Opinion
222 KA 11–01135
03-16-2018
The PEOPLE of the State of New York, Respondent, v. Muzzammil S. HASSAN, also known as Mo Hassan, Defendant–appellant.
KATHRYN FRIEDMAN, BUFFALO, FOR DEFENDANT–APPELLANT. MUZZAMMIL S. HASSAN, DEFENDANT–APPELLANT PRO SE. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR RESPONDENT.
KATHRYN FRIEDMAN, BUFFALO, FOR DEFENDANT–APPELLANT.
MUZZAMMIL S. HASSAN, DEFENDANT–APPELLANT PRO SE.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.
MEMORANDUM AND ORDER
Memorandum:Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree ( Penal Law § 125.25[1] ). Defendant contends that he is entitled to a new trial because County Court improperly limited the scope of his pretrial statements to the press to the general nature of the charges against him and his intended defense, thereby allegedly preventing him from adequately responding to press coverage purportedly favorable to the People. He argues that the court's ruling "unconstitutionally infected" the jury pool and precluded him from finding jurors who were not biased against him. Even assuming, arguendo, that the court abused the discretion afforded to it to take affirmative measures to ensure a fair trial and to prevent or reduce prejudicial pretrial publicity (see generally Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 16 L.Ed.2d 600 [1966] ; Matter of National Broadcasting Co. v. Cooperman, 116 A.D.2d 287, 289, 501 N.Y.S.2d 405 [2d Dept. 1986] ), we conclude that defendant failed to preserve his contention for our review because he never moved for a change of venue or other relief based on the purportedly tainted jury pool (see People v. Perkins, 62 A.D.3d 1160, 1162, 880 N.Y.S.2d 209 [3d Dept. 2009], lv denied 13 N.Y.3d 748, 886 N.Y.S.2d 102, 914 N.E.2d 1020 [2009] ). Instead, subsequent to the court's ruling, defense counsel participated in five full days of jury selection, during which time the prospective jurors were thoroughly questioned on their media exposure and potential biases, and counsel acquiesced to the selected jurors being sworn without objection (see id. ). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
We reject defendant's further contention that the court committed a mode of proceedings error by granting defendant's midtrial request to proceed pro se. Although the right to represent oneself is "severely constricted" once a trial has begun, an otherwise untimely motion to proceed pro se may still "be granted in the trial court's discretion and ... in compelling circumstances" ( People v. McIntyre, 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 [1974] ; see People v. Dashnaw, 116 A.D.3d 1222, 1231–1232, 983 N.Y.S.2d 681 [3d Dept. 2014], lv denied 23 N.Y.3d 1019, 992 N.Y.S.2d 802, 16 N.E.3d 1282 [2014] ). We conclude, upon our review of "the whole record, not simply ... the waiver colloquy" ( People v. Providence, 2 N.Y.3d 579, 583, 780 N.Y.S.2d 552, 813 N.E.2d 632 [2004] ), that the requisite compelling circumstances existed. For instance, defendant's serial termination of multiple prior attorneys evidenced his unrealistic expectations of counsel's role in his defense. In addition, trial counsel informed the court that, despite midtrial conciliatory efforts, the attorney-client relationship had reached an unresolvable impasse because of counsel's inability to adhere to defendant's requests while ethically representing defendant (see People v. Chandler, 109 A.D.3d 1202, 1203, 971 N.Y.S.2d 778 [4th Dept. 2013], lv denied 23 N.Y.3d 1019, 992 N.Y.S.2d 801, 16 N.E.3d 1281 [2014] ).
Defendant's contention that the court failed to make a sufficient inquiry into juror misconduct when informed that an unidentified female juror may have been discussing defendant's guilt or innocence before deliberations had begun is unpreserved for our review, inasmuch as defendant acquiesced in the court's decision not to interview the other jurors with whom the female juror was speaking (see People v. Hodge, 147 A.D.3d 1502, 1503, 47 N.Y.S.3d 559 [4th Dept. 2017], lv denied 29 N.Y.3d 1032, 62 N.Y.S.3d 301, 84 N.E.3d 973 [2017]; see also People v. Hicks, 6 N.Y.3d 737, 739, 810 N.Y.S.2d 396, 843 N.E.2d 1136 [2005] ; see generally People v. Morgan, 96 A.D.3d 1418, 1418, 946 N.Y.S.2d 358 [4th Dept. 2012], lv denied 20 N.Y.3d 987, 958 N.Y.S.2d 703, 982 N.E.2d 623 [2012] ). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Finally, we have considered the contentions raised by defendant in his pro se supplemental brief and conclude that none warrants modification or reversal of the judgment.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.