People v. Silburn, 28

CourtNew York Court of Appeals
Writing for the CourtChief Judge DiFIORE.
Citation74 N.Y.S.3d 781,31 N.Y.3d 144,98 N.E.3d 696
Parties The PEOPLE of the State of New York, Respondent, v. Spence SILBURN, Appellant.
Docket NumberNo. 28,28
Decision Date03 April 2018

31 N.Y.3d 144
98 N.E.3d 696
74 N.Y.S.3d 781

The PEOPLE of the State of New York, Respondent,
Spence SILBURN, Appellant.

No. 28

Court of Appeals of New York.

April 3, 2018

74 N.Y.S.3d 783

Paul Skip Laisure, Appellate Advocates, New York City (Alexis A. Ascher and Lynn W.L. Fahey of counsel), for appellant.

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


Chief Judge DiFIORE.

31 N.Y.3d 147

We are called upon to decide two issues in this appeal. Defendant contends that he was denied his right of self-representation

31 N.Y.3d 148

when the trial court denied his request to proceed pro se with "standby counsel." Defendant further argues that he was deprived of a fair trial when the trial court precluded his proffered psychiatric testimony for failure to serve notice on the People pursuant to CPL 250.10. We agree with the courts below that neither contention is consistent with the controlling law. Therefore, we now affirm.


In August of 2011, the police lawfully stopped defendant while he was driving a stolen car with a license that had been suspended and revoked. Defendant was searched and a loaded .45 caliber handgun was found in his jacket pocket. After the police seized the gun, defendant spontaneously declared that it was a good thing the officer had his gun drawn as quickly as he did because defendant would have shot him. Later at the precinct, defendant waived his Miranda rights and admitted to stealing the car at gunpoint. Toward the end of the 15–minute interview, defendant became agitated. He was later taken by police to a hospital for a psychiatric evaluation. Defendant was thereafter indicted for criminal possession of a weapon in the second degree, aggravated unlicensed operation of a motor vehicle in the third degree, and related counts. In August 2012, two psychiatrists examined defendant pursuant to CPL article 730, and a competency hearing was held. At the hearing, defense counsel questioned one of the examining psychiatrists about defendant's history of mental illness, and discussed the symptoms of schizophrenia that defendant exhibited. Defendant was found competent to stand trial.

A year later in 2013, and two weeks before trial, defendant requested to "proceed as pro se." The trial court inquired if defendant wanted to represent himself, to which defendant replied that he did "[n]ot just [want to] represent myself, but having limitation with my counsel." The court plainly informed defendant that "[y]ou either have a lawyer, or you don't have a lawyer.... You choose to represent yourself, you sit there by yourself. You want to have a lawyer, you have a lawyer." The

74 N.Y.S.3d 784

court then asked, "All right?" The record does not reflect defendant's response, if any, and defense counsel continued to represent defendant at trial.

Defendant raised the issue again after voir dire, when defense counsel informed the court that defendant had wanted to question the prospective jurors and sought to question the

31 N.Y.3d 149

witnesses, in addition to the questioning done by his attorney. The court again told defendant that "you have a right to represent yourself without an attorney. Or you have the right to have an attorney." Defendant maintained that the Sixth Amendment gave him the right to the assistance of counsel and he wanted "assistance" from his counsel—for his attorney to "act[ ] like an aide." The court told defendant he could not have dual representation. Although defendant replied, "I was asking if I could go pro se with standby counsel," he again clarified that he wanted the opportunity to ask any questions that his attorney failed to ask. The court denied the request.

During trial, despite having never served a CPL 250.10 notice, defense counsel sought to introduce the testimony of the psychiatrist who evaluated defendant, at the behest of the police, the day he was arrested. Counsel informed the court that the psychiatrist diagnosed defendant as "bipolar, with psychotic features" and, counsel argued, this diagnosis rendered defendant mentally incapable of voluntarily waiving his Miranda rights. After hearing from the psychiatrist outside the presence of the jury, the court precluded the evidence, concluding that (i) the proffered testimony was of slight probative value because the psychiatrist had no recollection of examining defendant; (ii) the evidence was insignificant; and (iii) the failure to serve a CPL 250.10 notice prejudiced the People.

