People v. Best, 2016–12303

• Court: New York Supreme Court Appellate Division
• Citation: 130 N.Y.S.3d 461,186 A.D.3d 845
• Docket Number: Ind. No. 768/14,2016–12303
• Parties: The PEOPLE, etc., respondent, v. Hillary BEST, appellant.
• Decision Date: 26 August 2020

186 A.D.3d 845
130 N.Y.S.3d 461

The PEOPLE, etc., respondent,
v.
Hillary BEST, appellant.

2016–12303
Ind. No. 768/14

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

Submitted—November 8, 2019
August 26, 2020

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.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.

DECISION & ORDER ON MOTION

186 A.D.3d 846

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 A.D.3d 1181, 84 N.Y.S.3d 367 ).

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, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Haywood, 122 A.D.3d 769, 769, 996 N.Y.S.2d 137 ). However, the record establishes that the defendant knowingly, voluntarily, and intelligently entered a plea of guilty (see

130 N.Y.S.3d 464

People v. Sougou, 26 N.Y.3d 1052, 1054–1055, 23 N.Y.S.3d 121, 44 N.E.3d 196 ; People v. Rodriguez, 142 A.D.3d 1189, 1189–1190, 38 N.Y.S.3d 224 ), and that his conviction was not the product of duress.

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 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Hansen , 95 N.Y.2d 227, 230, 715 N.Y.S.2d 369, 738 N.E.2d 773 ; People v. Seaberg , 74 N.Y.2d at 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ). Nevertheless, it is without merit. The right to represent oneself at trial is guaranteed under

186 A.D.3d 847

both the New York State and Federal Constitutions (see N.Y. Const., art. I, § 6 ; Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 ; People v. Arroyo , 98 N.Y.2d 101, 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154 ). This right, however, is not absolute (see People v. Crespo , 32 N.Y.3d 176, 178, 88 N.Y.S.3d 120, 112 N.E.3d 1243 ). 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, 364 N.Y.S.2d 837, 324 N.E.2d 322 ). "[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 N.Y.3d 520, 527, 983 N.Y.S.2d 454, 6 N.E.3d 572 ; see Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525 ).

Viewing the whole record (see People v. Providence , 2 N.Y.3d 579, 583, 780 N.Y.S.2d 552, 813 N.E.2d 632 ), 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 A.D.3d 1436, 1441, 8 N.Y.S.3d 755 ). 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 N.Y.3d at 527–529, 983 N.Y.S.2d 454, 6 N.E.3d 572 ). 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, 364...