Leah Friedman, for appellant.
Sheila O'Shea, for respondent.
The primary issue presented in this case is whether defendant's constitutional rights were violated by the trial court's failure to sua sponte inquire into his mental capacity to represent himself prior to granting his application to proceed pro se.
Defendant was tried on two counts of burglary after he twice trespassed into secure areas of a Hilton Hotel, on one occasion stealing a cell phone. At his jury trial, defendant expressed distrust of his lawyer and asked to proceed pro se. He indicated that he believed that his attorney did not have his "best interest at heart" and wanted to sell him out. He said that he did not want to put his life in anyone else's hands but preferred instead to represent himself and do "the best that I can on my own."
Over the course of two days, several lengthy colloquies ensued between the court, defendant and assigned counsel wherein the court repeatedly advised defendant of the perils of self-representation and attempted to persuade him to work with his assigned counsel. The case was adjourned to permit defendant to discuss the self-representation application with his attorney, who subsequently joined in defendant's request, explaining that there had been a breakdown in communication between he and his client and that defendant was "adamant" in his desire to proceed pro se. The court made one last attempt to convince defendant to permit defense counsel to continue his representation, to which defendant responded:
"Again, your Honor, with all due respect to you, you can call it paranoia or whatever, this system, I don't trust attorneys, lawyers, DAs. You have given me leeway, I see that you have given me more leeway than any judge that I had before, but I am scared. I don't want this to be my final chapter."
Noting that it was evident that defendant was an intelligent man, although lacking in legal training, the court ultimately granted his request to represent himself.
With defendant's consent, the court directed that assigned counsel remain available to defendant throughout the proceedings as stand-by counsel. Defendant represented himself through jury selection,  an opening statement and part of the cross-examination of the People's first witness. But he then advised the court that he was "nervous, " and wanted stand-by counsel to take over the defense, ending the period of pro se representation.
Defendant was convicted of two counts of burglary but acquitted of possession of burglar's tools. Sentencing was adjourned several times for reasons not apparent from the record. In the meantime, about two months after the trial concluded, a social worker hired by the defense to evaluate defendant for sentencing purposes sent a letter to the court identifying several mitigating circumstances in defendant's past, indicating that defendant had "developed a guarded, distrustful stance against the world" and also suggesting defendant might be suffering from an undiagnosed mental health problem.
Nine months later, the People advised the court that defendant's family members reported that he had developed some "psychiatric issues, " prompting the court to order a CPL 730.30 examination. When interviewed by psychiatric experts, defendant was found to be disoriented and downcast, and to be experiencing auditory hallucinations as well as "a complex delusional system about his food being poisoned in prison." He was diagnosed with psychotic disorder, not otherwise specified, or major depressive disorder with psychotic features, and determined not fit to proceed to sentencing. The court adopted the finding of incapacity in January 2010 but, after defendant was treated with medication, his condition improved and, in April 2010, he was determined to have recovered his competency.
In May 2010, defendant appeared for sentencing with the same assigned counsel. The People detailed defendant's 25-year-history of theft offenses, including seven prior felonies, asking the court to impose the maximum consecutive sentence of 15 years plus five years post-release supervision. Defense counsel emphasized defendant's abusive childhood and the fact that his thefts arose from his crack addiction and were non-violent, arguing that a sentence of concurrent terms of five years in prison, plus five years post-release supervision was appropriate. Despite the period of incompetency, defense counsel expressed no concern about defendant's present mental capacity, nor was any issue raised concerning defendant's mental competency during the trial. Defendant himself gave a lengthy personal statement in which he articulately described the depredations of his childhood and criticized the criminal justice system for its "policy of incarceration, " noting that he had spent much of his life in prison and had never received help transitioning to civilian life. The court sentenced defendant to concurrent terms of seven years in prison, plus five years post-release supervision, for each count.
On appeal to the Appellate Division, citing the Supreme Court's decision in Indiana v Edwards (554 U.S. 164 ), defendant argued for the first time that his constitutional right to counsel was violated when the trial court permitted him to proceed pro se without first having him examined to determine whether he met a "heightened" competency standard necessary for self-representation. The Appellate Division unanimously rejected this argument. First, the court distinguished Edwards, noting that there, unlike here, a state trial court had denied a criminal defendant's request to proceed pro se and the question was whether that denial violated his Sixth Amendment right to represent himself — an issue not presented here where defendant's pro se application was granted. Second, the First Department further concluded that the issue of whether the trial court abused its discretion in failing to assess defendant's mental competency prior to permitting him ...