People v Rosenberg

[*1] People v Rosenberg 2017 NY Slip Op 51916(U) Decided on December 21, 2017 Criminal Court Of The City Of New York, New York County Statsinger, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 21, 2017
Criminal Court of the City of New York, New York County

The People of the State of New York, Plaintiff,

against

Rudolph Rosenberg, Defendant.



2017NY029674



For the Defendant: Rudolph Rosenberg, pro se.

For the People: Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Robert Ryan.
Steven M. Statsinger, J.

On September 28, 2017, the Court found that the defendant had waived counsel, noting that he had fired, rejected or threatened to sue no fewer than three court-appointed attorneys - offered at various stages of these cases even though defendant did not qualify for appointed counsel - and one whom he had retained. That same date, after a Faretta inquiry, the Court also found that the defendant's waiver of counsel was knowing and voluntary. See Faretta v. California, 422 U.S. 806 (1975); People v. Vivenzio, 62 NY2d 775 (1984). The Court set December 4, 2017, as a firm trial date, and warned the defendant that his cases would proceed on that date whether or not he had counsel.

On the December 4, 2017, trial date, the defendant, for the first time, asked that counsel be appointed. The Court reaffirmed its prior findings that defendant had waived counsel, and recognizing that defendant's last minute change of heart was nothing more than a delay tactic, denied the application. This written decision explains in more detail the factual record and the Court's reasoning.

I. THE CHARGES

A. 2016NY016359

The accusatory instrument in this case charged the defendant with disorderly conduct, Penal Law §§ 240.20(2) and (3), obstruction of governmental administration in the second degree, Penal Law § 195.05, and resisting arrest, Penal Law § 205.30. It alleged that, on March 9, 2016, defendant became obstreperous inside the Clerk's Office at New York County Civil Court, then resisted Court Officers' efforts to arrest him and remove him from the building. Before trial, the People filed a Prosecutor's Information charging the defendant with three counts [*2]of disorderly conduct, under Penal Law §§ 240.20(1), (2) and (3).

B. 2017NY029674

After making several court appearances on the 2016 docket, defendant failed to appear on December 8, 2016, and the Court issued a bench warrant. Defendant was returned on the warrant, involuntarily, on May 25, 2017, when he was arraigned on Docket No. 2017NY029674, in which he was charged with petit larceny, Penal Law § 155.25. The 2017 docket alleged that defendant had stolen property from the complainant. Before trial, the People filed a Prosecutor's Information charging the defendant with one count each of attempted petit larceny, Penal Law §§ 110/155.25, and attempted criminal possession of stolen property in the fifth degree, Penal Law §§ 110/165.40.

II. DEFENDANT, WHO WAS APPOINTED COUNSEL DESPITE THE FACT THAT HE DID NOT QUALIFY, CALLS THOSE ATTORNEYS "SPIES" AND "FRAUD[S]," THEN FIRES HIS RETAINED ATTORNEY

When defendant was arraigned on the 2016 docket, Damjan Panovski, Esq., an attorney with The Legal Aid Society, represented him. Mr. Panovski asked that the matter be adjourned to give the defendant time to retain private counsel, and the Court, which agreed that defendant did not qualify financially for appointed counsel, adjourned the case for that purpose. Transcript of March 9, 2016, at 2.

At the next calendar call, on April 4, 2016, an attorney from The Legal Aid Society again stood up on the case and, after an unrecorded bench conference, the court relieved that agency and adjourned the case to April 29. Transcript of April 4, 2016, at 2.

By April 29, 2016, however, defendant had not retained an attorney, yet it was again apparent that he did not qualify for, and did not want, appointed counsel. When the Court remarked that the CJA Sheet reported that the defendant's salary was $125,000, defendant did not deny it. Rather, he replied "I really can't make any further statements ... I'm not going to get into any of that." Transcript of April 29, 2016, at 10. It also emerged that an 18-B attorney who had been appointed to represent the defendant in the interim, Jess Berkowitz, Esq. , had to be relieved because, according to the judge presiding that day, defendant was "not eligible for 18B because of the salary range that [the defendant] was at." Id. at 4. In any event, defendant was clearly dissatisfied with Mr. Berkowitz, whom he accused of "playing games with me."Id. at 6.

