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

915
KA 14-00015
PRESENT: CENTRA, J.P., CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOHN W. KREUTTER, DEFENDANT-APPELLANT.


DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.

DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wyoming County Court (Michael L.
D’Amico, A.J.), rendered February 1, 2013. The judgment convicted
defendant, upon a jury verdict, of sexual abuse in the first degree,
sexual abuse in the third degree and endangering the welfare of a
child.

     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, sexual abuse in the first degree (Penal Law §
130.65 [1]), defendant contends that County Court failed to conduct a
“searching inquiry” before granting his prehearing request 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 sub nom. New York v Wingate, ___ US
___, 132 S Ct 1746). As the reviewing court, we may “look to the
whole record, not simply to the waiver colloquy, in order to determine
if a defendant effectively waived counsel” (People v Providence, 2
NY3d 579, 583). Based on our review of the whole record, we conclude
that defendant knowingly, intelligently and voluntarily waived his
right to counsel (see People v Malone, 119 AD3d 1352, 1353; People v
Chandler, 109 AD3d 1202, 1203, lv denied 23 NY3d 1019).

     Defendant contends that he was subjected to coercive and
                                 -2-                           915
                                                         KA 14-00015

threatening questioning by a sheriff’s investigator under
circumstances in which a reasonable person would conclude that he was
not free to leave and thus his statements to that investigator should
have been suppressed. He further contends that the erroneous
admission in evidence of those statements is not harmless error. We
reject those contentions and conclude that the court properly denied
defendant’s motion to suppress those statements (see People v Zuke, 87
AD3d 1290, 1291, lv denied 18 NY3d 887; People v Schroo, 87 AD3d 1287,
1288, lv denied 19 NY3d 977). Defendant contends that he was denied
effective assistance of counsel at trial when standby counsel
purportedly conceded that defendant was subject to noncustodial
interrogation. That contention lacks merit inasmuch as the proof at
trial established that defendant was not subject to custodial
interrogation when he was interviewed by a sheriff’s investigator (see
generally People v Centano, 76 NY2d 837, 838; Schroo, 87 AD3d at
1288).

     Defendant’s contentions that the conviction is not supported by
legally sufficient evidence and that the court abused its discretion
in not defining the parameters of standby counsel’s representation are
not preserved for our review (see generally People v Gray, 86 NY2d 10,
19), and we decline to exercise our power to review those contentions
as a matter of discretion in the interest of justice (CPL 470.15 [6]
[a]). Defendant’s further contention that a mode of proceedings error
occurred as a result of the court’s failure to define the parameters
of standby counsel’s representation is raised improperly for the first
time in defendant’s reply brief and therefore is not properly before
us (see People v Ford, 69 NY2d 775, 777, rearg denied 69 NY2d 985;
People v Hall, 106 AD3d 1513, 1514, lv denied 22 NY3d 956). Defendant
proceeded pro se at trial and did not object to the court’s jury
charge or verdict sheet, and thus his further contentions attributing
errors to standby counsel with respect to those matters also lack
merit (see generally People v Brockenshire, 245 AD2d 1065, 1065-1066,
lv denied 91 NY2d 940). Moreover, defendant may not use the alleged
errors of standby counsel to raise unpreserved challenges to the
court’s charge and verdict sheet (see CPL 470.05 [2]; see generally
People v Duda, 45 AD3d 1464, 1466, lv denied 10 NY3d 764).

      Defendant’s contention that he was denied effective assistance of
counsel by his prior attorney’s failure to allow him to testify before
the grand jury “involves matters outside the record on appeal and thus
is properly raised by way of a motion pursuant to CPL article 440”
(People v Frazier, 63 AD3d 1633, 1634, lv denied 12 NY3d 925). To the
extent that defendant contends that the verdict is against the weight
of the evidence, we have reviewed the evidence in light of the
elements of the crimes as charged to the jury (see People v Danielson,
9 NY3d 342, 349), and we conclude that an acquittal would have been
unreasonable based upon the weight of the credible evidence presented
at trial, and thus the verdict is not against the weight of the
evidence (see generally id. at 348; People v Bleakley, 69 NY2d 490,
495).
Entered: October 3, 2014                         Frances E. Cafarell
                                                 Clerk of the Court
