People v. Rivera

• Decision Date: 22 November 1993
• Parties: The PEOPLE of the State of N.Y. v. Ernesto RIVERA, Defendant.
• Court: New York Supreme Court

Page 822

605 N.Y.S.2d 822

159 Misc.2d 556

The PEOPLE of the State of N.Y. v. Ernesto RIVERA, Defendant.

Supreme Court,

Bronx County, Criminal Division,

Part 58.

Nov. 22, 1993.

Robert T. Johnson, Dist. Atty., Debra Guarnieri, Asst. Dist. Atty., for the People.

Janet Marcus of Legal Aid, New York City, for defendant.

JOSEPH FISCH, Justice.

Defendant, purporting to act pro se, while represented by counsel, moves to dismiss the indictment on the ground that it is time-barred under C.P.L. § 30.30. Upon receipt of the motion, the Court conducted an inquiry to ascertain whether defendant's attorney adopted said motion. Defendant's attorney, after conferring with defendant, discussing the merits of the motion with him and conferring with her supervisor, has declined to adopt the motion. Accordingly, for the reason stated herein, the Court refuses to entertain the motion and it is DISMISSED.

In People v. Renaud, 145 A.D.2d 367, 369-370, 535 N.Y.S.2d 985 (1st Dept., 1988), the Appellate Division, First Department stated:

"When confronted with a pro se motion, it is, at the very least, the obligation of the court to make further inquiry and ascertain whether the defense attorney is aware of the existence of the motion and has discussed its contents with his or her client ... A motion, whether made by counsel or a pro se defendant, mandates a ruling or else the court must clearly state its reasons for refusing to decide the motion."

In Renaud, supra, the defendant's attorney served written notice of his client's intent to testify before the Grand Jury but the People never advised the defense of the particular date and time of the proceeding. Subsequently, defendant was indicted for burglary and related offenses. The defendant then moved pro se to dismiss the indictment. The Supreme Court file contained a copy of defendant's pro se 190.50 motion but there was no record of what, if any, steps were taken to calendar the motion, and what, if any, ruling was made by the Court. An omnibus motion filed several months later by defendant's attorney raised numerous grounds for dismissal of the indictment, but did not raise any 190.50 claim. The trial Court stated it had absolutely no recollection of defendant's pro se motion, noted that the defense counsel had not called it to his attention, nor made one himself, and ignored it. Defendant was convicted after trial.

Upon appeal, the majority in Renaud reached the merits of the pro se motion, holding that the settled decisional law to the effect that there is no Constitutional right of a represented defendant to supplement his own defense by participating jointly with his attorney in the conduct of his trial ("hybrid representation") does not permit a trial court to simply ignore a pro se motion on the ground that defendant is represented without conducting a specific inquiry on the record. The Court must ask:

1) Is counsel aware of the motion?

2) Does counsel believe the motion has merit?

3) Is there a conflict between counsel and his client?

The Court in Renaud, supra, also noted that the question before it was essentially one of first impression. The Renaud Court noted that most of the reported cases "involve pro se participation in trial proceedings, not motion practice, and are inapplicable to the instant situation". People v. Renaud, supra, 145 A.D.2d at 369, 535 N.Y.S.2d 985. See, People v. White, 73 N.Y.2d 468, 477, 541 N.Y.S.2d 749, 539 N.E.2d 577 (1989), cert. den. 493 U.S. 859, 110 S.Ct. 170, 107 L.Ed.2d 127 (1989), (defendant has no constitutional right to file a supplemental pro se brief); see also People v. Garcia, 69 N.Y.2d 903, 516 N.Y.S.2d 194, 508 N.E.2d 929 (1987), (defendant had no constitutional right to try his case pro se but have stand-by counsel question him on his own direct examination); People v. Ferguson, 67 N.Y.2d 383, 390, 502 N.Y.S.2d 972, 494 N.E.2d 77 (1986), (defendant has no constitutional right to make consent to a mistrial depend on his personal consent); People v. Mirenda, 57 N.Y.2d 261, 265-267, 455 N.Y.S.2d 752, 442 N.E.2d 49 (1982), (defendant has no constitutional right to have standby counsel appointed while conducting his trial defense pro se ); People v. Richardson, 4 N.Y.2d 224, 173 N.Y.S.2d 587, 149 N.E.2d 875 (1958), (represented defendant has no constitutional right to give his own summation).

