OPINION OF THE COURT
In this criminal action, we are called upon to decide whether a trial court must consider the pro se speedy trial motions of a defendant represented by counsel. Because a criminal defendant is not entitled to hybrid representation, we refuse to prescribe any fixed rule for addressing pro se motions and conclude that the decision to entertain such motions lies within the sound discretion of the trial court. While we perceive no abuse of that discretion here, we nonetheless reverse defendant’s conviction on the ground that the concededly erroneous admission of a tainted lineup was not harmless beyond a reasonable doubt.
On May 23, 1994, at approximately 10:00 a.m., Eva Lopez was exiting the elevator of her apartment building when a man whom she had seen two or three times “[ojutside the building” robbed her at gunpoint. Approximately seven months later, Lopez identified defendant from a lineup. At the time of the lineup, defendant was serving a prison sentence on an unrelated conviction, requiring the People to obtain, ex parte, a Supreme Court order to secure defendant’s presence. Defendant was neither represented by counsel at the lineup nor advised of his right to an attorney. On defendant’s motion to suppress identification evidence, the hearing court determined that the court-ordered lineup was not suggestive and that defendant had no right to counsel at the lineup.
Prior to trial, defendant submitted two
pro se
motions seeking dismissal of the indictment on the ground that his right to a speedy trial had been violated
(see,
CPL 30.30, 30.20). After filing the first motion, but before the second, defendant moved
pro se
to relieve counsel, alleging various deficiencies in representation. On July 24, 1996, in defendant’s absence, defense counsel joined in his client’s request to be relieved. Counsel informed the court that he had discussed the matter with defendant, that defendant no longer wished his services and that, based on the breakdown in communication, he did not “think
“It’s my understanding that [defendant has] filed
frivolous motions which you have refused to adopt.
“[Defense counsel]: That’s right, judge.
“The Court: All right. I commend you for that.”
The court then adjourned the matter to September 3 for the assignment of a new attorney.
Represented by new counsel, defendant was ultimately convicted, after a jury trial, of robbery in the first degree (Penal Law § 160.15 [4]). The Appellate Division affirmed the conviction and held that the trial court properly denied defendant’s pro se speedy trial motions after ascertaining that counsel chose not to adopt them. The Court also held that although the court-ordered lineup was unlawfully conducted in the absence of defendant’s counsel, the error was harmless beyond a reasonable doubt. A Judge of this Court granted defendant leave to appeal and we now reverse.
We first consider whether the trial court was required to entertain defendant’s
pro se
speedy trial motions. A criminal defendant has no Federal or State constitutional right to hybrid representation
(see,
NY Const, art I, § 6;
People v White,
Thus, a defendant who elects to exercise the right to self-representation is not guaranteed the assistance of standby counsel during trial
(see, People v Mirenda,
Because a defendant has no constitutional right to hybrid representation, the decision to allow such representation lies within the sound discretion of the trial court. Indeed, many jurisdictions have refused to recognize a right of counseled defendants to act in their own defense, leaving it to the discretion of the trial court to determine whether such participation is permitted
(see, e.g., United States v Einfeldt,
Nevertheless, defendant maintains that a court confronted with a
pro se
motion should, at minimum, inquire into whether “the defense attorney is aware of the existence of the motion and has discussed its contents with his or her client”
(People v Renaud,
The Trial Judge acted within his discretion here. Nothing in the record supports defendant’s contention that he was not represented by counsel when the court rejected his
pro se
speedy trial motions. To the contrary, the record indicates that defense counsel was aware of both motions before joining in his client’s application to be relieved. The court acknowledged these motions, ascertained that counsel chose not to adopt them and, in so doing, described them as “frivolous.” Under
Reversal of defendant’s conviction is required, however, by the erroneous admission of the lineup identification. As the People concede, the court-ordered lineup in the absence of counsel violated defendant’s Sixth Amendment right to counsel
(see, People v Jackson,
Defendant’s remaining contention is without merit.
Accordingly, the order of the Appellate Division should be reversed, and the case remitted to Supreme Court for further proceedings in accordance with this Opinion.
Chief Judge Kaye and Judges Smith, Levine, Wesley and Rosenblatt concur.
Order reversed, etc.