People v McNeill

[*1] People v McNeill 2007 NY Slip Op 51937(U) [17 Misc 3d 1112(A)] Decided on October 12, 2007 Criminal Court Of The City Of New York, Kings County Nadelson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 12, 2007
Criminal Court of the City of New York, Kings County

The People of the State of New York

against

Fitzroy McNeill, Defendant.



2006KNO47313



For the People: ADA Unknown

For the Defendant:

Robert Mullagan, Esq. (Docket 2006KNO47313 only)

Alison Hart, Esq.

Eileen N. Nadelson, J.

Defendant moves to dismiss his assigned counsels and proceed pro se in the instant matters.

Defendant was charged on the earliest docket with Criminal Possession of a Controlled Substance in the Seventh Degree (PL 220.03). On Docket 2007KNO03287 Defendant was charged with Criminal Contempt of an order of protection (PL 215.50(3) issued by the court on a different case which has previously been disposed of and is therefore not subject to this motion. Finally, on the most recent docket, Defendant was charged with Possession of Knives or Instruments with Blades in Excess of Four Inches (AC 10-133(B), Menacing in the Second Degree (PL 120.14(1), Menacing in the Third Degree (PL 120.15), Harassment in the Second Degree (PL 240.26(1), and Criminal Possession of a Weapon in the Fourth Degree (PL 265.01(2).

Bail was set at arraignment and Defendant could not meet the bail requirements and has been in custody since that time. The People were ready to proceed with trial on one of the dockets, but Defendant then made the instant oral motion to have his assigned counsel dismissed so that he could proceed pro se. The basis for Defendant's request was that he did not believe that his counsel was working expeditiously enough and that he should have his bail reduced so that he could get out of jail. Defendant maintained that because he was innocent he could provide [*2]

himself with more effective representation than counsel could.

As this court stated in People v. Y.A., 2006 NY Slip Op. 509995(U) (Crim. Ct. Kings County 2006), the right to counsel is deeply ingrained in the common law as well as in the New York State Constitution and the New York State Criminal Procedure Law. NY Const., art I, sec. 6; CPL 170.10. However, before this right may be granted, the court must make a "searching inquiry" into a defendant's age, education, occupation and previous exposure to legal proceedings. People v. Arroyo, 98 NY2d 101, 745 NYS2d 796 (2002); People v. McIntyre, 36 NY2d 10, 364 NYS2d 873 (1974). As a consequence, the court asked Defendant a series of questions to determine whether he would be capable of representing himself and whether such self-representation would be in his best interests. The questions elicited the following responses:

Defendant is 34-years old, holds an associate's degree in Building

Maintenance Technology and has worked in the building maintenance

area. Prior to the instant charges, Defendant was involved with the

criminal justice system three times, having been charged with

Possession of a Controlled Substance, Murder, and Assault.

When asked whether he knew the nature of the charges in the instant matters, Defendant said that he was "not aware what the charges are because I haven't had the proper consultation with my attorney." (Tr. 11). He further stated that he did not know the present status of those charges or that some of the matters were on the calendar for discovery (Tr. 12).

In reply to the court's question as to what his role as an attorney would be, Defendant stated that his role "would be to put the People to prove beyond a reasonable doubt so that I can be exonerated." (Tr. 14). However, he went on to say that he has never represented himself in the past and that he lacks experience to examine witnesses. (Tr. 14). The court inquired whether he would be willing to work with assigned counsel, but Defendant vehemently stated that he would not and that he would be better off representing himself. (Tr. 15). Defendant maintained that the attorneys were only prolonging his incarceration and that he did not see why there had to be so many adjournments. At this point Defendant requested that he be released on his own recognizance because he could not make the bail that was set and his being kept in jail was a violation of due process. (TR 18-19). Defendant alleged that he should be released because he was innocent and there was no injury to the complaining witness. When asked about changed circumstances that would permit the court to reconsider bail, Defendant continued to maintain the position that he should be released because he wasn't guilty. (TR 21).

Defendant continued to assert that he was being denied a speedy trial, but did not seem to understand that the instant motion would require a decision which would cause additional delay. (TR 41-46). It also appeared that Defendant was only asking to proceed pro se on the two most [*3]recent dockets and wanted to retain assigned counsel for the earlier drug charge. When it was pointed out to him that it is inconsistent for him to allege that he could represent himself on some matters but not others, Defendant relinquished his request for counsel on the drug charge and asked to continue pro se on all the charges. The matter was then adjourned for the court's decision.

In People v. Rodriguez, 98 AD2d 961, 470 NYS2d 64 (4th Dept. 1983), a criminal defendant requested to have his assigned counsel dismissed because he was not happy with the representation. New counsel was assigned, and the defendant requested that the substitute attorney also be dismissed, and indicated that he wished to represent himself. The trial court denied his request, but did permit the defendant to assume some responsibility by asking questions of prospective jurors, examining witnesses after they had been questioned by the assigned counsel, calling his own witnesses, and making his own summation after the attorney had made his. The court permitted such participation because the defendant expressed a willingness to act with counsel. The appellate court affirmed these rulings, indicating that the defendant's lack of experience and ability in courtroom proceedings would have made it error to grant his request either to dismiss counsel or to permit him to act pro se. Nevertheless, the court noted that, although not raised by the defendant, there was no error in law in allowing a defendant to participate in his own defense; the court, in its discretion, has the ability to permit participation by a defendant to the extent it finds appropriate. Id. See also, People v. Powell, 98 Misc 2d 460, 414 NYS2d 91 (Crim. Ct. Kings County 1979). Additionally, the court also has it within its power to permit a defendant to proceed pro se but to have assigned counsel available throughout a trial to offer legal assistance. People v. Wright, 192 AD2d 875, 596 NYS2d 809 (3d Dept. 1993).

In such matters as are presented by the instant motion, the court must weigh the Constitutional right of a defendant to represent himself against the avenues best suited to protect all of his other Constitutional guarantees. It is the obligation of the court to assure that a criminal defendant is provided with the best representation possible, wherever and however that representation may be found. The right to counsel becomes one of critical concern for the court where it can be shown by proper examination that a defendant's rights could not be fairly protected without an attorney. People v. Amos, 21 AD2d 80, 249 NYS2d 740 (4th Dept. 1964)(case involved whether the accused knowingly and intelligently waived his right to counsel).

In the instant matter, although Defendant is articulate and possesses a rudimentary understanding of the judicial process, the court feels that it would be in his best interests if assigned counsel were retained. The court believes that Defendant is insufficiently aware of the legal nuances that are present in a criminal proceeding and this lack of knowledge might compromise important Constitutional rights which he would, by acting pro se, be unable to protect. Further, since Defendant adamantly refused to allow counsel to assist him, the court feels, in the exercise of its discretion, that it would be futile to allow Defendant to participate in his representation as was done in Rodriguez, where that defendant was willing to be assisted by counsel. [*4]

Therefore, for the reasons stated above, the court denies Defendant's motion.

Dated: October 12, 2007

__________________________

Eileen N. Nadelson, J.C.C.