The few reported cases where a defendant claims a right to file a pro se motion while represented do not discuss the Court's duty to conduct the inquiry outlined in Renaud, supra. Although the prosecution in Renaud, supra, cited a Third Department case involving the filing of a pro se motion by a represented defendant ( People v. Walton, 98 A.D.2d 842, 470 N.Y.S.2d 831 (3d Dept., 1983)) the Court in Walton, supra, did not discuss the issue of whether a represented defendant has a right to file a pro se motion or whether the court has any duty to make an inquiry concerning counsel's position, on the motion before refusing to rule on it. The Court in Walton, supra, deciding other issues in that appeal, simply referred to the pro se motion as "improper" because the defendant was represented, citing People v. Richardson, supra, without any discussion. The Appellate Division, First Department, stated in Renaud, supra, that "to the extent that the Third Department may have suggested that it is appropriate for courts to ignore pro se motions by represented defendants, we disagree with the opinion expressed in People v. Walton, supra ". People v. Renaud, supra, 145 A.D.2d at 369, 535 N.Y.S.2d 985.

The phrase "hybrid representation" was used in People v. Mirenda, supra, where the Court of Appeals considered and rejected a defendant's claim of a Constitutional right to have standby counsel appointed even though he had chosen to represent himself. The Court noted that the right to counsel, guaranteed by the Federal Constitution (Sixth Amendment) and State Constitution (N.Y. Const., Art. I, 6) gives the defendant a right to have a lawyer appointed if he cannot afford one, citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Similarly, a competent and nondisruptive defendant has a Constitutional right to represent himself. Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975); ("the right to self-representation--to make one's own defense personally--is thus necessarily implied by the structure of the [Sixth] Amendment"); People v. McIntyre, 36 N.Y.2d 10, 364 N.Y.S.2d 837, 324 N.E.2d 322 (1974). ¹ But the Court found that "[w]hat defendant asserts here, however, is a Constitutional claim for a hybrid form of representation. He maintains that he had the right to proceed pro se, while simultaneously being advised by appointed "standby" counsel. No such right is guaranteed by either the State or Federal Constitution". People v. Mirenda, supra, 57 N.Y.2d at 265, 455 N.Y.S.2d 752, 442 N.E.2d 49. The Court added that although the appointment of standby counsel has received judicial approval, it is at the discretion of the trial judge, in the interests of trial management; citing People v. Sawyer, 57 N.Y.2d 12, 22, 453 N.Y.S.2d 418, 438 N.E.2d 1133 (1982), quoting Faretta v. California, supra, 422 U.S. at 835, n. 46, 95 S.Ct. at 2541, n. 46, see, also, ABA Standards for Criminal Justice, (2d ed.) Special Functions of the Trial Judge, Standard 6-3.7, see, also e.g., People v. Williams, 143 A.D.2d 959, 533 N.Y.S.2d 742 (2d Dept., 1988). The Court stated in a footnote that if a pro se defendant had the right to standby counsel, conversely, a defendant would have a right to take part in the conduct of a trial by making motions, cross-examining witnesses, or arguing to the jury.

This Court's research reveals few additional reported cases directly involving a defendant's claim of a right to make a pro se motion while represented by competent counsel with whom he has no conflict, although this court is aware that it is a too common practice of represented defendants to make pro se motions. However, these cases: People v. Beames, 174 A.D.2d 775, 570 N.Y.S.2d 721 (3d Dept., 1991); People v. Pitcher, 182 A.D.2d 878, 581 N.Y.S.2d 908 (3d Dept., 1992); People v. Smith, 162 A.D.2d 734, 557 N.Y.S.2d 132 (2d Dept., 1990); and another related case: People v. Jordan, 96 A.D.2d 1060, 466 N.Y.S.2d 486 (2d Dept., 1983) aff'd 62 N.Y.2d 825, 477 N.Y.S.2d 605, 466 N.E.2d 145 (1984), do not discuss the relevant law in detail or state whether any inquiry was made by the court of defense counsel as to whether counsel adopted the motion. In Beames, supra and Pitcher, supra, the Appellate Courts noted in passing their approval of a lower court's refusal to entertain a represented defendant's pro se motion but without specifying the application of any inquiry to the facts in those cases. Similarly, in People v. Smith, supra, the Appellate Division, Second Department, in a memorandum decision held that the trial court's refusal to entertain a pro se motion without prejudice to its renewal if adopted by counsel was "not an improvident exercise of discretion", citing People v. White, supra, and People v. Ford, 143 A.D.2d 841, 842, 533 N.Y.S.2d 325 (2d Dept., 1988). However the decision does not contain a discussion of the nature of the inquiry, if any, conducted by the trial court. In a related case, People v. Jordan, 96 A.D.2d 1060, 466 N.Y.S.2d 486 (2d Dept., 1983), aff'd62 N.Y.2d 825, 477 N.Y.S.2d 605, 466 N.E.2d 145 (1984), the Court refused to recognize a prior pro se habeas corpus writ as preserving the defendant's right to raise a Constitutional speedy trial claim on appeal. The Court in Jordan, citing People v. Mirenda, supra noted that in the decisions of the New York Court of Appeals "emphatically rejected was the notion that 'a defendant who [chooses] to be represented by counsel would have the right also to personally take part...