Opinion
December 23, 1994
Appeal from the Chautauqua County Court, Himelein, J.
Present — Pine, J.P., Lawton, Fallon, Davis and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment of conviction of one count each of rape in the first degree, sodomy in the first degree and burglary in the first degree after a retrial necessitated by our reversal of his previous conviction of those crimes (People v Meurer, 184 A.D.2d 1067, lv denied 80 N.Y.2d 907).
We reject the contention of defendant that County Court lacked jurisdiction because his previous conviction was vacated by this Court rather than by County Court. We also reject the contention that County Court lacked jurisdiction because it failed to comply with CPL 210.15 (2) and (3), which require the court to inform defendant of his right to counsel at arraignment. The court cured any error in failing to inform defendant fully of his right to counsel at the arraignment (CPL 210.15, [3]) by its searching inquiry of defendant concerning his understanding of his right to counsel prior to his competency hearing (see, People v Sinclair, 28 A.D.2d 183, 184; People v Steinhauer, 19 A.D.2d 837).
We further reject the contentions of defendant that he was deprived of a fair trial because of prosecutorial misconduct, and that this Court's alleged denial of his due process rights, coupled with an alleged conspiracy among the Chautauqua County District Attorney's and Public Defender's offices and the trial court, violated his constitutional rights. The contention of defendant that the trial court's cumulative errors deprived him of a fair trial is likewise without merit. The court properly advised defendant, who appeared pro se, that he could cross-examine witnesses to impeach their credibility and that he was not bound by their answers, but that he could not introduce collateral evidence to attack the witnesses' credibility (see generally, People v Schwartzman, 24 N.Y.2d 241, 245, cert denied 396 U.S. 846; People v Sorge, 301 N.Y. 198, 200-201). The court properly denied defendant's motion to dismiss the second and third counts of the indictment as unconstitutional (see, People v Liberta, 64 N.Y.2d 152, cert denied 471 U.S. 1020), and properly denied defendant's request to order a psychiatric evaluation of the victim. The court afforded defendant ample opportunity to secure an expert witness, and properly sustained the People's objection to defendant's statement at summation that defendant was charged with unlawful imprisonment in the second degree (see, People v Ashwal, 39 N.Y.2d 105).
The court also properly refused to permit defendant to proceed pro se until the competency hearing established that defendant had the "mental capacity to stand trial" (People v Reason, 37 N.Y.2d 351, 354) and the competency to waive counsel (see, People v McIntyre, 36 N.Y.2d 10, 17). After having been found competent to stand trial and to waive counsel, defendant's decision to waive counsel and to proceed pro se was made knowingly, intelligently and voluntarily with full awareness of the risks and consequences (see, People v Sawyer, 57 N.Y.2d 12, 21, cert denied 459 U.S. 1178).
We reject the contentions of defendant that his statutory right to a speedy trial was violated (see, CPL 30.20, 30.30 Crim. Proc. [1] [a]; People v Lomax, 50 N.Y.2d 351, 357-358), and that his constitutional right to a speedy trial was also violated (see, People v Taranovich, 37 N.Y.2d 442, 445; People v Collins, 98 A.D.2d 947, 948).
The enhanced sentence defendant received after the retrial was not invalid. Although there is a presumption of invalidity where the sentence imposed after a retrial exceeds the original sentence (People v Van Pelt, 76 N.Y.2d 156; People v Thiel, 29 A.D.2d 913, affd 25 N.Y.2d 926), there is no absolute constitutional bar to imposing a more severe sentence after reconviction (North Carolina v Pearce, 395 U.S. 711). The presumption may be overcome by a number of factors, including the fact that a different Judge imposed the subsequent sentence (People v Van Pelt, supra, at 161). Here, defendant's sentence was imposed by a different Judge, who put forward three reasons for imposing an increased sentence; one was the fact that the jury in the retrial found that defendant entered the victim's home with the intent to commit murder, a circumstance not present at the first trial. Upon our review of the record, we further conclude that the sentence is not unduly harsh or excessive.
We have reviewed defendant's remaining contentions and conclude that they are without merit.