Opinion
2000-08505
Argued October 17, 2002.
November 12, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rios, J.), rendered August 22, 2000, convicting him of robbery in the first degree (two counts), robbery in the second degree (two counts), assault in the second degree (two counts), criminal possession of a weapon in the fourth degree (two counts), and criminal possession of stolen property in the fifth degree (two counts), upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Mae C. Quinn of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Merri Turk Lasky of counsel), for respondent.
Before: NANCY E. SMITH, J.P., ROBERT W. SCHMIDT, THOMAS A. ADAMS, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant contends that he was denied his constitutional right to represent himself. The exercise of that right requires an unequivocal request (see People v. McIntyre, 36 N.Y.2d 10, 17), which was lacking in this case. The defendant's requests were equivocal, since they were overshadowed by his numerous requests for new counsel and his disapproval of the trial judge, and thus do not constitute an unequivocal knowing and voluntary election to forego the benefit of an attorney and proceed pro se (see People v. Rainey, 240 A.D.2d 682; People v. Jimenez, 253 A.D.2d 693).
The trial court properly denied the defendant's request to waive a trial by jury, as that request was used in an attempt to gain an impermissible advantage (see People ex rel Rohrlich v. Follette, 20 N.Y.2d 297; People v. Miller, 197 A.D.2d 925).
The defendant contends that certain allegedly improper comments made by the prosecutor during summation constituted reversible error. However, the defendant failed to preserve this contention for appellate review. No objections were raised to the majority of the comments in question, while those comments to which objections were registered were followed by curative instructions, subsequent to which the defendant neither asked for further curative instructions nor moved for a mistrial. The defendant thereby indicated that the court sufficiently had cured any error to his satisfaction (see CPL 470.05; People v. Medina, 53 N.Y.2d 951). In any event, when the remarks complained of are fairly evaluated in comparison with the summation comments of defense counsel, they either constituted fair response to defense counsel's summation or were within the confines of the evidence (see People v. Rosario, 195 A.D.2d 577).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).
SMITH, J.P., SCHMIDT, ADAMS and COZIER, JJ., concur.