People v WingatePeople v Wingate
Steven A. Feldman, Uniondale, NY (Arza Feldman of counsel), for appellant, and appellant pro se.
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Danielle M. O‘Boyle of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kenneth C. Holder, J.), rendered June 16, 2015, convicting him of robbery in the second degree (two counts), robbery in the third degree (two counts), and assault in the second degree (two counts), after a nonjury trial, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the convictions of robbery in the third degree, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.
The defendant allegedly robbed and assaulted two elderly women in separate incidents. The complainants identified the defendant in a police lineup and at trial. On appeal, the defendant contends, inter alia, (1) that the Supreme Court improvidently exercised its discretion in denying him his right to self-representation, (2) that his waiver of his right to a jury trial was insufficient, (3) that the court violated his Sixth Amendment right of confrontation by limiting his attorney‘s cross-examination of the complainants, and (4) that the testimony of a police detective improperly bolstered the complainants’ identification testimony.
“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 [1974]; see People v Gregory, 163 AD3d 847, 848-849 [2018], affd 33 NY3d 1017 [2019]). A defendant may forfeit the right to proceed pro se “by engaging in disruptive or obstreperous conduct ‘calculated to undermine, upset or unreasonably delay the progress of the trial’ ” (People v Anderson, 133 AD2d 120, 121 [1987], quoting People v McIntyre, 36 NY2d at 18). Contrary to the defendant‘s contention, with respect to the third prong of the McIntyre test, the record supports the Supreme Court‘s determination that the defendant engaged in “conduct which would prevent the fair and orderly exposition of the issues” (People v McIntyre, 36 NY2d at 17; see People v Gregory, 33 NY3d 1017, 1018 [2019]). Under the circumstances, the court did not improvidently exercise its discretion in denying the defendant‘s request to proceed pro se (see People v Gregory, 33 NY3d at 1018).
The defendant‘s contention that his waiver of his right to a jury trial was invalid is unpreserved for appellate review (see
The defendant‘s contention that the Supreme Court violated his Sixth Amendment right of confrontation by limiting his attorney‘s cross-examination of the complainants is without merit. Although a criminal defendant is guaranteed the right to confront adverse witnesses through cross-examination (see
The defendant‘s contention that the testimony of a police detective improperly bolstered the complainants’ identification testimony is unpreserved for appellate review (see
As the People concede, the two counts of robbery in the third degree were concurrent inclusory counts of the two counts of robbery in the second degree (see
The defendant‘s contention, raised in his pro se supplemental brief, that the police lacked probable cause to arrest him is unpreserved for appellate review (see
The defendant‘s contention, raised in his pro se supplemental brief, that he was denied the effective assistance of counsel at trial is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a “mixed claim of ineffective assistance” (People v Maxwell, 89 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d 571, 575 n 2 [2011]). Since the defendant‘s claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a
The defendant‘s contention, raised pro se, that his appellate counsel is ineffective, is not reviewable on direct appeal (see People v Brown, 116 AD3d 1062, 1063 [2014]). The appropriate avenue for the defendant to raise the issue of ineffective assistance of appellate counsel is to seek a writ of error coram nobis in this Court (see People v Brun, 15 NY3d 875, 876 [2010]; People v Brown, 116 AD3d at 1063).
The defendant‘s remaining contentions, including those raised in his pro se supplemental brief, are without merit. Austin, J.P., Miller, Connolly and Brathwaite Nelson, JJ., concur.