When must a defendant invoke his or her right to proceed pro se in order for the request to be considered “timely”? In People v. Crespo (Ct. App. 10/16/2018) (4-3), the Court of Appeals held that a request to proceed pro se is timely if made “before the commencement of trial,” defined as before the start of jury selection. After the start of jury selection, the right to proceed pro se is “severely constricted,” but the trial court may grant such an application in its discretion. Judge Rivera authored a lengthy dissent, joined by Judges Fahey and Wilson.
(One interesting thing to note about this decision is that Judge Feinman took no part in the consideration of this case, presumably since he was on the First Department panel that decided the case. Justice Alan Scheinkman, Presiding Justice of the Appellate Division, Second Department, sat by designation, most likely because the six Court of Appeals judges would otherwise have been evenly split.)
On January 21, 2013, the defendant stabbed the victim after a physical altercation and was arrested while fleeing the scene. He was charged with Attempted Murder 2º, Assault 1º, and CPW 3º.
On October 17, 2014, after a suppression hearing, defendant’s assigned counsel told the court that defendant wanted new counsel and that if new counsel was not assigned, defendant did not wish to be present at trial. The Court advised the defendant that if he absented himself, the trial would go forward without him. Defendant again expressed his dissatisfaction with his counsel, stated that he would not speak to him, and refused to come to court.
The court adjourned to the following week for “the first stage the trial” – jury selection. At that appearance, defense counsel asked to be relieved because the defendant refused to speak with him. The Court denied the request and had the defendant produced to explain to him his right to be present at trial. The Court adjourned so that the defendant could confer with counsel, but he refused to do so.
On October 23, 2014, jury selection began in defendant’s absence, and eleven jurors were selected and sworn. The following day, October 24, the defendant voluntarily appeared and asked if he could proceed pro se. The Court rejected the defendant’s request, stating that it was “too late to make that request now in the middle of trial.” The defendant was then excluded from the courtroom because he indicated that he would be disruptive, and jury selection was completed in his absence.
The defendant voluntarily absented himself from his trial, opting to remain in his cell each day. The jury convicted the defendant of Assault 1º and CPW 3º, but acquitted him of Attempted Murder 2º.
The Appellate Division, First Department, reversed and remanded for a new trial. The First Department relied on People v. McIntyre (Ct. App. 1974) and held that the defendant’s request to proceed was timely because it was made before opening statements. The First Department found that the trial court violated defendant’s right to represent himself by summarily denying defendant’s timely requests without ascertaining whether they were knowingly or intelligently made. A Judge of the Court of Appeals granted the People leave to appeal and the Court reversed.
In McIntyre, which is discussed at length in both opinions, the Court of Appeals held that a request to proceed pro se is timely when made before the trial commences. This line was established because before trial begins, the Court can conduct a thorough inquiry into whether the defendant’s waiver of the right to counsel was knowing and voluntary without significant delay or confusion in the trial proceedings.
However, the Court pointed out that while McIntyre was decided in 1974, the defendant in that case was convicted in 1971 when the Code of Criminal Procedure was still operant. The Code of Criminal Procedure stated that trial began with opening statements and did not include jury selection. The Criminal Procedure Law, effective from September 1971, provides that “[a] jury trial commences with the selection of the jury and includes all further proceedings through the rendition of a verdict” (CPL 1.20 ). In addition, CPL 260.30, which sets forth the order of a jury trial, lists the selection and swearing of the jury as the initial stage of the trial (CPL 260.30 ). Under the CPL, a nonjury trial “commences with the first opening address” (CPL 1.20 ). The Court reasoned that the Legislature clearly defined a jury trial in the CPL as commencing with jury selection, not with the first opening address.
The Court noted that this definition is consistent with the Court’s precedents, including People v. Antommarchi, in which the Court held that the defendant’s right to be present at materials stages of the trial is violated by the defendant’s absence during voir dire, and People v. Fraser, in which the Court held that a defendant who absents himself from trial after jury selection has absconded after the trial has begun and forfeited the right to be present during trial.
The Court summarily rejected the defendant’s argument that the entire jury must be selected and sworn before the trial is deemed to have commenced. The Court relied on the principle that courts must interpret statutes “so as to avoid an unreasonable or absurd application of the law.” Adopting a rigid, textualist argument, the Court stated that the CPL’s language is clear: “CPL 1.20 (11) states that the jury trial commences with — not after — the selection of the jury.”
Finally, the Court noted that its new rule is consistent with federal case law from both the Supreme Court and the Second Circuit, which treat requests to proceed pro se made after the start of jury selection as untimely.
In dissent, Judge Rivera argued that basic principles of stare decisis should lead to the conclusion that requests to proceed pro se are timely if made prior to the start of opening statements. Judge Rivera argued that McIntyre provided a workable standard for over forty years. Applying the principles of stare decisis, Judge Rivera argued that the McIntyre bright-line rule has not proved unworkable or created more questions than it resolved, and logic and experience have not shown that it fails to serve the ends of justice. Moreover, Judge Rivera argued that stare decisis principles apply even more strongly in criminal cases where the existing rule benefits defendants and a change in the law would operate to the defendant’s detriment.
Judge Rivera countered the textualist argument put forth by the majority, and noted that in People v. Ayala (1990), the Court of Appeals relied on the CPL definition of when a jury trial commences to hold that a jury trial begins only after the jury is sworn. Judge Rivera argued that this holding is consistent with McIntyre. A jury trial begins after the jury is sworn and before the start of opening statements. Therefore, a request to proceed pro se made after the start of jury selection, but before the jury is empaneled and sworn, is timely.
Judge Rivera also cited two cases in which the Court of Appeals recognized as timely defendants’ requests to proceed pro se interposed after the start of jury selection. Further, she argued that it was not clear that the new rule is any less disruptive than McIntyre‘s bright-line rule, and that it is not clear that disruption due to requests to proceed pro se during jury selection is an actual problem facing New York courts.
Judge Rivera concluded by echoing the opening of the majority opinion, and emphasized the historical importance of the right to self-representation as an embodiment of “one of the most cherished ideals of our culture[:] the right of an individual to determine [that individual’s] own destiny.” (BD/LC)