Opinion
109 KA 18-01725
03-11-2022
The PEOPLE of the State of New York, Respondent, v. Randy WILLIAMS, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS M. LEITH OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS M. LEITH OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, AND PERADOTTO, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of two counts each of burglary in the first degree ( Penal Law § 140.30 [3], [4] ), robbery in the first degree (§ 160.15 [3], [4]), and criminal use of a firearm in the first degree (§ 265.09 [1] [b]), defendant contends that reversal is required because he may have been convicted on an uncharged theory. We reject that contention. Although the trial evidence may have supported a theory different from the one set forth in the bill of particulars—namely that defendant was a getaway driver and did not enter the residence where the robbery occurred—and although County Court erred in denying defense counsel's objection to the prosecutor's remarks during summation presenting that theory, reversal is not warranted inasmuch as the court's "charge to the jury eliminated any danger that the jury convicted defendant of an unindicted act" ( People v. Bradford , 61 A.D.3d 1419, 1421, 877 N.Y.S.2d 586 [4th Dept. 2009], affd 15 N.Y.3d 329, 910 N.Y.S.2d 771, 937 N.E.2d 528 [2010] [internal quotation marks omitted]; see People v. Gerstner , 270 A.D.2d 837, 838, 706 N.Y.S.2d 542 [4th Dept. 2000] ; cf. People v. Petersen , 190 A.D.3d 769, 770, 140 N.Y.S.3d 234 [2d Dept. 2021], lv denied 36 N.Y.3d 1123, 146 N.Y.S.3d 199, 169 N.E.3d 557 [2021] ).
Contrary to defendant's further contention, the record as a whole demonstrates that the court did not err in denying his request to waive his right to counsel so that he could proceed pro se. It is well settled that a defendant in a criminal case has the right to proceed pro se (see NY Const, art I, § 6 ; CPL 210.15 [5] ), and may invoke that right "provided: (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 [that] would prevent the fair and orderly exposition of the issues" ( People v. McIntyre , 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 [1974] ; see People v. Herman , 78 A.D.3d 1686, 1686, 910 N.Y.S.2d 833 [4th Dept. 2010], lv denied 16 N.Y.3d 831, 921 N.Y.S.2d 195, 946 N.E.2d 183 [2011] ). Here, the court properly denied defendant's request inasmuch as defendant engaged in a pattern of disruptive conduct meant to undermine orderly determination of the issues, arising from his mistaken belief that the court had no jurisdiction over him as a sovereign citizen (see generally McIntyre , 36 N.Y.2d at 18, 364 N.Y.S.2d 837, 324 N.E.2d 322 ; United States v. Pryor , 842 F.3d 441, 445-451 [6th Cir. 2016], cert denied ––– U.S. ––––, 137 S. Ct. 2254, 198 L.Ed.2d 688 [2017] ).
We also reject defendant's contention that the sentence is unduly harsh and severe. Finally, we have considered defendant's remaining contention and conclude that it does not warrant modification or reversal of the judgment.