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

512
KA 10-00326
PRESENT: SCUDDER, P.J., SMITH, FAHEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMES ARMSTRONG, DEFENDANT-APPELLANT.


CHRISTOPHER J. PELLI, UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered December 1, 2009. The judgment convicted
defendant, upon a jury verdict, of criminal possession of marihuana in
the third degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of criminal possession of marihuana in the third
degree (Penal Law § 221.20). We reject defendant’s contention that he
was improperly permitted to proceed pro se. The record establishes
that defendant made a “knowing, voluntary and intelligent waiver of
the right to counsel” (People v Arroyo, 98 NY2d 101, 103). The record
further establishes that defendant adhered to that waiver throughout
the proceedings, despite the “ ‘searching inquir[ies]’ ” by County
Court “to make him ‘aware of the dangers and disadvantages of self-
representation’ ” and the fact that the court impressed upon him the
value of trained trial counsel knowledgeable about criminal law and
procedure (People v Providence, 2 NY3d 579, 582; see People v Crampe,
17 NY3d 469, 481-482). The court properly refused to permit standby
counsel, while defendant was proceeding pro se, to conduct jury
selection on defendant’s behalf (see People v Brown, 6 AD3d 1125,
1126, lv denied 3 NY3d 657). “A criminal defendant has no Federal or
State constitutional right to hybrid representation . . . While the
Sixth Amendment and the State Constitution afford a defendant the
right to counsel or to self-representation, they do not guarantee a
right to both . . .[, and] a defendant who elects to exercise the
right to self-representation is not guaranteed the assistance of
standby counsel during trial” (People v Rodriguez, 95 NY2d 497, 501).

     By failing to move to dismiss the indictment within the five-day
statutory period on the ground that he was denied his right to testify
                                 -2-                           512
                                                         KA 10-00326

before the grand jury (see CPL 190.50 [5] [c]; People v Ray, 27 AD3d
1056, 1057, lv denied 7 NY3d 761), defendant thus waived his right to
testify before the grand jury and his contention that the indictment
should have been dismissed based on the denial of his right to testify
before the grand jury lacks merit (see Ray, 27 AD3d at 1057).
Finally, the conclusory allegations made by defendant in support of
his suppression motion were not sufficient to warrant a hearing, and
the court properly summarily decided the motion (see CPL 710.60 [3]
[b]; People v Haskins, 86 AD3d 794, 795-796, lv denied 17 NY3d 903;
see also People v Jeffreys, 284 AD2d 550, lv denied 99 NY2d 536;
People v Gadsden, 273 AD2d 701, 701-702, lv denied 95 NY2d 934).




Entered:   April 27, 2012                      Frances E. Cafarell
                                               Clerk of the Court
