J.P. JOHN M. LEVENTHAL LEONARD B. AUSTIN SHERI S. ROMAN, JJ. Lynn W.L. Fahey, New York, N.Y. (William Kastin of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Johnnette Traill of counsel), for respondent. The Supreme Court did not err in denying the defendant's application to proceed pro se. A criminal defendant has a constitutional right to self-representation (see Faretta v California, 422 U.S. 806, 814;  Matter of Kathleen K. [Steven K.], 17 NY3d 380, 384–385;  People v McIntyre, 36 N.Y.2d 10, 14–15).   However, the right to self-representation is “not ․ unfettered” (Matter of Kathleen K., [Steven K.], 17 NY3d at 385).   In order for a criminal defendant to invoke the right to defend pro se, “(1) the request [must be] unequivocal and timely asserted, (2) there [must be] a knowing and intelligent waiver of the right to counsel, and (3) the defendant [must not have] engaged in conduct which would prevent the fair and orderly exposition of the issues” (People v McIntyre, 36 N.Y.2d at 17).  “If a timely and unequivocal request [to proceed pro se ] has been asserted, then the trial court is obligated to conduct a ‘searching inquiry’ to ensure that the defendant's waiver is knowing, intelligent, and voluntary” (Matter of Kathleen K. [Steven K.], 17 NY3d at 385;  see People v Slaughter, 78 N.Y.2d 485, 491).

Argued—January 30, 2012

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.), rendered January 7, 2009, convicting him of kidnapping in the second degree, robbery in the second degree, assault in the second degree, and criminal impersonation in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

In this case, the defendant's request to represent himself was not clear and unequivocal.   Rather, the record shows that this request was made in connection with applications for substitution of assigned counsel, and in the alternative to those applications.   Under these circumstances, the Supreme Court did not improvidently exercise its discretion in denying the defendant's request to represent himself (id. at 386–387;  see People v. White, 60 AD3d 877, 878;  People v. McClam, 297 A.D.2d 514;  see also People v. Gillian, 8 NY3d 85, 88).

“A trial court has broad discretion to restrict the scope of voir dire by counsel and indeed must preclude repetitive or irrelevant questioning” (People v. Jean, 75 N.Y.2d 744, 745 [citations omitted];  see People v. Boulware, 29 N.Y.2d 135, 140, cert denied 405 U.S. 995).   A restriction on the time allotted for voir dire is generally permissible where defense counsel is “afford[ed] ․ a fair opportunity to question prospective jurors about relevant matters” (People v. Jean, 75 N.Y.2d at 745;  see People v. Steward, 17 NY3d 104, 110–111;  CPL 270.15[1][c] ).  Here, the record shows that the Supreme Court did not improvidently exercise its discretion in connection with the conduct of the voir dire process (see People v. Jean, 75 N.Y.2d at 745;  People v. Thompson, 45 AD3d 876, 877;  People v. Wheeler, 268 A.D.2d 448, 449).

ANGIOLILLO, J.P., LEVENTHAL, AUSTIN and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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