Opinion
No. 2002-399 Q CR.
Decided January 27, 2004.
Appeal by defendant from a judgment of the Criminal Court, Queens County (W. Erlbaum, J.), rendered on March 11, 2002, convicting him of assault in the third degree (Penal Law § 120.00) and harassment in the second degree (Penal Law § 240.26), and imposing sentence.
Judgment of conviction unanimously reversed on the law and as a matter of discretion in the interest of justice, and accusatory instrument dismissed.
PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
"A defendant in a criminal case may invoke the right to defend pro se provided that: (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 NY2d 10, 17). In the instant case, the trial court denied defendant's motion for pro se representation, made prior to the prosecution's opening statement, on the ground of untimeliness. This was error and the judgment is accordingly reversed. In McIntyre ( 36 NY2d at 17), the Court of Appeals held that "a pro se application . . . [is] timely interposed when it is asserted before the trial commences." The Court then went on to determine that defendant's pro se motion was "timely . . . interposed prior to the prosecution's opening statement (Code Crim. Pro. § 388 [subd. 1; People ex rel. Steckler v. Warden of City Prison, 259 NY 430; see CPL 1.20, [subd.11]; 260.30)" ( McIntyre, 36 NY2d at 18). Contrary to the People's argument, among others, the citations to CPL 1.20 (11) and 260.30 with a "see" signal indicate supporting authority for the McIntyre holding that for the purpose of a motion for pro se representation, the juncture at which the "trial" commences is prior to the prosecution's opening statement.
Inasmuch as the defendant has served his sentence, under the circumstances presented, a new trial should not be ordered and the accusatory instrument should be dismissed ( People v. Flynn, 79 NY2d 879; People v. Maio Ni, 293 AD2d 552).