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The People of the State of New York v. Robert Brown

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


December 27, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ROBERT BROWN,
APPELLANT.

Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Gene Lopez, J.), rendered December 10, 2008.

People v Brown (Robert)

Decided on December 27, 2011

Appellate Term, Second Department

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ

The judgment convicted defendant, after a non-jury trial, of attempted assault in the third degree and harassment in the second degree.

ORDERED that the judgment of conviction is affirmed.

Defendant was working as an attendant on a school bus. After the end of the afternoon route, there was a dispute over where the bus driver, a co-worker, would permit defendant to exit the bus. As the bus was being driven on a highway, defendant grabbed the wheel, causing the bus to swerve, and eventually, when the bus came to a stop, pulled the ignition key out of the lock. The major factual issue at trial was whether defendant also punched the driver. After a non-jury trial, defendant was convicted of attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]) and harassment in the second degree (Penal Law § 240.26 [1]).

The right to represent oneself in a criminal proceeding, while recognized in the federal and New York State Constitutions and by statute (see US Const Amend VI; NY Const, art I, § 6; CPL 210.15 [5]; Faretta v California, 422 US 806 [1975]; People v McIntyre, 36 NY2d 10 [1974]), is not unlimited. Where, as here, a request to proceed pro se is made after the commencement of a trial, the trial court must exercise its discretion and grant the request only under compelling circumstances (see Matter of Kathleen K. [Steven K.], 17 NY3d 380, 387 [2011]; People v Bell, 234 AD2d 378 [1996]). In addition, such a request must be unequivocal, and is not considered to be so where it is made in response to frustration with current counsel (see People v Chicherchia, 86 AD3d 953 [2011]; People v Rainey, 240 AD2d 682 [1997]). The Criminal Court's denial of the motion was justified on the basis of both untimeliness and equivocation, and did not violate defendant's rights.

To the extent that defendant now contends that the evidence of guilt was legally insufficient, his claims are not preserved (see People v Rivera, 74 AD3d 993 [2010]). In any event, viewing the evidencein the light most favorable to the People (see People v Hawkins, 11 NY3d 484, 493 [2008]), we find that it was legally sufficientto sustain defendant's conviction of both counts. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 347 [2007]), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor and assess their credibility (see People v Lane, 7 NY3d 888, 890 [2006]; People v Bleakley, 69 NY2d 490, 495 [1986]). Upon a review of the record, we are satisfied that the verdict was not against the weight of the evidence with respect to either of the counts.

Accordingly, the judgment of conviction is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.

Decision Date: December 27, 2011

20111227

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