In fact, defendant expressed dissatisfaction with all of the court-appointed attorneys he had encountered until then, calling them "nothing more than spies," and "fraud lawyers." Id. at 6, 7. Defendant was adamant that he had "never made any application to Legal Aid, or the Court, or anybody for the appointment of counsel," Id. at 3, and that he could "run my own case myself ... ." Id. at 4.

The court made a number of efforts to confirm with the defendant that he wished to represent himself, as opposed to retaining private counsel, but defendant refused to give a definitive answer, saying instead, repeatedly, "I'm not making any election at this time." Id. at 10, 11. That same day, defendant filed pro se motion papers seeking discovery and a Bill of Particulars. Id. at 8.

Defendant appeared pro se on the next court date, June 16, 2016, although he continued to refuse to confirm that he was planning to continue to represent himself and not retain an attorney : "I don't have to take an election at this point in time." Transcript of June 16, 2016, at [*3]3. Nor defendant did request appointed counsel on that date.

At the next calendar call, on September 8, 2016, defendant appeared pro se, and did not seek appointment of counsel. Transcript of September 8, 2016, at 2.Judge Nock noted that defendant had recently filed pro se motions, and the judge adjourned the case so that he could review them. Id. at 3.

There were calendar calls on this docket on October 26, 2016, and December 8, 2016, although nothing relating to the question of defendant's representation occurred on those dates. Defendant had been excused from the October 26 call, Transcript of October 26, 2016, at 2, and did not appear on December 8. The Court issued a bench warrant on December 8.

On May 25, 2017, defendant was returned on the bench warrant arising from the 2016 docket and arraigned on the 2017 docket. At this proceeding, he was represented by an attorney from Neighborhood Defender Services of Harlem ("NDS"). That attorney, however, noted that defendant had been representing himself pro se in the 2016 case. Transcript of May 25, 2017, at 3. On the next court date, May 30, 2017, defendant appeared in Part E on both dockets, and was again represented by NDS. At this proceeding, the NDS attorney asked that NDS be relieved, noting, "I would prefer not to put the reason on the record." Transcript of May 30, 2017 at 2. The Court adjourned the case to June 8, 2017, without acting on NDS' motion to be relieved.

Defendant appeared on June 8, 2017, still represented by NDS. NDS again moved to be relieved citing an "irreparable break down in communication ... that could not be repaired." Transcript of June 8, 2017, at 3. In response to an inquiry from the Court, the NDS attorney explained that the defendant was claiming that a different NDS attorney "had lied" to the defendant and insulted the defendant and his wife, and that the defendant was planning to "file a bar complaint" against the other NDS attorney. Id. The NDS attorney who was present in court also noted that defendant had leveled "similar accusations" against him, and had sent emails to his superiors asserting a "total lack of confidence in our organization." Id. at 4.[FN1] The Court ordered a CPL § 730 examination, and reserved decision on NDS' motion to be relieved until the results of that examination became available.

The case was calendared for June 19, 2017, for the results of the competency examination, but the report was not ready. NDS was still representing the defendant as of this date. Transcript of June 19, 2017, at 1.

