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BROWN v. SMITH

April 24, 1979

John BROWN, Petitioner,
v.
Harold J. SMITH, Warden, Attica Correctional Facility, Respondent



The opinion of the court was delivered by: KNAPP

MEMORANDUM AND ORDER

On November 19, 1975 petitioner John Brown was convicted of assault in the first degree and sentenced to an indeterminate term of imprisonment no greater than fifteen years and no less than seven and one-half years. His conviction was unanimously affirmed by the Appellate Division, First Department, on December 15, 1977. Leave to appeal to the New York Court of Appeals was denied January 26, 1978.

 In this petition for a writ of habeas corpus five claims are presented: 1) Petitioner was denied due process of law in that his decision to waive his right to counsel and to proceed pro se was neither knowingly nor intelligently made. 2) Petitioner was deprived of effective assistance of counsel. 3) The verdict was against the weight of the evidence. 4) The trial court committed reversible error in failing to comply with the jury's request to read testimony. 5) Petitioner, while conducting his own defense, was denied effective assistance of counsel.

 We find that petitioner's decision to proceed pro se was neither knowingly nor intelligently made, and therefore we need not consider his other claims, but must sustain the writ on that ground alone.

 The Facts

 On January 9, 1975, the Grand Jury of Bronx County filed an indictment against petitioner for the crimes of attempted murder in the second degree, assault in the first degree and criminal possession of a weapon in the second degree. On May 6, 1975, a Wade hearing was held on the petitioner's motion to preclude complainant Anthony Wingate from making an in-court identification at trial based upon allegedly suggestive pre-trial photo identification procedure. Petitioner conducted the Wade hearing Pro se, but there is no contention that the Justice presiding made any attempt to question or advise the petitioner about the hazards of representing himself.

 On October 1, 1975, when petitioner's trial was scheduled to begin, Alvin Morris, Esq., his court-appointed attorney, opened the proceedings by asserting that the petitioner had notified him upon his arrival at court that morning that he did not wish Mr. Morris to represent him, but rather had decided to appear Pro se. The Court, upon learning of petitioner's decision to conduct his own defense, engaged in the following colloquy with him:

 
"The Court: Mr. Brown (petitioner) it is your wish to represent yourself?
 
Mr. Brown: That's right, sir.
 
The Court: Are you familiar with judicial or court proceedings?
 
Mr. Brown: I believe I am to a certain extent. That's why I asked that the Court assign another attorney to advise me as I go along.
 
The Court: Have you been subject to other proceedings in the past?
 
Mr. Brown: Have I been subject . . .
 
The Court: Yeah, have you ...

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