        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

985
KA 11-02160
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SAMUEL CHANDLER, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

SAMUEL CHANDLER, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL D. SMITH OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered September 12, 2011. The judgment
convicted defendant, upon a jury verdict, of promoting prison
contraband in the first degree.

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of promoting prison contraband in the first degree (Penal Law
§ 205.25 [1]), defendant contends in his main brief that Supreme Court
erred in granting his request at trial to proceed pro se. We reject
that contention. “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” (People v McIntyre, 36 NY2d 10, 17). “If a timely and
unequivocal request has been asserted, then the trial court is
obligated to conduct a ‘searching inquiry’ to ensure that the
defendant’s waiver is knowing, intelligent, and voluntary” (Matter of
Kathleen K. [Steven K.], 17 NY3d 380, 385; see People v Crampe, 17
NY3d 469, 481-482, cert denied ___ US___, 132 S Ct 1746).

     Here, defendant does not dispute that his request to represent
himself was unequivocal, nor does he contend that he engaged in
conduct that would prevent the fair and orderly disposition of the
trial. Even assuming, arguendo, that defendant’s request was not
timely asserted, we conclude that he was not prejudiced by the court’s
implicit determination to the contrary. We further conclude, upon our
                                 -2-                           985
                                                         KA 11-02160

review of “the whole record, not simply . . . [the] waiver colloquy”
(People v Providence, 2 NY3d 579, 582), that defendant made a knowing,
voluntary and intelligent waiver of his right to counsel. Before
granting defendant’s request to proceed pro se, the court conducted
the requisite searching inquiry, during which defendant stated, inter
alia, that he had successfully represented himself at trial in a prior
case. From his initial appearance to his mid-trial request to proceed
pro se, defendant expressed dissatisfaction with his assigned
attorneys, against whom he had filed multiple complaints with the
Attorney Grievance Committee, and he engaged in concerted efforts to
assist in his defense. The court “had numerous opportunities to see
and hear . . . defendant firsthand, and, thus, had general knowledge
of defendant’s age, literacy and familiarity with the criminal
justice system” (People v Anderson, 94 AD3d 1010, 1012, lv denied 19
NY3d 956, reconsideration denied 19 NY3d 1101 [internal quotation
marks omitted]). In addition, the court fulfilled its obligation to
ensure that defendant was “aware of the dangers and disadvantages of
self-representation” (Providence, 2 NY3d at 582 [internal quotation
marks omitted]).

     Defendant contends in his main and pro se supplemental briefs
that he was denied effective assistance of counsel during the period
of counsel’s representation. To the extent that defendant’s
contention concerns matters outside the record on appeal, it must be
raised by way of a motion pursuant to CPL article 440 (see People v
Ocasio, 81 AD3d 1469, 1470, lv denied 16 NY3d 898, cert denied ___ US
___, 132 S Ct 318). On the record before us, we conclude that
defendant was afforded effective assistance (see People v Brown, 6
AD3d 1125, 1126, lv denied 3 NY3d 657).

     We have reviewed the remaining contentions in defendant’s main
brief and pro se supplemental brief and conclude that none warrants
reversal or modification of the judgment.




Entered:   September 27, 2013                   Frances E. Cafarell
                                                Clerk of the Court
