People v. Gaines

• Decision Date: 25 January 1988
• Parties: The PEOPLE, etc., Respondent, v. David GAINES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 70

524 N.Y.S.2d 70

136 A.D.2d 731

The PEOPLE, etc., Respondent, v. David GAINES, Appellant.

Supreme Court, Appellate Division,

Second Department.

Jan. 25, 1988.

Steinberg & Kolb, Poughkeepsie (Michael Kolb, of counsel), for appellant.

Carl A. Vergari, Dist. Atty., White Plains (John J. Sergi and Richard E. Weill, of counsel), for respondent.

David Gaines, pro se.

Before MANGANO, J.P., and BROWN, RUBIN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (McNab, J.), rendered December 28, 1983, convicting him of burglary in the third degree, criminal mischief in the third degree (two counts), grand larceny in the third degree, and criminal possession of stolen property in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by (1) vacating the sentence imposed on all counts, and (2) reducing the conviction of criminal mischief in the third degree as charged in the second count of the indictment to criminal mischief in the fourth degree; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Westchester County, for resentencing in compliance with Penal Law § 70.10.

At about 12:30 A.M. on October 20, 1982, off-duty Mount Vernon Police Officer Frank Schreiber was sitting in his living room talking with his wife and some friends when he heard the sound of breaking glass. He immediately ran onto the porch of his house and from there observed the defendant and an accomplice leaving the Jolly Chef Restaurant. The restaurant was located directly across the street from Schreiber's home and the glass front door thereof had been broken. Schreiber, pursuing the two men on foot, identified himself as a police officer and ordered the two to halt. The defendant then dropped a cash register which he had been carrying and stopped while the other suspect fled. Schreiber held the defendant at gun point until a police backup unit arrived.

Prior to trial, the defendant advised the court that he desired to appear pro se. A lengthy pretrial colloquy followed during which the court and the Assistant District Attorney repeatedly pointed out to the defendant the dangers and disadvantages of self-representation. He was repeatedly advised that he would be subject to various evidentiary and other constraints, and that his lay expectations as to the best choice of witnesses and defenses might be very shortsighted. In addition, he was reminded of the possibility of his being adjudicated a persistent felon upon conviction and of the possibility of his being sentenced to a term of imprisonment of from 15 years to life. Nevertheless, the defendant remained adamant in his desire to represent himself and emphatically persisted in urging the court to allow him to do so. The court ultimately relented and the case proceeded to trial, following which the defendant was found guilty of burglary in the third degree, two counts of criminal mischief in the third degree, grand larceny in the third degree and criminal possession of stolen property in the second degree.

Thereafter the court, upon application of the Assistant District Attorney, directed that a hearing be held to determine whether the defendant should be sentenced as a persistent felony offender. At the hearing the defendant still insisted on self-representation despite being advised, once again, that he was entitled to the assistance of an attorney. At the conclusion of the hearing, the court found the defendant to be a persistent felon and sentenced him to a term of imprisonment of from 15 years to life.

On this appeal the defendant contends that the court failed to undertake the thorough inquiry necessary to support a determination that his decision to proceed pro se was based upon an intelligent and voluntary waiver of his right to be represented by counsel ( see, People v. Sawyer, 57 N.Y.2d 12, 453 N.Y.S.2d 418, 438 N.E.2d 1133, rearg. dismissed 57 N.Y.2d 776, 454 N.Y.S.2d 1033, 440 N.E.2d 1343, cert. denied 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1024; People v. McIntyre, 36 N.Y.2d 10, 364 N.Y.S.2d 837, 324 N.E.2d 322). The record reveals, however, that the defendant's decision to proceed pro se was made after repeated and extensive questioning by both the court and the Assistant District Attorney and despite repeated admonitions and reminders of the inherent dangers of self-representation. Moreover, the defendant had had extensive prior exposure to the criminal justice system and was sufficiently familiar with criminal procedure to have had been able to make numerous applications to the court both prior to and during trial. It is clear on this record that the dangers and disadvantages of the defendant's waiving his fundamental right to counsel had been impressed upon the defendant, and that his waiver of that right was a knowing and...