Opinion
15860 Ind. No. 1147/17 Case No. 2019–03830
05-03-2022
The PEOPLE of the State of New York, Respondent, v. Robert FECU, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Allison N. Kahl of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Christopher Michael Pederson of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Allison N. Kahl of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Christopher Michael Pederson of counsel), for respondent.
Manzanet–Daniels, J.P., Gesmer, Moulton, Mendez, Higgitt, JJ.
Judgment, Supreme Court, Bronx County (Lester B. Adler, J.), rendered June 19, 2019, convicting defendant, after a jury trial, of criminal contempt in the second degree, and sentencing him to time served, unanimously affirmed.
The court's reprimands and admonitions directed at defendant in the presence of the jury were warranted by his persistent and egregious misconduct, in which he abused his pro se status (see e.g. People v. Brown, 262 A.D.2d 570, 573, 694 N.Y.S.2d 666 [2d Dept. 1999], affd 95 N.Y.2d 776, 710 N.Y.S.2d 837, 732 N.E.2d 944 [2000] ; People v. Garrett, 231 A.D.2d 428, 647 N.Y.S.2d 81 [1st Dept. 1996], lv denied 89 N.Y.2d 864, 653 N.Y.S.2d 287, 675 N.E.2d 1240 [1996] ; People v. Cuba, 154 A.D.2d 703, 704, 546 N.Y.S.2d 684 [2d Dept. 1989], lv denied 75 N.Y.2d 811, 552 N.Y.S.2d 562, 551 N.E.2d 1240 [1990] ). The court's curative instructions minimized any prejudice arising from its comments, and defendant was not deprived of a fair trial under all the circumstances of the case.
After giving numerous warnings, the court providently exercised its discretion in removing defendant from the courtroom, revoking his pro se status, and directing standby counsel to resume representing defendant. This decision was not based on a single remark by defendant, but on his "persistently obstreperous and disruptive conduct" ( People v. Williams, 134 A.D.3d 639, 639, 23 N.Y.S.3d 36 [1st Dept. 2015], lv denied 27 N.Y.3d 970, 36 N.Y.S.3d 631, 56 N.E.3d 911 [2016] ; see People v. Jones, 288 A.D.2d 107, 733 N.Y.S.2d 44 [1st Dept. 2001], lv denied 97 N.Y.2d 706, 739 N.Y.S.2d 106, 765 N.E.2d 309 [2002] ), including routinely interrupting the court, making outrageous speeches, disregarding the court's rulings sustaining objections, and displaying exhibits not in evidence to the jury. Under the circumstances, the court also providently exercised its discretion in declining to permit defendant to return to the courtroom.
Defendant failed to establish good cause for the appointment of substitute standby counsel (see People v. Linares, 2 N.Y.3d 507, 780 N.Y.S.2d 529, 813 N.E.2d 609 [2004] ).
Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal in the absence of a CPL 440.10 motion because they generally involve matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ). Alternatively, to the extent the record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–14, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ). It should be noted that after standby counsel resumed the representation, he obtained acquittals of many serious charges including first-degree rape, with the outcome of the trial being a single misdemeanor conviction and a sentence of time served.