Opinion
No. 23961.
December 12, 2003.
Appeal by defendant from a judgment of the Criminal Court, Queens County (R. Raciti, J., trial and sentence; M. Aloise, J., pre-trial order), rendered August 12, 2002, convicting him of assault in the third degree (Penal Law § 120.00) and imposing sentence.
Leonard I. Ressler, Kew Gardens, for appellant.
Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano, Sharon Y. Brodt and Debra J. Kondel of counsel), for respondent.
Before: Present: Aronin, J.P., Patterson and Golia, JJ.
Memorandum.
Judgment of conviction unanimously affirmed.
We reject defendant's contention that he was denied his statutory right to a speedy trial pursuant to CPL 30.30(1)(b). After subtracting the periods of delay attributable to the adjournments for pre-trial discovery ( see CPL 30.30 [a]; People v. McCray, 238 A.D.2d 442; People v. Jones, 105 A.D.2d 179, 66 N.Y.2d 529), the time during which defendant was absent or unavailable and a bench warrant was issued ( see CPL 30.30 [c] [i]; People v. Brown, 113 A.D.2d 812), the unavailability of the complaining witness who resided outside of the country ( see People v. Zirpola, 57 N.Y.2d 706; People v. Robbins, 223 A.D.2d 735; People v. Green, 90 A.D.2d 705), the adjournment requested by defendant ( see CPL 30.30 [b]; People v. Friscia, 51 N.Y.2d 845; People v. Lee, 217 A.D.2d 637); the adjournment following defendant's voluntary return after issuance of a bench warrant ( see People v. Muhanimac, 181 A.D.2d 464; People v. Degro, 141 Misc.2d 810) and the periods of delay attributable to defendant's pre-trial motion practice ( see People v. Singh, 288 A.D.2d 404; People v. Norris, 238 A.D.2d 608), the People did not exceed the permitted 90-day time limit (CPL 30.30 [b]).
Furthermore, we find without merit defendant's contention that because the court failed to conduct a "searching inquiry" when he indicated his intention to proceed pro se, none of the adjournments were excludable. It is firmly established that a defendant in a criminal case has a constitutional right to self-representation ( Faretta v. California, 422 U.S. 806, 819; People v. Arroyo, 98 N.Y.2d 101, 193; People v. Smith, 92 N.Y.2d 516, 520). That right must be upheld provided that a defendant knowingly, voluntarily and intelligently waives the right to counsel ( People v. Arroyo, 98 N.Y.2d at 103; People v. Smith, 92 N.Y.2d at 520). While a court should undertake a "searching inquiry" into whether a defendant appreciates the risks of self-representation, no mandatory catechism is required for accepting a waiver ( People v. Arroyo, 98 N.Y.2d at 103-104). Indeed, a court is not required to advise a defendant of every consequence of self-representation, nor is the court required to engage in any formalistic colloquy ( id.). As long as a "careful and realistic reading of the record" reveals that a defendant has been adequately warned of the importance of legal representation and the risks associated with proceeding pro se, the waiver will be upheld ( People v. Whitted, 113 A.D.2d 454, 455; see People v. Smith, 92 N.Y.2d at 520).
In assessing the validity of a waiver, an appellate court's review is not confined to the sufficiency of a trial court's inquiry ( see e.g. People v. Vivenzio, 62 N.Y.2d 775, 776; People v. Providence, 308 A.D.2d 200, 202; People v. Reifsteck; 134 A.D.2d 876; People v. Whitted, 113 A.D.2d at 458). To the contrary, an appellate court may look beyond that inquiry and consider factors such as a defendant's age, education, occupation and familiarity with the criminal justice system ( see People v. Miley, 154 A.D.2d 559; People v. Whitted, 113 A.D.2d at 458-459). If the record, as a whole, evinces a knowing, intelligent and voluntary waiver of the right to counsel, the waiver will be deemed effective ( id.).
Here, viewing the record in its entirety, we conclude that defendant's decision to represent himself before trial was a knowing and intelligent one. Defendant — a sophisticated businessman and a former adjunct professor — repeatedly and unequivocally assured the court that he wished to proceed pro se. Before allowing him to do so, the court warned, "You know what they say about people who represent themselves," and advised defendant to hire an attorney, noting that it would be money well spent. Moreover, defendant's filing of a pro se speedy trial motion only underscores the informed nature of his waiver. Thus, while the court's inquiry was sparse, it cannot be said on this record that defendant's waiver was not entered knowingly, voluntarily and intelligently ( cf. People v. Reifsteck, 134 A.D.2d at 876 [upholding defendant's waiver of his right to counsel despite the lack of a formal inquiry]).
Because defendant's waiver was entered knowingly and voluntarily, we are of the opinion that defendant's contention that all periods of pre-readiness delay are chargeable to the People pursuant to CPL 30.30(4) (0 is without merit. That provision excludes period "during which the defendant is without counsel through no fault of the court; except when the defendant is proceeding as his own attorney with permission of the court" (CPL 30.30 [f]). Here, defendant was not without counsel through the fault of the court, but rather knowingly and voluntarily waived his right to counsel ( cf. People v. Cortes, 80 N.Y.2d 201). Thus, the People should not be charged with all periods of pre-readiness delay.
Upon a review of the record, we find that the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80).