The jury convicted defendant of criminal possession of a weapon in the second degree, aggravated unlicensed operation of a motor vehicle in the third degree, and a related offense. The Appellate Division affirmed, determining that defendant's request to proceed pro se was equivocal since defendant asked only to proceed pro se with standby counsel ( 145 A.D.3d 799, 799–800, 43 N.Y.S.3d 461 [2d Dept. 2016] ). Thus, the Court concluded that defendant did not make a "knowing, voluntary, and intelligent waiver of the right to counsel" ( id. at 799, 43 N.Y.S.3d 461 [internal quotation marks and citation omitted] ). The Court further held that the trial court did not err in precluding defendant's proffered psychiatric evidence because defendant did not provide timely notice of his intent to present the evidence under CPL 250.10 ( id. at 801, 43 N.Y.S.3d 461 ).

A Judge of this Court granted defendant leave to appeal ( 29 N.Y.3d 952, 54 N.Y.S.3d 383, 76 N.E.3d 1086 [2017] ).


Defendant argues that the trial court violated his constitutional right to self-representation when it denied his requests

31 N.Y.3d 150

to proceed pro se without making any further inquiry. He maintains that the request was unequivocal despite the fact that it was conditioned on his request to proceed with "standby counsel." In response, the People assert that the trial court did not err in denying defendant's request to proceed pro se, since defendant, as evidenced in the colloquy conducted by the court, never made an unequivocal request to represent himself alone, without counsel.

Under the New York and Federal Constitutions, a defendant has the right to proceed without counsel and to represent him or herself at trial, and the State may not force counsel upon a defendant (see N.Y. Const. art I, § 6 ; Faretta v. California, 422 U.S. 806, 836, 95 S.Ct. 2525, 45 L.Ed.2d 562 [1975] ). In

74 N.Y.S.3d 785

People v. McIntyre, we set forth a three-prong test, long used to address a defendant's right to self-representation:

"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" ( 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 [1974] ).

If a defendant asserts a timely and unequivocal request to proceed pro se, then the trial court must "conduct a ‘searching inquiry’ to ensure that the defendant's waiver [of the right to counsel] is knowing, intelligent, and voluntary" ( Matter of Kathleen K. [Steven K.], 17 N.Y.3d 380, 385, 929 N.Y.S.2d 535, 953 N.E.2d 773 [2011] ; see also People v. White, 56 N.Y.2d 110, 117, 451 N.Y.S.2d 57, 436 N.E.2d 507 [1982] ).

In clarifying what "unequivocally" means, we have explained that the pro se request must be "clearly and unconditionally presented to the trial court," so that "convicted defendants may not pervert the system by subsequently claiming a denial of their pro se right" ( McIntyre, 36 N.Y.2d at 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 ). We determined that a defendant's request to proceed pro se was not unequivocal, where "[a]t no time did [defendant] demonstrate an actual fixed intention and desire to proceed without professional assistance in his defense to the charges against him" ( People v. Payton, 45 N.Y.2d 300, 314, 408 N.Y.S.2d 395, 380 N.E.2d 224 [1978], revd on other grounds 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 [1980] ). We have further concluded that the application to proceed pro se "must reflect a purposeful decision to

31 N.Y.3d 151

relinquish the benefit of counsel and proceed singularly" ( Matter of Kathleen K., 17 N.Y.3d at 386, 929 N.Y.S.2d 535, 953 N.E.2d 773 ).1

In People v. Mirenda, 57 N.Y.2d 261, 265, 455 N.Y.S.2d 752, 442 N.E.2d 49 [1982] ), we rejected the argument that a defendant has a constitutional right to the assistance of standby counsel while conducting a pro se defense, establishing that "[n]o such right is guaranteed by either the State or Federal Constitution." Nearly 20 years after Mirenda, we reaffirmed that, "...

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  • People v. Silburn, 28
    • United States
    • New York Court of Appeals
    • April 3, 2018
    ...31 N.Y.3d 14498 N.E.3d 69674 N.Y.S.3d 781The PEOPLE of the State of New York, Respondent,v.Spence SILBURN, Appellant.No. 28Court of Appeals of New York.April 3, 201874 N.Y.S.3d 783Paul Skip Laisure, Appellate Advocates, New York City (Alexis A. Ascher and Lynn W.L. Fahey of counsel), for ap......

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