Opinion
2012-04-27
The PEOPLE of the State of New York, Respondent, v. James ARMSTRONG, Defendant–Appellant.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered December 1, 2009. The judgment convicted defendant, upon a jury verdict, of criminal possession of marihuana in the third degree.Christopher J. Pelli, Utica, for defendant-appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for respondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered December 1, 2009. The judgment convicted defendant, upon a jury verdict, of criminal possession of marihuana in the third degree.Christopher J. Pelli, Utica, for defendant-appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of marihuana in the third degree (Penal Law § 221.20). We reject defendant's contention that he was improperly permitted to proceed pro se. The record establishes that defendant made a “knowing, voluntary and intelligent waiver of the right to counsel” ( People v. Arroyo, 98 N.Y.2d 101, 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154). The record further establishes that defendant adhered to that waiver throughout the proceedings, despite the “ ‘searching inquir[ies]’ ” by County Court “to make him ‘aware of the dangers and disadvantages of self-representation’ ” and the fact that the court impressed upon him the value of trained trial counsel knowledgeable about criminal law and procedure ( People v. Providence, 2 N.Y.3d 579, 582, 780 N.Y.S.2d 552, 813 N.E.2d 632; see People v. Crampe, 17 N.Y.3d 469, 481–482, 932 N.Y.S.2d 765, 957 N.E.2d 255). The court properly refused to permit standby counsel, while defendant was proceeding pro se, to conduct jury selection on defendant's behalf ( see People v. Brown, 6 A.D.3d 1125, 1126, 776 N.Y.S.2d 408, lv. denied 3 N.Y.3d 657, 782 N.Y.S.2d 699, 816 N.E.2d 572). “A criminal defendant has no Federal or State constitutional right to hybrid representation ... While the Sixth Amendment and the State Constitution afford a defendant the right to counsel or to self-representation, they do not guarantee a right to both ... [, and] a defendant who elects to exercise the right to self-representation is not guaranteed the assistance of standby counsel during trial” ( People v. Rodriguez, 95 N.Y.2d 497, 501, 719 N.Y.S.2d 208, 741 N.E.2d 882).
By failing to move to dismiss the indictment within the five-day statutory period on the ground that he was denied his right to testify before the grand jury ( see CPL 190.50[5][c]; People v. Ray, 27 A.D.3d 1056, 1057, 811 N.Y.S.2d 259, lv. denied 7 N.Y.3d 761, 819 N.Y.S.2d 887, 853 N.E.2d 258), defendant thus waived his right to testify before the grand jury and his contention that the indictment should have been dismissed based on the denial of his right to testify before the grand jury lacks merit ( see Ray, 27 A.D.3d at 1057, 811 N.Y.S.2d 259). Finally, the conclusory allegations made by defendant in support of his suppression motion were not sufficient to warrant a hearing, and the court properly summarily decided the motion ( see CPL 710.60[3][b]; People v. Haskins, 86 A.D.3d 794, 795–796, 928 N.Y.S.2d 374, lv. denied 17 N.Y.3d 903, 933 N.Y.S.2d 658, 957 N.E.2d 1162; see also People v. Jeffreys, 284 A.D.2d 550, 727 N.Y.S.2d 626, lv. denied 99 N.Y.2d 536, 752 N.Y.S.2d 597, 782 N.E.2d 575; People v. Gadsden, 273 A.D.2d 701, 701–702, 711 N.Y.S.2d 788, lv. denied 95 N.Y.2d 934, 721 N.Y.S.2d 610, 744 N.E.2d 146).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.