J. Hoffman Jr., Albany, for appellant.
M. Carney, District Attorney, Schenectady (Peter H. Willis of
counsel), for respondent.
Before: McCarthy, J.P., Garry, Lynch, Rose and Devine, JJ.
MEMORANDUM AND ORDER
from a judgment of the County Court of Schenectady County
(Catena, J.), rendered August 22, 2014, upon a verdict
convicting defendant of the crimes of burglary in the second
degree, robbery in the second degree, grand larceny in the
fourth degree, assault in the third degree, criminal mischief
in the fourth degree and endangering the welfare of a child.
was charged in a six-count indictment with burglary in the
second degree, robbery in the second degree, grand larceny in
the fourth degree, assault in the third degree, criminal
mischief in the fourth degree and endangering the welfare of
a child. The charges stemmed from an incident on September
19, 2013 during which defendant allegedly assaulted his
former paramour (hereinafer the victim) in the presence of
her one-year-old child, took her apartment key from her
person, and then entered and ransacked the apartment.
Following a jury trial, defendant was convicted as charged.
County Court sentenced him to concurrent prison terms, the
longest of which was 12 years, with five years of postrelease
supervision. Defendant appeals.
begin, we are unpersuaded by defendant's contention that
the verdict is not supported by the weight of the evidence.
There is no dispute that the incident evolved out of an
argument between defendant and the victim over a cell phone
that defendant provided to the victim that same day, which
she did not return. Accepting that a different result would
not have been unreasonable given their differing versions of
the event, "we consider the rational inferences that
could be drawn from the testimony presented and view such
testimony in a neutral light, giving due deference to the
jury's credibility determinations" (People v
Poulos, 144 A.D.3d 1389, 1390-1391 ; see
People v Danielson, 9 N.Y.3d 342, 348-349 ). As
charged here, "[b]urglary in the second degree requires
that the People prove that defendant knowingly entered or
remained unlawfully in a dwelling with intent to commit a
crime therein" (People v Womack, 143 A.D.3d
1171, 1171  [internal quotation marks, brackets and
citations omitted], lv denied 28 N.Y.3d 1151');">28 N.Y.3d 1151 ;
see People v Garcia, 131 A.D.3d 732, 733 ,
lv denied 27 N.Y.3d 997');">27 N.Y.3d 997 ; People v
Briggs, 129 A.D.3d 1201, 1202-1203 , lv
denied 26 N.Y.3d 1038');">26 N.Y.3d 1038 ). "[A] person is
guilty of robbery in the second degree when he [or she]
forcibly steals property and when... [i]n the course of the
commission of the crime or of immediate flight therefrom, he
[or she]... [c]auses physical injury to any person who is not
a participant in the crime" (Penal Law § 160.10 
[a]; accord People v Wilkerson, 140 A.D.3d 1297,
1301 , lv denied 28 N.Y.3d 938');">28 N.Y.3d 938 ;
People v Lawrence, 141 A.D.3d 828, 830 ,
lvs denied 28 N.Y.3d 1071, 1073 ). A person is
guilty of grand larceny in the fourth degree when he or she
steals property "from the person of another, "
regardless of its nature and value (Penal Law § 155.30
; see People v Colon, 24 A.D.3d 1114, 1115
, lv denied 6 N.Y.3d 811');">6 N.Y.3d 811 ).
relevant here, "[a] person is guilty of assault in the
third degree when[, ]... [w]ith intent to cause physical
injury to another person, he [or she] causes such injury to
such person or to a third person" (Penal Law §
120.00 ; see People v Haardt, 129 A.D.3d 1322,
1323 ; People v Peterson, 118 A.D.3d 1151,
1155 , lvs denied 24 N.Y.3d 1087');">24 N.Y.3d 1087 ).
"Physical injury includes the 'impairment of
physical condition or substantial pain'" (People
v Haardt, 129 A.D.3d at 1323, quoting Penal Law §
10.00 ). "A person is guilty of criminal mischief in
the fourth degree when, having no right to do so nor any
reasonable ground to believe that he or she has such right,
he or she... [i]ntentionally damages property of another
person" (Penal Law § 145.00 [a]; see People v
Wallender, 27 A.D.3d 955, 956 ). Finally,
"[a] person is guilty of endangering the welfare of a
child when... [h]e or she knowingly acts in a manner likely
to be injurious to the physical, mental or moral welfare of a
child less than seventeen years old" (Penal Law §
260.10 ; see People v Murrell, 148 A.D.3d 1296,
victim testified that she invited defendant to her apartment
to "hang out." During a walk, defendant stopped to
speak with another woman. The victim then asked to use
defendant's cell phone, and became upset after viewing
photographs stored on the phone. She then left the phone in a
separate area and returned to her apartment. Defendant then
returned seeking his phone and threatened to kill her if she
did not open the door. The victim came outside, locking the
door behind her, while holding the child. Defendant then
attacked and grabbed her, causing her to twist her ankle.