Defendant was found fit on July 13, 2017. By then, he had retained a private attorney named Leon Jacobson, and the Court relieved NDS. Transcript of July 13, 2017, at 2.[FN2]

III. DEFENDANT'S PRO SE FILINGS

Defendant filed multiple pro se motions in connection with the 2016 docket, a first set on [*4]August 26, 2016, and a second on September 8, 2016. Those motions contained numerous prayers for relief, including: recusal, dismissal for facial insufficiency, dismissal pursuant to CPL § 30.30, suppression or preclusion of certain evidence, Dunaway and Sandoval hearings, discovery and a bill of particulars, and an "audibility hearing." Judge Nock, in a written Order dated December 5, 2016, disposed of both sets of motions. Judge Nock also ratified the previous judicial findings that defendant did not qualify for appointed counsel, and deemed the pro se filings to be "evidence of [defendant's] determination to proceed pro se." Order of December 5, 2016, n.1. Judge Nock's Order noted that defendant was "free to retain counsel," and "cautioned" him that he would be better off doing so. Id.

Subsequently, again in connection with the 2016 docket, defendant filed additional pro se motions seeking a range of remedies. These include: An October 13, 2017, motion seeking discovery and a bill of particulars;[FN3] an October 23 motion for dismissal on both speedy trial and Brady v. Maryland, 373 U.S. 83 (1963), grounds; a November 2, 2017, motion for "forensic testing of People's evidence"; a November 8, 2017, motion for discovery and a bill of particulars and forensic testing, along with a separately filed "entrapment notice," and; a November 21, 2017, motion for dismissal "with prejudice."

In connection with the 2017 docket, defendant filed the following pro se motions: an October 23, 2017, motion for speedy trial dismissal and various hearings; a November 2, 2017, alibi notice that also included a renewed motion for speedy trial dismissal, and; a November 27, 2017, motion to dismiss for facial insufficiency.

Finally, defendant filed two pro se motions addressed to both dockets: A November 21, 2017, motion for a stay of "all proceedings"; and a November 28, 2017, motion for recusal.

Significantly, not one of the defendant's numerous pro se motions filed in this Court before trial sought appointment of counsel.

IV. THE COURT FINDS THAT DEFENDANT HAS WAIVED COUNSEL, WARNS HIM OF THE DANGERS OF PROCEEDING PRO SE, AND GIVES HIM ONE FINAL ADJOURNMENT TO SECURE PRIVATE COUNSEL.

At a pretrial conference on September 28, 2017, defendant appeared with his retained attorney, Leon Jacobson. Mr. Jacobson moved to be relieved, however, explaining that he had been retained on a "limited" basis in connection with the CPL § 730 examination, and had not been retained to represent the defendant at trial. Transcript of September 28, 2017, at 2 - 3. Mr. Jacobson also remarked that he had not been paid for his work and that, in any event, the defendant had repudiated the retainer agreement, which had been entered into by a third party. Id. at 3. The Court granted Mr. Jacobson's motion to be relieved.

Turning to the defendant, the Court remarked that defendant had "cycled through" several different attorneys: The Legal Aid Society, NDS and Mr. Berkowitz (the 18-B attorney) and Mr. Jacobsen. Id. at 4. Noting that the case had been pending for "about a year and a half" and the defendant "continually seem[ed] to be dissatisfied with the attorneys that are either appointed by the Court, or those ... that you hired yourself," the Court found that the defendant was "waiving counsel." Id. at 4.

The Court also, based on its review of the court file, found that defendant's waiver was [*5]"knowing and voluntary." Id. The CJA Sheet reported an income of "$125,000 a year ... and suggest[ed that] the defendant is employed full time as a consultant." Id. The Court also noted that defendant had prepared "numerous cogent if not successful pro se filings both in this [C]ourt and in the Appellate Division." Id. at 5. Based on the "quality and nature of" the defendant's pro se "legal work" the Court was "persuade[d]" that his waiver of counsel was "both knowing and voluntary." Id. at 5. In making this ruling, the Court was also aware that defendant had been found "fit to proceed" after a CPL § 730 examination. Id.

Lastly, the Court strongly advised the defendant against continuing to represent himself: "[A]nyone who is charged with a crime is better off having a lawyer than being without one." Id. The court warned the defendant that "a person charged with a crime has a much greater likelihood of success in the case with a lawyer than without" one, and that this was true even though the defendant "seem[ed] to have some" legal skills. "[E]ven so, a lawyer would understand the rules of criminal procedure, the rules of evidence, which are particularly difficult in New York because they are not actually codified in one place." The Court stressed, "It would be better for you to have a lawyer than not." Id.

