People v. Davis

Mar 23, 2000
Versions:270 A.D.2d 162
704 N.Y.S.2d 592
2000 N.Y. App. Div. LEXIS 3084

—Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered May 14, 1997, convicting defendant, after a jury trial, of assault in the second degree (three counts), reckless endangerment in the first degree and grand larceny in the fourth degree, and sentencing him, as a persistent violent felony offender, to three concurrent terms of 25 years to life, to run consecutively to consecutive terms of 3¥2 to 7 years and 2 to 4 years, and an aggregate fine of $25,000, unanimously modified, on the law, to the extent of vacating the sentences and remanding for resentencing, and otherwise affirmed.

The court’s denial of defendant’s mid-trial request for new counsel was a proper exercise of discretion (see, People v Sides, 75 NY2d 822; People v Tineo, 64 NY2d 531, 536; People v Medina, 44 NY2d 199). Defendant’s disagreement with counsel’s strategy was not the kind of fundamental conflict that would require assignment of new counsel (supra; cf., People v Colon, 90 NY2d 824, 825). Counsel’s refusal to adopt defendant’s “misidentification” defense did not render counsel ineffective, particularly since defendant was chased and apprehended by five police officers who never lost sight of him after he fled from the stolen car (see, People v Benevento, 91 NY2d 708, 712-713; People v DeFreitas, 213 AD2d 96, lv denied 86 NY2d 872; People v Odenthal, 217 AD2d 412, lv denied 86 NY2d 845). Defendant’s alternative request for hybrid representation was properly denied (People v Garcia, 69 NY2d 903). Defendant’s decision to represent himself because of his dissatisfaction with his attorney was knowingly and voluntarily made. The court thoroughly warned defendant, who was no stranger to the criminal justice system, about the dangers of self-representation (see, People v Smith, 92 NY2d 516, 520; People v Wendley, 260 AD2d 185, lv denied 93 NY2d 930).

The court properly removed defendant from the courtroom when, despite several warnings, he behaved in a disruptive manner on several occasions, and his conduct was admittedly designed to provoke a mistrial. Defendant was not deprived of his rights to confrontation or counsel; he alone was responsible for the manner in which the trial was conducted. Defendant hurled racial epithets at the jurors when given the chance to cross-examine a witness who had testified in his absence, thereby causing his removal for a second time (see, People v Geraci, 85 NY2d 359, 366; People v Palermo, 32 NY2d 222, 225; People v Brown, 243 AD2d 282, lv denied 91 NY2d 870). Defendant repeatedly instructed the court that he did not want his attorney (serving as his standby legal advisor) to represent him in his absence (cf., People v Byrnes, 33 NY2d 343, 350), while at other times seeking hybrid representation.

As correctly conceded by the People, defendant’s adjudication as a persistent violent felony offender based on an Illinois conviction for the unlawful use of a weapon involving a sawed-off shotgun is defective since the analogous crime in New York is not a violent felony. Accordingly, the matter should be remanded for resentencing, at which time the People are not foreclosed from attempting to have defendant sentenced as a persistent violent felon (see, People v Hunt, 162 AD2d 782, affd 78 NY2d 932, cert denied 502 US 964 [1991]; see also, People v Sepulveda, 172 AD2d 223).

We have considered and rejected defendant’s remaining claims, including those contained in his pro se supplemental brief. Concur — Nardelli, J. P., Ellerin, Lerner and Rubin, JJ.