Opinion
KA 00-01914
December 30, 2002.
Appeal from a judgment of Supreme Court, Erie County (Burns, J.), entered May 13, 1999, convicting defendant following a nonjury trial of, inter alia, burglary in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL C. WALSH OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (J. MICHAEL MARION OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, HAYES, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal from the judgment insofar as it imposes sentence be and the same hereby is unanimously dismissed and the judgment is affirmed.
Memorandum:
Defendant contends that Supreme Court failed to conduct the requisite searching inquiry before allowing him to waive the right to counsel and to proceed pro se ( see generally People v. Arroyo, 98 N.Y.2d 101, 103-104). Defendant, however, neither waived his right to counsel nor proceeded pro se. Rather, defendant participated in his own defense while being represented by counsel. Although a defendant has no constitutional right to hybrid representation ( see People v. Rodriguez, 95 N.Y.2d 497, 501; People v. Ferguson, 67 N.Y.2d 383, 390; People v. Mirenda, 57 N.Y.2d 261, 265), it is within the trial court's sound discretion whether to allow such hybrid representation ( see Rodriguez, 95 N.Y.2d at 502). Where, as here, defendant "asks only to participate in the defense, * * * there is no relinquishment of the right to counsel and no determination to represent one's self" ( People v. Cabassa, 79 N.Y.2d 722, 730, cert denied sub nom. Lind v. New York 506 U.S. 1011; see People v. Rodriguez, 98 A.D.2d 961, 962-963, cert denied 469 U.S. 818). Thus, the court was not required to conduct a searching inquiry pursuant to Arroyo ( 98 N.Y.2d at 103-104). We reject the further contention of defendant that he received ineffective assistance of counsel ( see generally People v. Baldi, 54 N.Y.2d 137, 147). In light of defendant's lengthy criminal history, the sentence is neither unduly harsh nor severe.