Opinion
No. 570033/18
06-13-2022
The People of the State of New York, Respondent, v. Rudolph Rosenberg, Defendant-Appellant.
Unpublished Opinion
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Steven M. Statsinger, J.), rendered December 8, 2017, after a nonjury trial, convicting him of disorderly conduct, and imposing sentence.
PRESENT: Hagler, J.P., Tisch, Michael, JJ.
PER CURIAM.
Judgment of conviction (Steven M. Statsinger, J.), rendered December 8, 2017, affirmed.
The prosecutor's information was jurisdictionally valid because the information it superseded contained nonhearsay allegations establishing every element of disorderly conduct (see Penal Law § 240.20) and the defendant's commission thereof (see People v Inserra, 4 N.Y.3d 30, 32 [2004]). Defendant's intent to cause public inconvenience, annoyance or alarm, or recklessly create a risk thereof (see People v Weaver, 16 N.Y.3d 123, 128 [2011]) could be readily inferred from allegations that inside the New York City Civil Court building, on a specified weekday afternoon, defendant was observed "yelling, at a loud volume" obscene and abusive language at a clerk, i.e. "you are a fucking moron, go get a fucking education, if you did not have this job you would probably be on welfare"; "yell[ing] loudly" at another clerk and "pok[ing] his finger close to the clerk's face," causing approximately twelve people in the area to stop and watch defendant; and then, as he was placed under arrest, defendant "twisted his body" away from the court officer and stated "get the fuck off me," making it difficult to effect the arrest. (see People v Lee, 55 Misc.3d 138 [A], 2017 NY Slip Op 50521[U][App Term, 1st Dept 2017], lv denied 29 N.Y.3d 1092 [2017] ; see also People v Birch, 70 Misc.3d 144[A], 2021 NY Slip OP 50199[U] [App Term, 1st Dept 2021] , lv denied 37 N.Y.3d 954 [2021]).
The court properly found that defendant made a knowing, voluntary and intelligent decision, expressed through word and deed, to waive his right to counsel and proceed pro se (see People v Smith, 129 A.D.3d 997, 998 [2015] , lv denied 27 N.Y.3d 992, 1006 [2016]; People v Lineberger, 98 N.Y.2d 662 [2002]). As the court specifically found, defendant "did everything he could to obstruct the proceedings" by firing, rejecting, belittling or threatening to sue no fewer than three court-appointed attorneys - offered at various stages throughout these protracted proceedings even though defendant did not qualify for appointed counsel - and one whom had been retained for him (People v Rosenberg, 58 Misc.3d 1203 [A], 2017 NY Slip Op 51916[U][Crim Ct, NY County 2017]; see People v McElveen, 234 A.D.2d 228, 231 [1996], lv denied 89 N.Y.2d 1097 [1997] [defendant's "failure to cooperate with so many appointed attorneys during the course of these proceedings constitutes the effective waiver of the right to counsel"]).
The knowing and voluntary nature of the waiver was supported by, inter alia, defendant's age, experience, education, his performance representing himself and past pro se filings (see People v Providence, 2 N.Y.3d 579, 583-584 [2004]). The record also contains defendant's CPL article 730 examination report, finding defendant fit to proceed, wherein defendant stated to the examiner that he had done "relatively well" representing himself pro se in his 2016 case and that he resented being "forced to have a lawyer" in an unrelated 2017 case (see e.g. People v Vivenzio, 62 N.Y.2d 775 [1984]; People v Morrow, 143 A.D.3d 919 [2016], lv denied 28 N.Y.3d 1148 [2017]; People v Riddick, 299 A.D.2d 562 [2002], lv denied 99 N.Y.2d 619 [2003]).
Furthermore, after this finding, the court adjourned the matter until December 4, 2017 - a nearly ten week adjournment - so that defendant would have time to change his mind and hire an attorney or prepare to represent himself. The court emphasized, however, that December 4, 2017 was a firm trial date and warned that the case would proceed to trial whether or not defendant had counsel. Moreover, the court advised defendant of the "dangers and disadvantages of proceeding without counsel" (see People v Providence, 2 N.Y.3d at 582), explained that defendant would be better off with an attorney than without one; and warned him that without counsel he faced a greater likelihood of conviction, that he could be sentenced to up to one year in jail and a fine on each class A misdemeanor count, and that he faced a range of negative immigration consequences if he was not a United States citizen.
When defendant appeared for trial, he requested appointed counsel. The court properly rejected this request as a "transparent delay tactic" and concluded that defendant voluntarily waived the right to counsel (see People v Henriquez, 3 N.Y.3d 210 [2004]).
All concur.