Opinion
2014-10-3
The PEOPLE of the State of New York, Respondent, v. John W. KREUTTER, Defendant–Appellant.
David J. Pajak, Alden, for Defendant–Appellant. Donald G. O'Geen, District Attorney, Warsaw (Vincent A. Hemming of Counsel), for Respondent.
David J. Pajak, Alden, for Defendant–Appellant. Donald G. O'Geen, District Attorney, Warsaw (Vincent A. Hemming of Counsel), for Respondent.
PRESENT: CENTRA, J.P., CARNI, VALENTINO, and WHALEN, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a jury verdict of, inter alia, sexual abuse in the first degree (Penal Law § 130.65[1] ), defendant contends that County Court failed to conduct a “ searching inquiry” before granting his prehearing request to proceed pro se. We reject that contention. “A defendant in a criminal case may invoke the right to defend [pro se] 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 which 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). “If a timely and unequivocal request has been asserted, then the trial court is obligated to conduct a ‘searching inquiry’ to ensure that the defendant's waiver is knowing, intelligent, and voluntary” (Matter of Kathleen K. [Steven K.], 17 N.Y.3d 380, 385, 929 N.Y.S.2d 535, 953 N.E.2d 773; see People v. Crampe, 17 N.Y.3d 469, 481–482, 932 N.Y.S.2d 765, 957 N.E.2d 255, cert. denied sub. nom. New York v. Wingate, ––– U.S. ––––, 132 S.Ct. 1746, 182 L.Ed.2d 531). As the reviewing court, we may “look to the whole record, not simply to the waiver colloquy, in order to determine if a defendant effectively waived counsel” (People v. Providence, 2 N.Y.3d 579, 583, 780 N.Y.S.2d 552, 813 N.E.2d 632). Based on our review of the whole record, we conclude that defendant knowingly, intelligently and voluntarily waived his right to counsel ( see People v. Malone, 119 A.D.3d 1352, 1353, 989 N.Y.S.2d 218; People v. Chandler, 109 A.D.3d 1202, 1203, 971 N.Y.S.2d 778, lv. denied23 N.Y.3d 1019, 992 N.Y.S.2d 801, 16 N.E.3d 1281).
Defendant contends that he was subjected to coercive and threatening questioning by a sheriff's investigator under circumstances in which a reasonable person would conclude that he was not free to leave and thus his statements to that investigator should have been suppressed. He further contends that the erroneous admission in evidence of those statements is not harmless error. We reject those contentions and conclude that the court properly denied defendant's motion to suppress those statements ( see People v. Zuke, 87 A.D.3d 1290, 1291, 929 N.Y.S.2d 910, lv. denied18 N.Y.3d 887, 939 N.Y.S.2d 757, 963 N.E.2d 134; People v. Schroo, 87 A.D.3d 1287, 1288, 930 N.Y.S.2d 158, lv. denied19 N.Y.3d 977, 950 N.Y.S.2d 360, 973 N.E.2d 770). Defendant contends that he was denied effective assistance of counsel at trial when standby counsel purportedly conceded that defendant was subject to noncustodial interrogation. That contention lacks merit inasmuch as the proof at trial established that defendant was not subject to custodial interrogation when he was interviewed by a sheriff's investigator ( see generally People v. Centano, 76 N.Y.2d 837, 838, 560 N.Y.S.2d 121, 559 N.E.2d 1280; Schroo, 87 A.D.3d at 1288, 930 N.Y.S.2d 158).
Defendant's contentions that the conviction is not supported by legally sufficient evidence and that the court abused its discretion in not defining the parameters of standby counsel's representation are not preserved for our review ( see generally People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (CPL 470.15[6][a] ). Defendant's further contention that a mode of proceedings error occurred as a result of the court's failure to define the parameters of standby counsel's representation is raised improperly for the first time in defendant's reply brief and therefore is not properly before us ( see People v. Ford, 69 N.Y.2d 775, 777, 513 N.Y.S.2d 106, 505 N.E.2d 615, rearg. denied69 N.Y.2d 985, 516 N.Y.S.2d 1028, 509 N.E.2d 363; People v. Hall, 106 A.D.3d 1513, 1514, 964 N.Y.S.2d 390, lv. denied22 N.Y.3d 956, 977 N.Y.S.2d 187, 999 N.E.2d 552). Defendant proceeded pro se at trial and did not object to the court's jury charge or verdict sheet, and thus his further contentions attributing errors to standby counsel with respect to those matters also lack merit ( see generally People v. Brockenshire, 245 A.D.2d 1065, 1065–1066, 666 N.Y.S.2d 73, lv. denied91 N.Y.2d 940, 671 N.Y.S.2d 720, 694 N.E.2d 889). Moreover, defendant may not use the alleged errors of standby counsel to raise unpreserved challenges to the court's charge and verdict sheet ( seeCPL 470.05[2]; see generally People v. Duda, 45 A.D.3d 1464, 1466, 845 N.Y.S.2d 671, lv. denied10 N.Y.3d 764, 854 N.Y.S.2d 326, 883 N.E.2d 1261).
Defendant's contention that he was denied effective assistance of counsel by his prior attorney's failure to allow him to testify before the grand jury “involves matters outside the record on appeal and thus is properly raised by way of a motion pursuant to CPL article 440” (People v. Frazier, 63 A.D.3d 1633, 1634, 880 N.Y.S.2d 809, lv. denied12 N.Y.3d 925, 884 N.Y.S.2d 706, 912 N.E.2d 1087). To the extent that defendant contends that the verdict is against the weight of the evidence, we have reviewed the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), and we conclude that an acquittal would have been unreasonable based upon the weight of the credible evidence presented at trial, and thus the verdict is not against the weight of the evidence ( see generally id. at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.