Opinion
783
May 30, 2002.
Judgment, Supreme Court, New York County (Martin Rettinger, J.), entered on or about June 1, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 7 to 14 years, unanimously affirmed.
MADELEINE GUILMAIN, for Respondent,
TJ. MORROW, for Defendant-appellant.
Mazzarelli, J.P., Saxe, Rosenberger, Ellerin, Marlow, JJ.
The court properly found that, by spitting at and threatening his last attorney, after threatening prior attorneys and having attacked one of them, all with the apparent motive of manipulating the court into providing him with yet a sixth attorney on the eve of the suppression hearing, defendant forfeited his right to counsel (see, People v. Lineberger, 282 A.D.2d 369, lv granted 96 N.Y.2d 903; People v. Gilchrist, 239 A.D.2d 306, lv denied, 91 N.Y.2d 834, denial of habeas corpus affd sub nom. Gilchrist v. O'Keefe, 260 F.3d 87; People v. McElveen, 234 A.D.2d 228, lv denied 89 N.Y.2d 1097; see also, People v. Gloster, 175 A.D.2d 258, lv denied 78 N.Y.2d 1011).
The court properly declined to order a CPL 730 examination before defendant proceeded pro se. Such an examination had already been held, and once defendant had been found fit to proceed to trial, there was no requirement of a further examination to determine whether he was fit to represent himself (People v. Reason, 37 N.Y.2d 351).
While a court should not prospectively exclude the testimony of a defense witness unless the offer of proof is in palpably bad faith (People v. Gilliam, 37 N.Y.2d 722; People v. Cuevas, 67 A.D.2d 219), here, the court was fully warranted in finding such bad faith, since it had been apprised of reliable information indicating that the testimony of the witness would differ drastically from the offer of proof made by defendant and was likely, in any case, to constitute perjury.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.