The Court ended the colloquy by warning the defendant of the "serious consequences" of a conviction - "up to one year in jail and a fine" on each count charging a class A misdemeanor. Id. at 5-6. "In addition, if you are not a United States citizen, any conviction could have negative immigration consequences including exclusion from the United States, denial of citizenship and deportation." Id. at 6. The Court again "strongly urge[d]" the defendant to "find your way to a retained lawyer who you can work with, who can help you," but that "at this point the choice is really yours." Id. The Court warned the defendant that it was going to set a "firm trial date" and that if the defendant did not "have a lawyer by then" he would have to continue to represent himself because "at this point you have waived counsel." Id.

The Court, after consulting with the parties, set December 4, 2017, as the trial date and told the defendant that this would give him "plenty of time to either bone up on the law ... or to hire an attorney you can work with, if that is what you choose." Id. at 15. The Court made it "perfectly clear" that the cases would be tried "that week. First the 2016 case ... then the 2017 case." Id. at 19. And the Court warned that the cases would go forward on December 4 whether defendant "show[]ed up on that date with a lawyer" or "without a lawyer." Id. "They are not going to be adjourned because you say you don't have a lawyer yet and need more time to hire one because I am giving you notice now that this is the time you have." Id.

V. DEFENDANT APPEARS FOR TRIAL WITHOUT COUNSEL

Defendant's trial on the 2016 docket commenced, as scheduled, on December 4, 2017. Defendant appeared pro se, and for the first time, applied for appointed counsel. Transcript of December 4, 2017, at 5. The Court, citing People v. Henriquez, 3 NY3d 210 (2004), denied the motion, concluding that, at this late stage, defendant was merely seeking to "delay things." Id. 10, 11. The trial commenced, and was continued until December 7; defendant renewed his request for counsel and the Court adhered to its ruling. On December 7, the Court found the defendant guilty of one count of disorderly conduct. The next day, the Court sentenced the defendant to time served and a $120 surcharge.

As for the 2017 docket, trial took place on December 8, 2017. The Court found the defendant not guilty of all counts.

VI. LEGAL ANALYSIS

This is a case where the defendant, who neither qualified for nor wanted appointed counsel - and who constructively fired his retained attorney - clearly waived his right to be represented by counsel at his trials. Moreover, that waiver was knowing and voluntary, and was accompanied by appropriate Faretta warnings. Faretta v. California, 422 U.S. 806 (1975); People v. Vivenzio, 62 NY2d 775 (1984).

A. Defendant Did not Qualify for Appointed Counsel

The first issue this Court had to confront in this case was defendant's ineligibility for court-appointed counsel. At defendant's arraignment and at two subsequent court appearances, the judge presiding determined that the defendant did not qualify for appointed counsel, and defendant did not protest. Judge Nock ratified this finding in a written order disposing of defendant's initial set of of pro se motions. Both The Legal Aid Society and an 18-B attorney appointed on an interim basis while defendant was supposedly looking for a retained attorney were relieved for this very reason.

Defendant never questioned these findings or requested court-appointed counsel during the pretrial stages of his case. He never asserted that the finding that he earned $125,000 per year was incorrect, and he repeatedly rejected the court's efforts to appoint counsel for him. He derided those court-appointed attorneys who had tried to help him as "spies" and "frauds," and was adamant in his assertion that he had "never made any application to Legal Aid, or the Court, or anybody for the appointment of counsel." Finally, the Court notes that the defendant did, for a period of months, have a retained attorney. That attorney began working with the defendant in June of 2017, while the defendant was in competency proceedings, and remained on the case until September 28, 2017, when he moved to be relieved.

This record, as a whole, solidly supports the findings of multiple judges that the defendant did not qualify for appointed counsel.

