Opinion
No. 2012–2486 S CR.
04-03-2015
The PEOPLE of the State of New York, Respondent, v. Robert GARIFO, Appellant.
Opinion
Appeal from judgments of the District Court of Suffolk County, First District (Steven A. Lotto, J.), rendered October 12, 2012. The judgments convicted defendant, upon jury verdicts, of common-law driving while intoxicated and failure to stop at a stop sign, respectively.
ORDERED that the judgments of conviction are affirmed.
Defendant was charged by misdemeanor information with common-law driving while intoxicated (Vehicle and Traffic Law § 1192[3] ), and, by separate simplified traffic informations with, among other things, failure to stop at a stop sign (Vehicle and Traffic Law § 1172[a] ), and speeding (Vehicle and Traffic Law § 1180[a] ). Following a jury trial, defendant was convicted of common-law driving while intoxicated and failure to stop at a stop sign.
Defendant's contention that the evidence was legally insufficient is unpreserved for appellate review, as he never moved to dismiss the charges at trial (see CPL 470.05[2] ; People v. Hawkins, 11 NY3d 484, 491 [2008] ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621 [1983] ), we find that it was legally sufficient to support the convictions.
The evidence adduced at the trial established that, at 1:48 a.m. on September 19, 2008, a Suffolk County police officer, on patrol at an intersection in East Northport, observed a vehicle, driven by defendant, go through a stop sign at the intersection. After stopping defendant's vehicle, the officer, among other things, noticed the smell of alcohol on defendant's breath and asked defendant to exit the vehicle. Defendant stumbled and held onto his car to maintain his balance as he walked to the back of the car. The officer performed several field sobriety tests, which indicated that defendant was intoxicated. The officer informed defendant that he was under arrest. Defendant struggled with the officer and another officer who had arrived at the scene, while the officers handcuffed and placed defendant in a patrol car. While being transported to the precinct, defendant yelled, screamed, and cursed at the officers, complaining that they were “locking someone up for having a few drinks and driving.”
In fulfilling our responsibility to exercise our factual review power (see CPL 470.15[5], People v. Danielson, 9 NY3d 342, 348–349 [2007] ), we accord great deference to the jury's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v. Mateo, 2 NY3d 383, 410 [2004] ; People v. Bleakley, 69 N.Y.2d 490, 495 [1987] ). We must weigh “the relative probative force of conflicting testimony and the relative strength of conflicting ignferences that may be drawn from the testimony” (People v. Bleakley, 69 at 495 [internal quotation marks and citation omitted] ), determine whether an acquittal would not have been unreasonable based upon the evidence, and whether the jury failed to accord the evidence the weight it should have been accorded (People v. Bleakley, 69 N.Y.2d at 495 ; see People v. Danielson, 9 NY3d at 348 ). Based on the evidence adduced at the trial, an acquittal would have been unreasonable. Thus, the verdict of guilt was not against the weight of the evidence.
Defendant's contention that the District Court erred in permitting him to proceed pro se at the jury trial after the People had rested is without merit. Defendant had previously fired at least two attorneys who had been assigned to his case. Prior to the commencement of the trial, defendant indicated that he wanted to fire his third assigned attorney. After a discussion among counsel, defendant, and the trial court, defendant changed his mind. A jury was selected, opening statements were made, and the People presented and rested their case. Defendant's counsel informed the court that he expected defendant to testify the following morning. The next morning, defendant informed the District Court that he wanted to discharge his attorney. The District Court, in effect, provided defendant with the choice of continued representation by the assigned attorney or proceeding pro se. The court extensively discussed and questioned defendant with respect to proceeding pro se and made defendant “aware of the dangers and disadvantages of self-representation” (Faretta v. California, 422 U.S. 806, 835 [1975] ). The record indicates that the court “delved into ... defendant's age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver” (People v. Smith, 92 N.Y.2d 516, 520 [1998] ). Only then did defendant waive his right to be represented by counsel and indicate that he was ready to proceed pro se. He did not testify or call any witnesses. He rested and made no requests to charge. Defendant then delivered a summation.
“A defendant may invoke the right to defend” himself or herself pro se when “(1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” (People v. McIntyre, 36 N.Y.2d 10, 17 [1974] ). An application to proceed pro se is timely interposed “when it is asserted before the trial commences,” as, at that stage, “the potential for obstruction and diversion is minimal.” However, “[o]nce the trial has begun the right is severely constricted and will be granted in the trial court's discretion and only in compelling circumstances” (id. at 17 ; see People v. Williams, 27 AD3d 770, 772 [2006] ). Here, defendant's application to proceed pro se, after the People had rested their case, was clearly untimely (see Matter of Kathleen K. [Steven K.], 17 NY3d 380, 387 [2011] ). However, under the facts and circumstances of this case, and viewing “the whole record” (People v. Providence, 2 NY3d 579, 582 [2004] ), we find that the District Court did not improvidently exercise its discretion in permitting defendant to proceed pro se. Defendant had previously discharged at least two assigned attorneys. By seeking to discharge his assigned trial counsel after the People had rested, compelling circumstances existed justifying the District Court to permit defendant to proceed pro se (see People v. Medina, 44 N.Y.2d 199, 209 [1978] ; People v. Chandler, 109 AD3d 1202 [2013] ; People v. DePonceau, 96 AD3d 1345, 1346 [2012] ; see also People v. Dashnaw, 116 AD3d 1222, 1230–1231 [2014] ; cf. People v. Race, 78 AD3d 1217, 1218–1219 [2010] ). The District Court, in effect, determined that defendant's request to discharge his assigned attorney constituted a dilatory tactic (see People v. Sides, 75 N.Y.2d 822, 824 [1990] ; People v. Arroyave, 49 N.Y.2d 264, 271 [1980] ; People v. Issac, 121 AD3d 816, 817 [2014] ; People v. Howell, 207 A.D.2d 412, 413 [1994] ; see also People v. Kelly, 60 A.D.2d 220, 224 [1977], affd 44 N.Y.2d 725 [1978] ). Moreover, the District Court conducted the requisite “searching inquiry” before permitting defendant to proceed pro se (People v. Slaughter, 78 N.Y.2d 485, 491 [1991] ). In addition, as the extent of defendant's self-representation was limited to the delivery of a pro se summation, he was not prejudiced (see People v. Landy, 59 N.Y.2d 369, 377 [1983] ).
Accordingly, the judgments of conviction are affirmed.
TOLBERT, J.P., MARANO and GARGUILO, JJ., concur.