People v. Smith

• Decision Date: 23 December 2021
• Docket Number: 995,KA 18-02020
• Citation: 200 A.D.3d 1689,159 N.Y.S.3d 302
• Parties: The PEOPLE of the State of New York, Respondent, v. Randy SMITH, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 1689
159 N.Y.S.3d 302

The PEOPLE of the State of New York, Respondent,
v.
Randy SMITH, Defendant-Appellant.

995
KA 18-02020

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

Entered: December 23, 2021

DANIELLE C. WILD, ROCHESTER, FOR DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of burglary in the second degree ( Penal Law § 140.25 [2] ), two counts of grand larceny in the fourth degree (§ 155.30 [4], [8]), two counts of petit larceny (§ 155.25), and one count of criminal mischief in the fourth degree (§ 145.00 [1]). We affirm.

Contrary to defendant's contention, he was not deprived of his right to represent himself at trial. It is well settled that a criminal defendant may invoke the right to proceed 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. Silburn , 31 N.Y.3d 144, 150, 74 N.Y.S.3d 781, 98 N.E.3d 696 [2018], quoting People v. McIntyre , 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 [1974] ). With respect to the first prong, where a defendant does not "demonstrate an actual fixed intention and desire to proceed without professional assistance in his [or her] defense," the request is not unequivocal ( id. [internal

159 N.Y.S.3d 305

quotation marks omitted]). Here, defendant's single statement that he would rather represent himself than continue with his assigned counsel, "made in the alternative to his frequent and unsupported requests for substitution of assigned counsel," was not unequivocal ( People v. Larkins , 128 A.D.3d 1436, 1441, 8 N.Y.S.3d 755 [4th Dept. 2015], lv denied 27 N.Y.3d 1001, 38 N.Y.S.3d 110, 59 N.E.3d 1222 [2016] ). Thus, County Court did not err in failing to conduct any further inquiry (see Silburn , 31 N.Y.3d at 152, 74 N.Y.S.3d 781, 98 N.E.3d 696 ).

Defendant further contends that the court erred in denying his for-cause challenges to two prospective jurors. Even assuming, arguendo, that the court erred in denying defendant's for-cause challenge to prospective juror number 16, we conclude that the error does not require reversal because "the People, not defendant, exercised a peremptory challenge to remove [that] prospective juror" ( People v. Molano , 70 A.D.3d 1172, 1174 n. 1, 894 N.Y.S.2d 589 [3d Dept. 2010], lv denied 15 N.Y.3d 776, 907 N.Y.S.2d 464, 933 N.E.2d 1057 [2010] ; see CPL 270.20 [2] ; People v. Dunkley , 189 A.D.2d 776, 777, 592 N.Y.S.2d 401 [2d Dept. 1993], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 946, 613 N.E.2d 978 [1993] ). With respect to defendant's for-cause challenge to prospective juror number 15, defendant used a peremptory challenge to remove that prospective juror, and defendant eventually exhausted all of his peremptory challenges. However, during voir dire, defendant did not raise his current contention that statements made by that prospective juror cast doubt on his ability to apply the proper standard relating to the burden of proof. Thus, that specific contention is unpreserved (see People v. Miller , 153 A.D.3d 1652, 1652-1653, 60 N.Y.S.3d 893 [4th Dept. 2017], lv denied 30 N.Y.3d 1062, 71 N.Y.S.3d 12, 94 N.E.3d 494 [2017] ; People v. Horton , 79 A.D.3d 1614, 1615, 913 N.Y.S.2d 463 [4th Dept. 2010], lv denied 16 N.Y.3d 859, 923 N.Y.S.2d 421, 947 N.E.2d 1200 [2011] ; People v. Chatman , 281 A.D.2d 964, 964-965, 722 N.Y.S.2d 329 [4th Dept. 2001], lv denied 96 N.Y.2d 899, 730 N.Y.S.2d 796, 756 N.E.2d 84 [2001] ).

Defendant's sole preserved contention with respect to prospective juror number 15, i.e., that he should have been excused for cause based upon his statement that he would "feel better" if defendant testified, is without merit. CPL 270.20 (1) (b) provides that a party may challenge a prospective juror for cause if the prospective juror "has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at trial." Thus, "a prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial" ( People v. Warrington , 28 N.Y.3d 1116, 1119-1120, 45 N.Y.S.3d 345, 68 N.E.3d 70 [2016] [internal quotation marks omitted]). Here, the court obtained the requisite unequivocal assurance from prospective juror number 15 that he would abide by the court's instruction that "the defendant that does not testify as a witness is not a factor from which any inference unfavorable to the defendant may be drawn" (see People v. Mitchell , 144 A.D.3d 1598, 1599-1600, 41 N.Y.S.3d 805 [4th Dept. 2016] ; People v. Ju Ju Jiang , 99 A.D.3d 724, 725, 951 N.Y.S.2d 749 [2d Dept. 2012], lv denied 20 N.Y.3d 1062, 962 N.Y.S.2d 613, 985 N.E.2d 923 [2013] ). We disagree with the dissent that "[t]here is no indication in the record that prospective juror number 15 was one of the two prospective jurors who were acknowledged by the court as having given some form of nonverbal assurance that they could follow

159 N.Y.S.3d 306

its instructions."...