People v. Nahshal

• Decision Date: 11 January 2017
• Citation: 146 A.D.3d 817,45 N.Y.S.3d 142,2017 N.Y. Slip Op. 00195
• Parties: The PEOPLE, etc., respondent, v. Muamar NAHSHAL, appellant.
• Court: New York Supreme Court — Appellate Division

146 A.D.3d 817

45 N.Y.S.3d 142

2017 N.Y. Slip Op. 00195

The PEOPLE, etc., respondent,

v.Muamar NAHSHAL, appellant.

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

Jan. 11, 2017.

Lynn W.L. Fahey, New York, NY (Lauren E. Jones of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgow and MacKenzie Fillow of counsel), for respondent.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.

Appeal by the defendant from an amended judgment of the Supreme Court, Kings County (Brennan, J.), rendered February 4, 2014, revoking a sentence of probation previously imposed by the County Court, Suffolk County (Gazzillo, J.), upon a finding that he violated a condition thereof, after a hearing, and imposing a term of imprisonment upon his previous convictions of attempt to evade or defeat taxes on ten thousand cigarettes or more and unlawful possession or transportation for the purpose of sale of unstamped cigarettes.

ORDERED that the amended judgment is affirmed.

As an initial matter, contrary to the People's contention, the defendant's written waiver of the right to appeal was not valid (see People v. Keiser, 100 A.D.3d 927, 928, 954 N.Y.S.2d 184 ). The record does not demonstrate that the defendant grasped the concept of the appeal waiver and the nature of the right he was forgoing (see People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Harris, 142 A.D.3d 557, 557, 36 N.Y.S.3d 211 ; People v. Guarchaj, 122 A.D.3d 878, 879, 996 N.Y.S.2d 372 ). Notwithstanding the defendant's execution of the written waiver, it cannot be said that he knowingly, intelligently, and voluntarily waived his right to appeal (see People v. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172 ; People v. Bradshaw, 18 N.Y.3d at 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Brown, 122 A.D.3d 133, 139, 992 N.Y.S.2d 297 ).

The defendant contends that the Supreme Court erred in denying his application to proceed pro se. "A criminal defendant has a constitutional right to self-representation" (People v. Littlejohn, 92 A.D.3d 898, 898, 939 N.Y.S.2d 118 ; see Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 ; Matter of Kathleen K. [Steven K.], 17 N.Y.3d 380, 384–385, 929 N.Y.S.2d 535, 953 N.E.2d 773 ; People v. McIntyre, 36 N.Y.2d 10, 15, 364 N.Y.S.2d 837, 324 N.E.2d 322 ). But, "to best promote the orderly administration of justice and insulate convictions from claims of deprivation of fundamental fairness, the right to self-representation is necessarily a qualified right" (People v. Arroyo, 98 N.Y.2d 101, 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154 ; see People v. McIntyre, 36 N.Y.2d at 16–17, 364 N.Y.S.2d 837, 324 N.E.2d 322 ; People v. Rivera, 116 A.D.3d 986, 986, 983 N.Y.S.2d 856 ). "A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues" (People v. McIntyre, 36 N.Y.2d at 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 ).

Here, the defendant's request to proceed pro se was neither timely nor unequivocal (see Matter of Kathleen K. [Steven K.], 17 N.Y.3d at 387, 929 N.Y.S.2d 535, 953 N.E.2d 773 ; People v. LaValle, 3 N.Y.3d 88, 106, 783 N.Y.S.2d 485, 817 N.E.2d 341 ; People v. Baxter, 102 A.D.3d 805, 805, 961 N.Y.S.2d 194 ; People v. White, 60 A.D.3d 877, 878, 875 N.Y.S.2d 551 ; People v. Jenkins, 45 A.D.3d 864, 864–865, 846 N.Y.S.2d 347 ; People v. Carter, 299 A.D.2d 418, 419, 749 N.Y.S.2d 101 ; cf. People v. Lewis, 114 A.D.3d 402, 404, 980 N.Y.S.2d 389 ). Under the circumstances, the Supreme Court did not improvidently exercise its discretion in denying the defendant's request to represent himself (see People v. Rivera, 116 A.D.3d at 986, 983 N.Y.S.2d 856 ; People v. Littlejohn, 92 A.D.3d at 898, 939 N.Y.S.2d 118 ).

The defendant's contention that the Supreme Court's sentence impermissibly penalized him for exercising his right to a violation of probation hearing is unpreserved for appellate review since he did not set forth the issue on the record at the time of sentencing (see People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017 ; People v. Busano, 141 A.D.3d 538, 542, 36 N.Y.S.3d 149 ). In any event, the fact that the sentence imposed after the hearing was more severe than the sentence offered during plea negotiations does not, standing alone, establish that the defendant was punished for exercising his right to a hearing (see People v. Pena, 50 N.Y.2d 400,...