People v. Gillian

• Decision Date: 21 December 2006
• Citation: 8 N.Y.3d 85,861 N.E.2d 92
• Parties: The PEOPLE of the State of New York, Respondent, v. Dennis GILLIAN, Appellant.
• Court: New York Court of Appeals Court of Appeals

861 N.E.2d 92

8 N.Y.3d 85

The PEOPLE of the State of New York, Respondent, v. Dennis GILLIAN, Appellant.

Court of Appeals of New York.

December 21, 2006.

Feldman and Feldman, Uniondale (Steven A. Feldman and Arza Feldman of counsel), for appellant.

Francis D. Phillips, II, District Attorney, Goshen (David R. Huey of counsel), for respondent.

OPINION OF THE COURT

PIGOTT, J.

On January 29, 2004, defendant was arraigned on a four-count indictment charging him with two counts of criminal sale of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the third degree and was assigned counsel. One month later, he moved to discharge assigned counsel alleging a conflict of interest and "difference in strategy." In a written decision and order, dated March 10, 2004, County Court denied that motion because defendant had not articulated the conflict, and defendant's allegations about the attorney's strategy were conclusory.

On April 13, 2004, defendant once again appeared with his assigned counsel for a pretrial hearing and advised the court that he wanted to proceed pro se because assigned counsel had "done nothing" for him and had failed to make certain motions. County Court denied that application as well because it was "not convinced" that defendant would be able to represent himself. In response to that ruling, defendant expressed his distrust of assigned counsel, stating "[y]ou can't allow a man who is going to sell me out to represent me."

Two days later, defendant once again moved in writing for reassignment of counsel or, in the alternative, the opportunity to proceed pro se, citing assigned counsel's "incompetence" and purported retaliatory conduct against defendant for requesting new counsel. On April 28, 2004, the prosecutor informed the court that assigned counsel did indeed have a conflict and County Court appointed another attorney to represent defendant. However, this time defendant objected to the appointment asserting that the new attorney had represented an individual who had previously testified against defendant in an unrelated matter. County Court therefore assigned a third attorney to represent defendant. Defendant did not object to that appointment nor did he reassert his desire to proceed pro se. Rather, defendant simply asked if his third assigned counsel would be present at the next calendar call.

Following a jury trial, defendant was convicted of one count of criminal sale of a controlled substance in the third degree and one count of criminal possession of a controlled substance in the third degree and acquitted of the remaining counts. Defendant was adjudicated a second felony offender and sentenced to indeterminate terms of imprisonment of 9 to 18 years on each count, with both sentences to run concurrently.

Defendant appealed his conviction, asserting that County Court deprived him of his Sixth Amendment right to represent himself. The Appellate Division held that County Court improperly denied defendant's timely and unequivocal request to proceed pro se, but nevertheless affirmed defendant's conviction because defendant, by proceeding to trial with his third assigned counsel and not expressing a further desire to proceed pro se, abandoned his request to represent himself. We now affirm defendant's conviction on the ground that defendant's request to represent himself was not clear and unequivocal.

We have long recognized that a defendant "may insist on foregoing the benefits associated with the right to counsel and proceeding on a pro se basis," but have also cautioned that waiver of the "fundamental right to counsel requires that a trial court must be satisfied that a defendant's waiver is unequivocal, voluntary and intelligent" (People v. Smith, 92 N.Y.2d 516, 520, 683 N.Y.S.2d 164, 705 N.E.2d 1205 [1998]). "Regardless of his lack of expertise and the rashness of his choice," a defendant may "choose to waive counsel if he [does] so knowingly and voluntarily" (People v. Vivenzio, 62 N.Y.2d 775, 776, 477 N.Y.S.2d 318, 465 N.E.2d 1254 [1984], citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 [1975]).

A defendant's request to represent himself "must be invoked clearly and unequivocally" (People v. LaValle, 3 N.Y.3d 88, 106, 783 N.Y.S.2d 485, 817 N.E.2d 341 [2004], citing Faretta, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 [1975]). In order to ensure that convicted defendants do not "pervert the system by subsequently claiming a denial of their pro se right, the pro se request must be clearly and unconditionally presented to the trial court" (People v. McIntyre, 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 [1974]).

While defendant's conditioning of his request for new counsel with a request for self-representation did not necessarily render the latter request equivocal, here defendant raised the argument for self-representation as a...