Opinion
10-19-2016
The PEOPLE, etc., respondent, v. Neb MORROW, appellant.
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant, and appellant pro se. Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Terrence F. Heller of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant, and appellant pro se.Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Terrence F. Heller of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldberg, J.), rendered December 13, 2010, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
At trial, the defendant made an effective waiver of his right to counsel. Before proceeding pro se, a defendant must make a knowing, voluntary, and intelligent waiver of the right to counsel (see People v. Crampe, 17 N.Y.3d 469, 481, 932 N.Y.S.2d 765, 957 N.E.2d 255 ; People v. Arroyo, 98 N.Y.2d 101, 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154 ). The defendant's request to represent himself was unequivocal, and the court engaged in the requisite searching inquiry to ensure that his waiver of the right to counsel was knowing, voluntary, and intelligent (see People v. Providence, 2 N.Y.3d 579, 583, 780 N.Y.S.2d 552, 813 N.E.2d 632 ; People v. Lindsey, 121 A.D.3d 715, 715, 993 N.Y.S.2d 164 ). The colloquy was sufficient to ensure that the defendant was aware of the drawbacks of self-representation (see People v. Vivenzio, 62 N.Y.2d 775, 776, 477 N.Y.S.2d 318, 465 N.E.2d 1254 ; People v. Guzman, 116 A.D.3d 790, 791, 982 N.Y.S.2d 908 ; People v. Allison, 69 A.D.3d 740, 741, 892 N.Y.S.2d 516 ; cf. People v. Crampe, 17 N.Y.3d at 482, 932 N.Y.S.2d 765, 957 N.E.2d 255 ). The defendant's age, experience, education, and prior exposure to the criminal justice system, along with his firmness in his decision to represent himself and his performance in representing himself, all indicate a knowing waiver (see People v. Providence, 2 N.Y.3d at 583–584, 780 N.Y.S.2d 552, 813 N.E.2d 632 ; People v. Harris, 292 A.D.2d 633, 634, 739 N.Y.S.2d 600 ; People v. Miley, 154 A.D.2d 559, 559, 546 N.Y.S.2d 399 ). Finally, the defendant had the benefit of standby counsel throughout the proceedings and proceeded at his own peril, fully aware of the consequences of his chosen course (see People v. Cusamano, 22 A.D.3d 427, 428, 805 N.Y.S.2d 1 ; People v. Delaron, 184 A.D.2d 653, 654, 587 N.Y.S.2d 168 ).
The defendant was required to preserve his objection to the court's procedure for consideration of prospective jurors' requests to be excused for hardship, made before the commencement of formal voir dire, as this is not a material stage of the trial proceedings and does not affect the organization of the court or the mode of proceedings prescribed by law (see People v. King, 27 N.Y.3d 147, 156, 31 N.Y.S.3d 402, 50 N.E.3d 869 ). The defendant failed to preserve this contention for appellate review, as he failed to object to the procedure prior to the discharge of the prospective jurors, and did not request that any inquiry be made of them (see People v. Toussaint, 40 A.D.3d 1017, 1017–1018, 837 N.Y.S.2d 218 ). In any event, the court fully complied with Judiciary Law § 517(c) in exercising its discretion to excuse prospective jurors based on claimed hardship (see People v. Toussaint, 40 A.D.3d at 1018, 837 N.Y.S.2d 218 ).
In his pro se supplemental brief, the defendant contends that he was deprived of the effective assistance of counsel because his first assigned counsel allegedly, without conducting an investigation, waived the defendant's right to appear before the grand jury despite being advised by the defendant that the defendant wanted to appear, and because his second assigned counsel failed to consult with him before filing a motion pursuant to CPL 190.50 containing “boiler plate” language. These contentions concern matter dehors the record which cannot be reviewed on direct appeal (see People v. Bruno, 127 A.D.3d 986, 987, 7 N.Y.S.3d 408 ; People v. Walters, 120 A.D.3d 1272, 1273, 992 N.Y.S.2d 124 ). Moreover, the defendant's claim, in effect, that the court deprived him of his constitutional right to counsel by denying his request to appoint a third, different, pro bono attorney as his standby counsel in place of his second assigned attorney who had been appointed as standby counsel, thus leaving the defendant with no choice but to represent himself, is without merit (see People v. Howell, 207 A.D.2d 412, 413, 615 N.Y.S.2d 728 ).
