Opinion
February 10, 1999
PRESENT: GREEN, J. P., PINE, PIGOTT, JR., AND CALLAHAN, JJ.
Motion to vacate order denied.
Memorandum: Defendant moves to vacate an order of this Court, entered December 21, 1990, affirming a judgment entered April 5, 1985, convicting him of murder in the second degree (Penal Law § 125.25) ( People v. Torpey, 168 A.D.2d 916, lv denied 77 N.Y.2d 967). He contends that he was forced to proceed pro se and to waive counsel. That contention is not supported by the evidence submitted in support of the motion. Counsel was not immediately assigned to handle the appeal but, contrary to the contention of defendant, he was not denied appellate counsel. Defendant avers that he sent a letter to this Court requesting permission to appeal pro se in December 1985. Although neither defendant nor the Court now has a copy of such a letter, permission was granted to appeal pro se by order of this Court entered January 3, 1986.
We conclude that defendant's waiver of counsel was knowing and intelligent ( see, People v. McIntyre, 36 N.Y.2d 10, 17). Defendant was an experienced litigant in the criminal justice system, and had previously had a felony conviction reversed on appeal prior to his present waiver. Defendant's 62-page pro se brief raised nonfrivolous issues with appropriate citations to pertinent case law. Defendant's brief "revealed a sophisticated understanding of the legal issues as well as the rules of evidence and court procedure" ( People v. Jewell, 151 A.D.2d 607, 608).
Defendant also contends that his right to appeal was hindered because portions of the trial transcripts were unavailable to him. He has failed to show that he was prejudiced thereby ( see, People v. Glass, 43 N.Y.2d 283). He has not identified any issue that he was unable to address on his direct appeal. This Court thoroughly considered each of the issues raised by defendant on his direct appeal and determined that they were without merit. We note that defendant was tried jointly with Thomas E. Taylor, whose conviction was affirmed on November 15, 1989 ( People v. Taylor, 155 A.D.2d 980, lv denied and dismissed 75 N.Y.2d 818). The Supreme Court denied Taylor's petition for a writ of certiorari ( 496 U.S. 926). Taylor was represented on appeal by counsel and six of the nine issues raised in defendant's appeal were also raised in Taylor's appeal. The issues raised in both appeals were determined to be without merit.