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PIZARRO v. HARRIS

February 2, 1981

Gino PIZARRO, Petitioner,
v.
David R. HARRIS, Superintendent, Green Haven Correctional Facility, Respondent, and The Attorney General of the State of New York, Additional Respondent



The opinion of the court was delivered by: OWEN

MEMORANDUM AND ORDER

Gino Pizarro filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. On March 5, 1976, petitioner was convicted of first and second degree robbery after a jury trial in New York State Supreme Court, Bronx County. He was sentenced as a predicate felon to concurrent, indeterminate sentences of twelve and one-half to twenty-five years and seven and one-half to fifteen years. An unsuccessful appeal was taken to the Appellate Division, First Department, and leave to appeal to the Court of Appeals was denied.

 Pizarro then filed this petition, and following this court's preliminary consideration of his claims, respondent was ordered to file an answer. Pizarro v. Harris, 80 Civ. 144 (S.D.N.Y. Mar. 14, 1980). Petitioner claims that his convictions were constitutionally invalid because he was deprived of his sixth amendment right to effective assistance of counsel. For the reasons stated below, the petition is dismissed.

 On May 2, 1975, Joseph Balayty, a seventy-six year-old jeweler, was assaulted and robbed in the lobby of his apartment building. The assailant reportedly disarmed Balayty, threatened him with his own gun, and then stole his wallet, check book, watch, money, money clip and ring. Petitioner was arrested on May 9, 1975, and Balayty and Reuben Cardona, the building superintendent who responded to Balayty's cries of help, independently identified him as Mr. Balayty's assailant.

 Prior to petitioner's trial, Justice Quinn of New York State Supreme Court, held a Wade hearing to determine the validity of the photographic identification procedure used by the police. The court appointed Stanley Green to be Pizarro's counsel. Justice Quinn found that the identification procedure used to establish petitioner as Balayty's assailant was not constitutionally defective and he refused to suppress this evidence.

 At a jury trial before Justice Joseph Sullivan Pizarro was again represented by Green. The trial record reveals that shortly after jury selection had begun, petitioner, with the aid of a Spanish interpreter, made the first of several attempts to have Mr. Green replaced as his court appointed counsel. Justice Sullivan denied the application, expressing his dissatisfaction with petitioner's explanation for this request. *fn1" Pizarro continued to protest that he did not want Green to act as his counsel and directed Green not to participate in the trial. For the remainder of the trial, Green obeyed his client's instructions and did not act on petitioner's behalf. Nonetheless, in accordance with the court's directions, Mr. Green remained at Pizarro's side throughout the trial, ready to assist petitioner should he be called on to do so. As the trial record shows, petitioner was informed of his right to proceed pro se, but he made clear that he did not wish to defend himself:

 
THE DEFENDANT (THROUGH INTERPRETER): I want another lawyer. I don't want Mr. Green defending me no more.
 
THE COURT: Mr. Green is following the directions and he will not defend you but at my insistence, direction, Mr. Green, will remain in the courtroom at the counsel table.
 
THE DEFENDANT (THROUGH INTERPRETER): I don't want Mr. Green to represent me. I want another lawyer.
 
THE COURT: I won't give you another lawyer. We made a record. That's it.
 
THE DEFENDANT (THROUGH INTERPRETER): I don't want nothing to do with Mr. Green
 
THE DEFENDANT (THROUGH INTERPRETER): I want a good lawyer at my right side.
 
THE COURT: Do you want to represent yourself?
 
THE DEFENDANT (THROUGH INTERPRETER): I can't do it. I don't know anything about the law. I don't want Mr. ...

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