People v. Whitfield

• Citation: 115 A.D.3d 1181,2014 N.Y. Slip Op. 01856,982 N.Y.S.2d 242
• Parties: The PEOPLE of the State of New York, Respondent, v. Rhashay R. WHITFIELD, Defendant–Appellant.
• Decision Date: 21 March 2014
• Court: New York Supreme Court Appellate Division

115 A.D.3d 1181
982 N.Y.S.2d 242
2014 N.Y. Slip Op. 01856

The PEOPLE of the State of New York, Respondent,
v.
Rhashay R. WHITFIELD, Defendant–Appellant.

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

March 21, 2014.

[982 N.Y.S.2d 243]

Cara A. Waldman, Fairport, for Defendant–Appellant.

Cindy F. Intschert, District Attorney, Watertown (Harmony A. Healy of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO AND WHALEN, JJ.

MEMORANDUM:

On appeal from a judgment convicting him upon a jury verdict of, inter alia, criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ), defendant contends that County Court erred in allowing him to proceed pro se. We reject that contention. “Implicit in the exercise of [the constitutional right to counsel] is the concomitant right to forego the advantages of counsel

[982 N.Y.S.2d 244]

and represent oneself” ( People v. Arroyo, 98 N.Y.2d 101, 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154;see People v. Henriquez, 3 N.Y.3d 210, 215, 785 N.Y.S.2d 384, 818 N.E.2d 1125). Here, we conclude that the court conducted the requisite “ ‘searching inquiry’ to insure that defendant's request to proceed pro se was accompanied by a ‘knowing, voluntary and intelligent waiver of the right to counsel’ ” ( People v. Providence, 2 N.Y.3d 579, 580, 780 N.Y.S.2d 552, 813 N.E.2d 632, quoting Arroyo, 98 N.Y.2d at 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154;see People v. Deponceau, 96 A.D.3d 1345, 1347, 946 N.Y.S.2d 331,lv. denied19 N.Y.3d 1025, 953 N.Y.S.2d 558, 978 N.E.2d 110;People v. Herman, 78 A.D.3d 1686, 1686–1687, 910 N.Y.S.2d 833,lv. denied16 N.Y.3d 831, 921 N.Y.S.2d 195, 946 N.E.2d 183) and, contrary to the contention of defendant, the court repeatedly warned him of the risks associated with proceeding pro se ( see People v. Chandler, 109 A.D.3d 1202, 1203, 971 N.Y.S.2d 778;People v. Clark, 42 A.D.3d 957, 958, 838 N.Y.S.2d 760,lv. denied9 N.Y.3d 960, 848 N.Y.S.2d 29, 878 N.E.2d 613).

Although defendant contends that his responses during the inquiry and his subsequent conduct and statements revealed his lack of knowledge of the law and criminal procedure, it is well established that, “ ‘[r]egardless of his lack of expertise and the rashness of his choice,’ ... defendant may ‘choose to waive counsel if he [does] so knowingly and voluntarily’ ” ( People v. Gillian, 8 N.Y.3d 85, 88, 828 N.Y.S.2d 277, 861 N.E.2d 92, quoting People v. Vivenzio, 62 N.Y.2d 775, 776, 477 N.Y.S.2d 318, 465 N.E.2d 1254). We conclude that defendant made a knowing and voluntary choice in this case. We reject defendant's further contention that the court had a continuing obligation to ask defendant, at various points during the proceedings, whether he wished to continue to represent himself, particularly where, as here, defendant gave no indication to the contrary ( see generally Vivenzio, 62 N.Y.2d at 776, 477 N.Y.S.2d 318, 465 N.E.2d 1254).

Defendant further contends that he was deprived of a fair trial by prosecutorial misconduct. Defendant's contention with respect to most of the instances of alleged prosecutorial misconduct have not been preserved for our review ( see People v. Mull, 89 A.D.3d 1445, 1446, 932 N.Y.S.2d 635,lv. denied19 N.Y.3d 965, 950 N.Y.S.2d 117, 973 N.E.2d 215), and we decline to exercise our power to review his contention with respect to those instances of alleged misconduct as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ). We conclude that the remaining instances of misconduct were “not so egregious as to deprive defendant of a fair trial” ( People v. Wittman, 103 A.D.3d 1206, 1207, 958 N.Y.S.2d 911,lv. denied21 N.Y.3d 915, 966 N.Y.S.2d 366, 988 N.E.2d 895;see People v. Eldridge, 288 A.D.2d 845, 845–846, 732 N.Y.S.2d 607,lv. denied97 N.Y.2d 681, 738 N.Y.S.2d 296, 764 N.E.2d 400). We reject defendant's further contention that the court erred in its Molineux ruling. Testimony concerning defendant's prior drug sales was admissible with respect to the issue of defendant's intent to sell drugs ( see People v. Ray, 63 A.D.3d 1705, 1706, 880 N.Y.S.2d 837,lv denied13 N.Y.3d 838, 890 N.Y.S.2d 454, 918 N.E.2d 969;People v. Lowman, 49 A.D.3d 1262, 1263, 856 N.Y.S.2d 342,lv. denied10 N.Y.3d 936, 862 N.Y.S.2d 343, 892 N.E.2d 409;People v. Williams, 21 A.D.3d 1401, 1402–1403, 801 N.Y.S.2d 659,lv. denied5 N.Y.3d 885, 808 N.Y.S.2d 588, 842 N.E.2d 486), as well as “ ‘to complete the narrative of events leading up to the crime for which defendant [was] on trial’ ” ( Ray, 63 A.D.3d at 1706, 880 N.Y.S.2d 837). Further, we conclude that the probative

[982 N.Y.S.2d 245]

value of such evidence outweighed its prejudicial impact ( see People v. Alvino, 71 N.Y.2d 233, 242, 525 N.Y.S.2d 7, 519 N.E.2d 808).

We agree with defendant that it was improper for the People to condition the plea of a codefendant upon his promise not to testify at defendant's trial and to threaten to increase the codefendant's sentence should he violate that condition ( see...