People v. Crespo

• Decision Date: 16 October 2018
• Docket Number: No. 27,27
• Citation: 88 N.Y.S.3d 120,32 N.Y.3d 176,112 N.E.3d 1243
• Parties: The PEOPLE of the State of New York, Appellant, v. Raymond CRESPO, Respondent.
• Court: New York Court of Appeals Court of Appeals

32 N.Y.3d 176

112 N.E.3d 1243

88 N.Y.S.3d 120

The PEOPLE of the State of New York, Appellant,

v.Raymond CRESPO, Respondent.

No. 27

Court of Appeals of New York.

October 16, 2018

Cyrus R. Vance, Jr., District Attorney, New York City (Stephen J. Kress and Christopher P. Marinelli of counsel), for appellant.

Robert S. Dean, Center for Appellate Litigation, New York City (Molly Schindler and Ben A. Schatz of counsel), for respondent.

OPINION OF THE COURT

Chief Judge DiFIORE.

"[T]he right to self-representation embodies one of the most cherished ideals of our culture; the right of an individual to determine his [or her] own destiny" ( People v. McIntyre , 36 N.Y.2d 10, 14, 364 N.Y.S.2d 837, 324 N.E.2d 322 [1974] ). Indeed, the right to represent oneself at trial is guaranteed under both the New York State and the 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 [1975] ; People v. Arroyo , 98 N.Y.2d 101, 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154 [2002] ). This right, however, is not absolute. The timeliness of the request, among other things, is a prerequisite under both federal and state law and the commencement of trial is established as the point at which the application may be denied as untimely as a matter of law (see McIntyre , 36 N.Y.2d at 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 ; see e.g. Martinez v. Court of Appeal of Cal., Fourth Appellate Dist. , 528 U.S. 152, 161–162, 120 S.Ct. 684, 145 L.Ed.2d 597 [2000] ).

Here, prior to opening statements, but after 11 jurors were selected and sworn, defendant sought to invoke his right to proceed pro se. As set forth in the seminal case of People v. McIntyre , there is a three-prong 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" ( 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 [1974] ). This appeal relates to the first prong – specifically, we must consider whether defendant's request was untimely as a matter of law because it was made after commencement of the trial. We hold that, in conformity with the statutory scheme set forth in the Criminal Procedure Law, the jury trial has commenced when jury selection begins. Accordingly, the trial court's determination that defendant's request to proceed pro se, made near the conclusion of jury selection, was untimely was not error.

I.

On January 21, 2013, defendant and the victim exchanged insults inside a restaurant, which led to a physical altercation. Defendant, who was apparently upset after losing that fight, obtained a knife from his codefendant, initiated a second confrontation and stabbed the victim. He was arrested while attempting to flee the scene. By indictment filed February 11, 2013, defendant was charged with attempted murder in the second degree, assault in the first degree and criminal possession of a weapon in the third degree.

On October 17, 2014, after conducting a suppression hearing, the trial court denied the motion to suppress both the bloodstained clothes seized from the defendant incident to his arrest and the knife recovered from the scene. The court also advised the parties that the trial would begin the following week, telling defendant that "[t]he first stage of the trial is picking the jury that will decide your case." During that appearance, defendant's assigned counsel advised the court that defendant wanted a new attorney and that if new counsel was not assigned, defendant did not wish to be present at trial. The court informed defendant that he was free to hire another attorney but that the case, which was close to two years old, would not be delayed any further. The court also advised defendant that it was in his best interests to attend the trial but that, if he chose to absent himself, the trial would go forward without him. After a colloquy in which defendant expressed his dissatisfaction with his counsel and stated that he was not going to speak with him, defendant refused to come to court.¹ The court stated for the record that defendant was "voluntarily absenting himself."

The court adjourned the matter to the following week for jury selection. At that appearance, defense counsel asked to be relieved based on defendant's continuing refusal to speak with him. The court de nied the request, explaining that it had no reason to believe defendant's dissatisfaction with counsel was rooted in anything other than the realities of his case. The court then had defendant produced in order to fully explain his right to be present at trial. The court adjourned the matter until the next day to permit defendant to confer with counsel, but defendant refused to do so.

