People v. Silburn

• Decision Date: 14 December 2016
• Citation: 43 N.Y.S.3d 461,145 A.D.3d 799,2016 N.Y. Slip Op. 08377
• Parties: The PEOPLE, etc., respondent, v. Spence SILBURN, appellant.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 799
43 N.Y.S.3d 461
2016 N.Y. Slip Op. 08377

The PEOPLE, etc., respondent,
v.
Spence SILBURN, appellant.

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

Dec. 14, 2016.

43 N.Y.S.3d 463

Lynn W.L. Fahey, New York, NY (John B. Latella and Alexis A. Ascher of counsel), for appellant, and appellant pro se.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Howard B. Goodman of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.

145 A.D.3d 799

Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg, J.), rendered September 10, 2013, convicting him of criminal possession of a weapon in the second degree, aggravated unlicensed operation of a motor vehicle in the third degree, and unlicensed operation of a motor vehicle, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

A "defendant's request to proceed pro se must be based on a knowing, voluntary, and intelligent waiver of the right to counsel" (People v. Sanchez, 7 A.D.3d 645, 646, 777 N.Y.S.2d 144 ). Here, the Supreme Court did not violate the defendant's right to self-representation, since the defendant made no such waiver. Contrary to the defendant's contentions, he never asserted a

145 A.D.3d 800

desire to proceed pro se at trial, but only asked to "go pro se with standby counsel," a request that was properly denied by the court (see People v. Henriquez, 3 N.Y.3d 210, 215, 785 N.Y.S.2d 384, 818 N.E.2d 1125 ; People v. Rodriguez, 95 N.Y.2d 497, 501, 719 N.Y.S.2d 208, 741 N.E.2d 882 ).

Testimony from the arresting detective about his actions in response to a report of a "forcibly taken" vehicle was properly admitted to explain the events precipitating the defendant's arrest (see People v. Tosca, 98 N.Y.2d 660, 661, 746 N.Y.S.2d 276, 773 N.E.2d 1014 ; People v. Goodson, 35 A.D.3d 760, 761, 825 N.Y.S.2d 778 ). Moreover, since the defendant's admissions at the police precinct regarding any uncharged crimes were inextricably intertwined with his statements pertaining to the crimes of which he was subsequently indicted, introduction into evidence of

43 N.Y.S.3d 464

his entire pretrial statement was proper (see People v. Irequi, 208 A.D.2d 952, 953, 618 N.Y.S.2d 97 ).

The recordings of telephone calls made between the defendant and others while the defendant was incarcerated at Rikers Island did not violate the defendant's right to counsel, as there was no evidence that the people with whom the defendant spoke were acting as agents of the police (see People v. Jackson, 125 A.D.3d 1002, 1003, 2 N.Y.S.3d 625 ). The portions of the transcripts of the calls to which the defendant objected were properly introduced at trial, as their content was necessary to complete the narrative of the events that had transpired (see People v. Tosca, 98 N.Y.2d at 661, 746 N.Y.S.2d 276, 773 N.E.2d 1014 ). The defendant failed to preserve for appellate review his contention that the statements "I tried to set the precinct on fire" and "blow an L down the hall" should have been redacted from the transcripts of the calls, as he never objected to the admission of these statements (see CPL 470.05[2] ). In any event, even though these particular statements should have been redacted, the evidence of the defendant's guilt, without reference to the admission of these statements, was overwhelming, and there is no...