The defendant's contention in his pro se supplemental brief that the People willfully failed to reduce witness statements to writing in order to circumvent their Rosario obligations (see People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 ) is based on matter dehors the record, and cannot be reviewed on direct appeal (see People v. Franklin, 77 A.D.3d 676, 676, 908 N.Y.S.2d 359 ; People v. Helenese, 75 A.D.3d 653, 655, 907 N.Y.S.2d 223 ). To the extent that this claim alleges a Rosario violation, it is unpreserved for appellate review, as the defendant never sought relief in connection with the alleged violation (see People v. Jacobs, 71 A.D.3d 693, 693, 894 N.Y.S.2d 908 ; People v. Swinson, 227 A.D.2d 508, 643 N.Y.S.2d 364 ), and is, in any event, without merit.
The defendant's contentions in his pro se supplemental brief regarding the prosecutor's summation remarks are unpreserved for appellate review, as the defendant either failed to object to the remarks at issue, or made only a general objection, and failed to request further curative relief when the court sustained an objection (see People v. Guzman, 138 A.D.3d 1140, 1140, 31 N.Y.S.3d 146 ; People v. Blue, 136 A.D.3d 840, 24 N.Y.S.3d 532 ; People v. Barber, 133 A.D.3d 868, 871, 22 N.Y.S.3d 63 ). In any event, the prosecutor's remarks regarding the credibility of the People's witnesses were responsive to the defendant's summation, in which he attacked the credibility of the police witnesses (see People v. Ferraro, 49 A.D.3d 550, 551, 855 N.Y.S.2d 552 ; People v. Phillips, 285 A.D.2d 477, 478, 727 N.Y.S.2d 637 ). The prosecutor expressed no personal opinion regarding the officers' veracity (see People v. Thomas, 186 A.D.2d 602, 588 N.Y.S.2d 395 ; see also People v. Williams, 1 A.D.3d 284, 285, 767 N.Y.S.2d 588 ). It was proper for the prosecutor to make record-based arguments, addressed to the jury's common sense, concerning motives or lack of motives to falsify (see People v. Gonzalez, 298 A.D.2d 133, 133–134, 747 N.Y.S.2d 511 ; People v. Bryant, 294 A.D.2d 221, 741 N.Y.S.2d 854 ). The prosecutor's remarks regarding the defendant's credibility were proper, since the issue of credibility was central to the trial (see People v. Banks, 258 A.D.2d 525, 526, 685 N.Y.S.2d 262 ). Although the defendant claims that the prosecutor misstated the evidence on summation, the court's instructions to the jury that it was the jury's recollection of the evidence that controlled were sufficient to address any misstatements of evidence that may have been made by the prosecutor (see People v. Brown, 139 A.D.3d 964, 966, 31 N.Y.S.3d 587 ; People v. Sylvain, 33 A.D.3d 330, 331–332, 821 N.Y.S.2d 588 ). Finally, any error in the prosecutor's summation was harmless, given the overwhelming evidence of the defendant's guilt, and the absence of any significant probability that any such error might have contributed to the defendant's conviction (see People v.
Brown, 139 A.D.3d at 966, 31 N.Y.S.3d 587 ).
The defendant's contention in his pro se supplemental brief that the People concealed the identity of certain witnesses and made those witnesses unavailable to him is without merit.
The defendant's remaining contentions in his pro se supplemental brief regarding alleged prosecutorial misconduct are unpreserved for appellate review and, in any event, without merit (see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).