On October 23, the parties began jury selection in defendant's absence, selecting and swearing 11 trial jurors. The following day defendant voluntarily appeared and, for the first time, asked to represent himself. The court rejected defendant's request to proceed pro se, telling defendant that it was "too late to make that request now in the middle of trial." In response, defendant maintained that he wanted to advise the jury of his dissatisfaction with defense counsel. The court told defendant: "if you are going to tell me that when I bring the jury in you're going to jump up and disrupt the court proceedings and say he is not my lawyer, I am not going to have that." When defendant confirmed this was in fact his intention, the court excluded defendant from the courtroom and stated that it viewed defendant's conduct at this stage of the proceedings to be "simple manipulation."² The parties then completed jury selection and proceeded to opening statements.

After several trial witnesses testified, the People requested that the court conduct an inquiry under the second prong of McIntyre into defendant's level of education and his understanding of the law – i.e., whether defendant's waiver of the right to counsel would be voluntary. The court refused, observing that "there is no point in allocuting him because I am not going to let him go pro se even if I find he is able to do that at this point. We are in the middle of a trial." The court also expressed skepticism as to whether defendant would be able to comport himself in an appropriate manner, as required under the third prong of McIntyre .

Each day, defendant chose to remain in the holding cell rather than appear in court and, as a result, the trial was conducted in his absence. The jury returned a verdict convicting defendant of assault in the first degree and criminal possession of a weapon in the third degree, but acquitting him of attempted murder in the second degree.

The Appellate Division reversed, on the law, and remanded for a new trial ( 144 A.D.3d 461, 40 N.Y.S.3d 423 [1st Dept. 2016] ). Rejecting the People's argument that a timely request to proceed pro se had to be asserted prior to jury selection when the trial commenced, the Court cited McIntyre for the proposition that defendant's requests to represent himself were timely as they occurred before opening statements. The Court then concluded that the trial court had violated defendant's right to represent himself by summarily denying defendant's timely requests without ascertaining whether they were knowingly or intelligently made. A Judge of this Court granted the People leave to appeal ( 29 N.Y.3d 947, 54 N.Y.S.3d 378, 76 N.E.3d 1081 [2017] ) and we now reverse.

II.

As noted above, People v. McIntyre established the standard by which the right of a criminal defendant to conduct his or her own defense is considered. In McIntyre , the defendant asked to represent himself "[a]fter the jury had been drawn but not yet impaneled" ( 36 N.Y.2d at 12, 364 N.Y.S.2d 837, 324 N.E.2d 322 ). The trial court made a brief inquiry into the defendant's background and also elicited from the defendant that he believed defense counsel was "very competent" ( 36 N.Y.2d at 13, 364 N.Y.S.2d 837, 324 N.E.2d 322 ). The court then denied the request based, in part, on the defendant's outburst of misbehavior, which we described as either exhibited in response to the court's ruling or provoked by the trial court's abusive manner in conducting the inquiry of the defendant (see 36 N.Y.2d at 19, 364 N.Y.S.2d 837, 324 N.E.2d 322 ). The specific issue presented in McIntyre was the sufficiency of the trial court's inquiry into whether the defendant's waiver of the right to counsel was knowing and voluntary, as well as the trial court's consideration of the appropriate factors in that regard, including the defendant's behavior in the courtroom.

In the course of determining that the trial court's inquiry had been deficient, the Court explained that, as a general rule, "a pro se application [is] timely interposed when it is asserted before the trial commences" – a point when a thorough inquiry can be conducted without causing significant delay or confusion in the trial proceedings ( 36 N.Y.2d at 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 ). We emphasized that, after the trial has commenced, the defendant's right to proceed pro se is "severely constricted and will be granted in the trial court's discretion and only in compelling circumstances" ( 36 N.Y.2d at 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 ). Nevertheless, the motion to proceed pro se in McIntyre was not denied as untimely in the trial court and on appeal was deemed "unequivocal and timely having been interposed prior to the prosecution's opening statement" based upon the Code of Criminal Procedure (CCP) (36 N.Y.2d at 18, 364 N.Y.S.2d 837, 324 N.E.2d 322 ).³

Although this Court decided McIntyre in 1974, the defendant's judgment of conviction was rendered in June 1971 when the CCP – the precursor to the CPL – was still in effect. Under the CCP, the trial began...