People v. Carl

• Decision Date: 28 July 1977
• Citation: 58 A.D.2d 948,397 N.Y.S.2d 193
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert F. CARL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 193

397 N.Y.S.2d 193

58 A.D.2d 948

The PEOPLE of the State of New York, Respondent, v. Robert F. CARL, Appellant.

Supreme Court, Appellate Division, Third Department.

July 28, 1977.

Kent R. Woloson, Big Flats, for appellant.

D. Bruce Crew, III, Chemung County Dist. Atty., Elmira (Peter C. Buckley, Elmira, of counsel), for respondent.

Before SWEENEY, J. P., and KANE and HERLIHY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Chemung County, rendered July 30, 1976, convicting defendant upon his plea of guilty of the crime of burglary in the third degree and attempted burglary in the third degree.

The defendant was charged with criminal activity in a six-count indictment. At the request of his assigned counsel a hearing was held to determine whether he was an incapacitated person and, therefore, unfit to stand trial (see CPL 730.30). The trial court found the defendant was not incapacitated and after other pre-trial proceedings were held, accepted a plea of guilty to two charges in full satisfaction of the indictment.

The defendant upon this appeal questions the propriety of the proceedings regarding his competency and contends that the trial court erred in finding he was competent to stand trial.

An incapacitated person "means a defendant who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense." (CPL 730.10, subd. 1.) Three psychiatrists and a psychologist testified at the hearing, all of whom agreed that the defendant understood the proceedings. However, two of the psychiatrists, Drs. Kahn and Nagy, thought the defendant was under such paranoid schizophrenic delusions that he believed his lawyer, or any lawyer, was a party to the general plot against him. This mistrust of his lawyer, in the opinion of Drs. Kahn and Nagy, would prevent the defendant from assisting in his own defense. The third psychiatrist, Dr. Anderson thought the defendant was not schizophrenic and could assist in his defense. Dr. Anderson specifically stated that the defendant had deliberately given false answers to simple questions in order to feign insanity and that the defendant in fact had the power of will to cooperate with a questioner, such as a lawyer, if he wished. Because of the conflicting psychiatric testimony, the court assigned Dr. Besserman, a psychologist specially trained in test-giving, to examine the defendant. The tests indicated that although the defendant might be emotionally disturbed, he was not psychotic and could assist in making a defense.

The People must prove capacity to stand trial by a mere preponderance of the evidence (People v. Santos, 43 A.D.2d 73, 349 N.Y.S.2d 439). The testimony of Dr. Anderson is extensive, convincing and not shaken on cross-examination. The hearing court had the opportunity in person to evaluate the expert witnesses and, most important, assess the defendant's manner and behavior. Without any objective proof of incapacity, such as prior clearly irrational actions by the defendant, we rely heavily on the perception of the hearing court and therefore affirm its determination of capacity (cf. People ex rel. Malone v. Johnston, 37 A.D.2d 585, 323 N.Y.S.2d 246).

The defendant also contends that the judgment must be vacated because the trial court erred in denying his motion for permission to proceed pro se (cf. People v. McIntyre, 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 844, 324 N.E.2d 322, 327).

At a pre-trial proceeding held on June 9, 1976, involving the admissibility of statements previously made by the defendant, assigned counsel advised the court that the defendant wished to discharge the Public Defender as counsel. The defendant in response to a question by the court, stated as follows:

I wish to dismiss the Public Defender's Office as defense counsel, and have the Public Defender's Office assigned in an advisory capacity only simply for legal advice and nothing else.

The trial court in response to the defendant's request stated: "I am not going to allow you to dismiss the Public Defender as counsel in this case, but I will, from time to time, during the course of the proceedings allow you to make applications to this court in reference to this case, and this Indictment, so I have clarified that on the record."

After the foregoing discussion, the court in further proceedings on June 9, 1976, did in fact permit the defendant to personally move for a continuance of the Huntley hearing for the purpose of presenting particular evidence. The court denied the defendant's request and the defendant, personally, excepted to the ruling.

On June 25, 1976, assigned counsel advised the trial court that the defendant wished to enter a guilty plea in accordance with plea bargaining which had taken place. The court extensively questioned the defendant as to whether or not he understood the meaning of a guilty plea and personally wished to enter such a plea. The defendant did not raise any issue as to representation and voluntarily entered his plea.

While it is well established that a defendant has a constitutional right to personally conduct his defense and that a trial court must honor such a right under certain conditions not here applicable (People v. McIntyre, supra, p. 17, 364 N.Y.S.2d p. 844, 324 N.E.2d p. 327), the defendant did not go to trial and thus, no actual defense was presented. The defendant herein personally confirmed his plea of guilty and acceptance of the offer of the People. There is no showing of any prejudice and upon this record there has been no violation of any constitutional right of the defendant in the pre-trial proceedings.

The defendant's final contention that the trial court denied his right to due process in the hearing related to a consideration of a prior conviction and his status as a second felony offender is without any substantial merit.

Judgment affirmed.

SWEENEY, J. P., KANE and HERLIHY, JJ., concur.

MAHONEY and MAIN, JJ., dissent and vote to reverse in the following memorandum by MAHONEY, J.

MAHONEY, Justice (dissenting).

After the defendant was found competent to stand trial, he sought to dismiss his court-appointed lawyer and undertake his own defense (see CPL 210.15, subd. 5). The court refused, noting that the defendant had filed a notice pursuant to section 30.05 of the Penal Law of his intention to rely on an insanity defense and that up until the time of the motion to proceed pro se had asserted his own incompetence. Thus, the defendant was found competent to stand trial but incompetent to proceed pro se.

We agree with the majority that the County Court was justified in finding the defendant competent to stand trial, but we cannot agree that it was proper to refuse to let the defendant conduct his own defense. The decision in People v. Reason, 37 N.Y.2d 351, 372 N.Y.S.2d 614, 334 N.E.2d 572, establishes that a finding of competence to stand trial ipso facto determines that the defendant is competent to waive his right to counsel and exercise his right to proceed pro se. Since none of the limitations on the right appears to be present in this case (see People v. McIntyre, 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 844, 324 N.E.2d 322, 327), the defendant should be allowed to go to trial pro se.

The majority suggests that by pleading guilty the defendant waived the right to contest on appeal the propriety of the denial of the pro se motion. It may, as a general rule, be true that...