B. Defendant Waived Counsel

While of course the defendant has the right to counsel at every stage of the proceedings, "it is well established that a defendant may not manipulate the right to counsel for purposes of delaying and disrupting the trial." People v. Howell, 207 AD2d 412 (2d Dept. 1994). When it becomes apparent that a defendant is merely seeking to manipulate the court by toying with the right to counsel as a means of delaying the case, the Court is permitted to take appropriate action, even if it means forcing a defendant to proceed pro se. This can sometimes be the only means of advancing a case where the defendant is particularly recalcitrant.

One such case is People v. Garifo, 47 Misc 3d 136(A) (App. Term. 9th and 10th Dists. 2015). There, the court forced the defendant, who was represented by his third court-appointed attorney, to complete a trial pro se after he discharged that attorney at the close of the People's case. That court correctly recognized that defendant's actions were nothing more than a "dilatory tactic." Id. Another case where a similarly manipulative defendant was found to have waived counsel is People v. Best, 19 Misc 3d 561, 572 (Crim Ct Queens County 2008), where the court found that the defendant had forfeited his right to counsel based upon:

(a) defendant's repeated efforts to sabotage his relationships with each of the five attorneys who represented him ... , efforts which continued even after the Court warned defendant that his conduct would be deemed to be a forfeiture and a waiver of his right to [*6]counsel; (b) defendant's filing of a lawsuit against his third assigned attorney ... after his efforts to get that attorney relieved failed; (c) defendant's threat to file a complaint with the Grievance Committee against his fifth assigned attorney ... ; and (d) defendant's repeated manipulation and use of his right of self-representation and his right to assigned counsel as a dilatory tactic designed to delay the prosecution of these matters and to disrupt the orderly administration of justice.

See also People v. Henriquez, 3 NY3d 210 (2004) (defendants who "have refused self-representation and restricted the participation of counsel," have "voluntarily waived the right to the effective assistance of counsel"); United States v. Taylor, 933 F.2d 307, 311 (5th Cir.1991) ("A defendant is not entitled ... repeatedly to alternate his position on counsel in order to delay his trial or otherwise obstruct the orderly administration of justice.")

It is against this legal background that the Court found that the defendant had waived counsel. First, and most obviously, for the entire time his cases were pending - until the day of trial, in fact - defendant unequivocally wanted to represent himself. As noted above, he rejected and belittled his Legal Aid and 18-B attorney, and threatened to file a disciplinary complaint against NDS. He also repudiated the retainer agreement with his retained attorney. All through the preliminary stages of his cases he filed pro se motions, and he told one judge that he could "run my own case myself ... ." He even boasted to the 730 clinical examiner that he had done "relatively well" representing himself pro se in his 2016 case, and complained that he resented being "'forced' to have a lawyer" in his 2017 case.

Even then, however, although the Court remained persuaded that the defendant did not qualify for appointed counsel, it did not force the defendant to proceed pro se. Rather, on September 28, 2017, the Court carefully explained to the defendant the basis for its findings that he had, as of that date, waived his right to be represented by counsel. The Court then adjourned the case until December 4, a nearly ten-week adjournment, so that the defendant would have time either to change his mind and hire an attorney or prepare to try the case himself. The Court expressly warned the defendant that, whether he had an attorney or not on December 4, the trial would not by further delayed by the question of counsel.

Defendant did indeed appear pro se on December 4. While it is true that, at the very last minute, that is, on the day trial was to begin, defendant for the first time claimed that he was indigent and requested appointed counsel, the Court rejected that request for the transparent delay tactic that it obviously was. See, e.g. Meisler v. State, 321 P.3d 930 (Nev. 2014) (trial court is free to "deny a request to withdraw from self-representation when said request is made with an intent to delay or obstruct proceedings"). As the Court of Appeals has explained

absent exigent or compelling circumstances, a court may, in the exercise of its discretion, deny a defendant's request to substitute counsel made on the eve of or during trial if the defendant has been accorded a reasonable opportunity to retain counsel of his own choosing before that time. ... At this point, public policy considerations against delay become even stronger, and it is incumbent upon the defendant to demonstrate that the requested adjournment has been necessitated by forces beyond his control and is not simply a dilatory tactic.

