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

696
KA 10-01760
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TYRONE L. MALONE, DEFENDANT-APPELLANT.


JEFFREY WICKS, PLLC, ROCHESTER (JEFFREY WICKS OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Daniel J. Doyle, J.), rendered July 19, 2010. The judgment convicted
defendant, upon a jury verdict, of attempted criminal sexual act in
the first degree and sexual abuse in the second 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, inter alia, attempted criminal sexual act in the first
degree (Penal Law §§ 110.00, 130.50 [4]), defendant contends that he
did not knowingly, voluntarily and intelligently waive his right to
counsel before proceeding pro se at trial. We reject that contention.
It is well settled that, before proceeding pro se, “ ‘a defendant must
make a knowing, voluntary and intelligent waiver of the right to
counsel’ ” (People v Crampe, 17 NY3d 469, 481, cert denied ___ US ___,
132 S Ct 1746), and we must determine whether he did so by reviewing
“the whole record, not simply . . . the waiver colloquy” (People v
Providence, 2 NY3d 579, 583). When defendant sought to proceed pro
se, Supreme Court was required to conduct a “ ‘searching inquiry’ . .
. aimed at insuring that the defendant ‘was aware of the dangers and
disadvantages of proceeding without counsel’ ” (id. 582, quoting
People v Slaughter, 78 NY2d 485, 492). Based on our review of the
court’s inquiry, as well as the earlier proceedings in the case, we
conclude that defendant knowingly, intelligently and voluntarily
waived his right to counsel.

     Defendant further contends that his request to proceed pro se was
not unequivocal due to his repeated statements that he did not wish to
represent himself and that he wanted a new attorney. We reject that
contention. Defendant’s first attorney was relieved shortly after
arraignment due to a conflict of interest arising from defendant’s
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                                                         KA 10-01760

wish to file a motion pursuant to CPL sections 190.50 (5) and 210.20,
and the attorney’s stated inability to support that motion. A second
attorney was assigned to defendant and, after the second attorney
filed and argued, inter alia, the above-referenced motion, defendant
indicated that he wanted to proceed pro se with standby counsel, or to
have new counsel assigned, on the ground that he was not satisfied
with his second attorney’s representation. In response, the court
assigned a third attorney to represent defendant. Several weeks
before the scheduled trial date, defendant again sought permission
either to proceed pro se with standby counsel or to have new counsel
assigned. The court, indicating its concerns that defendant again
would be unable to work with a new assigned attorney and that the
trial would be unnecessarily delayed, denied the request. The court,
however, ordered an examination of defendant pursuant to CPL article
730, the results of which confirmed that defendant was not an
incapacitated person (see generally CPL 730.30 [2]). Finally, several
days before trial, defendant again sought new counsel, or permission
to proceed pro se at trial. At that point, the court questioned
defendant regarding his education and experience with trials,
explained the procedures that would govern the trial, noted the
frequent lack of success experienced by pro se defendants, and denied
defendant’s request for another new attorney. When the court then
asked defendant if he wanted to proceed pro se, defendant initially
equivocated and then indicated that he wanted to have new counsel
assigned, but when the court subsequently asked him if he wanted to
proceed pro se with standby counsel, defendant replied, “[y]eah. I
can do that. Yeah.” When the court again asked if that was how
defendant wanted to proceed, defendant consulted with the third
assigned attorney and unequivocally replied “[y]es.”

     It is well-settled that a “defendant’s conditioning of his
request for new counsel with a request for self-representation [does]
not necessarily render the latter request equivocal” (People v
Gillian, 8 NY3d 85, 88). Here, based on our review of the record, we
conclude that “[t]he fact that defendant’s request to proceed pro se
had been preceded by an unsuccessful request for new counsel did not
render the request equivocal . . . Defendant was not hesitant to
represent himself, nor were his requests ‘overshadowed’ by numerous
requests for new counsel, obstreperous demands or severely disruptive
behavior” (People v Lewis, 114 AD3d 402, 404; see People v DePonceau,
96 AD3d 1345, 1346-1347, lv denied 19 NY3d 1025; cf. People v Jackson,
97 AD3d 693, 694, lv denied 20 NY3d 1100).

     We also reject defendant’s further contention that he was unable
to waive his right to counsel by reason of his alleged mental health
difficulties. It is well settled that a defendant’s mental capacity
is just one of many issues that the court must consider in determining
whether defendant has intelligently and voluntarily waived his right
to counsel (see People v Stone, 22 NY3d 520, 527). Here, the court
directed that defendant be evaluated pursuant to CPL article 730
before deciding whether to grant his request to proceed pro se, and
the results of that evaluation demonstrate that defendant was mentally
competent, a factor that weighs in favor of our conclusion that
defendant knowingly, voluntarily and intelligently waived his right to
                                 -3-                           696
                                                         KA 10-01760

counsel (see People v Pelto, 172 AD2d 1027, 1027, lv denied 78 NY2d
972; cf. People v Tafari, 68 AD3d 1540, 1541-1542; see generally
Stone, 22 NY3d at 525-527).

     Finally, we reject defendant’s contention that his poor
performance at trial demonstrates that the court erred in granting his
request to represent himself. “Regardless of his lack of expertise
and the rashness of his choice, defendant could choose to waive
counsel [where, as here, the record reflects that] he did so knowingly
and voluntarily” (People v Vivenzio, 62 NY2d 775, 776). It is well
settled that, “even in cases where the accused is harming himself by
insisting on conducting his own defense, respect for individual
autonomy requires that he be allowed to go to jail under his own
banner if he so desires and if he makes the choice with eyes open”
(People v McIntyre, 36 NY2d 10, 14 [internal quotation marks omitted];
see United States ex rel. Maldonado v Denno, 348 F2d 12, 15 [2d Cir
1965]; see also Vivenzio, 62 NY2d at 776).




Entered:   July 3, 2014                         Frances E. Cafarell
                                                Clerk of the Court
