People v. Brown

• Decision Date: 05 April 2022
• Docket Number: 15646,Ind. No. 3622/15,Case No. 2019-5060
• Citation: 204 A.D.3d 418,165 N.Y.S.3d 537
• Parties: The PEOPLE of the State of New York, Respondent, v. Noel BROWN, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

204 A.D.3d 418

165 N.Y.S.3d 537

The PEOPLE of the State of New York, Respondent,

v.Noel BROWN, Defendant–Appellant.

15646

Ind. No. 3622/15

Case No. 2019-5060

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

ENTERED April 5, 2022

Robert S. Dean, Center for Appellate Litigation, New York (John L. Palmer of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Andrew E. Seewald of counsel), for respondent.

Gische, J.P., Moulton, Scarpulla, Shulman, Pitt, JJ.

Judgment, Supreme Court, New York County (Melissa C. Jackson, J. at self-representation request; Ann E. Scherzer, J. at speedy trial motion; Robert M. Stolz, J. at suppression hearing, jury trial and sentencing), rendered April 22, 2019, convicting defendant of two counts of criminal possession of a weapon in the second degree, and sentencing him to concurrent prison terms of seven years, unanimously affirmed.

The suppression court properly denied defendant's motion to suppress a revolver and other items recovered in the course of an inventory search of a motorcycle that he had been operating with a suspended license. The testimony of the officer who conducted the search established that the search of the motorcycle was conducted pursuant to an established procedure that limited the officer's discretion and ensured that the search was reasonable (see People v. Padilla, 21 N.Y.3d 268, 272–273, 970 N.Y.S.2d 486, 992 N.E.2d 414 [2013], cert denied 571 U.S. 889, 134 S.Ct. 325, 187 L.Ed.2d 158 [2013] ; People v. Walker, 20 N.Y.3d 122, 957 N.Y.S.2d 272, 980 N.E.2d 937 [2012] ). The officers were not required to ask defendant's passenger whether she could take the motorcycle (see id. at 125, 957 N.Y.S.2d 272, 980 N.E.2d 937 ). The officer's testimony sufficiently described the established procedures for an inventory search as of the time of the search. Defendant did not preserve his claims that the Patrol Guide excerpt admitted at the hearing was not in effect at the time of his arrest and search, or that there was no meaningful inventory list, and we decline to review them in the interest of justice.

Defendant was not deprived of his right of self-representation. He failed to make a clear and unequivocal request to represent himself (see People v. LaValle, 3 N.Y.3d 88, 106, 783 N.Y.S.2d 485, 817 N.E.2d 341 [2004] ; People v. Richards, 118 A.D.3d 599, 600, 987 N.Y.S.2d 847 [1st Dept. 2014], lv. denied 24 N.Y.3d 1088, 1 N.Y.S.3d 14, 25 N.E.3d 351 [2014] ). Although he began by saying he wanted to proceed pro se, he went on to indicate that he wanted to represent himself for some purposes and be represented by counsel for other purposes. Given defendant's equivocation the court properly denied the application (see People v. Diaz, 294 A.D.2d 225, 741 N.Y.S.2d 858 [1st Dept. 2002], lv denied 98 N.Y.2d 767, 752 N.Y.S.2d 7, 781 N.E.2d 919 [2002] ).

The court properly denied defendant's speedy trial motion. The motion court correctly excluded the 49–day period from November 30, 2017 to January 18, 2018, which is the only period remaining at issue on appeal. Defendant had been produced in court on October 30, 2017, after a warrant had been issued more than two years earlier. "The People must be given a reasonable time to call their witnesses and arrange for the recommencement of the case after a defendant is involuntarily returned" ( People v. Muhanimac, 181 A.D.2d 464, 465–466, 581 N.Y.S.2d 301 [1st Dept. 1992], lv denied 79 N.Y.2d 1052, 584 N.Y.S.2d 1019, 596 N.E.2d 417 [1992] ). Moreover, the record establishes that when defendant was returned on the warrant on October 30, 2017, defense counsel agreed that the November 30 date would only be a control date, rather than a date for hearing and trial.

The court providently exercised its discretion in discharging a sworn juror as "grossly unqualified" ( CPL 270.35[1] ) before the completion of jury selection. The juror made clear that during the trial he could not avoid working late into the night at his profession, and he would be extremely sleep deprived and unable to concentrate (see People v. Wells, 15 N.Y.3d 927, 928, 915 N.Y.S.2d 896, 941 N.E.2d 739 [2011], cert denied 565 U.S. 828, 132 S.Ct. 123, 181 L.Ed.2d 46 [2011] ; see also People v. Knight, 84 A.D.3d 670, 671, 923 N.Y.S.2d 111 [1st Dept. 2011], lv denied 17 N.Y.3d 860, 932 N.Y.S.2d 25, 956 N.E.2d 806 [2011] ). Defendant did not preserve his claim that before the completion of jury selection the court could only discharge a sworn juror on the grounds set forth in CPL 270.15(3), and we decline to review it the interest of justice. As an alternative holding, we reject it on the merits (see People v. Owens, 292 A.D.2d 218, 738 N.Y.S.2d...