Second, Eleventh and Thirteenth JudicIal DistrictsCases released on February 28, 2019
By: Pesce, P.J., Elliot, Siegal, JJ.Appellate Advocates (Joshua M. Levine of counsel), for appellant.Kings County District Attorney (Leonard Joblove, Rhea A. Grob and Kristen A. Carroll of counsel), for respondent.2013-1998 K CR. PEOPLE v. GRANT, MARKLAND — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Desmond A. Green, J., at trial; Gilbert C. Hong, J., at sentencing), rendered July 18, 2013. The judgment convicted defendant, after a nonjury trial, of criminal possession of marihuana in the fifth degree and unlawful possession of marihuana, and imposed sentence.ORDERED that the judgment of conviction is affirmed. In April 2012, defendant was arraigned on an accusatory instrument charging him with criminal possession of marihuana in the fifth degree (Penal Law §221.10 [1]) and two counts of unlawful possession of marihuana (Penal Law §221.05). The accusatory instrument alleges that a police officer observed defendant smoking a marijuana cigar on a public sidewalk and that the officer observed defendant drop the cigar to the ground. The officer recovered the marijuana cigar from the ground and recovered a marijuana cigar from defendant’s person. Thereafter, defendant, who had been assigned counsel, requested to represent himself. After a detailed inquiry by the Criminal Court (Gilbert C. Hong, J.), defendant’s assigned counsel was relieved, defendant’s application to proceed pro se was granted, and standby counsel was appointed. On the first day of the two-day trial, the Criminal Court (Desmond A. Green, J.) overruled numerous objections made by defendant and attempted to curtail defendant from testifying or making statements during the People’s direct examination of their police officer witness. Defendant interpreted the court’s evidentiary rulings as being disrespectful of him, and argued that the court would not allow him to present his story. The court informed defendant that he could “tell what you want” during defendant’s turn to present his case, and that, when the trial resumes (which it did on the following day), he would have the right to make objections, and the court would have the right to make legal rulings. On the second day of trial, defendant told the court that he felt threatened because of what had happened to him previously in court on an unrelated matter with a different judge, and that Judge Green should recuse himself. The court denied defendant’s request. Defendant then stated that he felt threatened and “extorted,” and that he was not going to participate in the proceedings. The court replied that defendant was not being threatened and stated that defendant was trying to make an issue out of something that did not exist. After defendant continued to refuse to participate in the trial, the court stated that “this” is “what happens when people decide they want to represent themselves, and they do not know the rules when they make objections that are baseless and when they are told that the objection is overruled they get upset.” The trial resumed without any further participation by defendant, following which defendant was convicted of criminal possession of marihuana in the fifth degree with regard to the marihuana cigar recovered from the ground and one count of unlawful possession of marihuana with regard to the marihuana cigar recovered from defendant’s person. On appeal, defendant contends that the Criminal Court’s failure to persuade him to continue to participate in the trial, or to allow his standby counsel to represent him, deprived him of his Sixth Amendment and Due Process rights. As the Appellate Division noted in People v. Kelly (60 AD2d 220 [1977], affd 44 NY2d 725 [1978]), a “criminal trial is not an obstacle course for the judge” (id. at 221). The Court of Appeals has stated that “a defendant ‘should not be permitted to nullify a trial and require a new trial by the simple expedient of obstructing every effort of the court to assure to the defendant his legal rights and a fair trial. There comes a point where a defendant must bear the consequences of his conduct, in a courtroom as well as out of it’ ” (People v. Henriquez, 3 NY3d 210, 216 [2004], quoting People v. Kelly, 60 AD2d at 224). In the case at bar, defendant’s adamant refusal to participate in the proceedings and represent himself, clearly “translates into an intentional failure to avail himself of his constitutional right to a fair opportunity to defend against the State’s accusations” (People v. Henriquez, 3 NY2d at 217 [internal quotation marks omitted]). Consequently, we find that defendant was not denied any constitutional right.Accordingly, the judgment of conviction is affirmed. PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.February 22, 2019