This altercation was witnessed by a neighbor, who offered to
and did take the child and then called 911. Defendant took
the key from the victim's person, and reentered and then
ransacked the apartment, apparently in an effort to find the
phone. The victim further testified that defendant punched
her in the face numerous times while inside the apartment.
After the police and paramedics arrived, the victim was taken
to the hospital and treated for various facial bruises.
Photographs of her injuries and the ransacked apartment were
received into evidence. Notably, one responding officer
testified that he stopped defendant, who matched the
neighbor's description, near the scene and asked for his
name. Defendant responded with a false name and ran away,
only to be apprehended a few blocks away. In addition, the
People introduced evidence of a phone call from prison in
which the caller identified himself as "Jesus, "
described the condition of the victim's apartment and
arranged to have the victim threatened. The victim identified
defendant as the caller and testified that she was threatened
the next day by three women at her door who were demanding
the phone, and the victim made a 911 call for protection,
which call was also played for the jury. Viewing the evidence
in a neutral light and deferring to the jury's
credibility assessments, we find that the weight of the
evidence readily supports the verdict for each conviction
(see People v Davis, 149 A.D.3d 1246, 1247 ;
People v Murrell, 148 A.D.3d at 1298; People v
Irby, 140 A.D.3d 1319, 1322 , lv denied
28 N.Y.3d 931');">28 N.Y.3d 931 ; People v Wilkerson, 140 A.D.3d
find, however, that County Court erred in denying
defendant's request to represent himself at trial. A
defendant may invoke the right to represent himself or
herself at trial "provided: (1) the request is
unequivocal and timely asserted, (2) there has been a knowing
and intelligent waiver of the right to counsel, and (3) the
defendant had not engaged in conduct which would prevent the
fair and orderly exploitation of the issues" (People
v McIntyre, 36 N.Y.2d 10, 17 ). At an apppearance
on May 19, 2014, defendant's counsel informed County
Court (Drago, J.) that defendant wanted to represent himself
at trial. The court duly inquired into defendant's
educational background, which included a GED earned in 2003,
and engaged in an extensive colloquy with defendant
emphasizing the importance of having counsel represent him.
During this exchange, when asked to explain his decision,
defendant gave the extraordinary response, "I don't
really have much explanation for it, just like I've been
making bad choices, why not continue." Defendant then
illogically acknowledged this was a bad choice on his part.
County Court understandably encouraged defendant to
reconsider his decision, and directed that a transcript of
the proceeding be provided to the trial judge who would make
the decision on the application.
the trial began on May 27, 2014, County Court (Catena, J.),
having reviewed the transcript, directly addressed the
representation issue with defendant. Defendant elaborated
that he had decided to represent himself because he had been
unrepresented for the "first seven months of
incarceration" and felt he had "a better chance of
representing [himself]." He continued, "So I feel
like nobody's going to fight for my life like I'm
going to fight for it." After confirming that assigned
counsel was prepared to go forward, County Court denied
defendant's request to proceed pro se, reasoning that it
would not be appropriate or a "wise choice" for
defendant to do so. As understandable as that reasoning is,
the issue is not whether defendant was making a prudent
decision, but whether he had the capacity to knowingly waive
his right to counsel (see People v Poulos, 144
A.D.3d at 1392; People v Hamilton, 133 A.D.3d 1090,
1094 ). While defendant's initial extraordinary
explanation raised a cause for concern, we conclude that his
confirmation at trial demonstrates that he knowingly and
unequivocally waived his right to counsel. Since defendant
was improperly denied the right to proceed pro se, the
judgment must be reversed and the matter remitted for a new
trial (see id.). As a result, defendant's
remaining contentions have been rendered academic.
McCarthy, J.P., Garry, Rose and Devine, JJ., concur.
that the judgment is reversed, on the law, and matter
remitted to the County Court of ...