People v. Arroyave, 49 NY2d 264, 271-72 (1980) (citations omitted).

Here, defendant's case presented no "exigent or compelling" circumstances. Defendant, [*7]who had been representing himself all along, learned some ten weeks before the trial began that the Court had found that he had waived counsel, and that the case would not be further adjourned over the question of counsel. Yet defendant neither sought appointed counsel from this Court nor hired a private attorney during that time. That he instead, on the day of trial, sought appointed counsel for the very first time was a clear indication that the application was merely a "dilatory tactic." Id.

This defendant did everything he could to obstruct the proceedings by, at times, rejecting appointed counsel and demanding the right to represent himself and then by, at other times, insisting that he did not wish to proceed pro se, toggling between the two options whenever he perceived that he might derive some tactical advantage from a change of position. Even given this difficult and manipulative behavior, the Court gave the defendant more than enough time to either hire an attorney or prepare to defend himself. The Court's s decision to proceed to trial on December 4, even though defendant was pro se, was accordingly fully supported by the record and the case law.

C. Defendant's Waiver of Counsel Was Knowing and Voluntary

The Court also took extra care to ensure that the defendant understood the risks involved in pro se representation. People v. McIntyre, 36 NY2d 10, 17 (1974) (for a waiver of counsel "to be effective, the trial court must be satisfied that it has been made competently, intelligently and voluntarily"). The Court's "searching inquiry" clearly made the defendant aware of the "dangers and disadvantages of proceeding without counsel," People v. Providence, 2 NY3d 579, 582 (2004), and the Court repeatedly explained to the defendant that he would be better off with an attorney than without one.

The Court explicitly warned the defendant that without counsel he: (1) faced a greater likelihood of conviction; (2) could be sentenced to up to one year in jail and a fine on each class A misdemeanor count; and (3) faced a range of negative immigration consequences if he was not a United Sates citizen. In addition, the Court made its decision only after comprehensively reviewing the defendant's past pro se court filings and noting that the defendant had been found fit to proceed after a CPL § 730 exam. This colloquy was accordingly more than adequate to ensure the validity of defendant's decision to proceed pro se. See, e.g., People v. Vivenzio, 62 NY2d 775 (1984); People v. Morrow, 143 AD3d 919 (2d Dept. 2016); People v. Malone, 119 AD3d 1352 (4th Dept. 2014); People v. Riddick, 299 AD2d 562 (2d Dept. 2002).

VII. CONCLUSION

To summarize: This Court, after carefully considering all of the available information and the relevant case law, held that defendant had waived counsel and that his waiver was knowing and voluntary. The Court urged the defendant to change his mind, and gave him ten weeks to find an attorney and prepare for trial. When, on the day trial was set to begin, defendant asked for appointed counsel, after having rejected three court-appointed attorneys earlier in the case, the Court recognized the application as a dilatory tactic and denied it.

Dated: December 21, 2017

New York County, New York

Steven M. Statsinger

Judge of the Criminal Court Footnotes

Footnote 1: This Court is entirely confident that none of the defendant's claims about NDS were true.

Footnote 2: This is confirmed by information contained in the 730 examination report. According to that document, both Mr. Jacobson and an associate, Eric Renfroe, discussed defendant's case with the clinical examiner. Defendant, on his part, told the examiner that before retaining Mr. Jacobson he was "pro se" in his 2016 case, and that things had gone "relatively well." He also reported resenting having been "'forced' to have a lawyer" - presumably a reference to NDS - in his 2017 case.

Footnote 3: Discovery had been provided to defendant in open court on September 28, 2017.