The People, etc., respondent, v. Hillary Best, appellant.

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

The People, etc., respondent, v. Hillary Best, appellant.

2016–12303 (Ind.No. 768/14)

Decided: August 26, 2020

WILLIAM F. MASTRO, J.P. CHERYL E. CHAMBERS JOSEPH J. MALTESE LINDA CHRISTOPHER, JJ. Hilary Best, named herein as Hillary Best, Forest Hills, NY, appellant pro se. Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Danielle O'Boyle of counsel), for respondent. The defendant's contention that his constitutional right to represent himself at his arraignment on the felony complaint was violated survives both the entry of his plea of guilty and the waiver of his right to appeal (see People v Lopez, 6 NY3d 248, 255;  People v Hansen, 95 N.Y.2d 227, 230;  People v Seaberg, 74 N.Y.2d at 11).  Nevertheless, it is without merit.  The right to represent oneself at trial is guaranteed under both the New York State and Federal Constitutions (see N.Y. Const, art I, § 6;  Faretta v California, 422 U.S. 806;  People v Arroyo, 98 N.Y.2d 101, 103).  This right, however, is not absolute (see People v Crespo, 32 NY3d 176, 178).  There is a three-pronged analysis to determine when a defendant in a criminal case may invoke this right:  “(1) the request [must be] unequivocal and timely asserted, (2) there [must have] been a knowing and intelligent waiver of the right to counsel, and (3) the defendant [must] not engage[ ] in conduct which would prevent the fair and orderly exposition of the issues” (People v McIntyre, 36 N.Y.2d 10, 17).  “[U]nder New York law a defendant's mental capacity may be taken into account” in determining whether to permit the defendant to proceed pro se, “although the trial court need not conduct a formal ‘competency’ hearing prior to adjudicating a self-representation request” (People v Stone, 22 NY3d 520, 527;  see Faretta v California, 422 U.S. 806). Viewing the whole record (see People v Providence, 2 NY3d 579, 583), we conclude that the Supreme Court properly denied the defendant's request to represent himself at his arraignment on the felony complaint.  The defendant failed to satisfy the first and second requirements.  With respect to the first requirement, the defendant's request to proceed pro se was made in the alternative to his complaint that he was denied an opportunity to retain private counsel rather than based on an unequivocal desire to proceed without the assistance of counsel (see People v Larkins, 128 AD3d 1436, 1441).  With respect to the second requirement, the court had reason to believe that the defendant suffered from a mental condition that affected his ability to waive counsel and proceed pro se inasmuch as two prior criminal matters had been dismissed as a result of the defendant's mental incapacity (see People v Stone, 22 NY3d at 527–529).  Following its colloquy with the defendant, the court determined that he lacked the ability to knowingly, voluntarily, and intelligently waive the right to counsel at that time (see People v McIntyre, 36 N.Y.2d at 17;  People v Stone, 22 NY3d at 527), and there is no basis to disturb that determination.  In any event, the defendant was ultimately granted his request to proceed pro se at his arraignment on the indictment and he represented himself throughout the remainder of the proceedings. The defendant's contention that, after he was permitted to proceed pro se, his absence when his assigned investigator made an application to be relieved violated his constitutional rights to counsel, to be present at all material stages of the criminal proceedings, and to due process also survives both the entry of his plea of guilty and the waiver of his right to appeal (see People v Lopez, 6 NY3d at 255;  People v Hansen, 95 N.Y.2d at 230;  People v Seaberg, 74 N.Y.2d at 11).  In every criminal proceeding, a defendant has an absolute right to be present, with counsel, “whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge” (Snyder v Massachusetts, 291 U.S. 97, 105–106;  see People ex rel. Bartlam v Murphy, 9 N.Y.2d 550, 553;  NY Const, art I, § 6).  The application by the assigned investigator to be relieved was not a material stage of the criminal proceedings (see People v Harris, 76 N.Y.2d 810, 812;  see also People v Roman, 88 N.Y.2d 18, 26;  People v Morales, 80 N.Y.2d 450, 455, 457), and, in any event, the proceeding was adjourned, and no other proceedings took place on that date.  Accordingly, the defendant's absence from the courtroom on that date did not violate his rights to counsel, to be present at all material stages of the criminal proceedings, or to due process.

Submitted—November 8, 2019

DECISION & ORDER ON MOTION

Motion by the appellant, inter alia, for leave to reargue an appeal from a judgment of the Supreme Court, Queens County (Barry A. Schwartz, J.), rendered June 28, 2016, which was determined by decision and order of this Court dated January 29, 2020.

Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the motion is granted to the extent that leave to reargue is granted, upon reargument, the decision and order of this Court dated January 29, 2020 (People v. Best, 179 AD3d 1088), is recalled and vacated, the following decision and order is substituted therefor, nunc pro tunc to January 29, 2020, and the motion is otherwise denied:

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Barry A. Schwartz, J.), rendered June 28, 2016, convicting him of assault in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the record does not reflect that he waived the right to appeal as a result of any duress.  Further, the defendant has not drawn our attention to any other circumstance which might otherwise warrant our declining to enforce the appeal waiver.  Therefore, the defendant's waiver of his right to appeal precludes appellate review of his contention that the Supreme Court improvidently exercised its discretion in denying his preplea recusal application (see People v. Taylor, 165 AD3d 1181).

The defendant's contention regarding the voluntariness of his plea survives his waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10;  People v. Haywood, 122 AD3d 769, 769).  However, the record establishes that the defendant knowingly, voluntarily, and intelligently entered a plea of guilty (see People v. Sougou, 26 NY3d 1052, 1054–1055;  People v. Rodriguez, 142 AD3d 1189, 1189–1190), and that his conviction was not the product of duress.

Although the defendant's contention that the felony complaint was jurisdictionally defective survives both the entry of his plea of guilty and the waiver of his right to appeal (see People v. Dreyden, 15 NY3d 100, 103;  People v. Hansen, 95 N.Y.2d at 230), it is without merit.  The felony complaint was properly verified through the use of a form notice complying with the provisions of CPL 100.30(1)(d), and the form notice method of verification assures a measure of reliability sufficient to satisfy the demands of due process and double jeopardy (see People v. Kalin, 12 NY3d 225, 231–232;  see also People v. Dreyden, 15 NY3d at 103;  People v. Casey, 95 N.Y.2d 354, 366).

Contrary to the defendant's further contention, the indictment was not jurisdictionally defective.  The indictment effectively charged the defendant with the commission of a particular crime and afforded him fair notice of the charges made against him, so that he could prepare a defense and avoid subsequent attempts to retry him for the same crime (see People v. Ray, 71 N.Y.2d 849, 850).

By pleading guilty, the defendant forfeited his contention that he should have been granted a preliminary hearing on the felony complaint (see People v. Taylor, 65 N.Y.2d 1, 5;  People v. Strong, 17 AD3d 1121, 1122;  People v. Wiggins, 198 A.D.2d 535, 535).

MASTRO, J.P., CHAMBERS, MALTESE and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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